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"Attention Anonymous Internet Posters and Bloggers,"

Judge Richard J. McAdams of the California Court of Appeal wrote yesterday, in Tendler v. www.jewishsurvivors.blogspot.com (UPDATE: originally unpublished, but published July 7, 2008), so I thought I'd pass it along:

Attention anonymous Internet posters and bloggers: this court has good news and bad news for those of you who engage in nontortious discourse [i.e., in this context, speech that isn't libelous -EV]. The good news, announced earlier this year: your message will be protected by the First Amendment and your identity will be protected by the court quashing a third-party subpoena, unless the requesting party can make a prima facie showing of defamation. (Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154 (Krinsky).) The bad news: it may cost you tens of thousands of dollars to preserve your anonymity.

I must concur with my colleagues' ultimate conclusion that Code of Civil Procedure section 425.16 [the so-called "anti-SLAPP" statute -EV] does not apply to requests for subpoenas, but I write separately for two reasons: First, I cannot agree with the rationale employed by the majority in reaching the conclusion that the statute is inapplicable here [discussion omitted -EV]. Second, I urge the Legislature to consider whether the statute should be expanded to include third-party subpoena requests of this type....

2. The Legislature should give this issue its consideration.

As this court noted in Krinsky, "computer users have encountered a proliferation of chat rooms and websites that allow them to share their views on myriad topics from consumer products to international diplomacy." (Krinsky, supra, 159 Cal.App.4th at p. 1158.) Given that fact, there is good reason to believe there has been and will continue to be a corresponding increase in requests for subpoenas served on ISPs and other site hosts to disclose the identities of writers. Some requests will be based on a legitimate right to discover the source of libelous statements or business disinformation schemes; but some will be solely for the purpose of silencing a critic by harassment, ostracism, or retaliation.

I urge the Legislature to consider whether section 425.16 as currently written adequately addresses this rapidly expanding arena of public expression and whether the statute leaves this popular forum open to potential "abuse of the judicial process" without the level of protection afforded "causes of action."

Fub:
I must concur with my colleagues’ ultimate conclusion that Code of Civil Procedure section 425.16 [the so-called "anti-SLAPP" statute -EV] does not apply to requests for subpoenas, ...

Some requests will be based on a legitimate right to discover the source of libelous statements or business disinformation schemes; but some will be solely for the purpose of silencing a critic by harassment, ostracism, or retaliation.
I'm not a civil procedure maven, and I must read the case for clues. But one question seems apparent: If the subpoenaing party proceeds with a suit that fails under a 425.16 motion to strike, would that make a prevailing defendant's suit for abuse of process on the subpoena alone possible?
6.11.2008 6:40pm
L.A. Brave:
Is it really going to cost anonymous posters tens of thousands of dollars to protect their identify? Can the subpoena get anywhere if the host of the forum retains no IP information?

Didn't this come up with the Autoadmit.com lawsuit?
6.11.2008 7:09pm
L.A. Brave:
To answer my own question, the subpoena can go through ISPs rather than the forum. Plaintiffs may be able to get the info that way, but it sounds like its a hard road to hoe. The article I got this info from actually quotes Eugene: link.
6.11.2008 7:21pm
J. Aldridge:
How come some speech, not all speech, can be declared protected by a court? Does the First Amendment qualify certain speech as protected and other kinds not?

Gasp, could it be First Amendment precedent as practiced today has no basis in organic law?
6.11.2008 7:31pm
Eugene Volokh (www):
L.A. Brave: My guess is that many forum hosts retain IP information, sometimes without even thinking about it. For instance, it may well be that our servers or hit counters keep fairly detailed logs for all visitors. And I do know that we keep IP addresses for all comments (that's how we have at least a shot at successfully banning abusive commenters).
6.11.2008 7:31pm
AntonK (mail):
This type of concern is a good reason to use products such as Ultrareach's Ultrasurf freeware.
6.11.2008 7:40pm
AnonLawStudent:

My guess is that many forum hosts retain IP information.

