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BLUE EYED BABE
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- May 22, 2001
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Suits Surprise Users of Online Pseudonyms
Knight Ridder/Tribune
Doug Bedell The Dallas Morning News
Until the legal papers began arriving on his Portland, Ore., doorstep, Les French thought his identity was safe.
French had been using the pseudonym "Whadayaknow" in posting derogatory comments about an ex-employer on a Yahoo Internet message board.
Whadayaknow warned others of management malfeasance. "I requested the CEO resign immediately," says French. "Management abused our trust and breached their fiduciary responsibility; let's throw the bastards out!" he wrote.
As the discussion widened, the company, Itex Corp., decided that this talk was a "cybersmear" campaign that had to be stopped. In what has become an increasingly common occurrence, the company filed a defamation lawsuit against Whadayaknow and dozens of other "John Does" on the same board.
Before he knew it, French's anonymity was stripped away by a series of civil court subpoenas. He was served with papers identifying him conclusively as Whadayaknow. And he found himself facing a costly legal fight with potentially horrific financial consequences.
"It is a frightening experience," he said.
No one has an exact count of the John Doe lawsuits brought against anonymous online posters, but civil liberties groups say more than 200 are currently wending their way toward judicial conclusion.
They are only part of the reason that thousands of Web regulars now use identity-cloaking software when posting on public discussion boards.
And they are part of a broadening debate over a perceived Internet right to post anything, anywhere, under any name.
Civil liberties groups such as the Electronic Frontier Foundation (www.eff.org), the Electronic Privacy Information Center (www.epic.org), the American Civil Liberties Union (www.ACLU.org), and Public Citizen (www.publiccitizen.org) have joined in cases such as French's.
They worry that these threats to anonymity will chill free and open communications on the Web.
"If you take away anonymity," French says, "nobody will be able to post anything online."
But anonymity worries go beyond cybersmear, slander and libel. Many of those participating in public exchanges are uneasy about how their postings are being archived.
They don't want comments to come back to haunt them by being taken out of context from some ancient database, then handed over to potential employers, insurance companies and governmental agencies in an electronic dossier.
"Up to now, it has only been public figures in the spotlight where all their speeches and discussions have been very much part of the public record," says Austin Hill, co-founder of a company that sells anonymity protection software. "When you actually start that for everyone in society, archiving regular speech, there are some real social consequences."
French now says he wishes he had taken more precautions during his Web forays.
When hit with his lawsuit, he says, he was shocked to find that both his Internet service provider and the Yahoo message board managers had turned over all sorts information on his habits.
By the time the case came to court, French's nemesis had six months of logs that showed his Internet access, how long he stayed online, what time of day he surfed the Web, even purchases he had made at his ISP's bookstore and the credit card numbers he used, court records show.
"When you think about it, that's really a lot of personal information," French says. "I think the only thing they didn't get was my account password."
Beyond that, French says he was disturbed that neither the ISP nor Yahoo felt compelled to warn Whadayaknow that his anonymity had been breached.
To be sure, French says, those who intentionally libel and slander others in public places must accept legal responsibility for their actions.
Most of the John Doe lawsuits arise out of discussions on financial message boards such as Raging Bull (http://ragingbull.lycos.com, the Motley Fool (www.fool.com), Silicon Investor (www.siliconinvestor.com) and Yahoo (www.yahoo.com).
And when the complaints involve simple gossip about publicly traded companies, corporations should not be allowed such freewheeling discovery, he says.
"Even if someone says something that's not true, it's his opinion," French says. "I, as a reader, have a right to read that opinion. It's on an anonymous board anyway, so how much credibility does a poster have to begin with?"
In 1998, Congress passed the Communications Decency Act, which exempts ISPs and those who host anonymous message boards from liability in public postings by others.
Beyond good will and customer loyalty, there has been little pressure to keep ISPs and message board operators from divulging data requested by a lawsuit plaintiff. But a growing number of subpoenas for records linking anonymous posters with real people has changed all that.
Yahoo, America Online and other large Internet companies have instituted policies that allow potential defendants time to fight subpoenas before their anonymity is pierced. Some are fighting subpoenas themselves, says Lyrissa C. Barnett Lidsky, professor of law at the University of Florida and author of the widely disseminated legal analysis "Silencing John Doe: Defamation & Discourse in Cyberspace."
