Federal Court Upholds Anonymous Speech on Internet

News Release: 
Friday, November 20, 2009

In a precedent-setting ruling on free speech in cyberspace, a federal court in Seattle today upheld the right to speak anonymously on the Internet. U.S. District Court Judge Thomas Zilly quashed a subpoena seeking to force an Internet service to disclose the identity of persons who spoke anonymously on an Internet message board. The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) represented J. Doe, one of the anonymous speakers, in blocking the subpoena.

The subpoena was filed by 2TheMart.com, Inc., which is currently defending itself against a class-action lawsuit alleging the company engaged in securities fraud. The subpoena requested that InfoSpace turn over the identities of 23 speakers who used pseudonyms in participating on the Silicon Investor Web site owned by InfoSpace.

The ruling is the first of its kind nationally in a case involving anonymous speech by a third party. The case differs from many other Internet anonymity cases because J. Doe, who used the pseudonym "NoGuano," is not a party to the case, and no allegations of liability against Doe have been made. While Doe does maintain a Silicon Investor account, Doe never made any statements about 2TheMart, nor has Doe ever posted on Silicon Investor's 2TheMart message board.

"This is an important ruling for free speech on the Internet. The court recognized that you should be able to express opinions online without having to worry that your privacy will be invaded because of a lawsuit that has nothing to do with you," said Aaron Caplan, staff attorney for the American Civil Liberties Union, an organization with an 80-year history of defending freedom of speech. "You have the right to speak anonymously on an Internet bulletin board just as you have the right to distribute a leaflet using a pseudonym," added Caplan. Caplan argued the case on behalf of J. Doe before the court.

"By ruling for Doe, Judge Zilly has sent a clear message that the courts will not tolerate lawsuits designed to chill online speech," said Lauren Gelman, director of public policy for the Electronic Frontier Foundation, a civil liberties organization working to protect rights in the digital world. "We hope that this decision will force companies to think twice before they issue subpoenas, and encourage users to step forward and protect their rights if they receive a subpoena."

The ACLU and EFF argued that the Court should adopt the same test currently used to determine whether to compel identification of anonymous sources of journalists or members of private organizations. Under that test, the Court must first determine whether the person seeking the protected private information (in this case 2TheMart.com) has a genuine need for the information in the context of the case and cannot discover the information any other way. If so, the Court must then balance the harm to the anonymous speakers against the plaintiff's need to discover the identity of the speaker. Anonymity should be preserved unless the identity of the anonymous person is clearly shown to be of central importance to the case. In his ruling, Judge Zilly said that the information sought by the subpoena clearly was not central to the case of 2TheMart.com.

2TheMart.com was a fledgling company that intended to launch an online auction house. After its stock price plunged in 1999, a number of investors sued for securities fraud, alleging that the company had misled them about its prospects. Like many Internet start-ups, 2TheMart.com had a number of people who chatted about the company on investor-related bulletin boards. One of these bulletin boards was operated by Silicon Investor, a Web site now owned by Seattle-based InfoSpace. The postings were made under 23 different user names, including "The Truthseeker," "Edelweiss," and "NoGuano."

J. Doe was represented by ACLU staff attorney Aaron Caplan and Cindy Cohn, legal director for EFF. InfoSpace also submitted a brief supporting the right of its users to speak anonymously, and Brent Snyder of Perkins Coie argued the case before Judge Zilly on behalf of InfoSpace.

The briefs may be found at the EFF Web site at https://www.eff.org/ and the ACLU Web site at https://aclu-wa.org. An opinion will be published in the case and will be posted on the Web sites when it is available.