For those savvy in the intersection of law and internet: to what degree would unlocking the access point help with this issue? E.g., account holder receives subpoena, and responds with "it's unlocked, I have no idea who was on at time X." Or does the retained information include information identifiable to machine or software, e.g., MAC address or GUID?
6.11.2008 7:45pm
Elliot123 (mail):
Once again, the prudent internet user will employ an anonymizer. As the judge points out, the law is a commodity which is only available for a price.
6.11.2008 7:45pm
Eugene Volokh (www):
J. Aldridge: Why "today"? Throughout American history, state constitutional free speech/press provisions have been nearly unanimously understood as not protecting all speech, but as recognizing certain exceptions (for instance, for libel). The federal First Amendment was also understood this way, though not quite as unanimously, given that some in the late 1700s took the view that it provided absolute protection for speech against the federal government, leaving states in charge of implementing libel law, contempt law, and other traditionally recognized and accepted speech restrictions. But even this sort of federalist understanding of the First Amendment wouldn't survive its incorporation via the Fourteenth Amendment against the states; there, the traditional understanding has always been that free speech/press protection isn't absolute. You can fight it, but don't deride it as some modern innovation -- this has been the solid view throughout American history.
6.11.2008 7:53pm
J. Aldridge:
Eugene: It is a modern innovation in the sense that federal courts have become the final arbitrator of what might constitute abridgment in the absense of any evidence the States ever surrendered such jurisidiction. The idea was the people would decide for themselves how far speech and the press would be regulated, not federal courts.
6.11.2008 8:39pm
gwinje:
J. Aldridge:

If by "modern" you mean since reconstruction, and if the notiont that "States [n]ever surrendered such jurisdiction" excludes three quarters of the states ratifying the Fourteenth Amendment, you might have a point.
6.11.2008 8:52pm
AntonK (mail):
NY Times: Unlike Other, More Nuanced Nations, the US Clings to Free Speech

The New York Times suggests that it might be time for the United States to reconsider this antiquated idea of “free speech” and join the rest of the world in prosecuting people like Mark Steyn:

Some prominent legal scholars say the United States should reconsider its position on hate speech.

“It is not clear to me that the Europeans are mistaken,” Jeremy Waldron, a legal philosopher, wrote in The New York Review of Books last month, “when they say that a liberal democracy must take affirmative responsibility for protecting the atmosphere of mutual respect against certain forms of vicious attack.”

Professor Waldron was reviewing “Freedom for the Thought That We Hate: A Biography of the First Amendment” by Anthony Lewis, the former New York Times columnist. Mr. Lewis has been critical of attempts to use the law to limit hate speech.

But even Mr. Lewis, a liberal, wrote in his book that he was inclined to relax some of the most stringent First Amendment protections “in an age when words have inspired acts of mass murder and terrorism.” In particular, he called for a re-examination of the Supreme Court’s insistence that there is only one justification for making incitement a criminal offense: the likelihood of imminent violence.

6.11.2008 8:56pm
J. Aldridge:
gwinje: The States did not ratify the 14th to give Congress affirmative powers nor to oust their jurisdiction in dealing with any issues found under the first eight amendments as evidenced by the January 30, 1871 house report from the House Judiciary lead by John Bingham. The conclusion by the House judiciary, and a year later, the Senate judiciary, the adoption of the fourteenth added nothing new to the P&I's of United States citizens as existed under the original constitution. First amendment never was a P&I of United States citizens. The 14th does now speak of any bill of rights except the 5th amendment which Bingham said was the words of the Magna Carta, article 39.

If you look at the history of how the so-called incorporation was formed, you'll find the court itself never found any remote evidence either in the words of the 14th or congressional and public debates that the States by adoption surrendered their authority over such things as the regulation of speech.
6.11.2008 9:10pm
David M. Nieporent (www):
The States did not ratify the 14th to give Congress affirmative powers
So what does paragraph 5 of that amendment do? Sit there and look pretty?
6.11.2008 9:24pm
J. Aldridge:
David M. Nieporent said: "So what does paragraph 5 of that amendment do? Sit there and look pretty?"

The question isn't guided by section 5, but by section 1 since this is the provision section 5 addresses. According to Bingham, the 1st section was simply a negation (same as imposed under Article I, Sec. 10).

This is why radical legislation was always being shredded by the court because section 1 provided no affirmative authority to legislate.
6.11.2008 9:47pm
Fub:
Having now read the unpublished case, I must agree with Judge McAdam's implicit dissent as to reasoning in his concurrence:
However, I reluctantly agree with the majority that even the broadest construction cannot bring this particular proceeding within the statute’s ambit. My colleagues easily dispose of the matter by finding that the statute applies only to complaints, petitions, or their equivalent. (See Code Civ. Proc., § 425.16, subd. (h).) In my view, by contrast, the pivotal point is that this proceeding presents no cause of action to be stricken. (Id., subd. (b)(1).)

...

