The First Amendment does not ordinarily come to mind when thinking about one’s privacy. However, New Jersey’s Appellate Division, in Dendrite Int’l, Inc. v. John Doe No. 3,1 recently held that an anonymous online speaker has a First Amendment right to keep his or her identity from being disclosed. The court developed a four-part test which a plaintiff must satisfy before compelling disclosure of the author’s true identity.

Last summer, just two weeks after the publication of the Dendrite opinion, a similar suit was brought against an Emerson, New Jersey, Web site operator and numerous anonymous online authors who had posted messages to the Eye on Emerson Web site’s electronic bulletin board. The Eye on Emerson is a community-based Web site, operated by a resident of Emerson. The plaintiffs, who include public figures in Emerson, served a subpoena on the Internet service provider (ISP) and host of the electronic bulletin board, seeking the Internet protocol (IP) addresses of the anonymous authors. The major distinction between the Eye on Emerson matter and the Dendrite case is that the Emerson Web site presented a forum for political speech, whereas the Dendrite case involved commercial speech.

The First Amendment guarantees the right not only to speak freely but to speak anonymously.2 The United States Supreme Court has also stated that the First Amendment protections apply to speech on the Internet.3 Moreover, the New Jersey Supreme Court has stated that the New Jersey State Constitution affords greater free speech protection than the First Amendment.4

Anonymous Free Speech on the Internet

The Internet — a global network of interconnected computers — provides users with various methods of communicating: electronic mail (email), automatic mailing list services (mail exploders or listservs), newsgroups, usenets, chat rooms, and the World Wide Web.5 A variant of the newsgroup is the electronic bulletin board which, according to one court, “could be made to resemble a newspaper’s editorial page … [or] may function more like a ‘chat room’. ”6 As New York’s highest court observed, electronic bulletin board messages raise more complicated legal questions because of the “generally greater level of cognizance that their operators can have over them.”7 One of these complicated legal questions involves the right of anonymous free speech on the Internet.

In the seminal Dendrite case, New Jersey’s Appellate Division adopted a framework that trial courts are to use when considering whether an ISP must be compelled to disclose the identities of anonymous online authors.8 The court recognized that lawsuits could easily be brought for the primary purpose of discovering the identities of individuals who were critical of a plaintiff, and not for the meritorious purpose of seeking legal redress.9 Once a plaintiff learned the identities of the anonymous posters, the authors could then be subject to embarrassment, harassment and ridicule.10 Thus, the Appellate Division was compelled to adopt safeguards to prevent the chilling effect that unmeritorious suits would have on the freedom of speech.

In Dendrite, the plaintiff, Dendrite International, commenced an action against numerous fictitiously named John Doe defendants based on, among other things, defamation.11 The plaintiff appealed from the trial court’s denial of its motion seeking expedited discovery from the non-party Internet service provider, Yahoo!, for the purpose of determining the identity of John Doe No. 3.12 Yahoo! hosted an electronic bulletin board service in which visitors were invited to post comments on the financial matters of Dendrite.13 Dendrite alleged that some of the messages were defamatory and caused it harm.14 The appellate court held that before a plaintiff could compel the ISP to disclose information concerning the identity of the anonymous posters, a plaintiff had to  specify the exact words which are alleged to be defamatory,  present a prima facie case, and  establish that the strength of the plaintiff’s case is sufficient to overcome the compelling constitutional rights of individuals to speak anonymously.15

In affirming the trial court, the Appellate Division discussed the rights afforded by the First Amendment, and cited a passage from the U.S. Supreme Court decision, McIntyre v. Ohio Elections Comm.,16 which held that pamphleteers had a right to remain anonymous:

Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. [citing Talley v. California,17]  Great works of literature have frequently been produced by authors writing under assumed names. Despite readers’ curiosity and the public’s interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. 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.18

While not mentioned by the Appellate Division in Dendrite, it is interesting to note that Justice Clarence Thomas’ concurring opinion in McIntyre discusses the role of anonymous political speech in American and New Jersey history. Justice Thomas noted, for instance, that essays in the Federalist Papers were authored under the pseudonym “Publius”.19 Justice Thomas also noted that in 1779 the New Jersey State Assembly frustrated the New Jersey Legislative Counsel’s attempt to obtain the identity of an anonymous author  (from the author’s editor and printer) going by the pseudonym “Cincinnatus”.20 Cincinnatus had authored a satirical attack on Governor William Livingston and the College of New Jersey (now Princeton).21 Ironically, five years later, Governor Livingston himself authored anonymous articles under the pseudonym “Scipio”, attacking the Legislature’s failure to lower taxes and accusing a state officer of stealing or losing state money during the British invasions of New Jersey.22

