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John Doe Subpoenas[edit]

Lawsuits alleging online harassment or defamation often involve anonymous or pseudonymous posters. The plaintiff may file suit against a John Doe and then use the tools of the discovery process to try to determine the poster's identity. Unmasking an anonymous online poster is a two-step process. First, the plaintiff must issue a subpoena to the hosting website, requesting the IP address of the poster. Most websites collect and temporarily store the IP addresses of visitors in a web server log, although no U.S. law requires that they store this information for any particular length of time.[1]

If the website provides the poster's IP address, the plaintiff must then subpoena the ISP that owns the address. This second subpoena requests the contact information associated with the account of the computer to which the IP address was assigned at the time the post was made.[2]

An anonymous poster who is the target of a John Doe subpoena may file a motion to quash, which requests that the court block the subpoena and prevent the ISP from complying.[3] No uniform standard exists in the United States for determining when an anonymous poster may be unmasked, and the federal and state courts that have considered the issue have applied a variety of tests.

Summary Judgment Standard[edit]

This standard requires an ISP to divulge the identity of an anonymous poster if the plaintiff's case would be able to withstand a motion for summary judgment. This means that the plaintiff must "make a sufficient showing on [every] essential element of its case with respect to which it has the burden of proof."[4]

The lead case applying the summary judgment standard is Doe v. Cahill,[5] in which a city council member sued an anonymous poster for two allegedly defamatory blog comments.[6] The court held that the plaintiff had failed to demonstrate that the comments were "capable of a defamatory meaning," an essential element of any defamation claim.[7] As a result, the plaintiff was not entitled to discovery of the Doe defendant's identity.[8]

Other courts have applied a "prima facie showing" test, which functions like the summary judgment test but avoids the "potentially confusing" attachment of a procedural label, since the standards governing such motions may differ depending on the jurisdiction.[9] In Krinsky v. Doe 6, the California Court of Appeals applied the prima facie showing test in the libel context, holding that "[w]here it is clear to the court that discovery of the defendant's identity is necessary to pursue the plaintiff's claim, the court may refuse to quash a third-party subpoena if the plaintiff succeeds in setting forth evidence that a libelous statement has been made."[10]

The prima facie standard was also favored by a New York district court in Sony Entertainment Inc. v. Does.[11] The court first found that the Doe defendants, who had used a peer-to-peer network to download copyrighted music files, warranted a lesser degree of First Amendment protection than speakers who engaged in "true expression" intended "to communicate a thought or convey an idea."[12] It then held that disclosure of the Doe defendants' identities was warranted based on a consideration of: (1) the plaintiff's ability to establish a prima facie claim; (2) the specificity of the plaintiff's discovery request; (3) the availability of alternative means to obtain the subpoenaed information; (4) the central need for discovery to advance plaintiff's claim; and (5) the defendants' expectation of privacy.[13]

Summary Judgment Standard Followed by Balancing[edit]

This test provides a higher level of protection to anonymous online speakers, in that it requires a court to first apply the summary judgment standard of Doe v. Cahill and, if the plaintiff is able to meet its burden, to then balance the strength of the plaintiff's prima facie case against the poster's interest in remaining anonymous.

This hybrid test was first articulated by a New Jersey appellate court in Dendrite International, Inc. v. Doe.[14] Dendrite set forth five guidelines for trial courts to follow in determining whether to compel an ISP to reveal the identity of an anonymous poster: (1) the plaintiff must make good faith efforts to notify the poster and give the poster a reasonable opportunity to respond; (2) the plaintiff must specifically identity the poster's allegedly actionable statements; (3) the complaint must set forth a prima facie cause of action; (4) the plaintiff must support each element of the claim with sufficient evidence; and (5) "the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed."[15]

The so-called Dendrite standard has been adopted by the Arizona Supreme Court in Mobilisa Inc. v. Doe,[16] and most recently, by Maryland's highest court in Independent Newspapers v. Brodie, decided on February 27, 2009.[17] After reviewing the treatment of anonymous online speech by other state and federal courts, the Maryland court concluded that "a test requiring notice and opportunity to be heard, coupled with a showing of a prima facie case and the application of a balancing test—such as the standard set forth in Dendrite—most appropriately balances a speaker's constitutional right to anonymous Internet speech with a plaintiff's right to seek judicial redress from defamatory remarks."[18]

Motion to Dismiss Standard[edit]

Some courts have required plaintiffs to demonstrate that their cause of action could withstand a motion to dismiss. This standard holds plaintiffs to a much lower evidentiary burden than the summary judgment standard, as it only requires the allegation of facts that, if true, would entitle the plaintiff to a legal remedy.

