Anonymity in cyberspace: Judicial and legislative regulations

Fordham Law Review

Volumn 81, Issue 6, 2013, Pages 3651-3691

  Qasir, Sophia ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84878929998     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (181)

1. Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers under the pseudonym of "Publius" to promote acceptance of the U.S. Constitution. See Alexander Hamilton, James Madison & John Jay, Federalist Papers (Goldwin Smith, ed. 1901).
2. The Anti-Federalists, who opposed the ratification of the Constitution, also wrote under pseudonyms, using the names Brutus, Cato, and Centinel. See Herbert J. Storing, The Complete Anti-Federalist (1981).
3. See, e.g., Watchtower Bible & Tract Soc'y of New York, Inc. v. Vill. of Stratton, 536 U.S. 150, 166-67 (2002) (finding a law that required a permit to distribute pamphlets door-to-door was unconstitutional, because it infringed upon the speaker's First Amendment rights);
4. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-42 (1995) ("[T]he anonymity of an author is not ordinarily a sufficient reason to exclude her work product from the protections of the First Amendment.");
5. Talley v. California, 362 U.S. 60, 65 (1960) (holding that a regulation prohibiting the distribution of anonymous handbills was unconstitutional).
6. See, e.g., Doe v. Cahill, 884 A.2d 451 (Del. 2005).
7. See, e.g., Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp. 2d 1205 (D. Nev. 2008) (noting that the plaintiff alleged that the defendant unlawfully interfered in the plaintiffs business through an online smear campaign using anonymous postings).
8. See, e.g., Sony Music Entm't Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004).
9. See Reno v. ACLU, 521 U.S. 844 (1997).
10. Compare SI03, Inc. v. Bodybuilding.com, LLC, 441 F. App'x 431, 433 (9th Cir. 2011) (vacating the district court's decision to apply the summary judgment standard, because the district court had not identified "the nature of the speech in question"), with In re Anonymous Online Speakers, 661 F.3d 1168, 1177 (9th Cir. 2011) (noting that the district court did not abuse its discretion in applying a summary judgment standard).
11. The Fourth Circuit addressed the issue of anonymous online speech in Peterson v. National Telecommunications and Information Administration, 478 F.3d 626, 633-34 (4th Cir. 2007), but did not address the substantive scope of the right to anonymous speech, instead finding that the right to anonymity was not challenged because the petitioner lacked standing to challenge the constitutionality of the act. For a discussion of the various standards that courts have adopted, see infra Part III.A.
12. E.g., Doe v. Cahill, 884 A.2d 451 (Del. 2005).
13. E.g., Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999);
14. Dendrite Int'l Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).
15. E.g., In re Subpoena Duces Tecum to America Online, Inc., 52 Va. Cir. 26 (Cir. Ct. 2000).
16. California considered similar legislation. A.B. 1143, 2003 Leg, Reg. Sess. (Cal. 2003), available at http://www.leginfo.ca.gov/pub/03-04/bill/asm/ab- 1101-1150/ab-l 143-bill-20030221-introduced.pdf (last visited Apr. 19, 2013).
17. The measure passed in the Assembly, but was later abandoned by the state senate. See Complete Bill History, official Cal. legis. Info, http://www.leginfo.ca.gov/pub/03-04/bill/asm/ab-1101-1150/ab-l 143-bill-20041130-history.html (last visited Apr. 19, 2013).
18. A federal court in Georgia interpreted this law as a restriction on anonymous speech and granted an injunction prohibiting the enforcement of the Act. See ACLU of Ga. v. Miller, 977 F. Supp. 1228, 1235 (N.D. Ga. 1997).
19. New Jersey also considered a bill that would require individuals to register with websites before being allowed to post on those websites, significantly undermining the right to anonymity. See A.B. 1327, 212th Leg., 1st Sess. (N.J. 2006), available at http://www.njleg.state.nj.us/2006/Bills/A1500/ 1327-11.PDF (last visited Apr. 19, 2013).
