June 2, 2000
By CARL S. KAPLAN
In Fight Over Anonymity, John Doe Starts Slugging
ohn Doe is finally fighting back.
Defendants named John Doe have become popular punching bags in the Internet world. The name appears in lawsuits as a kind of place holder when the true identity of a defendant is not yet known. Legal experts estimate that companies have filed more than 70 lawsuits against John Does for posting anonymous and allegedly defamatory comments on Internet message boards.
Free-speech advocates have railed against many of these lawsuits, which they claim are often frivolous. They say the game goes like this: file a John Doe suit, issue a subpoena under the court's authority against an Internet service provider or Web portal, and voila, you can unmask the anonymous speaker and silence him. In the process, they say, everyone's right to uninhibited and robust anonymous speech on the Internet is chilled.
Defenders of the practice see things differently. They claim that many of these John Doe lawsuits are deadly serious, based on substantial and specific allegations of wrongdoing -- like disclosure of trade secrets, breach of employment contracts and libel. Online anonymity should not be used as a shield to evade accountability and liability for unlawful conduct on a message board, they argue.
The controversy may be coming to a head. Last month, in the first case of its kind, a John Doe with the online moniker Aquacool_2000 sued Yahoo in federal court in Los Angeles. Aquacool claimed that Yahoo, in responding to a subpoena, should not have revealed his identity to his former employer or, at a minimum, should have given him fair notice that a subpoena had been served, and thus an opportunity to oppose it.
The Yahoo case could serve as an important vehicle for courts to begin to address how easy or difficult it should be to unmask anonymous speakers on the Internet, said Paul M. Schwartz, a law professor at Brooklyn Law School who is an expert in privacy law.
"Now, it's still up for grabs," Schwartz said, adding that there are definite costs and benefits to over- and under-protecting anonymous speech. "What I am suggesting, though, is that this is a very important moment in which we form cyberspace."
Lyrissa Lidsky, a professor at the University of Florida College of Law in Gainesville and an expert in anonymous online speech disputes, agreed that Aquacool's lawsuit against Yahoo is significant. It is "really the first one in the second generation" of John Doe Internet-related lawsuits, she said. In the first round of cases, large corporations easily unmasked defendants without much public notice, she said. Now the John Does are beginning to squawk.
The facts of the Yahoo case are colorful, to say the least. Beginning in the fall of 1999, according to legal papers, an individual using the pseudonym Aquacool_2000 posted a series of messages on a Yahoo message board devoted to AnswerThink Consulting Group Inc., an e-commerce business with headquarters in Miami, Fla. The board was one of hundreds on Yahoo that allow investors to comment on the stocks of specific companies.
In one message, Aquacool called one member of AnswerThink's management team an "arrested adolescent" with a taste for bathroom humor. In others, he wrote that the company's management "primarily does things that benefit them personally," that the board was composed of the chief executive's "school mates and community buddies" and that the chief executive "does not understand that his role is to maximize all shareholders' wealth and not just a few."
In February, AnswerThink filed a complaint in federal court in Miami, charging several John Does, including Aquacool, with defamation. Later, lawyers for the company issued subpoenas to Yahoo and others seeking Aquacool's identity.
The following month, based on information that Yahoo provided, AnswerThink filed a lawsuit against Gregory P. Hackett, an Ohio resident and a former employee of the company who, it alleged, posed as Aquacool_2000. In its suit, the company charged Hackett/Aquacool with defamation, the breach of certain non-disclosure terms of his employment contract and breach of fiduciary duties to the company. AnswerThink also fired Hackett and said he had forfeited a block of stock and a lump-sum payment of around a million dollars it owed him, according to legal papers.
The Florida case triggered Aquacool's suit against Yahoo, in which the anonymous poster is demanding damages for all the money he lost following his unmasking. Lawyers for Aquacool have also filed a suit in Ohio against AnswerThink, seeking payments and stock.
Megan Gray, a lawyer representing Aquacool in the Yahoo case, declined to say whether Hackett and Aquacool were the same person, although she acknowledged in legal papers that Aquacool was a former employee of AnswerThink. Attempts to reach Hackett and Aquacool by phone and e-mail were not successful.
Gray, in an interview and in her legal papers, argued that Yahoo's actions violated her client's right to privacy under the California constitution. She also said that Yahoo breached its own contract. The company's privacy policy, she said, directly and indirectly states that personally identifiable information about users will not be distributed without consent. Finally, Gray said that AnswerThink's complaint against Aquacool was baseless because Aquacool's comments were hyperbolic statements of opinion that, as a matter of law, could not be considered defamatory.
"I think we've got a really strong case based on common law and California law," Gray said. "I'm just grateful that somebody finally had the courage to bring Yahoo's actions to light."
A lawyer for Yahoo declined to comment on the case. A company spokesman noted, however, that in April, Yahoo adopted a new policy of notifying users when it receives a subpoena asking for personal information. Other companies, like America Online and MSN, routinely give notice to users about a subpoena, legal experts said.
Blake Bell, a New York lawyer who follows what he calls "cybersmear" cases against corporations, said he believed the lawsuit against Yahoo was weak. Anonymous speakers have no right to object to Yahoo's compliance with a subpoena when Yahoo's own terms of service state that it may disclose account information when necessary to comply with a court order, he said.
S. Daniel Ponce, a Miami lawyer who is representing AnswerThink, took strong exception to the allegation that his company's lawsuits are frivolous.
"They were filed to protect AnswerThink, its shareholders and its employees from some individual who is defaming the company and leaking confidential information," he said.
Ponce also defended his tactic of initially suing John Doe, then serving a subpoena on Yahoo to disclose the defendant's identity. "When someone is being harmed or damaged, how else can you find out who's doing it?" he asked.
CYBER LAW JOURNAL is published weekly, on Fridays. Click here for a list of links to other columns in the series.
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Carl S. Kaplan at kaplanc@nytimes.com welcomes your comments and suggestions.