In this case, appellant asserts his primary right or obligation in another jurisdiction. His subpoena request seeks only ancillary assistance from our state’s courts in order to prosecute his sister state action. (Cf. Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 162 [section 425.16 does not apply to prayer for injunction, which “is a remedy, not a cause of action”].)
So, the case provides a blueprint for abusive plaintiffs to obtain information about anonymous California speakers whom they wish to identify, without risking the legal fee awards of Cal. CCP 425.16. Simply file a suit in a foreign jurisdiction, get a discovery order, and petition California courts to enforce it.

The case also provides clues for amending CCP 425.16 to close that loophole. Here's my hamhanded idea: replace the phrase "cause of action" in 425.16 with "immediate cause of action or the underlying cause of action of any court order or discovery proceeding whether originating in California or any foreign jurisdiction", or words to that effect. I'm sure there are better ways to phrase it, but that's the idea.

All that said, the case is still very curious. It is not for publication. So, it generally can't be cited in motions. That's a double whammy, because it applies to all parties in potentially SLAPP litigation.

But I'm not well versed in civil, and even that's a gross understatement. So my reasoning could be very incorrect. I would really appreciate any civil experts' comments on the case here, as well comments on how the loophole in CCP 425.16 can be closed.
6.11.2008 11:11pm
DeoVindice:
The States did not ratify the 14th to give Congress affirmative powers nor to oust their jurisdiction in dealing with any issues found under the first eight amendments as evidenced by the January 30, 1871 house report from the House Judiciary lead by John Bingham. The conclusion by the House judiciary, and a year later, the Senate judiciary, the adoption of the fourteenth added nothing new to the P&I's of United States citizens as existed under the original constitution. First amendment never was a P&I of United States citizens. The 14th does now speak of any bill of rights except the 5th amendment which Bingham said was the words of the Magna Carta, article 39.

You forget that the 14th Amendment was never ratified properly to begin with.
6.11.2008 11:42pm
Mary Katherine Day-Petrano (mail):
To anonymous comment-posters:

The handwriting is on the wall: Your days of attacking disabled Americans outside of California under anonymous blog IDs is over.

If and when any interested party approaches the Calif. Legislature, I will, too and give them an earful about how I have been treated so they will reject your desired protections.

"Can the subpoena get anywhere if the host of the forum retains no IP information?" ---->

In Florida, this gives rise to a spoliation claim, i.e, you get rid of the evidence (including removed posts), you will lose on a spoliation of evidence count.
6.12.2008 2:01am
MR (mail) (www):
FUB:
If the subpoenaing party proceeds with a suit that fails under a 425.16 motion to strike, would that make a prevailing defendant's suit for abuse of process on the subpoena alone possible?

Not in California - the Supreme Court is clear that even aggressive tactics that are legitimately attempted in pursuit of a real case are not abuse of process.
6.12.2008 7:35am
LOL:

The handwriting is on the wall: Your days of attacking disabled Americans outside of California under anonymous blog IDs is over.


Did you read the cases at all? (Krinsky and Tendler).

The Court ruled that bloggers and internet posters COULD remain anonymous. What on earth are you talking about?

In Krinsky the subpoena was quashed. In Tendler, the subpoena was voluntarily withdrawn in face of the inevitability of it being quashed.

You might not like this fact, but:

"Ordinary people with access to the Internet can express their views to a wide audience through the forum of the online message board. The poster's message not only is transmitted instantly to other subscribers to the message board, but potentially is passed on to an expanding network of recipients, as readers may copy, forward, or print those messages to distribute to others. The use of a pseudonymous screen name offers a safe outlet for the user to experiment with novel ideas, express unorthodox political views, or criticize corporate or individual behavior without fear of intimidation or reprisal. In addition, by concealing speakers' identities, the online forum allows individuals of any economic, political, or social status to be heard without suppression or other intervention by the media or more powerful figures in the field."

Further:

"Judicial recognition of the constitutional right to publish anonymously is a longstanding tradition. Most of the early decisions affirming this right concern political speech or artistic endeavors. "Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all." (Talley v. California (1960) 362 U.S. 60, 64 [80 S.Ct. 536] [ruling unconstitutional ordinance barring without limitation distribution of handbills that lacked identification of persons preparing or sponsoring them].) "The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment." (McIntyre v. Ohio Elections Com'n (1995) 514 U.S. 334, 341-342 [115 S.Ct. 1511]; accord, Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton (2002) 536 U.S. 150, 166 [122 S.Ct. 2080].)"


