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: 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. [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 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: What are some of the important cases in this area of law? Answer: Important CyberSLAPP cases include Dendrite v. Does, http://www.citizen.org/documents/dendriteappeal.pdf, Melvin v. Doe, http://legal.web.aol.com/decisions/dlpriv/melvinop.html, Doe v 2TheMart.com, http://www.eff.org/Cases/2TheMart_case/20010427_2themart_order.html, Global Telemedia International v. Doe, http://www.casp.net/busted.html. Additional information about these and other cases can be found by searching the Internet or looking on the Web sites listed below. [back to notice text] Question: What does "respond" to the subpena 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. [back to notice text] Question: What if I need to contact an attorney? Answer: This website is meant as an aid to help you decipher Cease and Desist notices so you can make informed decisions about your course of action. If, after reading this, you think the C&D you received might have some merit, or you think you might engage your opponent in battle even if the C&D is, in your opinion, baseless, consultation with an intellectual property attorney is always a good idea. You can find an intellectual property attorney at www.martindale.com or by calling your state or local Bar Association and asking for a referral.

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