AOL reveals identity of subscriber who operated Web site critical of paper

Wednesday, July 22, 1998


America Online has revealed to the Orange County (Calif.) Register the name of a former newspaper employee who the paper alleges disrupted the workplace and defamed another employee.


AOL released the information last week after the company was subpoenaed in conjunction with the newspaper’s lawsuit against two unnamed “John Doe” defendants who established an unauthorized Web site called the “Orange County unRegistered Press.”


The paper and its corporate owner, Freedom Communications Inc., sued the defendants on July 2 in a Virginia federal court. They allege the defendants “blatantly infringed” on the paper’s trademark and “significantly interfered with employees’ communication and efficiency and created a disharmonious atmosphere.” They accuse the defendants of spamming, or sending unsolicited e-mail, to newspaper employees.


The paper alleges in Freedom Communications, Inc. v. John Doe I that one of its former employees conspired with at least one other unknown individual to damage the paper’s business and reputation.


The newspaper sued under three causes of action: trademark infringement, trespass and conspiracy to injure reputation and business.


The lawsuit claims its trademark was infringed in part because the public could be duped into believing that the paper endorses the content on the Web site. The paper alleges that the defendants had “the intent to confuse the relevant consuming public as to the source or origin of defendants’ publication.”


According to the Los Angeles Times, a competitor of the Register, the lawsuit drew the ire of several free-speech experts who pointed out the irony of a newsgathering organization that zealously guards its confidentiality taking such strong steps to unmask the Web site operator known before only as “Slave4OCR.”


Cyber-liberties expert Mike Godwin, a founding member of the Electronic Frontier Foundation, told the Los Angeles Times: “I have never heard of a case like this. It’s a sad, sad day when a newspaper, with a building filled with reporters, sues someone on the opposite side of the country in order to get information about one of its own employees.”


However, the Orange County Register contends this case does not concern freedom of speech, but protection of its employees from the harassing conduct of an ex-employee.


David Threshie, publisher of the Orange County Register, told freedomforum.org: “Unfortunately, the Los Angeles Times overlooked some very cogent facts. This suit was largely a procedural suit. We filed this suit because AOL would not release the subscriber info without legal process.”


Ron Redfern, president and CEO of the Orange County Register, also downplayed any First Amendment connection.


“We don’t see this as a freedom of speech case; we see this as an intrusion case,” Redfern told freedomforum.org. “Freedom of speech is part of the Constitution. However, free speech should not do harm to someone else’s personal and private property.”


The Register contends that “Slave4OCR” engaged in a series of civil and criminal violations in May.


“If this former employee just engaged in gossip or made critical comments about us, we would not have filed suit,” Threshie said. “We filed this suit because this individual did three things: spamming our e-mail system; threatening to bomb our e-mail system by implanting a virus; and accusing one of our lady employees of having oral sex with a supervisor.”


“We only used the legal process to protect our employees and our workplace from the threatening conduct of this individual who threatened to send e-mail bombs and viruses onto our Intranet,” Redfern said. “These defamatory comments had to be stopped.”


Redfern says the paper is “still considering” whether to amend the lawsuit to include its allegations of defamation and trespass.


Paul McMasters, Freedom Forum First Amendment ombudsman, told freedomforum.org: “On the face of it, the newspaper’s filing of a civil suit is a rather interesting tactic for going after alleged criminal activity — and whether it is intended or not, there seem to be significant free-speech implications in such an action.”


However, the more troubling aspect of this case to Robert O’Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, is America Online’s decision to reveal the identity of the individual.


“I am more troubled by the lack of clarity in which the Internet service provider, AOL, handles such requests for information even when they come within the legal process in the form of a subpoena,” O’Neil told freedomforum.org.


Tricia Primrose, an AOL spokeswoman, told the Los Angeles Times: “If it’s just someone expressing their views, we tend to leave them alone. It’s not worth the effort, and such expressions are at the heart of the Internet. But if it’s a blatant trademark infringement, such as someone copying a logo, then we’ll take action.”


Primrose told the Times that once AOL receives a court order to release subscriber information, it will contact the targeted subscriber to alert him or her of the legal action. If the subscriber does not reply within 10 days, AOL will release the information.


O’Neil fears AOL’s disclosure will result not only in a loss of privacy rights but will also chill speech on the Internet.


He cites several U.S. Supreme Court decisions that protect anonymous speech from government intrusion. In the 1995 case McIntyre v. Ohio Election Commission, the high court wrote that “an author’s decision to remain anonymous … is an aspect of the freedom of speech protected by the First Amendment.”


“While America Online and other Internet service providers are not government entities, and technically not subject to the limitations imposed by the First Amendment, these ISP’s wield such enormous power over the communications process that it ought to abide by a policy that protects anonymous speech,” O’Neil said.


McMasters agreed, adding: “As for AOL, it’s beginning to appear that the privacy and anonymity rights of its customers are not very high on its list of priorities — or at least not worth speaking up for.”