Big Brother versus Jane Doe: Corporations are cracking down on free speech
on the web. John Schwarz reports
The Guardian - United Kingdom, Oct 19, 2000
John Hritz wants to get to know Jane Doe. Jane Doe is the pseudonym for an internet user who posted messages critical of Hritz and the company he serves as a general counsel, AK Steel of Middletown, Ohio.
Like many publicly traded companies, AK Steel, which makes products for cars, appliances and other uses, is the subject of a message board on Yahoo.
And as with many online forums, the discussion there tends towards the bareknuckled. In one message, Jane Doe wrote that Hritz "will litigate the time of day". In fact, Hritz has gone to court over that comment and others, claiming that the Doe postings are "threatening, libellous and disparaging".
But even before actually filing a lawsuit, Hritz has asked Ohio's state courts to unmask Jane Doe's identity. Civil liberties groups are banding together to try to keep the identity a secret.
From the content of the messages, it is evident that Jane Doe works for AK Steel. And Jane Doe's lawyers contend that Hritz's actual intention is to find and punish an errant employee.
Lawsuits to pierce the veil of anonymity online are increasingly common in the internet age. But two advocacy groups involved in workplace and online issues, Public Citizen and the Electronic Frontier Foundation, argue that the AK Steel request goes too far, giving companies the power to silence corporate critics whether or not a case will ever be filed.
Some corporations and their advocates counter that the internet allows unfair "online assault" that can damage reputations. Bruce D Fischman, a Miami lawyer, suggested in a recent presentation at Harvard Law School that maligned companies "contact counsel familiar with internet defamation and securities issues to advise you on all legal remedies that may be available to unmask the anonymous poster, and pursue a suit for injunctive relief and damages".
The Supreme Court has declared that the First Amendment protects the right to speak anonymously as part of the guarantee of free speech. The authors of the Federalist Papers, after all, wrote as Publius, not Alexander Hamilton, James Madison and John Jay. In court filings fighting the request to unmask Jane Doe, the civil liberties groups argue that at the very moment the power of the internet is helping to create the biggest marketplace of ideas the world has ever seen, powerful companies will be able to squelch online speech by using the courts as a "private detective service" to unmask critics.
"It's a David and Goliath story," said Lauren Gelman, director of public policy for the Electronic Frontier Foundation, an online civil liberties organisation based in California. Gelman warned of a chilling effect on online speech. "If the average internet user gets a subpoena like this in the mail, he's not going to go to the big law firm around the corner and say 'defend me'," she said. "He's going to stop talking. And if he stops talking, they've won."
Paul Allen Levy, a lawyer for Public Citizen, concurred. "It's hard to believe that this is a case about defamation," he said. "I think this is a case about intimidation."
Through his lawyer, David C Horn, Hritz declined to comment on the matter.
Courts have not yet laid out clear rules governing anonymity online, said Robert Corn-Revere, a Washington lawyer who is representing Jane Doe in the Virginia courts. "There's no real body of law out there on this."
In Hritz's case, lawyers tried to learn Jane Doe's identity by using an Ohio law that allows people contemplating a lawsuit to begin the process of discovery, or legal investigation, before the suit is filed.
The Ohio court issued a subpoena, which the lawyers sent to Yahoo. The online service said it did not know the identity of the commentator, but was able to show that the postings were made from an AOL account.
When the subpoena was then sent to America Online, the company followed its own procedures for such cases, sending a letter to the potential defendant by overnight mail that explained that the name would be disclosed in 14 days if he or she did not raise a legal objection.
The number of requests for the identities of John and Jane Does is growing, said Rich D'Amato, a spokesman for America Online. "We do receive hundreds of these subpoenas in a given year."
He added that the rise is "commensurate with the spread of the internet in general as a business tool and as a communications tool".
The potential defendant - who asked that Jane Doe's actual name and sex be withheld as a condition for being interviewed - said that upon receiving the America Online letter: "I was scared to death." After finding Lawrence Lessig, a Stanford law professor, on the internet, Jane Doe sent the information to him. Lessig in turn passed the case along to the Electronic Frontier Foundation, on whose board he serves.
In an email interview, Lessig wrote: "If someone charges libel, then the anonymity of a poster should be preserved until the libel is proved. Otherwise, the subpoena power can be used to silence anonymous, critical speech."
Jane Doe, who has been studying First Amendment law recently, said: "I don't want to be a martyr. But this is an issue that's bigger than me. It's about how they're going to shape law with the internet. That's what the internet is all about: the free flow of information. That's what I thought, anyway. I'm finding out a little different, right now."
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