by Paul Alan Levy
An increasing number of ISP’s have come to see themselves as more than stakeholders in controversies about whether their users have so clearly exceeded their First Amendment rights that their identities must be revealed in response to court subpoenas. Twitter, for example, declined in the Macao Music case to disclose the identities of two account holders unless plaintiffs moved to compel and the trial judge applied the right First Amendment standard. In a series of recent cases, Yelp has resisted subpoenas to identify its users, and we have represented several other ISP’s such as 800Notes and Justin Leonard’s old infomercial scams web site in addressing identification subpoenas.
When web site operators that host anonymous comments ask for my advice about how to respond to subpoenas, my advice is simple: demand notice to the Does and a showing in support of the subpoena; see what the subpoenaing party has to say; then look at the evidence. If the arguments are persuasive, and the evidence is there, then the ISP should just make sure there is effective notice to the users, but it should be up to the Does to move to quash. I have represented a number of ISP's who accepted my advice that compliance with the subpoena made sense. But if the plaintiff cannot come up with a good reason (although most of these cases involve plaintiffs, sometimes it is defendants, as in the recent Digital Music News case), then it may make sense to serve written objections, which in the federal courts and in many states is enough to put the subpoena on hold, and to give the plaintiff the burden of seeking to enforce the subpoena.
Cookie-Cutter Imitation of Hadeed
Recently, though, we have been seeing a number of cases in which plaintiffs suing to identify the authors of adverse consumer comments (or, at least, comments that purport to be from consumers), have argued that they don’t have to show that the gist of the criicisms is false. Instead, they say, it is enough to claim that the posters are not really customers, and that, therefore, any statements about what happened to “them” are technically false, even if the same thing happened to ten others. And how do they show that the posters are not customers? Well, they really just say so: “we reviewed the customer database and cannot match any customer with the comments over which we are suing.”
In this regard, they are plainly parroting the argument that Hadeed Carpet Cleaning made to the Virginia courts, and which the Virginia Court of Appeals, refusing to apply the First Amendment standards used in many states, decided was sufficient under that state’s unique statute. The concern we expressed to the Virginia Supreme Court was that if conclusory statements of this sort were enough, then there is basically no right to anonymity. Does this sort of argument say anything more than that the Doe has successfully masked her identity (as she has a right to do, if she is not making false and injurious statements)? Or, must the showing be something more, that there is something about the comments that shows that the poster really was not a customer?
The fact that a number of defamation plaintiffs with otherwise weak cases have been making cookie-cutter arguments that throw Hadeed’s conclusory claims in the faces of other web hosts around the country tends to confirm our concern about what the Virginia Court of Appeals decided in Hadeed. We have been looking for good cases in which to challenge Hadeed’s theory in other jurisdictions. The first step has to be to force would-be discoverers to spell out the basis for the claim that the posters are not customers.
1-800-Vending Subpoena to Unhappy Franchisee
A current example of this sort of abuse of the Hadeed theory comes from a subpoena recently served by a Utah company called 1.800.Vending, while sells vending machines, on Sean Kelly, who operates a web site called Unhappy Franchisee that carries reports about disputes between franchisors and franchisees. Kelly carries some 1100 posts about 400 franchisors from a variety of industries, from fast food to commercial cleaning (janitorial) franchises, from blue collar mobile tool truck distributorships like Snap-on, MAC Tools and Matco to the franchises of retail giants like 7-Eleven. It currently hosts more than 25,000 comments, and encourages dialogue from all sides of any given issue. Because Kelly strongly believes that anonymity can encourage whistleblowers to come forward on his page, safe from fear of economic retaliation if they are tied to their comments, he is anxious to stand up for anonymity where that right has not been abused.
Kelly's view is that the vending industry is particularly prone to abuse, and he has written about both 1-800-Vending and its rivals. There are a few comments about 1-800-Vending on his page about it. 1-800-Vending has filed suit against one of its competitors, one Chris Wyland and his company, Grow Franchise Group. Wyland's connections have also come in for healthy criticism on the Unhappy Franchisee web site.
In connection with that suit, 1-800-Vending subpoenaed Kelly to produce information about the authors of five specific posts. Considering that some of the comments were plainly not defamatory (for example, “There has to be something we can [sic] if we join forces. Who is interested in holding these creeps accountable.” ), and that most of them were more than a year old, even though libel plaintiffs usually have only one year to file suit, the subpoena struck me as highly suspicious, so I raised the Dendrite issue with the plaintiffs’ lawyer in objections to the subpoena.
The plaintiff’s lawyer, S. Ian Hiatt, sent a letter claiming to rebut our objections, and demanding that Kelly give up the information or face a motion to compel. The letter was so over the top that I have posted it here, but what particularly interests me was the claim that the plaintiff “has reason to believe” that the identified posts “were not posted by actual customers; instead, they were posted by 1.800’s competitors.”
And what was the basis for this belief? Hiatt grandly informed me that his client “has cross-checked the information provided in the posts on [Kelly’s] web site (such as name, location, and number of units allegedly purchased) against its customer database and determined that those anonymous posts are not from legitimate customers.”
This made me especially curious. How had Hiatt and his client located that sort of information from the post quoted a few paragraphs above, about "join[ing[ forces [to] hold{] these creeps accountable." Or what about the first comment in the subpoena, which has no information about numbers of units or location, but just expresses thanks for the post: “Wow, I am so glad I found this—I will not be doing business with this company. . . .” Neither of these posters even claimed to be a customer, but were commenting on what others had said; and neither gave information about location or number of units. Some of the other comments whose authors were subpoenaed said that they, or their companies, had bought one or two vending machines, without saying when, or where: does 1 800 Vending just never deal in volume that small?
We have responded to this and other nonsense in the company’s letter, challenging 1 800 Vending to bring this matter to court. We shall we whether it does.
