CyberSLAPP Suits and John Doe Subpoenas: Balancing Anonymity and Accountability in Cyberspace

Abstract

Lawyers in so-called "cyberSLAPP" lawsuits frequently subpoena Internet Service Provider ("ISP") records to expose the authors of anonymous Internet postings. This trend pits two legitimate interests against one another. The anonymous poster -- John Doe -- claims a First Amendment right to participate anonymously in public debate. On the other hand, companies want John Doe held accountable when his postings harm them.

Current law favors accountability at the expense of anonymity. John Doe often receives no meaningful notice before his ISP discloses his identity to the very company from whom he wanted to remain anonymous. Additionally, existing law allows a cyberSLAPP plaintiff to pierce John Doe's anonymity at the outset of the case, with no judicial oversight to determine whether the plaintiff has a substantial claim.

This article proposes an amendment to the Electronic Communications Privacy Act ("ECPA") to restore the balance between anonymity and accountability. The amendment ensures that before the ISP discloses John Doe's identity, John Doe will have had notice and an opportunity to appear through counsel at a hearing where a court reviews the subpoena. The amendment also requires a judicial finding that the plaintiff has sufficient evidence to prove a prima facie case and that the plaintiff's need for John Doe's identity outweighs John Doe's interest in anonymity. This careful judicial review will prevent the needless intrusion on John Doe's First Amendment interest in anonymity, while preserving a remedy for those legitimately harmed by anonymous online speech.

Keywords: Privacy, CyberSLAPP, Anonymity, John Doe

JEL Classification: K00, K29, K41