In what appears to be a fairly easy legal maneuver, the Orange County Register got its hands on the identity of an America Online member by issuing a subpoena after filing a trademark-infringement suit.
Since AOL turned the name over last week, the newspaper says it's likely to amend the suit, originally filed against unknown AOL members identified as John Does, to properly name the defendant and seek damages. The lawsuit involves a former employee who maintained a site that allegedly disparaged the paper.
"What this highlights is that our privacy laws focus on government access to information," said Deirdre Mulligan, staff counsel at the Center for Democracy and Technology. "There are no clear standards that establish your rights as an individual when the records someone is seeking are in someone else's hands."
Just two weeks ago a Canadian firm was granted 12 court orders to get names of those firing off criticism of the company on a Yahoo Finance message board. The legal action resulted in at least one name being divulged. Earlier this year, a Navy officer was nearly dismissed after AOL identified him as a user who called himself gay in his user profile.
"We're starting to see a lot of these cases, and we're likely to see more of them in the future," said David Sobel, general counsel at the Electronic Privacy Information Center.
The Register's lawsuit, filed earlier this month in US federal court in Virginia, charged that an AOL member, using the screen name Slave4OCR, infringed on the paper's trademark with his "Orange County Unregistered Press" site. Devoted to gossip, rumor, and insider kibbitzing at the Southern California daily, the site also ran alleged vicious attacks on some employees that reportedly upset staffers and could damage the paper's reputation.
The Register's president and COO, Ron Redfern, said the paper's goal wasn't to limit anyone's freedom of speech.
"This is not a First Amendment issue," Redfern said. "It has to do with what an individual was doing on our intranet."
Slave4OCR allegedly spammed Register employees with "malicious, vulgar" email, signed them up on porn email lists, and posted "mean-spirited" accounts on his site of how women staffers at the newspaper "conducted their intimate lives," Redfern said. When the paper's vice president of human resources sent an email to the Slave4OCR@aol.com address asking the person responsible to cease and desist, "he sent back threats that he was going to release bombs and viruses" onto the company's intranet, Redfern added.
A request for an interview sent by email to Slave4OCR received the response: "All I have to say is that they are probably trying to make an example of me, so other employees will see what happens to people who print other employees' criticism."
A post on the site he maintained now reads: "This site will cease to exist by Slave in order to protect himself from any potential liabilities."
The newspaper would not release the member's real name. Redfern said he didn't know it himself.
AOL defended its decision to turn over the member's name, saying it has a legal obligation to respond to a valid court order, like a subpoena. Privacy advocates said AOL has the best privacy policy around, going well beyond what is required by federal law. Its terms-of-service agreement states that AOL won't divulge information without a subpoena. The company also informs members when it receives a subpoena and provides a 10-day period to challenge the subpoena before disclosing any names.
In the current case, AOL received a subpoena requesting the identity of Slave4OCR on 2 July and notified the member the same day, providing him with a copy of the subpoena. The company apparently heard nothing from Slave4OCR and on 15 July released the name.
"Ninety-nine out of 100 judges will allow you to sue a John Doe and get a subpoena. Then you can amend a suit," said Ian Feinberg, an attorney with Gray Cary Ware Freidenrich. If someone is infringing on a client's copyright, "the only way I can stop you is to find out who you are," he added, explaining why it is a standard legal tactic.
But Sobel at EPIC is critical of using subpoenas to uncover online identities, because it forces the ISP subscriber in question to wrangle with the courts to prevent the disclosure of information.
"That's a very difficult thing that requires a lot of resources, especially when the court is far away," Sobel said. EPIC "believes the right to communicate anonymously needs to be protected." He stressed the need to establish judicial procedures that protect subscribers' rights.
Redfern said he believes the AOL member is a former Register employee and may have been working in concert with at least one other person. It is unclear how the spammer got his list of email addresses belonging to Register employees.
Calls to the attorney handling the case were not returned, and Redfern did not specify the damages his company might seek. Anxious to dispel reports that the paper was trying to censor critical commentary about it, Redfern said: "There may be thousands sites that say something negative about the Orange County Register. We don't care.
"All we wanted him to do was stay out of our system," Redfern says. "I'm not a technical person, but I understand that bombs and viruses can be pretty darn destructive."