"ISPs are starting to realize that it may be the path of least resistance to turn over the records, but as the number of cases grows, it becomes a burden on them," Lidsky says. "AOL and others now see they have an interest in protecting their posters."
Also, says ISP owner Steve Linebarger of Texas Metronet, service providers could face court action from their own clients if they release too much information without a legal basis. "I think I have a liability there because the public is so litigious itself," Linebarger says.
To prevent ISPs from prematurely disclosing a user's identity, civil liberties groups are pushing to have laws amended to require service of subpoenas and notice to subscribers in all cases seeking Internet user identification.
Lidsky says only about 13 percent of plaintiffs ultimately prevail in libel litigation, so winning monetary damages is often not the motivation for attacking anonymous Internet posters. Constitutional protections for free speech make it difficult for public companies to meet all tests for defamation and libel, she says.
But that hasn't stopped companies from trying.
"Plaintiffs often seek vindication, and bringing suit provides a means - perhaps the only means available - to announce to the world that the defendants' statements were false," Lidsky says.
Potential civil court action is only one of the reasons individuals and corporations are turning to software tools that guarantee online anonymity. A wide range of services has sprung up in recent years with names such as Anonymizer, Safeweb and IDzap.
Hill, the anonymity software vendor, says financial board gossips such as French are joining a vast pool of Web users seeking anonymity.
For example, people who use chat rooms and message boards to learn about diseases may want assurance that what they say will not wind up as evidence of a pre-existing illness when applying for health insurance. Doctors who volunteer to give online advice to sick people may want to engage in discussions.
"They want to rest assured that no one's going to come back and say, `Oh, I took your advice online and now I want to sue you for malpractice,'" says Hill.
As more appliances are hooked up to the Internet, so-called anonymizing services will take on even more importance, Hill says.
"When you get your Internet fridge that has an inventory of everything you're eating, you're going to want to know that your insurance company is not watching how fast you drink your beers," he says.
With the help of civil liberties groups, the John Does of the Internet are fighting back. Increasingly, their attorneys are using existing state laws designed to protect those who, for example, appear at zoning board meetings to lodge objections to proposed neighborhood real estate developments.
Laws that add penalties for frivolous lawsuits brought against citizens for what they say in public meetings are called Anti-SLAPPs (SLAPP stands for Strategic Litigation Against Public Participation.) Currently, 16 states have some form of Anti-SLAPP statute, according to the California Anti-SLAPP Project (www.sirius.com/(TILDE)casp/mengen.html). Texas has none.
The strongest Anti-SLAPP laws, like California's, allow anonymous Internet posters to recover monetary damages from companies that file lawsuits designed to silence critics.
Using the Oregon Anti-SLAPP version, French won his case and obtained a $45,000 settlement from his former employer. With those funds, he opened JohnDoes.org, a Web site that helps anonymous posters find legal help and stay abreast of anonymity challenges wherever they arise.
Still, many state judges continue to allow civil discovery with little regard for anonymity rights, Lidsky says.
"Some courts are not willing to think about how the Internet can change things," she says. "They're not willing to say, `Oh this is a unique problem because of the Internet.' They don't see anything to be protected."
As judges get more technically savvy, that may change, Lidsky says. National online privacy legislation may also be enacted some day. Ultimately, the U.S. Supreme Court may decide to clarify how libel and defamation laws can be fairly applied to Net scuffles, Lidsky says.
At the same time, corporations and individuals are growing more interested in monitoring what's being said about them in all sorts of Net niches. Companies such as Cyveillance (www.cyveillance.com/web/us/default.asp) and the Dallas-based eWatch (www.ewatch.com) are offering services that scour discussions stockpiled inside a whole realm of "consumer complaint sites." And some of those monitoring companies promise to identify posters - especially employees - and help spin discussions in their client's favor.
The battle over Internet free speech and anonymity, many experts say, is only now being joined.
"Before the Internet exploded," French says, "companies pretty much had a monopoly on their propaganda. They paid business wires and PR firms so that people would only see what they wanted seen.