20. Currently, the New York State legislature is considering the Internet Protection Act, which is similar to the New Jersey proposal. See A.B. 8688, 2012 Leg, 235th Sess. (N.Y. 2012), available at http://assembly.state.ny.us/leg/? default-fld==%0D%0A&bn=A.8688&term=2011&Summary-Y&Text-Y (last visited Apr. 19,2013);
21. See Califomians Against Sexual Exploitation Act, 2012 Cal. Legis. Serv. Prop. 35, § 12 (West) (to be codified at Cal. Penal Code § 290.015(a)(4) (West 2013)), available at http://vig.cdn.sos.ca.gov/2012/general/ pdf/text-proposed-laws-v2.pdf#nameddest==prop35;
22. Ga. Code Ann. § 42-l-12(a)(16)(K) (West 2008), invalidated by White v. Baker, 696 F. Supp. 2d 1289 (N.D. Ga. 2010).
23. See FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012) ("A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.").
24. Steven H. Shiffrtn & Jesse H. Choper, The First Amendment: Cases, Comments, Questions 2 (5 th ed. 2011).
25. See Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam) (holding that a state statute that prohibited speech that advocated violence, rather than the incitement of violence, was unconstitutional, because it infringed upon speakers' right to free speech).
26. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). In Chaplinsky, the Court affirmed the conviction of a speaker who violated a state law that prohibited any person from addressing offensive, derisive, or annoying words to any other person, because the law was not unconstitutionally vague. Id. at 574.
27. See Feiner v. New York, 340 U.S. 315, 318-21 (1951) (upholding the constitutionality of a statute that prohibited speech that may cause a breach of the peace because the state has the power to prevent the outbreak of violence).
28. See New York v. Ferber, 458 U.S. 747, 763-64 (1982) (affirming constitutionality of a state statute that restricted the sale of pornography depicting children because the First Amendment does not protect child pornography and the law was not overbroad or vague);
29. Miller v. California, 413 U.S. 15, 24 (1973) (holding that states may restrict the sale of pornographic "works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value").
30. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974) (holding that states may determine the standard for liability for newscasters who make defamatory statements regarding private individuals);
31. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (holding that a publisher that makes an honest mistake of fact regarding the conduct of a public official cannot be held civilly liable, because the First Amendment protects the free discourse of ideas).
32. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J, concurring) (discussing how the right to free speech is a "fundamental principle of the American government").
33. Cf. United States v. Carolene Prods. Co, 304 U.S. 144, 152 n.4 (1938) (stating that there is a narrow presumption of constitutionality when legislation restricts a right protected by the first ten amendments).
34. See United States v. O'Brien, 391 U.S. 367, 376 (1968).
35. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). Strict scrutiny is a standard of review that courts use to evaluate the constitutionality of government action when it deprives an individual or group of individuals of a fundamental right.
36. Erwtn Chemerinsky, Constitutional Law: Principles and Policies 554 (4th ed. 2011). Strict scrutiny requires that the government show it has a compelling interest and that the means used are narrowly tailored or necessary to achieve those ends. Id.
37. See Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942) (establishing the "fighting words" doctrine under which the government may permissibly proscribe speech that may result in a breach of the peace).
38. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam) (holding that speech may be regulated if it is reasonably calculated to incite "imminent lawless action and is likely to incite or produce such action").
39. Cohen v. California, 403 U.S. 15, 23 (1971).
40. See Turner Broad. Sys, Inc. v. FCC, 512 U.S. 622, 642 (1994).
41. See 1 Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech § 3:2 (3d ed. 1996).
42. see also Sharkey's, Inc. v. City of Waukesha, 265 F. Supp. 2d 984, 994 (E.D. Wis. 2003) (holding that content neutral laws "by no means receive a free pass under the First Amendment"
43. (quoting Clarkson v. Town of Florence, 198 F. Supp. 2d 997, 1006 (E.D. Wis. 2002))).
44. see also United States v. Williams, 553 U.S. 285, 304 (2008) ("Vagueness doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause of the Fifth Amendment.");
45. Connally v. Gen. Constr. Co, 269 U.S. 385, 393 (1926) ("The dividing line between what is lawful and unlawful cannot be left to conjecture."
46. (quoting United States v. Capital Traction Co, 34 App. D.C. 592, 598 (1910))).
47. See Cent. Hudson Gas & Elec. Co. v. Pub. Gas Comm'n, 447 U.S. 557, 562-63 (1980) ("The Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.").
