FAQ: Questions and Answers

[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: 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: 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: How is Internet anonymity affected by John Doe lawsuits? Answer: Often called "CyberSLAPP" suits, these lawsuits typically involve a person who has posted anonymous criticisms of a corporation or public figure on the Internet. The target of the criticism then files a lawsuit so they can issue a subpoena to the Web site or Internet Service Provider (ISP) involved and thereby discover the identity of their anonymous critic. The concern is that this discovery of their identity will intimidate or silence online speakers even though they were engaging in protected expression under the First Amendment. [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: 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 [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 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: 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.

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