New Arizona case involving anonymous Internet speech

[David Farber <dave () farber net>]

Begin forwarded message:

From: Paul Levy <plevy () citizen org>
Date: September 27, 2006 8:37:43 PM GMT+02:00
To: dave () farber net
Subject: New Arizona case involving anonymous Internet speech

We have just filed a friend of the court brief (joined by EFF) in an  
appellate case in Arizona which appears to be the first time the  
right of anonymous Internet speech, and the problem of how to decide  
whether to compel the identification of an anonymous Internet user  
accused of wrongdoing, will be presented in that state's courts.

The case involves some pretty unusual facts:  the Doe defendant is an  
anonymous Internet speaker who obtained an email that the married  
head of Mobilisa, a software company, had sent from work to his  
mistress, and distributed the email to other executives with the  
comment that the email reflected poorly on the company.  Instead of  
the executive himself suing for invasion of privacy, the executive  
had the company sue alleging that the email must have been obtained  
by hacking into the company's computer system.  The company obtained  
a subpoena to the emailer's Internet Service Provider from Arizona  
Superior Court, and after receiving sworn denials from the executive  
and his mistress that they had given the email to anyone else or  
authorized access to their personal email accounts, the trial judge  
ordered the disclosure of the anonymous emailer's identity. Both the  
Doe and the Internet Service Provider appealed.

We argue that, whatever the outcome of the appeal with respect to the  
identity at issue, Arizona should follow other states by requiring  
evidence of the wrongdoing that is alleged, and by balancing the  
interest in obtaining redress for serious wrongs against the right to  
remain anonymous unless and until there is good evidence of wrongdoing.

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation

> > > Robert Yule 9/27/2006 2:21 PM >>>
PUBLIC CITIZEN PRESS RELEASE

For Immediate Release:            Contact: Paul Alan Levy (202) 588-1000
Sept. 27, 2006	                                 Robert Yule (202)  
588-7703

Software Company's Attempts to Reveal Identity of Anonymous
E-mailer May Stifle Internet Free Speech

Public Citizen Files Brief to Support Right of Internet Speakers Who  
Have Done No Harm to Remain Nameless

	WASHINGTON, D.C. - A Washington state software company may not have  
the right to reveal the identity of an anonymous e-mailer, according  
to a friend of the court brief filed today in an Arizona court of  
appeals by Public Citizen, joined by the San Francisco-based  
Electronic Frontier Foundation (EFF).

	The company Mobilisa sought to discover the identity of an anonymous  
e-mailer who distributed to other executives at the company the text  
of an e-mail originally sent by Mobilisa's married CEO to his  
mistress. The unknown sender used the services of the Arizona-based  
Internet service provider Suggestion Box, which enables members of  
the public to send e-mails anonymously.

	Instead of suing for invasion of privacy, the executive had the  
company file suit against "John Does 1-10" in Washington state court  
alleging that the e-mail must have been obtained by hacking into the  
company's computer system - a violation of federal law. The company  
then filed a motion in Arizona Superior Court in Phoenix against  
Suggestion Box to gain access to the identity of the e-mailer, giving  
sworn denials from the CEO and his mistress that they had given the e- 
mail to anyone else or authorized access to their personal e-mail  
accounts. Suggestion Box appealed when the trial judge granted  
Mobilisa the right to discover the sender's name, even though the  
court did not find facts showing that the e-mail was illegally  
obtained from Mobilisa's own systems.

	In the brief, Public Citizen and EFF urged the court to balance the  
interests of plaintiffs who feel they have been subject to wrongful  
speech against the important right of Internet speakers who have done  
no wrong to maintain their anonymity, while considering whether the  
online speakers abused their anonymity to engage in wrongful conduct  
online, such as by posting truly defaming or libelous comments. The  
organizations argued for an equitable balancing standard for  
consideration of such cases and asked the court to determine whether  
Mobilisa had made a technically adequate showing of facts to make its  
case, but did not take a position on whether this disclosure order  
should stand.

	 "The fundamental rights of free speech do not stop at the Internet  
portal," said Paul Alan Levy, the Public Citizen attorney who  
authored the brief. "The ability to speak or criticize anonymously  
online is an important tool for whistleblowers to expose misconduct  
or corruption by powerful companies or public figures. Courts should  
strike the right balance to protect online anonymity when it has not  
been abused and prevent the threat of lawsuits from having a chilling  
effect on this important type of speech."

	John Flynn, of the Phoenix law firm of Tiffany & Bosco, was local  
counsel on the brief.
        
	To read the brief, visit http://www.citizen.org/documents/ 
mobilisa_amicus.pdf.

	Public Citizen has a strong record of defending the First Amendment  
rights of Internet users. To learn more, visit http://www.citizen.org/ 
litigation/briefs/IntFreeSpch/index.cfm.

###

Public Citizen (www.citizen.org) is a national, nonprofit consumer  
advocacy organization based in Washington, D.C. The Electronic  
Frontier Foundation (www.eff.org) is a San Francisco-based nonprofit  
organization that protects civil liberties related to technology and  
the Internet.





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