48. see also Bolger v. Youngs Drug Prods. Corp, 463 U.S. 60, 66-67 (1983) (finding a pamphlet to constitute commercial speech because it was an advertisement, referred to a single product, and the speaker had an economic motivation for the speech, but noting that any individual factor was not dispositive).
49. See, e.g., Thompson v. W. States Med. Ctr, 535 U.S. 357, 360 (2002) (finding that a federal law restricting the ability of drug providers to advertise their drugs was unconstitutional because the government did not have a sufficient interest in regulating commercial speech in that context);
50. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 562-66 (2001) (stating that strict scrutiny did not apply to a law restricting commercial speech, but conducting a thorough analysis of the state's justification to find the law unconstitutional);
51. Greater New Orleans Broad. Ass'n v. United States, 527 U.S. 173, 183-88 (1999);
52. Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 504 (1996) (noting that a prohibition on speech unrelated to consumer protection must be reviewed with "special care").
53. Cf. In re Anonymous Online Speakers, 661 F.3d 1168, 1177 (9th Cir. 2011) ("We need not, however, decide if the speech at issue here constitutes commercial speech under the Supreme Court's definition in Central Hudson").
54. See, e.g., Sony Music Entm't Inc. v. Does 1-40, 326 F. Supp. 2d 556, 558, 562-63 (S.D.N.Y. 2004) (analyzing a copyright infringement claim where there was a low speech interest).
55. E.g., Dendrite Int'l, Inc. v. Doe, No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) (rejecting a subpoena request for an anonymous commenters' identity, because the plaintiff failed to show harm from an allegedly defamatory comment, and allowing the discovery would chill the commenter's speech rights).
56. 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. Clif. L. Rev. 1217, 1225-27 (2007).
57. W. Page Keetonetal, Prosser and Keeton on Torts 771 (5th ed. 1984).
58. Libel originated as a crime, while slander could only be brought as a criminal action in conjunction with another offense, such as sedition, blasphemy, or a breach of the peace. Id. at 785; see also Susan W. Brenner, Should Online Defamation Be Criminalized?, 76 Miss. L.J. 705, 709-14 (2007) (discussing the history of defamation law from its common law origins).
59. See, e.g., 19 Am. Jur. Trials § 499 (2012);
60. 53 C.J.S. Libel and Slander § 87 (2012).
61. See Restatement (Second) of Torts § 558 (1977);
62. See Curtis Publ'g. Co. v. Butts, 388 U.S. 130, 155-56 (1967) (noting that the similarities in libel actions against public officials and public figures provided a basis for applying the Sullivan standard to public figures).
63. See Doe v. Cahill, 884 A.2d 451, 466 (Del. 2005) ("[A] reasonable person reading a newspaper in print or online, for example, can assume that the statements are factually based and researched. This is not the case when the statements are made on blogs or in chat rooms.").
64. S. Elizabeth Malloy, Anonymous Blogging and Defamation: Balancing Interests on the Internet, 84 Wash. U. L. Rev. 1187,1190-91 (2006).
65. The right to privacy from governmental intrusion developed in the line of cases started by Griswold v. Connecticut, 381 U.S. 479 (1965), is conceptually distinct from the right discussed in this Note.
66. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 205 (1890).
67. See William L. Prosser, Privacy, 48 Calif. L. Rev. 383, 389 (1960);
68. see also Patricia Sanchez Abril, Recasting Privacy Torts in a Spaceless World, 21 Harv. J.L. & Tech. 1, 8-9 (2007) (noting that Prosser's four categories of privacy torts have been incorporated into modern American jurisprudence);
69. Maayan Y. Vodovis, Note, Look over Your Figurative Shoulder: How To Save Individual Dignity and Privacy on the Internet, 40 Hofstra L. Rev. 811, 816-17 (2012) (noting that there are four recognized categories of privacy torts at common law).
70. Restatement (Second) of Torts § 652B (1977).
71. Compare Restatement (Second) of Torts § 652D cmt. d, with Alfred Hill, Defamation and Privacy Under the First Amendment, 76 Colum. L. Rev. 1205, 1258-62 (1976).
72. For a modern assessment of Professor Hill's disagreement with the Second Restatements approach, see Robert D. Sack, Protection of Opinion Under the First Amendment: Reflections on Alfred Hill, "Defamation and Privacy Under the First Amendment," 100 Colum. L. Rev. 294,310-13 (2000).
