When John Doe becomes John Smith: Losing anonymity in online speech

Monday, August 2, 1999

Employees used to gripe about their companies during coffee breaks and lunch periods. Now, they can vent their frustrations in Internet chat rooms and on message boards, where their online pseudonyms shield them with anonymity.

But when criticism in the coffee room becomes defamation on the Internet for millions of people to see, companies become concerned — and uncertain how to proceed against their anonymous critics.

In response, many businesses have brought charges of defamation against unidentified “John Does.” Several have also subpoenaed Internet portals such as Yahoo!, and Internet service providers such as America Online, in order to learn the identities of the critics.

But some people are concerned that fear of being identified will stifle dissident speech on the Internet, a medium that stands apart from others partly because of the anonymity it affords.

“We fear that the libel laws are being used as a means against unpopular speakers,” American Civil Liberties Union associate director Barry Steinhardt said. He said recent lawsuits might lead to intimidation and self-censorship.

One recent case occurred last May with California-based company Xircom Inc. Xircom filed a lawsuit against one John Doe, but its request for a subpoena of Yahoo! was denied by the California Superior Court of Ventura County for technical reasons. The judge ruled that with some minor revisions, the subpoena would be acceptable. (The parties reached a settlement before a new draft was written.)

Randy Holliday, attorney for Xircom, agreed that most employee complaints are protected by the First Amendment. Companies can use the criticism to focus on ways to improve, he said. But he made the distinction between criticism and defamation, which is not protected by the First Amendment.

“Comments in the nature of expression of opinion, whatever that opinion might be, are probably fair game,” Holliday said. “What becomes difficult in some circumstances is trying to determine where a given comment may cross the line between statements of opinion and apparent statements of fact.”

A similar case occurred last February at a Massachusetts-based electronics company, Raytheon. The company sued 21 John Does for disclosing confidential information on Yahoo! message boards. Raytheon went on to successfully subpoena Yahoo! and America Online, but it dropped the suit after obtaining the names of its critics. Ultimately, four employees resigned and the rest went into corporate counseling.

The problem is that no regulations spell out who is entitled to online subscriber information, said David Sobel, general counsel at the Electronic Privacy Information Center in Washington, D.C. He said this means companies can determine the identities of their critics too easily.

“All [companies] have to do is file a lawsuit — it can be legitimate or baseless — and suddenly they have the ability to identify anyone they want,” Sobel said.

To Sobel, greater online privacy results in greater self-expression. When people know that they could lose their anonymity at the request of their employers, he said, “people will become less willing to post controversial or critical information.”

Online portals such as Yahoo!, Lycos, Excite, and Microsoft Network all gather personal information about registered users. Data might include names, hobbies or e-mail and postal addresses. All these Web sites display privacy policies and promise not to disclose member information — unless they are required to do so by court injunctions.

Steinhardt said that “the names of the speakers are being too easily revealed.”

But Raytheon spokesman David Polk said obtaining the names of critics is the only way for companies to challenge people who illegally slander them. “You can file a case against John Does,” but companies can only receive compensation “from John Smiths,” he said.

Yahoo! spokesmen could not be reached for comment.

Sobel suggested that ISPs and portals should be required notify subscribers who are the targets of subpoenas. This would give subscribers a chance to challenge the court orders before their identities are released.

The U.S. Supreme Court ruled in a 1995 decision that the First Amendment protects anonymous speech (McIntyre v. Ohio). There is no court precedent for anonymous speech on the Internet, although Steinhardt, Holliday, and Sobel all said that they hoped for a court decision on the matter.

“If this issue isn't addressed, there will be a chilling effect” on online speech, Sobel said. “These lawsuits have a detrimental effect on the nature of debate.”