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Privacy Groups Demand Protection of Users? Anonymity Online;

American Civil Liberties Union  ? Center for Democracy and Technology   Electronic Frontier Foundation  ? Electronic Privacy Information Center   Public Citizen

July 11, 2002

Privacy Groups Demand Protection of Users? Anonymity Online;

Urge Internet Service Providers To Shield Clients From Spurious Suits

NEW YORK?A coalition of civil liberties and privacy groups today called on Internet Service Providers (ISPs) and other online companies to adopt policies protecting their users? right to anonymous speech on the Internet. That right has come under attack in recent years through a growing number of “cyberSLAPP” lawsuits, in which companies file suit just to discover the identity of their online critics ? often in order to silence or intimidate them.

“Anonymous speech is part of a vaunted American tradition that goes back to the Founders, who often published unsigned political pamphlets,” said Megan Gray, Senior Counsel at the Electronic Privacy Information Center. “Yet on the Internet, citizens are forced to depend on Web sites or ISPs to protect their anonymity.”

In a cyberSLAPP suit, the target of anonymous online criticism typically files a lawsuit against a “John Doe” defendant and then issues an identity-seeking subpoena to an ISP. There is currently no legal requirement that ISPs notify their customers before complying with such subpoenas ? even though many of the lawsuits are frivolous and have no chance of prevailing in court. “You can?t fight to protect your privacy and anonymity when you don?t even know that it?s being attacked,” said Paul Alan Levy of the Public Citizen Litigation Group.

The coalition noted that three major online service providers — Yahoo, Earthlink and America Online — already notify their customers when they receive subpoenas for identifying information, and urged hundreds of other webmasters and service providers to do the same.

In a letter sent to over 100 ISPs, Internet discussion boards and other online companies, the coalition asked each company to include in its privacy policy a promise that it would notify any customer whose personal information or identity is subpoenaed. The coalition, which includes the American Civil Liberties Union (ACLU), the Center for Democracy and Technology (CDT), the Electronic Frontier Foundation (EFF), the Electronic Privacy Information Center (EPIC) and Public Citizen, also included a sample policy with its letter.

The coalition praised Earthlink, AOL and Yahoo for their role in creating the current “best practices” policies.

“These companies have led the way,” said Cindy Cohn, Legal Director of the Electronic Frontier Foundation. “But too many online companies and discussion hosts still aren?t protecting their customers from these privacy-invading abuses of the legal system.”

“Anonymous speech on the Internet lets people make criticisms that are difficult to state openly, and share information and support about topics that might be stigmatizing, such as addiction or sexual abuse,” said Ann Beeson, Staff Counsel of the American Civil Liberties Union. “Unless online anonymity is protected, whistleblowers who want to criticize their employers, parents who want to criticize the principal of their children?s school ? and many others ? may be afraid to speak out. That would be a loss for our country.” Beeson pointed out that the Supreme Court has repeatedly found that anonymous speech is a right protected by the First Amendment.

“CyberSLAPP cases are unfair because the ?punishment? that often matters most to average citizens (the loss of anonymity) comes not after consideration and judgment by a court or jury, but as a result of the mere filing of a lawsuit,” said Levy. “No online company that has any respect for its customers should comply with such subpoenas without informing its customer ? and it should be its written policy to do so.”

The coalition also announced the opening of a new Web site on the issue, www.cyberslapp.org, which includes a broad range of information about the cyberSLAPP issue, from a list of “Frequently Asked Questions” for the general public, to legal briefs and other detailed information about ongoing legal battles.