73. Restatement (Second) of Torts § 652D cmt. d.
74. Anita L. Allen, Privacy Jurisprudence As an Instrument of Social Change: First Amendment Privacy and the Battle for Progressively Liberal Social Change, 14 U. Pa. J. const. L. 885, 920-21 (2012).
75. cf. Amy Pomerantz Nickerson, Comment, Coercive Discovery and the First Amendment: Towards a Heightened Discoverability Standard, 57 UCLA L. Rev. 841, 869-70 (2010) (suggesting that there should be a heightened standard before allowing discovery of speech-related activities).
76. See Time, Inc. v. Hill, 385 U.S. 374, 387-88 (1967).
77. See Flowers v. Carville, 310 F.3d 1118, 1132-33 (9th Cir. 2002) (allowing the plaintiff to maintain both false light and defamation claims);
78. But see Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1113-15 (Fla. 2008) (holding that Florida does not recognize a false light invasion of privacy tort because the overlap with defamation is too great).
79. See Restatement (Second) of Torts § 652C (1977);
80. See Ann-Margret v. High Soc'y Magazine, 498 F. Supp..401, 404-06 (S.D.N.Y. 1980) (finding that the right to free speech transcends the right to privacy where a defendant used an image of the plaintiff that had appeared in a popular movie);
81. See Zacchini v. Scripps-Howard Broad. Co, 433 U.S. 562, 576-78 (1977) (holding that a plaintiff, whose performance was recorded and replayed on the news without his consent, may maintain an action against the broadcasting company, but noting that there are some cases in which the First Amendment would protect appropriation).
82. See Wilkinson v. Downton, (1897) 2 Q.B. 57 (Eng.) (allowing a plaintiff, who suffered serious mental and physical consequences after falsely being told that her husband had been harmed in an accident, to recover against the speaker).
83. Id. at 346 (citing Meyer v. Grant, 386 U.S. 414,420 (1988)).
84. Id. at 357. The Supreme Court affirmed the right to anonymous speech more recently in Watchtower Bible & Tract Society v. Village ofStratton, 536 U.S. 150 (2002), when it struck down a law that prohibited individuals from going door-to-door, finding that the law may chill ordinary neighborly conduct.
85. See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)
86. See Reno v. ACLU, 521 U.S. 844, 870-72 (1997) (applying constitutional protections to invalidate a portion of the Communications Decency Act that prohibited indecent communications because the Act was not content neutral).
87. Federal Election Campaign Act of 1971, Pub. L. No. 92-225, 86 Stat. 3
88. as amended by the Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263 (codified as amended in scattered sections of 2 U.S.C).
89. Citizens United, 130 S. Ct. at 913-14.
90. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 354 (1995) ("Required disclosures about the level of financial support a candidate has received from various sources are supported by an interest in avoiding the appearance of corruption that has no application to this case.").
91. The truth-seeking function of speech, or the notion of a "market place of ideas," derives from Justice Oliver Wendell Holmes's dissent in Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
92. See Reno v. ACLU, 521 U.S. 844, 870 (1997) (extending First Amendment protection to online speech).
93. David L. Hudson, Jr., Blogs and the First Amendment, 11 NEXUS 129, 131 (2006) (quoting Sen. John Cornyn) (internal quotation marks omitted);
94. see also Daniel J. Solove, A Tale of Two Bloggers: Free Speech and Privacy in the Blogosphere, 84 WASH. U. L. Rev. 1195, 1196 (2006) (discussing Glenn Reynolds's assertion that modern bloggers may supplement and challenge traditional media coverage).
95. Jocelyn Hanamirian, Note, The Right To Remain Anonymous: Anonymous Speakers, Confidential Sources and the Public Good, 35 COLUM. J.L. & ARTS 119, 119 (2011);
96. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334,354 (1995).
97. See Nathaniel Gleicher, John Doe Subpoenas: Towards a Consistent Legal Standard, 118 yale L.J. 320, 360-61 (2008) (discussing how various courts have inquired into the defendant's expectation of privacy).
98. Compare Sony Music Entm't Inc. v. Does 1-40, 326 F. Supp. 2d 556, 565 (S.D.N.y. 2004) (noting that the court should consider the parties' expectation of privacy when deciding whether to allow discovery of identifiable information from an ISP)
99. with Dendrite Int'l, Inc. v. Doe No. 3, 775 A.2d 756, 762 (N.J. Super. Ct. App. Div. 2001) (looking to a website's privacy policy to determine whether defendants had a reasonable expectation of privacy).
