James D. Griffith, CLA
Imagine this scenario: One of your firm's clients is a small but publicly-traded technology company. One day, your supervising attorney gets a frantic telephone call from the chief executive officer of this company. The chief executive states that an unidentified individual using the online name "Info-Man" is posting false and defamatory comments on a public bulletin board that is part of the Yahoo! website. In these postings, it is clear that Info-Man may have access to internal corporate financial information and states that professional level technical staff are leaving "in droves." Info-Man also calls the chief executive a "blundering idiot" who is driving the company into the ground and knowingly selling defective products.
In this scenario, the chief executive is calling to complain about an unknown individual who has created an anonymous identity that allows him or her to post comments on an online bulletin board. Virtually anyone with an e-mail account can set up an online identity with a bulletin board such as that maintained by Yahoo!, Raging Bull, Silicon Investor and several other websites.
Certain information, such as an e-mail address, may be required to establish the online identity, but that does not guarantee the information given is accurate or correct. Although these services establish and post terms of service and policies that do not guarantee privacy and anonymity where the use of the service is fraudulent or illegal, anonymity is usually maintained because the online service is statutorily protected from liability, thereby removing any incentive for the online service to screen or monitor the bulletin boards.
As numerous recent newspaper articles have suggested, this scenario is becoming increasingly common and publicly-traded companies are responding by filing lawsuits against John and Jane Doe defendants. Typically, once the suit is filed, the company obtains a subpoena against the online service seeking the identity of the individual posting the anonymous messages.
Despite the objections of civil rights groups such as the American Civil Liberties Union and Electronic Frontier Foundation, publicly-traded corporations have generally been successful in stopping individuals who otherwise would continue posting objectionable and even libelous messages on public bulletin boards.
WHO IS INFO-MAN?
According to Bruce D. Fischman, a Miami, Florida attorney with the law firm of Fischman, Harvey & Dutton, P.A., the anonymous message poster usually falls into one of the following categories: Current or former employee, competitor, stock manipulator, past or present shareholder, recreational Internet user, and other individual who may pose a threat to the security or reputation of the company.
Where the anonymous individual is a current or former employee, the corporation may need to seek enforcement of contractual and/or confidentiality provisions undertaken by the employee. It may also constitute a breach of duty of loyalty owed to the company and even constitute trade libel. An employee making critical comments may also reveal proprietary or confidential information in violation of SEC regulations. Even if the information is positive, the disclosure may create SEC violations for the employer. Depending on the nature of the comments, a company may find it necessary to prevent further messages from being posted in order to protect its human resources and intellectual property, to guard against the stealthy attacks of a competitor, and to prevent unwarranted and unnecessary SEC investigations.
Where the anonymous individual makes sensational and unsubstantiated claims about a company whose stock price is low, the messages may be intended to generate interest in the company's stock. When the stock price subsequently rises, the anonymous individual will then sell the stock at a profit. This illegal and artificial manipulation of the stock price is known as a "pump and dump" scam.
All of the above possibilities can create significant legal problems for a publicly-traded company. Given that the anonymous individual's true identity is unknown, however, there may be little the company can do without unmasking the anonymous individual, or at least attempting to do so. The result has been the recent spate lawsuits against unknown and unidentified individuals using an online non de plume.
HOW DOES ONE UNMASK INFO-MAN?
The publicly-traded company may begin by communicating directly with service that maintains the bulletin board. This rarely leads to the identity of the anonymous individual. The online service has no reason to believe the company is serious until it is served as a party to the lawsuit or with a subpoena. Under the Communications Decency Act of 1996, federal statute protects these online service providers from liability for the actions and statements of end-users, eliminating any incentive to cooperate.
Typically, a complaint is filed against the unknown individual who is identified either as John or Jane Doe or by the individual's online name. The online service is either named as an additional defendant or served with a subpoena. The result, however, often provides some degree of notice to the anonymous user. The online service usually resist, citing its obligation to protect the identity of the anonymous end-user. It often takes an order from the court before the online service complies and even then the service will insist that the order require some e-mail or other notification to the anonymous user. If the user does not respond, making his or her identity known, then the online service will disclose the information.
This notice to the anonymous user may prevent the posting of any further messages, but the company still does not know the identity of the anonymous message poster. The information disclosed by the online service often does not reveal anything that identifies the individual. It could only provide an e-mail address and an IP address. Further, the e-mail address could simply be a free (and anonymous) e-mail account offered by some other online service and the IP address may only narrow the search to an Internet service provider or possibly a corporate network.
Even if the unknown person stops posting messages on the bulletin board, the company may still want to reveal the identity of the anonymous individual, especially if that person is thought to be an employee or former employee. Another subpoena is then called for, this time against the service that maintains the e-mail account for the unknown individual. Again, there is no guarantee that the information disclosed by the e-mail provider will be valid and accurate information because the registrant for the e-mail account gave patently false information. For example, Info-Man might give a first name of "Man_of" and a last name of "Information."