The above considerations aside, you also forget the inevitable role that technology plays. Have you heard of wireless internet? Have you heard of "wardriving"? Do you know how many open wireless internet connections are out there and available for ANYONE to use as long as they have a wireless internet card?

FYI: People use these open access ports all the time. How are you going to subpeona them even if they devolve into actual defamation?
6.12.2008 10:23am
LOL:
Reading your comment again I think I know what you are getting at. Correct me if I am mistaken.

You seem to be suggesting that while a person seeking a subpeona may not be able to circumvent the 1st amendment protection afforded to nontortious internet posts. The person seeking the subpeona can still use the subpeona process to intimidate opponents into silence, because in order to obtain that protection, the sued party will actually have to fight to quash the subpeona.

Do you realize however that whatever costs a person might accrue in attempting to quash an abusive subpeona, the person seeking the subpeona is going to accrue similar costs?

Not to metion, the California Legislature will almost certainly fix this loophole.

You are not suggesting that individuals use the subpeona process as a weapon, in hopes of silencing anyone who might not be able to afford the attorny to quash?

Wouldn't that be a pretty sorry thing to do?

Secondly, how would a person use the subpeona process against someone who was an attorney, and who could handle the defense themselves?

Finally, what of people who invest in pre-paid legal? Surely any attorney with half a brain could defeat abusive subpeona attacks used in an attempt to silence opposition?

No?
6.12.2008 10:33am
Fub:
MR wrote at 6.12.2008 6:35am:
Not in California - the Supreme Court is clear that even aggressive tactics that are legitimately attempted in pursuit of a real case are not abuse of process.
Hmmm. Not sure I follow the reasoning. I thought that a case that doesn't survive a CCP 425.16 motion to strike was pretty much by definition not a "real case", but an abusive action to silence or retaliate for nontortious exercise of a free speech right. A necessary finding to prevail on the motion is that plaintiff has no likelihood of prevailing on the cause of action.

My thinking was that attorney fees and court costs due a defendant upon successful motion to strike might (or might not) include those for contesting the original subpoenas to identify the defendant. If so, then my question is moot. But if not, then I wondered if the successful motion to strike might also taint the initial subpoenas in the case as abusive so a separate action might recover those costs.

In this Kindler case there was no motion to strike the cause of action, and the issue of whether the plaintiff had any likelihood of prevailing on the cause of action didn't arise.

So, that's why I asked the question.
6.12.2008 12:03pm
Xrayspec:
I think I speak for all VC readers when I ask: WHERE'S THE KOZINSKI COVERAGE?
6.12.2008 12:21pm
Gary Anderson (mail):
Lol xrayspec: Takes a while to page through all that evidence, and think of something redeeming to say before commenting.

To me, sure it's legal. And excusable. But my my, how our standards of what we want to know about judges, politicians, professors, and other moderately public figures are falling.

I kinda like that the press back then respected FDR's physical condition and desire to keep it private. Helps the public to respect the office after all; maybe we don't want to know just how human some of our public servants really are... Least I don't. Of course, I don't trade in sleaze and use that kind of coverage to up my own numbers.
6.12.2008 1:25pm
Xrayspec:
EV and SV have always been open about their history with Judge Kozinski. (He even wrote the foreword to EV's book.) I think it more than a little strange that Kozinski is now in the middle of a major news story that touches on two topics that EV is known to be expert in (free speech &criminal law) and there's nothing on VC about it.

If EV and SV are not planning to comment on the story, they might at least explain why. It would be odd for them to exempt their former boss from VC scrutiny.
6.12.2008 2:12pm
Fub:
After doing some physical labor I finally had the Homer Simpson moment. So, slapping my forehead I say, D'oh! My initial question was an incoherent hypo:

Plaintiff sues in foreign jurisdiction, and applies to CA courts to enforce discovery order, subpoena, or whatever. This case says that CA CCP 425.16 motion to strike doesn't apply to enforcement order for a subpoena because it must be filed on the underlying cause of action. After that step my question lost coherence.

Plaintiff's case must still be adjudicated in the foreign jurisdiction, and (obviously!) CA CCP 425.16 motion to strike can't be filed on the action there. So, the question of prevailing on the motion on the action is meaningless, moot, or just plain non thinkus mentos.

Amazing how a little work clears the fog.

That said, I'll still join the chorus calling for the legislature to broaden the statute to permit the motion to be filed in CA courts upon the underlying cause of action for any subpoena or other order on an action in a foreign jurisdiction which CA courts are petitioned to enforce.
6.12.2008 6:14pm
Prison Rodeo (mail):
Hear, hear, Xrayspec.