100. William McGeveran, Mrs. Mclntryre's Checkbook: Privacy Costs of Political Contribution Disclosure, 6 u. Pa. J. const. L. 1, 7 (2003).
101. Amy Kristin Sanders & Patrick C. File, Giving Users a Plain Deal: Contract-Related Media Liability for Unmasking Anonymous Commenters, 16 comm. L. & Pol'y 197, 207-08(2011).
102. See White v. Baker, 696 F. Supp. 2d 1289, 1310-11 (N.D. Ga. 2010) (holding that a law that would require the plaintiff to disclose his online identity would chill his right to anonymous online speech);
103. Doe v. Cahill, 884 A.2d 451, 462 (Del. 2005) ("[Allowing a defamation plaintiff to unmask an anonymous defendant's identity through the judicial process is a crucial form of relief that if too easily obtained will chill the exercise of First Amendment rights to free speech.").
104. But see Clay Calvert et al, David Doe v. Goliath, Inc.: Judicial Ferment in 2009for Business Plaintiffs Seeking the Identities of Anonymous Online Speakers, 43 J. Marshall L. Rev. 1,15 (2009) (discussing how the internet can be harmful when abused by anonymous speakers).
105. See Lyrissa Barnett Lidsky & Thomas F. Cotter, Authorship, Audiences, and Anonymous Speech, 82 notre Dame L. Rev. 1537, 1570-74 (2007);
106. See Mike Godwin, Cyber Rights: Defending Free Speech in the Digital Age 298 (1998) (discussing how the rise in internet speech can lead to "radical pluralism").
107. Vincent Blasi, The Checking Value in First Amendment Theory, 1977 Am. B. Found. Res. j. 521, 542 (1977). The role of anonymous online speech in promoting democracy may be best illustrated through the use of social media in recent uprisings in Iran and Egypt.
108. See, e.g., Nassim Nazemi, Note, DCMA § 512 Safe Harbor for Anonymity Networks Amid a Cyber-Democratic Storm: Lessons from the 2009 Iranian Uprising, 106 Nw. U. L. Rev. 855, 866-67 (2012) ("[A]rrests [for posting on social media] helped shine a floodlight on the importance of unfiltered Internet access and online anonymity to U.S. democratization efforts abroad and U.S. access to world news ....").
109. Id. at 1577, 1582-86 (arguing that there is a fundamental assumption that audiences of speech are rational and capable of self-governance, and that the Supreme Court's decision in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), is an example of this assumption).
110. For example, The New York Times allows anonymous or pseudonymous comments on its website but requires users to register their email addresses and reserves the right to moderate or remove comments. See Comments & Readers' Reviews, N.Y. times, http://www.nytimes.com/content/help/site/usercontent/ usercontent.html (last visited Apr. 19, 2013). Other websites may require the individual to sign in with a social media account, such as Facebook or Twitter.
111. See Comments and Discussion, Wash. post, http://www.washmgtonpost.com/wp- srv/interactivity/policy/discussion-faq.html (last visited Apr. 19, 2013) (allowing commenters to post through either social media applications or a registration system).
112. See, e.g., Danielle Keats Citron, Cyber Civil Rights, 89 B.U. L. Rev. 61, 64 (2009) (discussing the growth of anonymous online mobs that attack minority groups);
113. Michael L. Siegel, Comment, Hate Speech, Civil Rights, and the Internet: The Jurisdictional and Human Rights Nightmare, 9 Alb. L.J. Sci. & tech. 375, 381 (1999) (discussing how hate groups have used the internet to spread their message).
114. James A. Gardner, Anonymity and Democratic Citizenship, 19 Wm. & Mary Bill Rts. J. 927, 940-41 (2011) (citing John Stuart Mill's opposition to the secret ballot and anonymous speech in a political system).
115. See First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 776-77 (1978).
116. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 382-83 (1995) (Scalia, J, dissenting) (discussing how allowing anonymous speech makes it easier for people to be untruthful, thus making it more difficult for voters to discover the truth);
117. Amy Constantine, Note, What's in a Name? McIntyre v. Ohio Elections Commission: An Examination of the Protection Afforded to Anonymous Political Speech, 29 conn. L. Rev. 459,469-70 (1996).
