FAQ: Questions and Answers

[back to notice text] Question: What should I do if I receive notice that my ISP has received a subpoena for my data? Answer: First you should decide whether you wish to fight to protect your identity, Internet usage records, or whatever else is being sought. You might want to ask your ISP for a copy of the subpoena if they haven't already provided one. If you decide to fight it, you should inform the ISP immediately, and you may want to request that they delay compliance to give you time to find a lawyer. Then find a lawyer, who will file a motion to have the subpoena thrown out. (If your lawyer can later prove that the lawsuit was frivolous, you may be able to recover legal fees if your state has passed an anti-SLAPP statute.) [back to notice text] Question: How do judges decide whether to let a subpoena go forward? Answer: This is a very new area of the law, and there are few well-established principles. The courts do have a duty to balance the right of anonymity against the need to prevent true defamation. So far there have been both good and bad rulings from judges; fortunately several have ruled that the plaintiff must prove that his case has at least a theoretical chance of prevailing before anonymity can be stripped away. Other cases have established a set of key factors to be used in judging anonymity-stripping subpoenas. In most of these the key factors are 1) that the party seeking the subpoena provide evidence that the identity is needed; 2) that the identity is directly needed for a key element in the case; 3) and that the identity information is not otherwise available to the party seeking it. While not yet firmly entranched in the law, these common-sense principles are clearly the right way to ensure that First Amendment rights are protected while still allowing identity to be revealed when there is a genuine need to do so. [back to notice text] 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. [back to notice text] Question: Isn't my ISP required by law to tell me if someone asks for my Internet-usage records and identity? Answer: Unfortunately, in practice CyberSLAPP subpenas are rarely challenged becaue ISPs often fail to notify the individual who's personal information is sought. Even when they do, the short deadline (often as little as 7 days) does not provide enough time for the speaker to find and hire an attorney and the attorney to prepare the Constitutional arguments necessary to defend against the subpena. [back to notice text] Question: I don?t know whether my ISP keeps track of web sites I?ve visited or other personal online activity. Could a subpoena include information like that? Answer: Any information that your ISP has may be subject to a subpoena, including information you may keep in calendars, preferences, "myXXX" systems hosted by your ISP, as well as log files. Different ISPs keep different kinds of records of customer behavior. Ask your ISP to be certain that you know what information they maintain about you. [back to notice text] Question: What are the typical claims behind a CyberSLAPP suit? Answer: The most common complaints by CyberSLAPP plaintiffs are defamation, trademark or copyright infringement, and breach of contract. Speech that involves a public figure - such as a corporation - is only defamatory if it is false and said with "actual malice." It also must be factual rather than an expression of opinion. In the US, because of our strong free speech protections, it is almost impossible to prove defamation against a public figure. Trademark and copyright complaints typically claim that defendants have violated intellectual property rights by using the name of a corporation or its products, or by quoting from some of their copyrighted materials such as an annual report. In reality, the First Amendment includes a clear right to criticize and discuss corporations and their products, and the law includes clear exceptions for the "fair use" of protected material for those purposes. Breach of contract suits often involve a claim that anonymous speakers might be employees who have violated a contract by releasing confidential information. Of course, the right to anonymous speech is meaningless if a corporation can unmask your identity at will because you might be an employee breaking a promise of confidentiality. [back to notice text] Question: Can someone ask for my identity even if I am not the Defendant in the case? Answer: Yes. The rules of civil discovery allow a party to a lawsuit (the plaintiff or defendant) to ask anyone for any information that may lead to the discovery of relevant evidence to their case. However, your ability to quash such a request if you are not named as a party to the lawsuit is the same as if you are named. You can still file a motion to quash. Below is a link to the case files for such a case: http://www.eff.org/Cases/2TheMart_case/ [back to notice text] Question: How much time would I have to try to fight a subpoena? Answer: The ISP's deadline for complying with a subpoena can vary depending on the judge, the jurisdiction where the case was filed, and other factors. A typical deadline is 7 days. This isn't much time, so again you may want to request an extension of the deadline from the ISP and the court so your lawyer can prepare your challenge to the subpoena. [back to notice text] Question: How do judges decide whether to let a subpoena go forward? Answer: This is a very new area of the law, and there are few well-established principles. The courts do have a duty to balance the right of anonymity against the need to prevent true defamation. So far there have been both good and bad rulings from judges; fortunately several have ruled that the plaintiff must prove that his case has at least a theoretical chance of prevailing before anonymity can be stripped away. Other cases have established a set of key factors to be used in judging anonymity-stripping subpoenas. In most of these the key factors are 1) that the party seeking the subpoena provide evidence that the identity is needed; 2) that the identity is directly needed for a key element in the case; 3) and that the identity information is not otherwise available to the party seeking it. While not yet firmly entranched in the law, these common-sense principles are clearly the right way to ensure that First Amendment rights are protected while still allowing identity to be revealed when there is a genuine need to do so. [back to notice text] Question: How much time would I have to try to fight a subpoena? Answer: The ISP's deadline for complying with a subpoena can vary depending on the judge, the jurisdiction where the case was filed, and other factors. A typical deadline is 7 days. This isn't much time, so again you may want to request an extension of the deadline from the ISP and the court so your lawyer can prepare your challenge to the subpoena. [back to notice text] Question: What should I do if I receive notice that my ISP has received a subpoena for my data? Answer: First you should decide whether you wish to fight to protect your identity, Internet usage records, or whatever else is being sought. You might want to ask your ISP for a copy of the subpoena if they haven't already provided one. If you decide to fight it, you should inform the ISP immediately, and you may want to request that they delay compliance to give you time to find a lawyer. Then find a lawyer, who will file a motion to have the subpoena thrown out. (If your lawyer can later prove that the lawsuit was frivolous, you may be able to recover legal fees if your state has passed an anti-SLAPP statute.) [back to notice text] Question: What other resources are available? Answer: Web sites dealing with this issue include: www.aclu.org, www.citizen.org, www.eff.org, www.epic.org, www.johndoes.org, www.casp.net, www.cybersecuritieslaw.com, cyber.findlaw.com/expression/censorship.html

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