Doe subpoena
Encyclopedia
A Doe subpoena is a subpoena
that seeks the identity of an unknown defendant
to a lawsuit
. Most jurisdictions permit a plaintiff
who does not yet know a defendant's identity to file suit against John Doe
and then use the tools of the discovery
process to seek the defendant's true name. A Doe subpoena is often served on an online service provider
or ISP for the purpose of identifying the author of an anonymous post
.
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 retain this information for any particular length of time.
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.
Courts do not require the target of a subpoena to provide notice
to the person whose identity is sought. The hosting website is unlikely to notify the defendant, as it generally will not have access to contact information; subpoenas for IP addresses are therefore seldom subjected to legal challenge. The ISP, however, may be required by law to notify its subscriber before revealing any personally identifiable information in connection with a subpoena.
A defendant who does receive notice may file a motion to quash, which asks the court to block the subpoena and prevent the ISP from complying. ISPs may also challenge Doe subpoenas on their customers' behalf, but they are not required to do so.
. 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."
The lead case applying the summary judgment standard is Doe v. Cahill, in which a city council member sued an anonymous poster for two allegedly defamatory blog
comments. The Delaware Supreme 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. As a result, the plaintiff was not entitled to discovery of the Doe defendant's identity.
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
. 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."
The prima facie standard was also favored by a New York district court in Sony Music Entertainment
Inc. v. Does. 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." 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 the plaintiff's claim; and (5) the defendants' expectation of privacy
.
A New Jersey appellate court applied this hybrid test in Dendrite International, Inc. v. Doe No. 3
. The court set forth five guidelines for judges to follow in deciding whether to compel disclosure of an anonymous poster's identity: (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."
The so-called Dendrite standard
was adopted by the Arizona Supreme Court
in Mobilisa, Inc. v. Doe
, and most recently, by Maryland's highest court
in Independent Newspapers v. Brodie. 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."
.
A California district court applied this standard in one of the first cases to consider the discovery of an anonymous online speaker's identity, Columbia Insurance Co. v. Seescandy.com. 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." The court concluded that an anonymous poster could only be unmasked if the plaintiff made "some showing that an act giving rise to civil liability actually occurred and that the discovery [was] aimed at revealing specific identifying features of the person or entity who committed that act."
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" and that "the identity information is centrally needed to advance that claim."
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."
of 1984, a cable ISP may be required to notify its subscribers and obtain consent before disclosing any personally identifiable information, but the statute provides limited exceptions to the consent requirement, including disclosure made pursuant to a court order
.
restricts government and private access to computer records. Thus, in order to unmask the author of an anonymous post through the legal process, the individual seeking the information must comply with ECPA. There is no provision within ECPA, other than voluntary disclosure or with consent, that allows civil litigants to force an ISP or website to reveal a user’s IP address or identity via a subpoena. On the other hand, the government can obtain the records needed to identify the person behind an IP address if "specific and articulable facts show[] that there are reasonable grounds to believe...the records...are relevant and material to an ongoing criminal investigation."
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
that seeks the identity of an unknown defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
to a lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
. Most jurisdictions permit a plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
who does not yet know a defendant's identity to file suit against John Doe
John Doe
The name "John Doe" is used as a placeholder name in a legal action, case or discussion for a male party, whose true identity is unknown or must be withheld for legal reasons. The name is also used to refer to a male corpse or hospital patient whose identity is unknown...
and then use the tools of the discovery
Discovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
process to seek the defendant's true name. A Doe subpoena is often served on an online service provider
Online service provider
An online service provider can for example be an internet service provider, email provider, news provider , entertainment provider , search, e-shopping site , e-finance or e-banking site, e-health site, e-government site, Wikipedia, Usenet...
or ISP for the purpose of identifying the author of an anonymous post
Anonymous post
An anonymous post is an entry on a bulletin board system, Internet forum or message board, blog, or other discussion forum without a screen name or more commonly by using a non-identifiable pseudonym....
.