118. Susanna Moore, The Challenge of Internet Anonymity: Protecting John Doe on the Internet, 26 J. Marshall J. computer & info. L. 469, 470 (2009). Situations in which speakers identify themselves, such as through social media, are beyond the scope of this Note.
119. Communications Decency Act of 1996, Pub. L. 104-104, 110 Stat. 133 (codified at 47 U.S.C. §§ 230, 560-61).
120. see also Sony Music Entm't Inc. v. Does 1-40, 326 F. Supp. 2d 556, 558-59 (S.D.N.Y. 2004);
121. Doe v. Cahill 884 A.2d 451, 454-55 (Del. 2005).
122. See Sony Music, 326 F. Supp. 2d at 558-59;
123. Cahill 884 A.2d at 454-55;
124. See Sony Music, 326 F. Supp. 2d at 558-59;
125. Cahill 884 A.2d at 454-55;
126. David Sobel, The Process That "John Doe" Is Due: Addressing the Legal Challenge to Internet Anonymity, 5 Va. J.L. & tech 3, 14 (2000).
127. Victoria S. Ekstrand, Unmasking Jane and John Doe: Online Anonymity and the First Amendment, 8 Comm. L. & Pol'y 405,415 (2003).
128. Matthew Mazzotta, Note, Balancing Act: Finding Consensus on Standards for Unmasking Anonymous Internet Speakers, 51 B.C. L. Rev. 833, 844-59 (2010);
129. In re Subpoena Duces Tecum to Am. Online, Inc., 52 Va. Cir. 26 (Cir. Ct. 2000), rev'd on other grounds sub nom. Am. Online v. Anonymous Publicly Traded Co, 542 S.E.2d 377 (Va. 2001). The Circuit Court of Virginia is a trial court.
130. Am. Online, Inc. v. Anonymous Publicly Traded Co, 542 S.E.2d 377 (Va. 2001).
131. Am. Online I, 52 Va. Cir. at 35.
132. See Lyrissa B. Lidsky, Anonymity in Cyberspace: What Can We Learn from John Doe?, 50 B.C. L. Rev. 1373,1390-91 (2009).
133. Michael S. Vogel, Unmasking "John Doe" Defendants: The Case Against Excessive Hand-Wringing over Legal Standards, 83 Or. L. Rev. 795, 854-55 (2004).
134. see also Fed. R. Civ. P. 11(c); 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1336 (3d ed. 2004). Rule 11 of the Federal Rules of Civil Procedure requires lawyers to certify that any claim, defense or legal contention they make in a pleading or written motion to the court is warranted by existing law or a nonfrivolous reason for extending the law.
135. See, e.g., Solers, Inc. v. Doe, 977 A.2d 941, 952 (D.C. 2009) ("The good faith test ... may needlessly strip defendants of anonymity in situations where there is no substantial evidence of wrongdoing, effectively giving little or no First Amendment protection to that anonymity.");
136. see also Sony Music Entm't, Inc. v. Does 1-40, 326 f. Supp. 2d 556, 564 (S.D.N.Y. 2004) (applying a balancing test in a case alleging copyright infringement for illegal use of file-sharing programs because even though "file sharing is not engaging in true expression," it is still "entitled to First Amendment protection").
137. Columbia Ins. Co., 185 F.R.D. at 578.
138. Cahill, 884 A.2d at 463 (citing In re Asbestos Litig, 799 A.2d 1151, 1152 (Del. 2002)).
139. Id. at 465 ("The 'reasonable reader, looking at the hundreds and thousands of postings about the company from a wide variety of posters, would not expect that [the defendant] was airing anything other than his personal views. .. ."' (quoting Global Telemedia Int'l, Inc. v. Doe 1, 132 F. Supp. 2d 1261,1268 (CD. Cal. 2001))).