It may take several steps, multiple subpoenas, and the assistance of a computer consultant, but eventually the identity of the anonymous individual will be discovered. In the meantime, at least some anonymous individuals have chosen to wage a legal battle over the right to remain anonymous.
THE LEGAL ISSUE
There is a well-established legal issue involved. After all, free speech is protected under the First Amendment. Critics of these lawsuits, such as the ACLU, the Electronic Frontier Foundation and Public Citizen, argue that the efforts of these companies and the lawsuits they maintain go too far, even where the unknown individual turns out to be an errant employee. They argue that the First Amendment protects the right to speak anonymously, that the Internet has created a new marketplace of ideas that has yet to find its potential, and that publicly-traded companies are squelching online speech through the subpoena power of the court system. This, say the critics, has a chilling effect on online speech.
These free speech advocates do not defend libelous or defamatory remarks, whether online or otherwise. They emphasize that individuals making clearly libelous and defamatory remarks should be held responsible for those remarks. Nonetheless, these advocates contend that Internet anonymity should be protected under the First Amendment, up to and including the preservation of anonymity until libel or defamation is proved. A significant part of their argument is that, without proving the libel or defamation first, companies are using the subpoena power of the court system to silence anonymous and critical speech. They argue that the Internet is about the free flow of information and they are intent on influencing the emerging law regarding the Internet.
These advocates, however, may be fighting a losing battle, at least when the libelous and defamatory remarks involve a corporation and/or employment. The ACLU recently filed for a writ of certiorari in a Florida case on behalf of a group of anonymous John Doe defendants (the same case in which Mr. Fischman represented the plaintiff). In October of 2000, the Florida Third Circuit Court of Appeals denied the writ and reinstated the lower court's order that Yahoo! and America Online reveal the identities of the anonymous defendants. This case received a great deal of attention in the press and may be a watershed for the advocates.
 The most active business bulletin boards are Yahoo!, Motley Fool, Raging Bull, Silicon Investor, Go Network: Individual Investor, Free Realtime, Realize, and Clearstation. Bruce D. Fischman, Esq., "Your Corporate Reputation Online," website of Fischman, Harvey & Dutton, P.A., ww.fhdlaw.com/html/corporate_reputation.htm.
 John Schwartz, "Questions on Net Anonymity," The New York Times, October 17, 2000; Carl S. Kaplan, "Judge Says Online Critic Has No Right to Hide," The New York Times, June 9, 2000; Rebecca Fairley Raney, "Judge Rejects Online Critic's Efforts to Remain Anonymous," The New York Times, June 15, 1999; Michael Moss, "HealthSouth's CEO Exposes, Sues Anonymous Online Critics," The Wall Street Journal, July 7, 1999.
 Fischman, "Your Corporate Reputation Online," website of Fischman, Harvey & Dutton, P.A., www.fhdlaw.com/html/corporate_reputation.htm.
 Id. Id.
 The Communications Decency Act of 1996 collectively enacted 47 U.S.C. 230, 560, and 561and amended 47 U.S.C. 223, 303, 330, 531, 532, and 559 and amended 18 U.S.C. 1462, 1465, and 2422.
 This may be done despite policies and terms of service warning that the e-mail account cannot be used to conceal identity or for a fraudulent or illegal purpose. See, e.g., MSN Hotmail Terms of Service at www.hotmail.msn.com.
 Schwartz, "Questions on Net Anonymity," The New York Times, October 17, 2000; Michael Moss, "HealthSouth's CEO Exposes, Sues Anonymous Online Critics," The Wall Street Journal, July 7, 1999.
 Id.; see also Ross Kerber, "Free Speech or Cyber-slander?," The Boston Globe, February 29, 2000.
 Id.; see also Kaplan, "Judge Says Online Critic Has No Right to Hide," The New York Times, June 9, 2000.
 Schwartz, "Questions on Net Anonymity," The New York Times, October 17, 2000; Kaplan, "Judge Says Online Critic Has No Right to Hide," The New York Times, June 9, 2000; see also amicus curie brief filed by American Civil Liberties Union in Hvide v. John Does 1-8, Case No. 99-22831 CA01, (11th Jud. Cir., Miami, Dade County, Florida) available at www.aclu.org/court/hvide_v_doe.html.
 Hvide v. John Does 1-8, Case No. 99-22831 CA01, (11th Jud. Cir., Miami, Dade County, Florida), cert. denied, John Does v. Hvide, No. 3D00-169 (3rd Cir. Ct. App., Florida).
 John Does v. Hvide, No. 3D00-169 (3rd Cir. Ct. App., Florida).
James D. Griffith, CLA holds a bachelor's degree and a legal assisting certificate. He is a legal assistant with the firm of Polese, Pietzsch, Williams & Nolan, P.A. in Phoenix, Arizona.
E-Trashing the Company was originally published in Facts & Findings, Volume XXVII, Issue 5, pp. 26-29. Facts and Findings is a quarterly publication produced by the National Association of Legal Assistants.