Legal process
Unmasking an anonymous online poster is a two-step process. First, the plaintiff must issue a subpoena to the hosting websiteWeb hosting service
A web hosting service is a type of Internet hosting service that allows individuals and organizations to make their own website accessible via the World Wide Web. Web hosts are companies that provide space on a server they own or lease for use by their clients as well as providing Internet...
requesting the IP address
IP address
An Internet Protocol address is a numerical label assigned to each device participating in a computer network that uses the Internet Protocol for communication. An IP address serves two principal functions: host or network interface identification and location addressing...
of the poster. Most websites collect and temporarily store the IP addresses of visitors in a web server log
Server log
A server log is a log file automatically created and maintained by a server of activity performed by it.A typical example is a web server log which maintains a history of page requests. The W3C maintains a standard format for web server log files, but other proprietary formats exist...
, although no U.S. law requires that they retain this information for any particular length of time.
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.
Courts do not require the target of a subpoena to provide notice
Notice
Notice is the legal concept in which a party is made aware of a legal process affecting their rights, obligations or duties. There are several types of notice: public notice , actual notice, constructive notice, and implied notice....
to the person whose identity is sought. The hosting website is unlikely to notify the defendant, as it generally will not have access to contact information; subpoenas for IP addresses are therefore seldom subjected to legal challenge. The ISP, however, may be required by law to notify its subscriber before revealing any personally identifiable information in connection with a subpoena.
A defendant who does receive notice may file a motion to quash, which asks the court to block the subpoena and prevent the ISP from complying. ISPs may also challenge Doe subpoenas on their customers' behalf, but they are not required to do so.
Legal standards
No uniform standard exists in the United States for determining the circumstances under which an anonymous online speaker may be unmasked. The federal and state courts that have considered the issue have applied a variety of tests.Summary judgment standard
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 judgmentSummary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....
. 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."
The lead case applying the summary judgment standard is Doe v. Cahill, in which a city council member sued an anonymous poster for two allegedly defamatory blog
Blog
A blog is a type of website or part of a website supposed to be updated with new content from time to time. Blogs are usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Entries are commonly displayed in...
comments. The Delaware Supreme Court
Delaware Supreme Court
The Supreme Court of Delaware is the sole appellate court in the United States' state of Delaware. Because Delaware is a popular haven for corporations, the Court has developed a worldwide reputation as a respected source of corporate law decisions, particularly in the area of mergers and...
held that the plaintiff had failed to demonstrate that the comments were "capable of a defamatory meaning," an essential element of any defamation claim. As a result, the plaintiff was not entitled to discovery of the Doe defendant's identity.
Other courts have applied a "prima facie
Prima facie
Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...
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
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
. 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."
The prima facie standard was also favored by a New York district court in Sony Music Entertainment
Sony Music Entertainment
Sony Music Entertainment ' is the second-largest global recorded music company of the "big four" record companies and is controlled by Sony Corporation of America, the United States subsidiary of Japan's Sony Corporation....
Inc. v. Does. The court first found that the Doe defendants, who had used a peer-to-peer
Peer-to-peer
Peer-to-peer computing or networking is a distributed application architecture that partitions tasks or workloads among peers. Peers are equally privileged, equipotent participants in the application...
network to download copyrighted music files, warranted a lesser degree of First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
protection than speakers who engaged in "true expression" intended "to communicate a thought or convey an idea." 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 the plaintiff's claim; and (5) the defendants' expectation of privacy
Privacy
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
.
Summary judgment standard followed by balancing
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 then, if the plaintiff is able to meet its burden, to balance the strength of the plaintiff's prima facie case against the poster's interest in remaining anonymous.A New Jersey appellate court applied this hybrid test in Dendrite International, Inc. v. Doe No. 3
Dendrite International, Inc. v. Doe No. 3
Dendrite International, Inc. v. Doe No. 3, A-2774-00T3 , is a New Jersey Superior Court case in which Dendrite International, Inc., a purveyor of computer software used in the pharmaceutical industry, brought a John Doe lawsuit against individuals who had anonymously posted criticisms of the...