"Now anyone can get online and publish anything," he says. "Companies don't just know how to cope with it. Many feel like things are totally out of control
This is pretty scary for free speech advocats
Knight Ridder/Tribune
Doug Bedell The Dallas Morning News
Until the legal papers began arriving on his Portland, Ore., doorstep, Les French thought his identity was safe.
French had been using the pseudonym "Whadayaknow" in posting derogatory comments about an ex-employer on a Yahoo Internet message board.
Whadayaknow warned others of management malfeasance. "I requested the CEO resign immediately," says French. "Management abused our trust and breached their fiduciary responsibility; let's throw the bastards out!" he wrote.
As the discussion widened, the company, Itex Corp., decided that this talk was a "cybersmear" campaign that had to be stopped. In what has become an increasingly common occurrence, the company filed a defamation lawsuit against Whadayaknow and dozens of other "John Does" on the same board.
Before he knew it, French's anonymity was stripped away by a series of civil court subpoenas. He was served with papers identifying him conclusively as Whadayaknow. And he found himself facing a costly legal fight with potentially horrific financial consequences.
"It is a frightening experience," he said.
No one has an exact count of the John Doe lawsuits brought against anonymous online posters, but civil liberties groups say more than 200 are currently wending their way toward judicial conclusion.
They are only part of the reason that thousands of Web regulars now use identity-cloaking software when posting on public discussion boards.
And they are part of a broadening debate over a perceived Internet right to post anything, anywhere, under any name.
Civil liberties groups such as the Electronic Frontier Foundation (www.eff.org), the Electronic Privacy Information Center (www.epic.org), the American Civil Liberties Union (www.ACLU.org), and Public Citizen (www.publiccitizen.org) have joined in cases such as French's.
They worry that these threats to anonymity will chill free and open communications on the Web.
"If you take away anonymity," French says, "nobody will be able to post anything online."
But anonymity worries go beyond cybersmear, slander and libel. Many of those participating in public exchanges are uneasy about how their postings are being archived.
They don't want comments to come back to haunt them by being taken out of context from some ancient database, then handed over to potential employers, insurance companies and governmental agencies in an electronic dossier.
"Up to now, it has only been public figures in the spotlight where all their speeches and discussions have been very much part of the public record," says Austin Hill, co-founder of a company that sells anonymity protection software. "When you actually start that for everyone in society, archiving regular speech, there are some real social consequences."
French now says he wishes he had taken more precautions during his Web forays.
When hit with his lawsuit, he says, he was shocked to find that both his Internet service provider and the Yahoo message board managers had turned over all sorts information on his habits.
By the time the case came to court, French's nemesis had six months of logs that showed his Internet access, how long he stayed online, what time of day he surfed the Web, even purchases he had made at his ISP's bookstore and the credit card numbers he used, court records show.
"When you think about it, that's really a lot of personal information," French says. "I think the only thing they didn't get was my account password."
Beyond that, French says he was disturbed that neither the ISP nor Yahoo felt compelled to warn Whadayaknow that his anonymity had been breached.
To be sure, French says, those who intentionally libel and slander others in public places must accept legal responsibility for their actions.
Most of the John Doe lawsuits arise out of discussions on financial message boards such as Raging Bull (http://ragingbull.lycos.com, the Motley Fool (www.fool.com), Silicon Investor (www.siliconinvestor.com) and Yahoo (www.yahoo.com).
And when the complaints involve simple gossip about publicly traded companies, corporations should not be allowed such freewheeling discovery, he says.
"Even if someone says something that's not true, it's his opinion," French says. "I, as a reader, have a right to read that opinion. It's on an anonymous board anyway, so how much credibility does a poster have to begin with?"
In 1998, Congress passed the Communications Decency Act, which exempts ISPs and those who host anonymous message boards from liability in public postings by others.
Beyond good will and customer loyalty, there has been little pressure to keep ISPs and message board operators from divulging data requested by a lawsuit plaintiff. But a growing number of subpoenas for records linking anonymous posters with real people has changed all that.
Yahoo, America Online and other large Internet companies have instituted policies that allow potential defendants time to fight subpoenas before their anonymity is pierced. Some are fighting subpoenas themselves, says Lyrissa C. Barnett Lidsky, professor of law at the University of Florida and author of the widely disseminated legal analysis "Silencing John Doe: Defamation & Discourse in Cyberspace."