The Dendrite appellate court set forth its four-pronged standard as follows:

First, a trial court must require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or a motion for an order to disclose so as to afford the fictitiously named defendant a reasonable opportunity to file and serve opposition.23 The plaintiff’s notification efforts are to include a posting on the message board at issue.24

Second, the plaintiff “must identify and set forth the exact statements purportedly made by each anonymous poster that the plaintiff alleges constitutes actionable speech.”25

Third, the “complaint and all information provided to the court should be carefully reviewed to determine whether the plaintiff has set forth a prima facie cause of action against the fictitiously-named defendants.”26 In addition, the plaintiff must establish that his or her claims can prevail in a motion to dismiss for failure to state a claim upon which relief can be granted, and must also produce sufficient evidence satisfying each element of his or her cause of action.27

Fourth, assuming that the court is satisfied that the plaintiff has presented a prima facie cause of action, “the court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosures of the anonymous defendant’s identity to allow the plaintiff to properly succeed.”28

The Dendrite court added, however, that the guidelines are to be applied on a case-by-case basis.29 “The guiding principle,” the Appellate Division stated, “is a result based on a meaningful analysis and a proper balancing of the equities and rights at issue.”30 Concluding that the motion judge had applied a proper analysis, the Appellate Division affirmed the trial court’s denial of the plaintiff’s discovery requests which sought to compel disclosure by the ISP of information leading to the identities of the anonymous posters.31

In establishing the foregoing standard, the Dendrite court had relied on the rationale articulated by the Northern District of California in Columbia Ins. Co. v. Seescandy.com,32 and cited the following excerpt from that California case:

People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one’s mind without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate. Furthermore, it permits persons to obtain information relevant to a sensitive or intimate condition without fear of embarrassment. People who have committed no wrong should be able to participate online without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court’s order to discover their identity.33

Although the Seescandy.com case used a slightly different four-part test than did Dendrite, the opinions of both courts guard against a judicial system that would permit discovery of the identity of one’s critics by the simple task of a plaintiff filing a John Doe complaint and serving a subpoena on the ISP, without any showing of merit. The First Amendment requires much more.

In Dendrite’s companion case, Immunomedics, Inc. v. Doe,34 the Appellate Division applied Dendrite and affirmed the trial court’s denial of an anonymous poster’s motion to quash a subpoena. In Immunomedics, the plaintiff, a biopharmaceutical company, filed a complaint against a certain Jean Doe who had used the screen name “moonshine_fr,” alleging that the anonymous poster’s messages disclosed confidential and proprietary information.35 The plaintiff served a subpoena on the ISP, Yahoo!, seeking the identity of Moonshine, which was met by a motion to quash.36

The distinguishing aspect in Immunomedics is that the court rested its decision on an unrebutted presumption that the anonymous poster was an employee of the plaintiff, and subject to a non-disclosure agreement. Two of Moonshine’s messages indicated that she was an employee of the plaintiff.37 The plaintiff offered evidence that all of the company’s employees signed a confidentiality agreement.38

Balancing the anonymous poster’s rights to free speech against an apparent violation of a confidentiality agreement, the trial court denied Moonshine’s motion to quash the plaintiff’s subpoena.39 In affirming, the Appellate Division stated:

Although anonymous speech on the Internet is protected, there must be an avenue for redress for those who are wronged. Individuals choosing to harm another or violate an agreement through speech on the Internet cannot hope to shield their identity and avoid punishment through invocation of the First Amendment.40

Donato v. Moldow (Eye on Emerson Case)

Dendrite was soon put to the test in Donato v. Moldow.41 In November 1999, a local resident, defendant Stephen Moldow, began operating the Eye on Emerson Web site. The site’s purpose was to help inform the residents of Emerson, New Jersey, about local politics, municipal government activities and other community issues. Located at http://www.geocities.com/emersoneye/ index.html, the site contains numerous public documents available for viewing by any visitor accessing the site. Interestingly, Moldow has maintained the site throughout the litigation, and carries most of the pleadings filed in the case.