140. Cahill v. Doe, 879 A.2d 943 (Del. Super. Ct. 2005), rev'd, 884 A.2d 451 (Del. 2005).
141. Cahill, 884 A.2d at 454.
142. Cahill, 884 A.2d at 458-59.
143. See, e.g., Mobilisa, Inc. v. Doe, 170 P.3d 712, 720 (Ariz. 2007) ("[Requiring the court to balance the parties' competing interests is necessary to achieve appropriate rulings in the vast array of factually distinct cases likely to involve anonymous speech.");
144. Ashley I. Kissinger & Katherine Larsen, Untangling the Legal Labyrinth: Protections for Anonymous Online Speech, 13 No. 9 J. internet L. 1,19 (2010).
145. Jonathan D. Jones, Note, Cybersmears and John Doe: How Far Should First Amendment Protections of Anonymous Internet Speakers Extend?, 7 first Amend. L. Rev. 421,439(2009).
146. Compare Krinsky v. Doe, 72 Cal. Rptr. 3d 231, 242-43 (Ct. App. 2008) (adopting the Cahill standard because the Dendrite standard "required too much" and the motion to dismiss standard was too low)
147. with Indep. Newspapers, Inc. v. Brodie, 966 A.2d 432, 456-57 (Md. 2009) (adopting the test from Dendrite, because the summary judgment standard would set the bar too high and "undermine personal accountability and the search for truth").
148. See Doe v. 2TheMart.com, Inc., 140 F. Supp. 2d 1088, 1095 (W.D. Wash. 2001) ("The standard for disclosing the identity of a non-party witness must be higher than that articulated in Seescandy.Com and America Online, Inc.");
149. see also Sedersten v. Taylor, No. 09-3031-CV-S-GAF, 2009 WL 4802567, at *2 (W.D. Mo. Dec. 9, 2009);
150. Enterline v. Pocono Med. Or, 751 F. Supp. 2d 782, 787 (M.D. Pa. 2008).
151. See 2TheMart.com, 140 F. Supp. 2d at 1095.
152. See, e.g., Sara Gates, Anonymous Comment Ban: Internet Protection Act Threatens Online Anonymity for New York-Based Websites, hufftngton post (May 24, 2012, 7:17 PM), http://www.huffingtonpost.corn/2012/05/24/anonymous-comment- ban-legislation-new-york-n-1543033.html;
153. Chris Hannay, Tory MP Says Government Should Do Something About Anonymous Online Comments, globe & Mail (Oct. 26, 2012, 1:44 PM), http://www.theglobeandmail.com/news/politics/ottawa-notebook/ tory-mp-says-govermnent-should somemmg-about-anonymous-online-comments/ article4683094/.
154. Ga. Code Ann. § 16-9-93.1(a) (West 2012), invalidated by White v. Baker, 696 F. Supp. 2d 1289 (N.D. Ga. 2010).
155. See generally Donald J. Karl, Note, State Regulation of Anonymous Internet Use After ACLU of Georgia v. Miller, 30 Ariz. St. L.J. 513 (1998).
156. Bill Information, N.J. LEGISLATURE, http://www.njleg.state.nj.us/Default. asp, (last visited Apr. 19, 2013) (on the "Bill Search" sidebar, search for Bill Number A1327 in Legislative Term 2006-2007; then click the hyperlink for Bill A1327).
157. Chenda Ngak, New York Lawmakers Propose Ban on Anonymous Online Comments, CBS News (May 24, 2012, 11:46 AM), http://www.cbsnews.com/8301-501465-162- 57440895-501465/new-york-lawmakers-propose-ban-on-anonymous-online-comments/ (quoting the bill's sponsors' statements that the bill's purpose was to combat cyberbullying).
158. See, e.g., Eugene Volokh, Nearly Half the New York Assembly Republicans: Require Deletion of Anonymous Comments Whenever Anyone Complains, volokh Conspiracy (May 3, 2012, 11:54 PM), http://www.volokh.com/2012/05/03/nearly- half-the-new-york-assembly-republicans-require-deletion-of-anonymous-comments- whenever-anyone-complains/(arguing that the bill is unconstitutional);
159. Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified in scattered sections of 17 and 28 U.S.C).
160. Cf. Ryan King, Online Defamation: Bringing the Communications Decency Act of 1996 in Line with Sound Public Policy, 2003 Duke L. & tech. Rev. 24, U 11 (2003);
161. Jason C. Miller, Who's Exposing John Doe? Distinguishing Between Public and Private Figure Plaintiffs in Subpoenas to ISPs in Anonymous Online Defamation Suits, 13 J. tech. L. & Pol'y229, 239 (2008).
