FAQ: Questions and Answers

[back to notice text] 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 [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: Aren?t people required to explain why they?re subpoenaing my identity and other information? Answer: Not with the initial request. The reasons for the subpena are only provided if the subpena is challenged, through a motion to quash. In opposing the motion to quash, the person seeking the information must demonstrate, at a minimum, that it is likely to lead to the discovery of information that would be useful in a lawsuit. [back to notice text] Question: I signed a confidentiality/privacy agreement with my ISP that provides that they will not release my information. Doesn?t that protect me? Answer: No. Most privacy agreements state that information will be turned over in response to legal requests, and a subpena is such a request. Even if the agreement does not say so, a legally issued subpoena overrides such agreements as a matter of public policy. Each ISP has a different policy about notifying users when their information has been subpoenaed, but they cannot simply ignore a subpoena under the law without risking legal santion themselves. [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: I am in California. Do I have a right to both resist such a subpena and to ask a court to throw out the case, right away, and award me attorneys fees? Answer: Yes. California has a specific statute, called the anti-SLAPP statute, that allows an early motion to be brought to have a case dismissed if it is aimed at silencing protected expression and participation in matters of public concern. Code of Civil Procedure ? 425.16(b)(1) provides: A cause of action against a person arising from any act of that person in furtherance of the person?s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. A legal brief explaining the California statute further in a case involving claims of online defamation is available at: http://www.eff.org/Legal/Cases/Kesler_v_Doe/ [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: 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: 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. [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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