The Eye on Emerson Web site incorporated a public message board (electronic bulletin board) where individuals were able to voice their opinions on virtually any subject by posting a statement. Each posting contained, among other things, a screen name used by the author, a subject line, and the date and time of the posting. Individuals who posted a statement on the bulletin board could have used either their real or fictitious names. The bulletin board was hosted by VantageNet, Inc., an ISP located in Minnesota.

The Eye on Emerson bulletin board gave Emerson residents and visitors to the site a unique and convenient opportunity, via the electronic format, to voice their support or opposition for policy positions taken by Emerson public officials and/or public figures.

After the bulletin board debuted in 1999, numerous anonymous posters began exchanging messages on issues and topics affecting Emerson. Some of the anonymous postings were critical of the plaintiffs — two are members of the Emerson Borough Council, one was a candidate for the Emerson Borough Council, and one is the chair of the town’s Republican committee. A significant number of the anonymous postings pertained to local political or policy differences between the authors and the plaintiffs.

On or about July 25, 2001, the plaintiffs filed a complaint against the Web site operator, and numerous John Does and Jane Does, the various authors of anonymous postings on the Eye on Emerson electronic bulletin board. The complaint alleges defamation, intentional infliction of emotional distress and harassment. Like Dendrite, the plaintiffs moved for expedited discovery on the ISP. The plaintiffs and the only named defendant entered into a consent order, which resulted in the plaintiffs serving a subpoena duces tecum on the bulletin board host ISP, seeking the IP addresses of the anonymous posters. While the complaint named only 40 screen names, the subpoena sought information regarding 117 anonymous postings.

Certain anonymous posters (represented by the authors of this article) moved to quash the plaintiffs’ subpoena, arguing that the Dendrite safeguards had not been satisfied. The anonymous movants argued that the plaintiffs have not identified the exact statements that are allegedly actionable, as required by Dendrite, since the plaintiffs merely attached to their papers a collection of anonymously authored postings without identifying the allegedly actionable statements with any specificity.

Additionally, the movant anonymous posters contend that the pleadings and the evidence adduced by the plaintiffs fail to support a prima facie cause of action for defamation and intentional infliction of emotional distress. The anonymous authors also sought dismissal of the complaint, including the harassment claims because no such tort is recognized in New Jersey.

Significantly, the anonymous posters argue that since the type of speech involved is political speech, it commands the highest deference by the court. A posting by anonymous author “T Payne”, for instance, is the epitome of political free speech:

Beware! The so-called Reformers are gearing up to impede you [sic] right to free speech on this site. Ms. Petriano opened the gate at the last meeting (does she even own a computer?) complaining about anonymous posts on this site.

Interestingly, the plaintiffs’ own actions in prosecuting the case have proven “T Payne” correct, serving as a perfect example as to the need for the court to play a gatekeeping role pursuant to Dendrite. At bottom, the anonymous movants contend that the plaintiffs have not complied with Dendrite so as to justify the uncloaking of their constitutional veil of anonymity.

The plaintiffs contend that they have been libeled, slandered, harassed and have been subjected to intentional emotional distress. They allege that the postings include reference to an adulterous affair and impugn a plaintiff’s professional reputation. In addition, the plaintiffs claim that the “T Payne” posting (noted above) was aimed at a plaintiff who is a former journalist with a local newspaper, the statement is libelous. The plaintiffs contend that references in the posts are aimed, not at the plaintiffs’ political activities, but their respective professions (financial advisor, journalist, attorney). The plaintiffs allege that such derogatory statements about their business careers have lowered the esteem of the plaintiffs in the community, and therefore are defamatory as a matter of law. The anonymous posters, on the other hand, argue that to the extent their statements are opinion or name calling, the speech is constitutionally protected. In all, messages of more than 40 anonymous authors are alleged in the complaint, with additional posters and statements alleged in other papers filed by the plaintiffs.

The case has attracted the interest of civil libertarians. Public Citizen Litigation Group (PCLG), the public interest organization founded by Ralph Nader in 1971, and the American Civil Liberties Union (ACLU) filed a brief as amici curiae in the Eye on Emerson case. Both groups, as amici co-counsel, propose that courts should apply Dendrite sua sponte, even in cases where an anonymous author is not represented by counsel. In addition to their other First Amendment arguments, the PCLG and ACLU reason that since a subpoena involves the imprimatur of the state, a court should, as is the case with an ex parte warrant proceeding designed to safeguard an individual’s Fourth Amendment right, apply Dendrite on its own motion to shield anonymous authors from diminution of their First Amendment right. To require anonymous posters to first go through the effort and expense of hiring counsel before the law can apply to them would in itself have a chilling effect on the right to post anonymously. Such a ruling would run counter to the objectives of Dendrite, which recognize the First Amendment right of anonymity to be compelling.