162. See Complaint, Doe v. Harris, No. C12-5713 (N.D. Cal. filed Nov. 7, 2012), available at https://www.eff.org/cases/doe-v-harris.
163. See Doe v. Harris, No. C12-5713 TEH, 2013 U.S. Dist. LEXIS 5428 (N.D. Cal. Jan. 11,2013).
164. See Doe v. Harris, electronic Frontier found, https://www.eff.org/cases/ doe-v-harris (last visited Apr. 19, 2013);
165. John Doe, et al. v. Kamala Harri, Justia Dockets and filings, http://dockets.justia.com/docket/circuit-courts/ca9/13-15267/ (last visited Apr. 19, 2013) (referring to Doe v. Harris).
166. For the appellant's opening brief, see Opening Brief of the Defendant-Appellant, Doe v. Harris, No. 15263 (9th Cir. Apr. 10, 2013), available at https://www.eff.org/sites/default/files/filenode/states-opening- brief.pdf. At the time of this writing, the Plaintiff-Appellees have not yet filed their briefs.
167. Ga. Code Ann. § 42-l-12(a)(16)(K) (West 2008), invalidated by White v. Baker, 696 F. Supp. 2d 1289 (N.D. Ga. 2010).
168. But see Scot Wilson, Corporate Criticism on the Internet: The Fine Line Between Anonymous Speech and Cybersmear, 29 Pepp. L. Rev. 533, 540-42 (2002) (arguing that the "free marketplace" interpretation of anonymous online speech is limited because of the difficulty in drawing a line between lawful and defamatory speech).
169. Recent Cases, Maryland Court of Appeals Sets Out Process Required Before Court May Compel Identification of Anonymous Internet Defendants, 123 Harv. L. Rev. 1011, 1014-15 (2010) [hereinafter Anonymous Internet Defenders].
170. See Doe v. Cahill, 884 A.2d 451,460 (Del. 2005) (retaining the notification prong of the Dendrite standard).
171. See In re Anonymous Online Speakers, 661 F.3d 1168, 1177 (9th Cir. 2011) ("[W]e suggest that the nature of the speech should be a driving force in choosing a standard by which to balance the rights of anonymous speakers in discovery disputes.");
172. The Dormant Commerce Clause problem occurs when one state's laws or regulations implicate activity in other states and is problematic because it may lead to protectionist regulation by the states and undermine the national market. See Brown-Forman Distillers Corp. v. N.Y. Liquor Auth, 476 U.S. 573,580 (1986).
173. See, e.g., Kenneth D. Bassinger, Note, Dormant Commerce Clause Limits on State Regulation of the Internet: The Transportation Analogy, 32 Ga. L. Rev. 889 (1998);
174. James E. Gaylord, Note, State Regulatory Jurisdiction and the Internet: Letting the Dormant Commerce Clause Lie, 52 Vand. L. Rev. 1095 (1999);
175. Ari Lanin, Note, Who Controls the Internet? States' Rights and the Reawakening of the Dormant Commerce Clause, 73 S. Cal. L. Rev. 1423 (2000).
176. See John Rothschild, Protecting the Digital Consumer: The Limits of Cyberspace Utopianism, 74 Ind. L.J. 893 (1999).
177. Cf. Kevin M. Lemley, The Innovative Medium Defense: A Doctrine To Promote the Multiple Goals of Copyright in the Wake of Advancing Digital Technologies, 110 Penn St. L. Rev. III, 134 (2005) ("[C]opyright law promotes the public interest by providing authors with economic incentives to create new works of authorship ").
178. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 555-56 (1985).
179. See, e.g., Andrew B. Carrabis & Seth D. Haimovitch, Cyberbullying: Adaptation from the Old School Sandlot to the 21st Century World Wide Web-The Court System and Technology Law's Race To Keep Pace, 16 J. Tech. L. & Pol'Y 143 (2011);
180. Jamie Wolf, Note, The Playground Bully Has Gone Digital: The Dangers of Cyberbullying, the First Amendment Implications, and the Necessary Responses, 10 cardozo Pub. L. Pol'Y & Ethics J. 575 (2012).
181. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 343-44 (1974) (applying a different standard for defamation of public persons from that of private individuals).