Previous Politech coverage: http://www.politechbot.com/p-02355.html And: http://www.bergenrecord.com/news/pmemd200108165.htm [...] Paul Alan Levy, an attorney with the non-profit Public Citizen Litigation Group, sent a letter Wednesday to Superior Court in Hackensack. He raised questions about officials' attempts to force the Internet service provider to identify the 60 people who posted messages under anonymous screen names. Levy, who argued the Dendrite case, in which a New Jersey appellate court upheld the rights of anonymous online critics against companies, said the Moldow case is more troubling because it involves public officials. "We are concerned about people's rights to speak anonymously on the Internet," Levy said. "There's no right to go on the Internet and libel people, but there need to be procedures in place to protect their rights before they are identified." [...] -Declan ******** Date: Thu, 16 Aug 2001 09:53:13 -0400 From: "Paul Levy" <PLEVYat_private> To: <declanat_private> Subject: Emerson case The defendant's lawyer leaked the Emerson letter to the press, so I guess it is now public: http://www.bergenrecord.com/news/pmemd200108165.htm Here it is, as original except a typo is corrected: BY TELECOPIER: 201-752-4416 August 15, 2001 Honorable Mark A. Russello, J.S.C. Bergen County Justice Center 10 Main Street Hackensack, New Jersey 07601 Re: Donato v. Moldow, No. BER-L-6214-01 Dear Judge Russello: I write to you as counsel for a potential amicus curiae in this case about the request for an expedited subpoena to the Internet Service Provider ("ISP") VantageNet, seeking information that might lead to the identification of several dozen individuals who have posted derogatory comments about several public officials in the Borough of Emerson, New Jersey. This subpoena request raises several concerns. The persons who posted these comments are likely to live in Emerson, where they are subject to the governmental authority that the plaintiffs in the case may wield over them. The plaintiffs have made clear that they are very angry about these statements, as they are entitled to be given the nature of the comments, which, if the allegations in the complaint are to be believed, range from some specific factual charges of a potentially damaging nature to other comments which make clear that the posters detest the officials. However, the Supreme Court of the United States has held that the First Amendment protects the right to speak anonymously, McIntyre v. Ohio Elections Comm., 514 U.S. 334 (1995), and in a recent case the Appellate Division promulgated strict guidelines to balance the rights of anonymous speakers in keeping their anonymity against the right of companies that have been criticized on the Internet to vindicate their rights under contract and tort law to be free of defamatory speech and employees revealing trade secrets. Dendrite v. Doe, 2001 N.J. Super. Lexis 300 (App. Div. 2001). This case presents an even more serious situation, of course, because the speech is about public officials. And we have substantial concerns about whether the notice requirements and the substantive standards of Dendrite have been satisfied in this case In Dendrite, the plaintiffs were required to provide very specific notice that informed each defendant of the charges against him or her, and gave information about the time and place where they could appear to defend their rights to anonymity, as well as giving information about how the speakers could find counsel to protect their interests. The plaintiffs were required to identify each of the statements that was alleged to be actionable, and to show how those statements were actionable. Next, the plaintiffs were required to provide evidence to support all of the elements of their claims. Finally, assuming that all these tests were met, the Court was required to balance the interests of the speakers in anonymity against the interest of the plaintiffs in going forward. And, under Dendrite, all of these tests must be met before subpoenas or other discovery procedures may be authorized. Reviewing the complaint, it appears that some of the speech that has been alleged in this case could support a defamation claim, assuming that the statements were made as alleged and that there is evidence of falsity and damages. On the other hand, we rather doubt that a public official can sue a citizen for saying in a public forum, "I hate you." Thus, it seems to us that there is a real need for the careful application of the Dendrite test in this case. The problem is all the greater because, unlike Dendrite which was a private company, the plaintiffs here are public officials whose possession of state power gives them the automatic ability to cause great harm to any citizen of Emerson who is identified through this case. However, the only notice that has been published in this case is a short paragraph on an inside page of the web site, which reads as follows: On Wednesday, August 1, 2001 the Web Master of The Eye on Emerson, Steve Moldow, was served with a lawsuit filed by Vincent Donato, Gina Calogero, Larry Campagna and Eric Obernaur (The Plaintiffs). The defendants are Steve