. The court set forth five guidelines for judges to follow in deciding whether to compel disclosure of an anonymous poster's identity: (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
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
; (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."
The so-called Dendrite standard
Dendrite International, Inc. v. Doe No. 3
Dendrite International, Inc. v. Doe No. 3, A-2774-00T3 , is a New Jersey Superior Court case in which Dendrite International, Inc., a purveyor of computer software used in the pharmaceutical industry, brought a John Doe lawsuit against individuals who had anonymously posted criticisms of the...
was adopted by the Arizona Supreme Court
Arizona Supreme Court
The Arizona Supreme Court is the state supreme court of the U.S. state of Arizona. It consists of a Chief Justice, a Vice Chief Justice, and three associate justices. Each justice is appointed by the governor of Arizona from a list recommended by a bipartisan commission. Justices stand for...
in Mobilisa, Inc. v. Doe
Mobilisa, Inc. v. Doe
Mobilisa v. Doe was a lawsuit filed in 2005 by Mobilisa Inc.,, a Washington based company that provides wireless and mobile communications to government and military clients. The case against John Doe, the anonymous sender of an email using the service "The Suggestion Box"...
, and most recently, by Maryland's highest court
Maryland Court of Appeals
The Court of Appeals of Maryland is the supreme court of the U.S. state of Maryland. The court, which is composed of one chief judge and six associate judges, meets in the Robert C. Murphy Courts of Appeal Building in the state capital, Annapolis...
in Independent Newspapers v. Brodie. 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."
Motion to dismiss standard
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 remedyLegal remedy
A legal remedy is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order to impose its will....
.
A California district court applied this standard in one of the first cases to consider the discovery of an anonymous online speaker's identity, Columbia Insurance Co. v. Seescandy.com. The court analogized the motion to dismiss standard to the requirement in a criminal investigation that the government show probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
before obtaining a warrant
Warrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
, in that both prerequisites were necessary to "prevent abuse." The court concluded that an anonymous poster could only be unmasked if the plaintiff made "some showing that an act giving rise to civil liability actually occurred and that the discovery [was] aimed at revealing specific identifying features of the person or entity who committed that act."
Good faith standard
Under a good faith standard, plaintiffs are simply required to show that their claim is made in good faithGood faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
and not with the intent to harass the Doe defendant. The Circuit Court
Circuit court
Circuit court is the name of court systems in several common law jurisdictions.-History:King Henry II instituted the custom of having judges ride around the countryside each year to hear appeals, rather than forcing everyone to bring their appeals to London...
of Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
applied this standard in In re Subpoena Duces Tecum
Subpoena duces tecum
A subpoena duces tecum is a court summons ordering a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or trial....
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" and that "the identity information is centrally needed to advance that claim."
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."
Statutory limitations to obtaining IP addresses
Federal privacy statutes may limit a plaintiff's ability to gain access to an ISP's subscriber records.Cable TV Privacy Act of 1984
Under the Cable TV Privacy ActCable TV Privacy Act
The Cable TV Privacy Act of 1984, effective Dec. 29, 1984, provides for the Privacy of personal information. In particular, it prohibits cable TV providers from disclosing personally identifiable information, and allows users to view and verify their information....
of 1984, a cable ISP may be required to notify its subscribers and obtain consent before disclosing any personally identifiable information, but the statute provides limited exceptions to the consent requirement, including disclosure made pursuant to a court order
Court order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
.
Electronic Communications Privacy Act
The Electronic Communications Privacy ActElectronic Communications Privacy Act
The Electronic Communications Privacy Act is a United States law.- Overview :The “electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or...
restricts government and private access to computer records. Thus, in order to unmask the author of an anonymous post through the legal process, the individual seeking the information must comply with ECPA. There is no provision within ECPA, other than voluntary disclosure or with consent, that allows civil litigants to force an ISP or website to reveal a user’s IP address or identity via a subpoena. On the other hand, the government can obtain the records needed to identify the person behind an IP address if "specific and articulable facts show[] that there are reasonable grounds to believe...the records...are relevant and material to an ongoing criminal investigation."