A California district court applied this standard in one of the earliest cases to consider the discovery standards applicable to anonymous online speakers, Columbia Ins. Co. v.[19] The court analogized the motion to dismiss standard to the requirement in a criminal investigation that the government show probable cause before obtaining a warrant, in that both prerequisites were necessary to "prevent abuse."[20] It concluded that before an anonymous defendant could be unmasked, the "plaintiff must make some showing that an act giving rise to civil liability actually occurred and that the discovery is aimed at revealing specific identifying features of the person or entity who committed that act."[21]

Good Faith Standard[edit]

Under a good faith standard, plaintiffs are simply required to show that their claim is made in good faith and not with the intent to harass the Doe defendant. The Circuit Court of Virginia applied this standard in In re Subpoena Duces Tecum to America Online, holding that a court may compel an ISP to reveal a subscriber's identity if it finds "that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction where suit was filed" and that "the identity information is centrally needed to advance that claim."[22] Courts and commentators have subsequently deemed this standard the "most deferential to plaintiffs," as "it offers no practical, reliable way to determine the plaintiff's good faith and leaves the speaker with little protection."[23]


  1. ^ Bills proposed in both houses of Congress in February 2009 would require ISPs and Wi-Fi access points to retain records of IP addresses for two years. This proposal, if enacted, would not affect the retention policies of web hosting services, however. See Albanesius, Chloe (2009-02-20). "Bill Would Require ISPs to Retain Data for Two Years". PCMag. Retrieved 2009-03-16.  Check date values in: |access-date=, |date= (help)
  2. ^ Nathaniel Gleicher, John Doe Subpoenas: Toward a Consistent Legal Standard, 118 Yale L.J. 320, 327-28 (pdf) (2008). Retrieved on 2009-03-15.
  3. ^ See "Citizen Media Law Project's Guide to Potential Legal Challenges to Anonymity". Retrieved 2009-03-15.  Check date values in: |access-date= (help)
  4. ^ Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Retrieved on 2009-03-15.
  5. ^ 884 A.2d 451 (Del. 2005). Retrieved 2009-03-15.
  6. ^ Id. at 454.
  7. ^ Id. at 466-67.
  8. ^ Id. at 468.
  9. ^ Krinsky v. Doe 6, 159 Cal. App. 4th 1154 (pdf) (2008). Retrieved on 2009-03-15.
  10. ^ Id. at 1172.
  11. ^ 326 F. Supp. 2d 556 (pdf) (S.D.N.Y. 2004). Retrieved on 2009-03-15.
  12. ^ Id. at 564.
  13. ^ Id. at 564-67.
  14. ^ 775 A.2d 756 (N.J. App. Div. 2001). Retrieved on 2009-03-15.
  15. ^ Id. at 760-61.
  16. ^ 170 P.3d 712 (pdf) (Ariz. 2007). Retrieved on 2009-03-15.
  17. ^ Independent Newspapers, Inc. v. Brodie, Court of Appeals of Maryland, Feb. 27, 2009, No. 63 (pdf). Retrieved on 2009-03-15.
  18. ^ Id. at p.41 (internal citation omitted).
  19. ^ 185 F.R.D. 573 (N.D. Cal. 1999). Retrieved on 2009-03-15.
  20. ^ Id. at 579.
  21. ^ Id. at 580.
  22. ^ 2000 WL 1210372, *8 (Vir. Cir. Ct. Jan. 31, 2000). Retrieved on 2009-03-15.
  23. ^ Krinsky, 159 Cal. App. 4th at 1167; see also Ryan M. Martin, Freezing the Net: Rejecting a One-Size-Fits-All Standard for Unmasking Anonymous Internet Speakers in Defamation Lawsuits, 75 U. Cin. L. Rev. 1217, 1228 (2007) (referring to the good faith standard as "extremely deferential to plaintiffs' allegations").