Where's the Kozinski coverage?!?!?!?
6.12.2008 9:45pm
Mary Katherine Day-Petrano (mail):
"I think I speak for all VC readers when I ask: WHERE'S THE KOZINSKI COVERAGE?" ---->

Maybe same place as all the very similar Scrushy juror-emails matter and "AnnTM" 11th Circuit law clerk emials/blog postings matter.

Houston, maybe the Federal Courts have a BIG PROBLEM ...
6.12.2008 11:48pm
Mary Katherine Day-Petrano (mail):
corr:
" emials" = emails
6.12.2008 11:50pm
Mary Katherine Day-Petrano (mail):
"The Court ruled that bloggers and internet posters COULD remain anonymous. What on earth are you talking about" ---->

47 U.S.C. Sec. 223, Cyberstalking, Amendments to violence Against Women Act. No blogger has a First Amendment right to make true threats against disabled Americans inciting off blog violence by cue words, symbols, and death threats historically understood as threats of violence and/or death. Here's a better e.g. for you: Virginia v. Black, 538 U.S. 343 (2003).

Another thing -- about "the court ruled ...," maybe you want to read the top of the opinion where it says it is unpublished, therefore is not precedent, not citable.

What on Earth are YOU talking about?
6.13.2008 12:01am
David W. Hess (mail):
AnonLawStudent: Or does the retained information include information identifiable to machine or software, e.g., MAC address or GUID?

Unless something very odd is going on, any identifying MAC address will not be available beyond the local ethernet broadcast domain. MAC addresses cross ethernet switches and hubs but not routers. The ISP will often have the MAC address of your local gateway router but that depends on the type of connection.

It is almost trivial to forge random MAC addresses at every boot or more often if desired. Doing this as well as using multiple wireless hot spots and a virtual machine can make anonymous web access possible. With care it can be deniable and even provide an untraceable authenticated back channel.

Oddly enough, IPv6 was designed to embed the MAC address of every system into the IP address for technical reasons allowing unique identification in theory but doing so is not necessary nor a requirement and the MAC address part of the IP address is often routinely randomized for security reasons.

Knowing technically how it all works and what can be done, I am usually more curious about what information entities under subpoena or being searched are legally required to have kept and for how long. The TorrentSpy case is the only instance where I am aware of logs being legally required and that was through a court order.
6.13.2008 2:24am
LOL:
Another thing -- about "the court ruled ...," maybe you want to read the top of the opinion where it says it is unpublished, therefore is not precedent, not citable.


WHAT? Krinsky was published. The quotes I proved were from Krinsky, not Tendler.

So again, what are you talking about?

Krinsky v. Doe, 159 Cal.App.4th 1154 (2008)

(Not to mention Krinsky cited McIntyre v. Ohio Elections Com'n 514 U.S. 334, (1995) AND Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 166 (2002) in support of the 1st amendment right to remain anonymous.)

NOTHING in Virgina v Black negates that premise.
6.13.2008 8:37am
Mary Katherine Day-Petrano (mail):
LOL, maybe your version of facts vs. mine differes, and thereby the applicable cases. I guess that was lost on you, somehow.
6.14.2008 12:40am
whit:

“It is not clear to me that the Europeans are mistaken,” Jeremy Waldron, a legal philosopher, wrote in The New York Review of Books last month, “when they say that a liberal democracy must take affirmative responsibility for protecting the atmosphere of mutual respect against certain forms of vicious attack.”

Professor Waldron was reviewing “Freedom for the Thought That We Hate: A Biography of the First Amendment” by Anthony Lewis, the former New York Times columnist. Mr. Lewis has been critical of attempts to use the law to limit hate speech.

But even Mr. Lewis, a liberal, wrote in his book that he was inclined to relax some of the most stringent First Amendment protections “in an age when words have inspired acts of mass murder and terrorism.” In particular, he called for a re-examination of the Supreme Court’s insistence that there is only one justification for making incitement a criminal offense: the likelihood of imminent violence.




note. this is judicial liberal activism perfectly exemplified. the complaint is that we are not on par with europe etc. in outlawing speech that is free here - racial hatred, etc.

but note the last paragraph. what;'s the REMEDY? amending the constitution? of course not.

a "re-examination" by the SCOTUS. iow, if you don't agree with the constitution, just get the SCOTUS to change how they interpret it. lord forbid you do the constitutional thing and change the actual constitution, so it reflects your ideal world.
6.14.2008 5:16am