We recently filed an amicus brief about the standards for subpoenas identifying anonymous Internet users accused of defamatory or otherwise wrongful communications in a surprising venue – the United States District Court for the Northern District of California. The underlying case was filed in the Western District of Washington by Macao Music Group, an offshore conglomerate of companies making pro audio and music equipment, and by a Washington state subsidiary, against the anonymous authors of a pair of parody Twitter accounts named "FakeUli" and "NotUliBehringer," playing on the name of Macao's CEO, Uli Behringer.
The complaint in the case asserts that various tweets accused Behringer of consorting with prostitutes, and accused the companies of making shoddy products and encouraging domestic violence and child abuse. Plaintiffs then issued a subpoena in the Northern District of California. Twitter, however, resisted the subpoena on the ground that there was no proof of wrongdoing, and plaintiffs moved to compel, telling the Court about the Dendrite line of cases (with emphasis on one of the cases, Salehoo v Doe, decided in the forum court, the Western District of Washington, and arguing that those standards were met because the statements were so plainly defamatory. Twitter took no position on whether the standard had been met, but simply urged the Court not to compel compliance with the subpoena unless the Court was satisfied that the Dendrite standard had been satisfied.
Why the Northern District of California Needs to Get These Cases Right
The United States District Court for the Northern District of California plays an especially significant role in balancing the First Amendment rights of anonymous Internet speakers against the right of alleged victims of wrongful speech online to secure judicial redress for their injuries, because so many of the companies that host online speech are located in the Bay Area (for example, in addition to Twitter, Automattic, Google, Typepad, Weebly, Yahoo and Yelp are there). Consequently, even when cases are filed in federal courts elsewhere, under Rule 45 of the Federal Rules of Civil Procedure, subpoenas for identifying information must be issued from that Court, and motions to compel or to quash will typically be litigated there. In a series of early contested cases, judges in that district, led by the example of the highly respected Magistrate Judge Wayne Brazil in Highfields Capital v. Doe, recognized the rightness of the Dendrite approach.
There is always the danger that a case can go forward without anybody calling the relevant law to the judge’s attention – the plaintiffs have no incentive to do so, and the ISP’s, although they generally follow the Cyberslapp Coalition's recommendation by giving notice, and will generally object to the subpoena to make sure that their users will have enough time to find counsel and move to quash if they can afford lawyers, also tend to regard themselves as only stakeholders. Consequently, most of them will not pay their lawyers to go to court to ensure that Dendrite is followed. So, all too often, there is nobody advocating the interests of the absent Does, and judges do not necessarily have the staff support to find the relevant caselaw when it is omitted from the briefs before them, not to speak of analyzing the complaint sufficiently to identify flaws that might be obvious to a practitioner who follows the area closely.
Perhaps judges should do in these sorts of cases what they do for pro se plaintiffs who file civil rights complaints, and develop a pro bono panel to which they refer cases to private counsel who might undertake a limited representation addressed solely to the subpoena issues. That should not be hard in the Northern District of California, where there are many lawyers in private practice who follow these issues, not to speak of concerned non-profits such as the ACLU of Northern California and EFF.
In any event, failing such developments, there have been a number of recent cases where Northern District of California judges departed from Dendrite, and in which it took an amicus brief to steer them back to the right approach. In the Ron Paul case,for example, the problem was caused by a disingenuous ex parte motion for early discovery seeking to identify the authors of a parody YouTube video; the motion papers deliberately cited inapplicable precedent and ignored the Dendrite line of cases. In Art of Living v. Does, the judge generalized from cases involving the downloading of copyrighted songs and movies to hold that there was a broad intellectual property exception to Dendrite. In both cases, after considering our briefs, the judges applied the right standard; in neither case did the Does end up being identified.
How the Decision in Macao Music Went Wrong
In Macao Music, these reasons for going awry were absent. Not only did Twitter file a short brief citing the Dendrite rule (going further to protect its users than most ISP's do in such circumstances), but the plaintiffs did as well, even if they rather misconstrued the standard by contending that allegations of defamation are sufficient to override the right to speak anonymously. Given its capacity as a stakeholder that was not taking a position on whether the subpoena should be enforced, Twitter did not argue that Macao’s legal analysis was faulty, and Magistrate Judge Laurel Beeler did not notice the problems either. In fact, instead of discussing cases involving the First Amendment right to speak anonymously, the judge cited a series of inapposite cases where courts had considered whether there was a First Amendment privilege not to provide discovery, cases where the discovery was sought to establish claims and defenses against identified parties. Applying this standard, the judge decided because the statements alleged in the complaint were “pure defamation,” the Does’ speech was plainly unprotected under the First Amendment and hence the Does were subject to being identified unless the Does themselves filed a motion to quash and persuaded the Court that their names should remain private.
I first heard about the case from Santa Clara Law professor Eric Goldman. Once I took a look at the underlying documents on PACER, I decided that Judge Beeler’s decision should not be allowed to stand, not just because she had applied the wrong law, but even more because it was apparent that the plaintiffs had no basis for identifying the Doe defendants. The motion to compel discovery justified plaintiffs’ request based only on claims of defamation and breach of employment contract, but complaint had been filed in federal court, not based on diversity jurisdiction over state-law claims, but based on a series of truly laughable federal-law claims. For example, plaintiffs claimed that the parody Twitter accounts infringed Macao Music Group’s trademarks and hence were actionable under the Lanham Act (someone would be confused about whether these parody accounts were sponsored by Macao?) or constituted cybersquatting in violation of the ACPA (where was the domain name? where the bad faith intent to profit?). Without these federal claims, the suit belonged in state court. And on the existing record even the defamation claims were apparently spurious — the complaint did not identify the allegedly defamatory tweets but just characterized them generally; it did not appear to be the plaintiff companies, but rather their CEO, who was being criticized; and most of the tweets were four years old, far outside the statute of limitations.
Renewed Efforts to Hold Plaintiffs to the Dendrite Standard
Happily, Twitter was unwilling to allow its users to be compulsorily identified without a judge having employed the proper First Amendment test. As a stakeholder, it did not feel able to argue forcefully that the test had not been met, but it did move for "clarification," gently pointing out to the Magistrate Judge that she had applied the wrong standard instead of the legal standard that both sides had agreed was the right one, and asking her to "clarify" whether identification was properly ordered under the correct rule of law. I give Twi
tter great credit for its willingness to file this brief.
Supporting Twitter's efforts, Public Citizen has now filed an amicus brief, arguing rather more directly that Judge Beeler applied the wrong legal standard and urging her to provide the correct one. In addition, we point out the many flaws in the plaintiffs legal claims, even on the face of the complaint, apart from the lack of any evidence that anything the anonymous defendants have said about Behringer or the plaintiff companies is false. We are especially grateful to Cathy Gellis who provided excellent comments on the brief, and Paul Jasper, a partner at Schnader Harrison who agreed to be pro bono local counsel on the brief on exceptionally short notice when the lawyer we had initially identified as pro bono local counsel had to pull out because other lawyers at her firm perceived a positional conflict with some of their paid cases.