The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In the late 1990s, most publicly traded companies were the subjects of Yahoo! Finance bulletin boards. Yahoo! allowed users to post message under pseudonyms, so its bulletin boards quickly became a virtual water cooler for rumors about companies nationwide.
Corporate executives and public relations departments routinely monitored the bulletin boards, keenly aware that one negative post could affect employee morale and, more importantly, stock prices. While companies were accustomed to handling negative press coverage, the pseudonymous criticism on Yahoo! Finance was an entirely different world. Executives knew to whom they could complain if a newspaper's business columnist wrote about inflated share prices or pending layoffs. Yahoo! Finance's commenters, on the other hand, typically were not easily identifiable.
Not surprisingly, the Yahoo! Finance bulletin boards soon became a major early battleground for the right to anonymous online speech. Companies' attempts to unmask Yahoo! Finance posters would set the stage for years of First Amendment battles over online anonymity.
To identify the pseudonymous posters, companies would file a lawsuit, under a theory such as defamation or violation of a confidentiality agreement, against John Doe defendants. As part of early discovery, the company would subpoena Yahoo! for Internet Protocol addresses, email addresses, and any other data that it has about the pseudonymous critics. In the early years, Yahoo! complied with the subpoenas without even notifying the posters to provide them an opportunity to challenge the disclosure. Yahoo!'s information often did not include the posters' names, so the companies often needed to issue a second round of subpoenas, such as asking Internet service providers for the names of subscribers who are associated with IP addresses that Yahoo! provided.
The Yahoo! Finance discussion board for Xircom was home to the heated, colorful, and sometimes offensive debate that could be expected in discussions of tech stocks in the late nineties. Xircom, a California-based modem manufacturer, sparked intense speculation over its financial performance.
Posts that caught Xircom management's attention came from a poster named "A_VIEW_FROM_WITHIN." In April 1999, he wrote that he was a Xircom engineer, and he criticized the quality of the company's products and its inability to retain employees. "Xircom use [ sic ] to be a fun place to work but there is now a heavy dark cloud surrounding the environment at Xircom," the poster wrote on Yahoo! Finance. He also wrote that "management seems disconnected from the work force" and that the company's sales director is "more concerned with finding his lost hair gel than he is about sales growth."
Some posters questioned whether the poster worked for Xircom. "You are obviously one of the dead wood engineers that were dumped because of incompetence. . . . You are a FRAUD," one wrote. Still, the prospect of an employee posting public criticism of Xircom caused the company to sue A_VIEW_FROM_WITHIN in Ventura County, California, state court on May 5, 1999, alleging breach of contract, defamation, interference with prospective commercial advantage, unfair competition, and breach of fiduciary duty. On the day that it sued the poster, Xircom subpoenaed Yahoo! for his identifying information.
In a typical John Doe subpoena case in 1999, Xircom would have quietly obtained A_VIEW_FROM_WITHIN's identifying information from Yahoo! and the poster's ISP. Unfortunately for the company, three days after it filed the complaint—and before it could obtain identifying information from Yahoo!—the Ventura County Star ran a front-page story about the lawsuit. Other media followed with more coverage.
The poster happened to read one of the newspaper articles and began calling lawyers to see if they would represent him in fighting the subpoena before Yahoo! turned over his information.
No lawyer specialized in defending subpoena targets in such cases, as there had not yet been any challenges to these lawsuits. So he called Los Angeles technology attorneys, at first with little success. He was seeking free legal advice, and lawyers at white shoe law firms had little incentive to provide pro bono services to a Yahoo! Finance message board poster.
One evening in May 1999, his luck changed when he called Megan Gray, an associate at Baker & Hostetler's Los Angeles office and a former foreign newspaper correspondent. Gray worked on intellectual property cases, and quickly became the firm's Internet law guru. When the poster contacted her, Gray told me, she immediately thought of the Supreme Court's opinions that protected anonymous speech, but it was unclear how a court would react to such an argument as applied to a John Doe subpoena.
She knew that she had to work quickly and move to quash before Yahoo! provided the identifying information to Xircom. Less than three weeks after Xircom sued, Gray filed a 15-page motion to quash, along with 15 exhibits. The subpoena violates the First Amendment's anonymous speech protections, Gray argued. "This Court should not permit the judicial branch to become a clearing house for lawsuits filed with only the most frivolous pretense—lawsuits with the true purpose of providing private detective agency services through the subpoena power to persons seeking to learn the identity of people using Yahoo! message boards," Gray wrote.
The judge temporarily blocked the subpoena on procedural grounds but indicated that he would reject the First Amendment argument and allow Xircom to issue a new subpoena. Gray negotiated with Xircom, offering to review a list of names that Xircom suspected might be the poster, and then sign a declaration that her client was not among those listed. Her tactics worked, and her client settled with Xircom. The company did not reveal the settlement terms, but its announcement stated that the poster had never been employed by Xircom and was not an engineer.
Despite the anticlimactic end to the dispute, Gray's efforts did not go to waste. The case's publicity quickly earned her a reputation as the go-to lawyer for John and Jane Does seeking to fight subpoenas for their identifying information. Demand for her services became especially high in 2000, when Yahoo! changed its policy and began notifying users by email of subpoenas for their identifying information, and providing them 15 days to challenge the subpoena.
Gray would defend dozens of John Doe defendants over the next few years before leaving her firm in 2002. She had received pushback from a rainmaking partner who was horrified that she would represent anonymous Internet posters who criticized corporate executives. Although she ultimately was allowed to represent the posters, the experience taught her a lesson about why the Yahoo! posts rankled the establishment.
"I had not appreciated the white powerful privilege that an older generation felt," Gray said. "They really had never been talked back to in a manner that seemed in their face. They knew subconsciously, people would talk about them behind their back, but they never paid attention to that. This was now in their face, and it was in print."
Thanks to legal challenges by Gray, Paul Alan Levy of Public Citizen, Cindy Cohn of the Electronic Frontier Foundation, and other advocates, the courts eventually developed legal standards that require plaintiffs in John Doe subpoena cases to demonstrate strong cases and fulfill procedural requirements before obtaining a speaker's identifying information. These tests, which vary somewhat by jurisdiction, are rooted in the First Amendment anonymity protections that the Supreme Court has long recognized.
The First Amendment right to anonymous speech is strong but has limits. It applies to government efforts to prohibit or pierce anonymity, including the use of court subpoenas to unmask anonymous posters. But the First Amendment generally does not restrict nongovernmental threats to anonymity, and private companies control an increasing amount of identifying information. Tomorrow's post will explore how privacy law can supplement the First Amendment's anonymity protections.