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 Chilling Effects Clearinghouse > DMCA Subpoenas > Frequently Asked Questions Printer-friendly version

Frequently Asked Questions (and Answers) about DMCA Subpoenas

  • Q: What is a subpoena (also spelled "subpena")?
  • Q: Is anonymous speech a right?
  • Q: Why is anonymous speech important?
  • Q: How is Internet anonymity affected by Section 512(h) subpoenas?
  • Q: Don't judges review subpoenas before they are sent to ISPs?
  • Q: Can I do anything to help change this situation?
  • Q: What are the key federal decisions involving anonymous speech?
  • Q: What does "respond" to the subpoena mean?
  • Q: What is a "motion to quash" a subpoena?

    Question: What is a subpoena (also spelled "subpena")?

    Answer: A subpoena is a formal demand that a person or company produce evidence in or for a civil or criminal lawsuit. A subpoena duces tecum (the kind most commonly used in John Doe cases) requires only the production of identified documents or categories of documents.

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    Question: Is anonymous speech a right?

    Answer: Yes. Anonymous speech is presumptively protected by the First Amendment to the Constitution. Anonymous pamphleteering played an important role for the Founding Fathers, including James Madison, Alexander Hamilton, and John Jay, whose Federalist Papers were first published anonymously.

    And the Supreme Court has consistently backed up that tradition. The key U.S. Supreme Court case is McIntyre v. Ohio Elections Commission. http://www.eff.org/Legal/Cases/mcintyre_v_ohio.decision

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    Question: Why is anonymous speech important?

    Answer: There are a wide variety of reasons why people choose to speak anonymously. Many use anonymity to make criticisms that are difficult to state openly - to their boss, for example, or the principal of their children's school. The Internet has become a place where persons who might otherwise be stigmatized or embarrassed can gather and share information and support - victims of violence, cancer patients, AIDS sufferers, child abuse and spousal abuse survivors, for example. They use newsgroups, Web sites, chat rooms, message boards, and other services to share sensitive and personal information anonymously without fear of embarassment or harm. Some police departments run phone services that allow anonymous reporting of crimes; it is only a matter of time before such services are available on the Internet. Anonymity also allows "whistleblowers" reporting on government or company abuses to bring important safety issues to light without fear of stigma or retaliation. And human rights workers and citizens of repressive regimes around the world who want to share information or just tell their stories frequently depend on staying anonymous – sometimes for their very lives.

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    Question: How is Internet anonymity affected by Section 512(h) subpoenas?

    Answer: Since anyone who has ever written or typed something is a copyright holder, it is possible that any of these people might misuse the Section 512(h) subpoena to discover identity for purposes other than vindicating copyright rights. In some instances, the fear of improper discovery of their identity will intimidate or silence online speakers even though they were engaging in protected expression under the First Amendment.

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    Question: Don't judges review subpoenas before they are sent to ISPs?

    Answer: No. The issuing of civil subpoenas is not monitored by the court handling the case. Under the normal rules of discovery in civil lawsuits, parties to a suit can simply send a subpoena to anyone they believe has information that could be useful. That information doesn't even have to be relevant to the lawsuit, as long as it could possibly lead to the discovery of relevant information. The only way that a court will evaluate an identity-seeking subpena is if either the ISP or the target of the subpoena files a motion asking the judge to block the subpoena. Unfortunately, in practice that rarely happens. That is because these subpoenas usually have a short, roughly 7-day deadline, and because many people never even find out that their Internet data has been subpoenaed.

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    Question: Can I do anything to help change this situation?

    Answer: You can do several things. Be educated about your rights. Find out your ISP's policy on the handling of subpoenas, and encourage them - and any Web sites you frequent - to adopt good policies, especially a pledge to notify you of any subpoena before any private information is disclosed. Encourage your state legislators to pass legislation requiring such notice, and press them to amend state anti-SLAPP statutes to explicitly include Internet anonymity cases.

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    Question: What are the key federal decisions involving anonymous speech?

    Answer: 1. Buckley v. American Constitutional Law Foundation (1999) 525 U.S. 182, 197-200;

    2. McIntyre v. Ohio Elections Commission (1995) 514 U.S. 334. In that case, on page 357, the Supreme Court said:

    "[A]n author is generally free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one

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    Question: What does "respond" to the subpoena mean?

    Answer: Usually, it means that the ISP will give the requested information to the requesting person. In some cases, ISPs have resisted requests for information on behalf of their customers, but this is not the norm. Unless specifically told differently by your ISP, you should assume that your ISP will turn over your information as part of its response.

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    Question: What is a "motion to quash" a subpoena?

    Answer: This is a formal request for a court to rule that your information should not be given to the requesting party. This normally includes the request, plus a legal brief (sometimes called a memorandum of points and authorities) explaining why, by law, your information should not be turned over. Samples of briefs filed in John Doe cases are available at:

    EFF Archive, Cullens v. Doe, http://www.eff.org/Privacy/Anonymity/Cullens_v_Doe/
    http://www.citizen.org/litigation/briefs/IntFreeSpch/articles.cfm?ID=5801

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