Monday, September 28, 2009

Web Anonymity Takes Another Legal Hit

For the second time in recent weeks, a court ruling has indicated that anonymous statements made on the Web might not be as protected as users think.

A judge in Sacramento, California, recently opened a small window for the plaintiff in a lawsuit to discover the identities of individuals who posted derogatory comments about him on a blog.

We recently posted about a New York case where a judge had ordered Google to turn over information about an anonymous blogger who had made nasty comments about fashion model Liksula Cohen. The order led to information that revealed the blogger to be Rosemary Port, another woman with ties to the fashion industry. Port now has filed a lawsuit against Google for failing to protect her identity.

As we noted in the earlier post, this issue hits close to home here at Legal Schnauzer. I've received numerous anonymous threatening comments to my blog, including two that essentially said "yours is coming" and another threatening my job roughly a month before I was fired at the University of Alabama at Birmingham (UAB), where I had worked as an editor for 19 years.

I have filed an EEOC charge against UAB, the precursor to a civil rights/employment lawsuit. Part of discovery in a future lawsuit will entail determining who sent the threatening blog comments.

Interestingly, the California story also involves an employment case at a university. Here is how reporter Hudson Sangree, of the Sacramento Bee, describes it:

In the Sacramento case, a former police officer with the University of California, Davis, filed a lawsuit against the UC regents in February, claiming discrimination and breach of a settlement agreement in a prior lawsuit.

David Greenwald, who operates a blog called The People's Vanguard of Davis, wrote about the legal dispute, and his readers weighed in with comments.

Some of those comments, posted anonymously and under a pseudonym, caught the attention of the former UC police officer, Calvin Chang, and his attorney, Anthony Luti.

They believed UC insiders had posted the comments and wanted to find out who they were. In July, Luti served a subpoena on Google, the Vanguard's former host, demanding names, e-mail addresses and log-in information.

Google informed Greenwald, and his lawyer, Donald Mooney, filed a motion to quash the subpoena. He argued the information was protected by the First Amendment.

The judge's ruling was a mixed bag, but it left open the possibility for the plaintiff to obtain the information he seeks:

In a tentative ruling issued Tuesday in Sacramento Superior Court, Judge Shelleyanne Chang (no relation to the plaintiff) ruled mainly in Greenwald's favor.

But the judge said the plaintiff could pay an independent third party to perform an Internet address trace to determine if those who posted comments were the people he thought they were. Only then could their information be revealed, she ruled.

"The court agrees that if the comments posted on the blog were authored by 'managing agents' of the university, they would constitute evidence relevant to the existing claims against the university, including breach of the settlement agreement," the judge wrote.

Sangree quoted Matt Zimmerman, of the Electronic Frontier Foundation, about the current state of the law:

In general, he said, courts have been protective of the right to anonymous speech. Political advocates have long used pen names or written anonymously, he said.

But there have always been exceptions to free-speech protections, and the area has grown more complex with the explosion of bloggers on the Internet.

Only a few high-level appellate courts have taken up the issue, he said, leaving rulings mostly in the hands of lower courts.

So far, courts have tended to side with anonymous commenters. But not totally. Writes Sangree:

Where plaintiffs can make a plausible case for defamation, the justices ruled, online anonymity may be breached. "When vigorous criticism descends into defamation," they wrote, "constitutional protection is no longer available."

It sounds like my situation might be a case of first impression. What if an anonymous Web comment indicates someone has information about unlawful conduct, possibly a crime, that caused someone to be cheated out of their job? Perhaps we will be finding the answer that question in the coming weeks and months.


Matt Osborne said...

In the future, real anonymity may be impossible without some very powerful software to conceal the IP address of the commenter/poster. But what kills me here is that you were so easily ID'd as the blogger and consequently fired, even though the blog had no relation to your work.

Elderlady said...

I'll be honest. I comment on a lot of blogs, from local to national. I used to write "letters to the editor." Each and every one required three things: name, address, and phone number.

If I wouldn't sign my name to it - I didn't post it.

If you wouldn't sign your name to it...... don't post it.

Anonymous said...

I think we need to be grown-ups and not digress by becoming this police state and I see where this new idea of being able to go after those who are definitely pushing boundaries is loved by the controllers, but where do we draw the line?

Is it really such a threat when there is only paper and no rocks or scissors?

I would love for all the Mossad, CIA, and other true dangers on the web and in the world to be fully transparent so, should this work in that fashion GREAT.

Problem is - those who make up the rules are not those who obey them.