-------- Original Message -------- Subject: Maine High Court Ducks First Amendment Anonymity Issue but Makes Clear It Can Be Raised in Other Cases Date: Fri, 18 Mar 2005 12:29:54 -0500 From: Paul Levy <plevy@private> To: <declan@private> The Maine Supreme Judicial Court issued a decision today in the case of Fitch v. Doe, ruling that a plaintiff who claimed that he had been injured by an anonymous Internet user could enforce a subpoena to identify the person who sent the email. The defendant had sent the email in the plaintiff's own name, and the plaintiff claimed that this constituted both identity theft and other torts under state law. The court ducked the most important issue in the case, whether the First Amendment sets standards governing the issuance or enforcement of such subpoenas, but the opinion makes clear that such claims can be raised on appeal in the future. The opinion is posted at http://www.courts.state.me.us/opinions/2005%20documents/05me39fi.htm. A PDF version of the opinion can also be downloaded there. The Doe, who was represented by counsel, argued to the trial court, and again on appeal, that the subpoena should not be enforced because his internet access was by cable and the Cable Communications Policy Act, 47 U.S.C. sec. 551(c) forbids ANY subpoenas for confidential subscriber information unless there is strong proof of criminal activity. The Supreme Court made short work of that argument, holding that the Cable Act does not pose any absolute bar to subpoenas seeking information for civil cases. The court also rejected the plaintiff's argument that the subscriber agreement between the Doe and his Internet Service Provider showed the Doe's consent to disclosure, on the ground that there had been no admissible evidence of such consent. Public Citizen filed an amicus brief in the case, joined by the American Civil Liberties Union, the Electronic Frontier Foundation, and the Maine ACLU, urging the Court to consider the First Amendment implications of the subpoena, and I argued the case on behalf of amici. The court acknowledged that courts in several other states had adopted First Amendment standards that balance the right to speak anonymously against the right of a plaintiff with a valid claim that can be supported by evidence of wrongdoing's had been met. However, the court declined to decide whether Maine should follow those authorities, and whether the case should be sent back for further consideration of that issue, because the Doe failed to raise the issue in the trial court. However, the ruling makes clear that such issues can be raised in the future, and the court's references to the approach adopted in other states appears to be a positive one. Also important is that the Maine court joined the other states in ruling that, when a trial judge allows such a subpoena ti identify an anonymous Internet user, the user can obtain immediate appellate review. Otherwise, the court recognized, the right to anonymity will be forever lost. Thus, the court's opinion sends a clear message that, in future cases of this sort, an anonymous Internet use can raise the First Amendment right to remain anonymous and can secure consideration of his First Amendment rights on appeal if necessary. Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation -------- Original Message -------- Subject: [Politech] Maine Supreme Court Requires ISP to Reveal Email Sender Date: Sat, 19 Mar 2005 10:23:26 -0500 From: Stephanie <sjwinters3@private> To: <declan@private> Declan, for Politech if you wish: http://pressherald.mainetoday.com/news/state/050319email.shtml Saturday, March 19, 2005 Judge: Name the sender of e-mail insult By DAVID SHARP, Associated Press The state Supreme Court ruled Friday that Time Warner Cable must turn over account information about the sender of an insulting e-mail in a case that sought to test the waters of Internet anonymity in Maine. The case stemmed from an e-mail sent to several residents of Great Diamond Island in Portland. The sender made it appear that the e-mail came from Ronald Fitch, and it featured a cartoon lampooning Fitch, his wife and their dead St. Bernard. The Maine Supreme Judicial Court ruled that federal law allows a judge to order Time Warner to turn over information about the e-mail sender. The unanimous ruling means that the sender's name will be revealed in a civil lawsuit filed by Fitch. Fitch said Friday he expects to find out the sender's name next week. "We want to make it public," he said. "My name has been floating around all this time." [...] _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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