Disclosure: I have worked with the Electronic Frontier Foundation on a variety of issues.
EFF has filed an amicus curiae brief (pdf) in Dominick v. MySpace. (An amicus curiae brief is filed by a person or group who is not a party in the case, but wishes to address issues of law, policy, or some other aspect of the case.) In this case, an Illinois official has asked (pdf) a Cook County Circuit Court judge to order social networking site MySpace to reveal the identities of the author of two MySpace profiles. The official is alleging “defamation, invasion of privacy and related torts.”
“The First Amendment protects not only the right to speak but to speak anonymously,” said EFF Senior Staff Attorney Matt Zimmerman. “If Mr. Dominick’s claims are legitimate, he may be able to obtain the identifying information that he seeks. Until he meets his burden, however — including, among other things, attempting to notify the author of this court action and identifying the allegedly defamatory statements at issue — the court should not grant his request. The First Amendment requires courts to guard against attempts to unmask critics who have simply made statements litigants don’t like, especially when such requests are made by elected officials.”
In summary, EFF argues the Illinois official’s petition “must be denied on at least two grounds.”
First, the federal Stored Communications Act categorically bars government actors from obtaining customer records (such as subscriber information) from online services like MySpace through the use of the ordinary civil discovery process. Second, Petitioner fails to meet the heightened First Amendment requirements demanded of litigants seeking the identities of anonymous Internet speakers. In short, Petitioner has not met his burden imposed by the First Amendment and simply cannot (petitioning the Court in his capacity as the President of Cicero) use civil discovery requests to obtain customer records held by MySpace.
While at the Electronic Privacy Information Center, I was one of several people (counsels listed on the brief: New Jersey attorney Grayson Barber, EFF’s Lee Tien, ACLU-NJ’s Ed Barocas) who worked on an amicus brief (pdf) in New Jersey v. Reid, an appeal to the state Supreme Court regarding a subpoena to an Internet service provider demanding data on a customer. The lower court held (pdf) that subscribers have a reasonable expectation of “informational privacy,” defined as “the ability to control the acquisition or release of information about oneself.”
In the July 2007 amicus brief, the groups said, “This case raises far-reaching questions about the scope of privacy protection in the electronic environment,” especially because subscriber information “can reveal substantially more about an individual than, for example, the phone numbers she dials.”
Earlier this year, in a unanimous ruling, the New Jersey Supreme Court upheld a lower court ruling and found that Internet service providers must protect user information and a valid subpoena is needed before the providers can disclose private data about subscribers. “We now hold that citizens have a reasonable expectation of privacy, protected by Article I, Paragraph 7, of the New Jersey Constitution, in the subscriber information they provide to Internet service providers – just as New Jersey citizens have a privacy interest in their bank records stored by banks and telephone billing records kept by phone companies.”