It is noted that Moldow is defending on grounds that the Communications Decency Act42 protects Web site operators from being liable for republishing comments of others or blocking and screening of offensive material.

The matter was argued in December 2001 and the court released its opinion in early January 2002, quashing the subpoena duces tecum served on the ISP.  The court held that the plaintiffs had failed to meet the notice requirements of Dendrite, failed to adequately identify the exact statements alleged to be defamatory or specify why the statements were actionable, and that the subpoena was overbroad.  The court declined to address the other Dendrite issues until the plaintiffs give proper notice to the anonymous posters.  The court also dismissed the harassment count, ruling that harassment was not a cognizable cause of action.  Finally, the court dismissed with prejudice the complaint against defendant Moldow, ruling that he was immune from liability under the Communications Decency Act, notwithstanding his editing of statements to remove profanity, or his selective removal of some statements (but not others) posted by third parties.

Electronic Communications and Counter-Terrorism

The September 11 attacks on the United States prompted a national discourse — in government, in the media, by civil libertarians, in local communities and on the Internet — regarding the impact counter-terrorism initiatives now underway at all levels of government may have on our civil liberties. First Amendment privacy interests in online anonymous speech, which were central in the Dendrite and Eye on Emerson cases in the civil context, could be affected in the context of  criminal investigations.

Under the New Jersey Wiretapping and Electronic Surveillance Control Act (WESCA)43 and a bill presently under consideration in the New Jersey Legislature, the government would be entitled to obtain information about an anonymous online author suspected of terrorism. Currently, under WESCA, an ISP may be compelled to disclose certain subscriber information to a law enforcement agency only if the government has first obtained a warrant, consent from the subscriber or a court order.44 It is worth noting that WESCA is similar in this respect to its federal analogue, the federal Wiretap Act.45

A court may order disclosure under WESCA only if the government has identified,

specific and articulable facts showing that there are reasonable grounds to believe that the record or other information pertaining to a subscriber or customer of an electronic communication service or remote computing service is relevant and material to an ongoing criminal investigation.46

WESCA provides, however, that an ISP must disclose the name, address, telephone number or other subscriber number or identity to the government when the government obtains a grand jury or trial subpoena.47 WESCA does not, however, prohibit voluntary disclosure of this information by an ISP. Unlike WESCA, the federal Wiretap Act and Stored Communications Act (as amended by the Electronic Communications Privacy Act)48 prohibits voluntary disclosure by an ISP to third parties of the content of an electronic communications. Moreover, WESCA specifically provides that an ISP may disclose subscriber information to any person other than a law enforcement agency unless the agency obtains a warrant.49

It is noted that the information typically sought by plaintiffs in a John Doe defamation suit is not the communication itself, but the IP address of the author which may be contained or embedded in the electronic message. John Does may have an argument, therefore, that voluntary disclosure of such information is prohibited under federal law, because the information is part of the communication. Violations of the non-disclosure provisions of the federal Wiretap Act and Stored Communications Act could subject one to fines and imprisonment50 as well as civil remedies.51

At this writing, the New Jersey Senate and Assembly are considering identical bills entitled the Anti-Terrorism Act of 2001. Both Assembly Bill A25 and its Senate counterpart, S-2586, propose to, among other things, amend WESCA to include several categories within the enumerated offenses for which a wiretap or electronic surveillance may be authorized. The categories are: terrorism; producing or possessing chemical weapons, biological agents or nuclear or radiological devices; hindering the prosecution of terrorism; soliciting and providing material support for terrorism and violations of N.J.S.A. 2C: 17-2,52 and N.J.S.A. 2C:17-7 through N.J.S. 2C:17-9.53

On October 26, 2001, President George W. Bush signed into law the USA Patriot Act of 2001 (H.R. 3162), which became effective immediately. Among other things, this federal counter-terrorism act allows law enforcement officials to obtain authority to conduct roving wiretaps — in which any telephone used by a suspect may be monitored. Additionally, the government could subpoena the addresses and the time of email messages transmitted by terrorism suspects. Under the law, the government is liable, however, for unauthorized disclosure of information obtained under the new surveillance and wiretapping provisions.

