Freedom, Hardest Thing To Defend
Posted 1st march 2001

As New Zealanders wake up - slowly - to the Swain Internet trawling and cracking bill, US based free-speech fighters battle on. The principles are: 1. Freedom is the only thing really worth fighting for 2. Anything is rendered worthless if it is not defended. In a case involving free speech and privacy rights online, the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) today asked a federal court in Washington to quash a subpoena that would force an Internet service to disclose the identity of a person who spoke anonymously on an Internet bulletin board. The ACLU and EFF are representing J. Doe in seeking to block a subpoena by 2TheMart.com, Inc., which is currently defending itself against a class-action lawsuit alleging the company engaged in securities fraud. The subpoena requests InfoSpace turn over the identities of 23 speakers who used pseudonyms in participating on the Silicon Investor Web site owned by InfoSpace. The motion to quash the subpoena was filed in U.S. District Court in Seattle.

This 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. "If the courts don't establish a standard for the issuance of subpoenas in cases where the anonymous speaker is not a party, every party in every civil action could start subpoenaing the identities of online speakers in the desperate hope of finding something useful for their case," said Lauren Gelman, director of public policy for the Electronic Frontier Foundation, a civil liberties organization working to protect rights in the digital world. "The courts should not allow subpoenas to be used for 'fishing expeditions' when individuals' First Amendment rights are at stake.

The chilling effect on free speech would be catastrophic. "People commonly use pseudonyms when speaking on the Internet. This promotes a diversity of viewpoints in cyberspace. The right to speak anonymously on an Internet bulletin board should be upheld just as is the right to distribute a leaflet using a pseudonym," said Aaron Caplan, staff attorney for the American Civil Liberties Union, an organization with an 80-year history of defending freedom of speech. In their brief filed today, the ACLU and EFF argue 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. 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." .