"ISPs are starting to realize that it may be the path of least resistance to turn over the records, but as the number of cases grows, it becomes a burden on them," Lidsky says. "AOL and others now see they have an interest in protecting their posters."
Also, says ISP owner Steve Linebarger of Texas Metronet, service providers could face court action from their own clients if they release too much information without a legal basis. "I think I have a liability there because the public is so litigious itself," Linebarger says.
To prevent ISPs from prematurely disclosing a user's identity, civil liberties groups are pushing to have laws amended to require service of subpoenas and notice to subscribers in all cases seeking Internet user identification.
Lidsky says only about 13 percent of plaintiffs ultimately prevail in libel litigation, so winning monetary damages is often not the motivation for attacking anonymous Internet posters. Constitutional protections for free speech make it difficult for public companies to meet all tests for defamation and libel, she says.
But that hasn't stopped companies from trying.
"Plaintiffs often seek vindication, and bringing suit provides a means - perhaps the only means available - to announce to the world that the defendants' statements were false," Lidsky says.
Potential civil court action is only one of the reasons individuals and corporations are turning to software tools that guarantee online anonymity. A wide range of services has sprung up in recent years with names such as Anonymizer, Safeweb and IDzap.
Hill, the anonymity software vendor, says financial board gossips such as French are joining a vast pool of Web users seeking anonymity.
For example, people who use chat rooms and message boards to learn about diseases may want assurance that what they say will not wind up as evidence of a pre-existing illness when applying for health insurance. Doctors who volunteer to give online advice to sick people may want to engage in discussions.
"They want to rest assured that no one's going to come back and say, `Oh, I took your advice online and now I want to sue you for malpractice,'" says Hill.
As more appliances are hooked up to the Internet, so-called anonymizing services will take on even more importance, Hill says.
"When you get your Internet fridge that has an inventory of everything you're eating, you're going to want to know that your insurance company is not watching how fast you drink your beers," he says.
With the help of civil liberties groups, the John Does of the Internet are fighting back. Increasingly, their attorneys are using existing state laws designed to protect those who, for example, appear at zoning board meetings to lodge objections to proposed neighborhood real estate developments.
Laws that add penalties for frivolous lawsuits brought against citizens for what they say in public meetings are called Anti-SLAPPs (SLAPP stands for Strategic Litigation Against Public Participation.) Currently, 16 states have some form of Anti-SLAPP statute, according to the California Anti-SLAPP Project (www.sirius.com/(TILDE)casp/mengen.html). Texas has none.
The strongest Anti-SLAPP laws, like California's, allow anonymous Internet posters to recover monetary damages from companies that file lawsuits designed to silence critics.
Using the Oregon Anti-SLAPP version, French won his case and obtained a $45,000 settlement from his former employer. With those funds, he opened JohnDoes.org, a Web site that helps anonymous posters find legal help and stay abreast of anonymity challenges wherever they arise.
Still, many state judges continue to allow civil discovery with little regard for anonymity rights, Lidsky says.
"Some courts are not willing to think about how the Internet can change things," she says. "They're not willing to say, `Oh this is a unique problem because of the Internet.' They don't see anything to be protected."
As judges get more technically savvy, that may change, Lidsky says. National online privacy legislation may also be enacted some day. Ultimately, the U.S. Supreme Court may decide to clarify how libel and defamation laws can be fairly applied to Net scuffles, Lidsky says.
At the same time, corporations and individuals are growing more interested in monitoring what's being said about them in all sorts of Net niches. Companies such as Cyveillance (www.cyveillance.com/web/us/default.asp) and the Dallas-based eWatch (www.ewatch.com) are offering services that scour discussions stockpiled inside a whole realm of "consumer complaint sites." And some of those monitoring companies promise to identify posters - especially employees - and help spin discussions in their client's favor.
The battle over Internet free speech and anonymity, many experts say, is only now being joined.
"Before the Internet exploded," French says, "companies pretty much had a monopoly on their propaganda. They paid business wires and PR firms so that people would only see what they wanted seen.
"Now anyone can get online and publish anything," he says. "Companies don't just know how to cope with it. Many feel like things are totally out of control
This is pretty scary for free speech advocats