As the state and federal governments pass laws aimed at giving law enforcement authorities the ability to protect citizens from terrorism, lawyers and citizens need to be cognizant that our privacy and First Amendment rights are also in need of protection. A delicate balance must be struck between accomplishing our national security objectives and preserving our civil liberties.

__________________________

*Richard L. Ravin is a member of Hartman & Winnicki, P.C., and Head of the firm’s Internet and Intellectual Property Law Group. He is Vice Chair-elect of the Intellectual Property Law Section of the New York State Bar Association and founding Co-chair of the Section’s Internet Law Committee.  His e-mail address is rick@ravin.com. Van V. Mejia is an associate in the firm’s Internet and Intellectual Property Law Group. The firm is counsel to some of the anonymous posters in Donato v. Moldow, referenced in the article.

Endnotes

1. See generally Dendrite Int’l v. Doe No. 3, 342 N.J. Super. 134 (App. Div. 2001).
2. See Buckley v. American Constitutional Law Found., 525 U.S. 182, 197-90 (1999).
3. See Reno v. ACLU, 521 U.S. 844, 885 (1997).
4. See New Jersey Coalition Against War in the Middle East v. J.M.B. Realty, 138 N.J. 326, 364 (1994).
5. Reno, 521 U.S. at 849-51.
6. See Lunney v. Prodigy Services Co., 94 N.Y.2d 242, 249-50 (1999).
7. Id. at 250.
8. Dendrite, 342 N.J. Super. 134.
9. Id. at 151.
10. Id.
11. Id. at 146.
12. Id. at 141.
13. Id. at 143.
14. Id. at 146.
15. Id. at 141-42.
16. McIntyre v. Ohio Elections Comm., 514 U.S. 334 (1995).
17. Talley v. California, 362 U.S. 60 (1960).
18. Dendrite, 342 N.J. Super. at 149.
19.  McIntyre, 514 U.S. at 362-63.
20.  Id. at 362
21.  Id. at 363.
22.  Id.
23. Dendrite, 342 N.J. Super. at 141.
24. Id.
25. Id.
26. Id.
27. Id.
28. Id. at 142.
29. Id.
30. Id.
31. Id. at 158-59.
32. Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999).
33. Dendrite, 342 N.J. Super. at 151.
34. Immunomedics, Inc. v. Doe, 342 N.J. Super. 160 (App. Div. 2001).
35. Id. at 162-63.
36. Id. at 163.
37. Id.
38. Id.
39. Id. at 164.
40. Id. at 167.
41. Donato et al v. Moldow et al., Docket No. BER-L-6214-01, Superior Court of New Jersey.
42. 47 U.S.C. 230(c).
43. N.J.S.A. 2A:156A-1 et seq.
44. N.J.S.A. 2A:156A-29.c.
45. 18 U.S.C.A. § 2510 et seq.
46. N.J.S.A. 2A:156A-29.e.
47. N.J.S.A. 2A:156A-29.f.
48. 18 U.S.C. §§ 2511 and 2702
49. N.J.S.A. 2A:156A-29.b
50. 18 U.S.C. §§ 2511 and 2701
51. 18 U.S.C. §§ 2520 and 2702; cf., Fraser v. Nationwide Mutual Life Ins. Co. (E.D. Pa. March 27, 2001) holding that an employer is not prohibited under the state and federal wiretap laws (including ECPA) from retrieving stored e-mail on the employer’s server, and Konop v. Hawaiian Airlines, Inc., 236 F.3d 1035 (9th Cir.2001), holding that employer violated ECPA by retrieving messages, without authorization, from employee-operated Web site.
52. Title 2C, Chapter 17, § 2 of the New Jersey Code of Criminal Justice relates to the causing or risking widespread injury or damage including the purposeful or knowing and unlawful causing of an explosion, collapse of a building, release or abandonment of poison gas, radioactive material or any other harmful or destructive substances.
53. Title 2C, Chapter 17, §§ 7-9 relates to the purposeful or knowing, damaging or tampering with any machinery, device, or equipment at a nuclear electric generating plant with intent to cause or threaten to cause an unauthorized release of radiation.