With no laws requiring that the defendants be alerted, posters' fates are dependent on the philosophy of the company that runs the message board -- and their own financial resources and location. Hiring an attorney and flying across the country with a couple of days' notice to beat the subpoena date is not an easy task for most posters. In any case, walking into the courtroom to try to quash a subpoena would go a long way toward revealing your identity.

"There is no apparent procedural protection when someone's anonymity is being attacked," says David Sobel, general counsel for the Electronic Privacy Information Center.

"Where is John Doe in these courtrooms?" he asks. "The company's position is, 'We're on the sidelines here, if we're ordered to disclose we'll disclose.' So who is coming before the judge to present the interest of anyone other than Raytheon?" Sobel is referring to the defense contractor's pending case against 21 John Does who posted company information that Raytheon claimed was proprietary.

The posts in question made claims, some untrue, about new contracts Raytheon had won, charges it would take in its next financial report, quarterly performance and other company news. But in the Raytheon suit, filed in February in a Massachusetts court, the company alleged that the posts were damaging and charged the John Does with breach of employee contracts and misappropriation of trade secrets.

After subpoenaing Yahoo and recovering the information leading to the Internet service providers used by the posters, Raytheon sought and won another court order to depose the ISPs -- Microsoft, AOL and EarthLink. Not all 21 have been identified to date, but news reports indicate that two employees have left Raytheon in the wake of being identified. Raytheon won't confirm the departures, but spokeswoman Toni Simonetti said employees identified in the case may face disciplinary actions. She emphasized that the company "is not trying to put a chill on the free expression of our employees" but is protecting its proprietary information. And she denied a recent report in the Boston Globe that the information in the allegedly damaging posts was already public knowledge.

Raytheon says its suit is pending, as it continues to identify defendants. In the past, most companies in its situation have not gone ahead and filed charges once they've obtained the names they want. Neither EPIC's Sobel, nor Shari Steele, director of legal services at the Electronic Frontier Foundation, knows of any cases in which charges have been filed once the identities of online posters have been exposed.

"I think this new use of subpoenas is really to determine identity," rather than to bring formal charges, says Steele. "If we are going to claim that identity is protected under the First Amendment, we need to examine this," she argues, and come up with some process that shields people's identities -- at least until there is justification to believe they have committed a crime. "Today," says Steele, "it seems to be enough to make much lesser claims to get someone's identity."

Message-board hosts, especially those who run boards for investors, say they have little incentive to resist efforts to identify members accused of misbehaving. "Anything that improves the legitimacy" of the communications taking place on Silicon Investor is a priority, says Go2Net spokesman Mark Peterson. AOL, too, says spokesman Rich D'Amato, has "a policy of cooperation with law enforcement," which is in line with the company's overall goal of "developing a medium we can be proud of."

But such policies -- designed to put a quick stop to destructive hackers or stock-manipulating message posters -- also encourage the unmasking of anonymous posters without any due process.

"We need to come up with ways to distinguish between someone who is hiding behind their anonymity to commit a crime, and someone who is using anonymity for whistle-blowing purposes or to communicate anonymously in an HIV-support group or on a message board for battered women," says Sobel.

Steele argues that new legislation may be the best answer to this problem. But EFF isn't actively lobbying for a law right now, and no one else seems to be pursuing it, either.

Do posters have any right to anonymity? To answer that question, someone may have to contest a subpoena that would reveal his or her identity -- leading to a legal review of this practice, and perhaps the establishment of some standard procedures to give online posters a shot at protecting their anonymity.

Until that day, "if we are served with a valid subpoena," says Yahoo's Hunt, "we will comply. The terms and conditions [for using Yahoo's message boards] are pretty much common sense."

Because they are subscription-based services, both Go2Net and AOL have easy access to member billing information, and can simply hand over names and addresses in response to subpoenas. Yahoo, Lycos and other free sites have only the information that a member provides, which is often no more than a free e-mail address, which itself may lead back to nothing more than assumed names and false addresses. But more savvy subpoena-writers are requesting IP numbers and other technical information; using that, they can trace the poster back to his Internet service provider, who can often identify the user.

So far, these approaches are helping authorities apprehend suspected criminals. But the subpoenaing of quick-trace information could also be wreaking havoc with the Internet's traditions of whistle-blowing and griping about employers, companies and institutions.

"These cases are creating an environment in which large companies can scare critics into silence," says EPIC's Sobel. "I can't help but assume -- and I think this is the intention of these cases -- that these suits are going to have a chilling effect on people's willingness to post critical information."
salon.com | April 20, 1999

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