Moldow, the operator of The Eye on Emerson and approximately 70 anonymous users of the web site that are alleged to have posted defamatory and harrassing messages about the Plaintiffs. All of the documents, with the exception of the exhibits (which are primarily copies of posted messages) are available to be viewed by clicking on the links below. http://www.geocities.com/emersoneye/lawsuit/contents.html Unlike the notice in Dendrite, which is posted at http://messages.yahoo.com/bbs?.mm=FN&board =4688055&tid=drte&sid=4688055&action=m&mid=867, this notice only identifies the posters by reference to some other document, and it gives no information about how and where posters may appear to defend themselves or how they can obtain counsel. One of the links is to a document specifying the time and place for a hearing, but among the purposes of the hearing is said to be specifying the way in which notice will be provided to users of the existence of the action and of the ways they can obtain counsel. Thus, the notice encourages users to wait until after that hearing to learn how they may protect their anonymity. Moreover, we believe that given the fact that the speech at issue is core political speech (even if some of it is plainly hateful), and given the fact that the plaintiffs are public officials, the Court has an additional responsibility to ensure that a subpoena for identifying information is not issued without a prior assurance that the plaintiff has a valid cause of action. In Dendrite, Judge MacKenzie declined to consider certain arguments regarding the privacy of Dendrite employees who had allegedly breached their employment contract by speaking online, unless and until they appeared in the action to present such arguments. However, we question whether this Court should give government officials authority to identify their critics without prior consideration of their privacy rights and of the existence of probable cause for the search, regardless of whether the citizens have themselves appeared in the matter. Unfortunately, it is our understanding that the webmaster, who in our judgment has standing to raise the rights of the speakers who have used his web site as a forum to voice their concerns about public officials, has decided to accept a Consent Order allowing the subpoena to be served. Because the webmaster is also a defendant in the case, and must pay his private lawyer for any arguments that he may make, we understand the constraints under which he is operating. However, although that order gives a nod in the direction of Dendrite, what Dendrite requires is that the Court conduct a certain inquiry before any discovery is authorized. Thus, the Consent Order should not excuse the plaintiffs from complying with the strict requirements of Dendrite. Public Citizen is the amicus curiae which, along with the American Civil Liberties Union of New Jersey, argued for the analysis that was eventually adopted in Dendrite; given our concern that the plaintiff in this important case may be avoiding the requirements of that decision, we would like to have an opportunity to present our concerns to you. We have contacted the ACLU-NJ concerning the role that we might play together in this matter, and given time, both amici would be prepared to provide further briefing and to participate in a hearing on the First Amendment issues raised by this case. Regrettably, given prior commitments to an Internet defendant in a case pending in the United States District Court for the Northern District of Illinois, I would be unable to attend a hearing before you on August 17. Moreover, this is a case seeking damages, and so there would seem to be no harm in delaying a hearing on the motion. The one concern about delay that does appear substantial to us is that identifying information in the hands of the ISP may be destroyed under routine procedures. There are assertions in the affidavit of plaintiff Colagero, admittedly made only on the basis of information and belief, concerning the procedures followed by VantageNet. If adequately supported, these allegations could support an order to VantageNet to preserve evidence, assuming that the Court has jurisdiction of VantageNet, which we understand to be located in Minnesota. The webmaster has agreed to preserve any evidence that he has, and perhaps VantageNet would do the same, pending a hearing should one be required. So far as we are aware, counsel for neither plaintiffs nor defendant Moldow has been in touch with counsel for VantageNet to see whether it would be agreeable to preserving information pending a hearing. We have been attempting to contact VantageNet to learn what their procedures are, and we think it would be appropriate for notice to be given to VantageNet so that its counsel have an opportunity to participate in a hearing on such an order. Thank you for considering these concerns. Respectfully yours, Paul Alan Levy cc: Louis Lamatina, Esquire (201-291-0777) Jack Darakjy, Esquire (201-261-7978) Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation/litigation.html ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. 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