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Software Company’s Attempts to Reveal Identity of Anonymous E-mailer May Stifle Internet Free Speech

Sept. 27, 2006

Software Company’s Attempts to Reveal Identity of Anonymous E-mailer May Stifle Internet Free Speech

Public Citizen Files Brief to Support Right of Internet Speakers Who Have Done No Harm to Remain Nameless

WASHINGTON, D.C. – A Washington state software company may not have the right to reveal the identity of an anonymous e-mailer, according to a friend of the court brief filed today in an Arizona court of appeals by Public Citizen, joined by the San Francisco-based Electronic Frontier Foundation (EFF).

The company Mobilisa sought to discover the identity of an anonymous e-mailer who distributed to other executives at the company the text of an e-mail originally sent by Mobilisa’s married CEO to his mistress. The unknown sender used the services of the Arizona-based Internet service provider Suggestion Box, which enables members of the public to send e-mails anonymously.

Instead of suing for invasion of privacy, the executive had the company file suit against “John Does 1-10” in Washington state court alleging that the e-mail must have been obtained by hacking into the company’s computer system – a violation of federal law. The company then filed a motion in Arizona Superior Court in Phoenix against Suggestion Box to gain access to the identity of the e-mailer, giving sworn denials from the CEO and his mistress that they had given the e-mail to anyone else or authorized access to their personal e-mail accounts. Suggestion Box appealed when the trial judge granted Mobilisa the right to discover the sender’s name, even though the court did not find facts showing that the e-mail was illegally obtained from Mobilisa’s own systems.

In the brief, Public Citizen and EFF urged the court to balance the interests of plaintiffs who feel they have been subject to wrongful speech against the important right of Internet speakers who have done no wrong to maintain their anonymity, while considering whether the online speakers abused their anonymity to engage in wrongful conduct online, such as by posting truly defaming or libelous comments. The organizations argued for an equitable balancing standard for consideration of such cases and asked the court to determine whether Mobilisa had made a technically adequate showing of facts to make its case, but did not take a position on whether this disclosure order should stand.

“The fundamental rights of free speech do not stop at the Internet portal,” said Paul Alan Levy, the Public Citizen attorney who authored the brief. “The ability to speak or criticize anonymously online is an important tool for whistleblowers to expose misconduct or corruption by powerful companies or public figures. Courts should strike the right balance to protect online anonymity when it has not been abused and prevent the threat of lawsuits from having a chilling effect on this important type of speech.”

John Flynn, of the Phoenix law firm of Tiffany & Bosco, was local counsel on the brief.

To read the brief, click here.

Public Citizen has a strong record of defending the First Amendment rights of Internet users. To learn more, click here.