How to Identify An Anonymous Online Speaker And Gather Admissible Evidence Of Online Activity

Anonymous Internet speakers are not immortal beings that can say whatever they want, when ever they want, about whom ever they want.  They are individuals that are accountable for what they say and write just like the rest of us.  Often referred to as Anony's, anonymous Internet speakers often use the Internet as a forum to spew false and defaming information about various people, topics, businesses and sometimes themselves.  While unmasking an Anony may seem impossible, even to lawyers, it is not impossible. However, the list of questions regarding how to reveal an Anony is more likely to be longer than your list of answers, at this point.  So, let's do something about that. 

Pursuant to what is commonly referred to as Section 230(c) Immunity, Internet service providers, hosts, Web sites, and other relevant carriers (ISPs) are generally exempt from liability for the speech that is posted on their Web sites, blogs, chat rooms, and even the speech republished through their search engines. The Communications Decency Act (CDA) states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1) (2008). In other words, the providers of the Internet itself, where anyone can generate all manner of speech, are not “publishers” of content as traditionally understood in the context of the print media.

So who is liable for the massive amount of false, defamatory, and libelous information published on the Internet daily? The original speaker is…whoever that person or entity may be. Allowing an ISP to be free from any liability, while it provides third-party speakers the tools to defame and harass at-will, likely sounds far-fetched and radical to many experienced lawyers, given the body of law regarding print, radio, and televised media. However, to an entire generation of attorneys and other young web surfers this ideology is the norm.

Since Section 230(c) was enacted, a whole new body of law has had to be interpreted by the courts to deal with this new enigma, the Internet. Generally, publishers and reporters find themselves at the center of libel suits when false information is published. A strong incentive exists for newspapers, magazines, and radio/television to protect their reputation and their “sources.” “Sources” have rarely been sued because they can not be identified. The popularized “Deep Throat” from the Watergate scandal can likely attest to the way things “used to be.” Although ISPs closely resemble their publisher cousin, an effort to not limit commercial activity on the Internet created Section 230(c). However, there is one great distinction between the print/televised media and the Internet: the Internet Protocol Address (IP Address).

The IP Address allows the ISP to identify each individual user on the Internet and log their activity. While an IP Address can be masked and proxy servers can be used by the Anony, which often involves interstate and international activity, often the un-savvy Anony has no idea that their ISP is keeping track of their activity. More importantly, even to the “black hat” or experienced user, it only takes one login without a proxy server for an experienced expert to capture the legitimate IP Address. Likewise, since Section 230(c) grants the ISP immunity, there is little incentive for the ISP to protect the identity or Internet activity of the Anony. For obvious reasons, the ability of litigants to get access to the ISP logs has become the center of the legal discussion. 

So how does one legally get Internet Surfing logs, IP Addresses, and other relevant information to support your case and identify the tortfeasor (or criminal) Anony?

1.  Pursue Pre-Litigation Discovery If Available In Your Jurisdiction:  Texas has the best and most detailed pre-litigation discovery rules.  In my opinion, every jurisdiction should look into their procedures and either adopt them or allow some form of them.  This would allow the glut of lawsuits being filed currently singly for the purposes of identifying Anony's to stop.  Lawyers should be able to file pre-litigation discovery requests from ISP's regarding IP Addresses in an effort to identify parties that would be parties to litigation.  The Courts cannot function without society’s ability to identify tortfeasors.  For some reason, Internet users often think they should be able to have private-public discourse...NO.  If you are going to enter the public discourse, you should not be an Anony.  Stand behind what you say and if one spews lies ruining lives and ending careers, one should be accountable, just as if they had committed a battery or assault.  There is no difference.  Illinois and New York also provide some descent procedures for pre-litigation discovery.

2.  If No Pre-Litigation Discovery Available, Sue “John/Jane Doe”:  It only takes about three seconds of legal analysis to recognize that it is impossible to serve a subpoena on a person you can’t identify, but it may take quite a bit longer for you to realize you can sue them. What Section 230(c) immunity has created is an enormous need for “John Doe” lawsuits. Since the Federal Rules of Civil Procedure only allow for limited pre-litigation discovery under Rule 27 and since Texas is the single state to have extensive pre-litigation investigatory procedures, most of the other jurisdictions must file “John Doe” lawsuits. While traditionally these lawsuits have been discouraged by the courts, the ease with which anyone with an Internet connection can anonymize themselves and create a path of fraud, libel and destruction has necessitated the courts’ relaxation and allowance of “John Doe” actions.

Given that Anonys post tortious statements both on their own Web sites and Web sites owned and operated by others protected by 230(c), the IP address of the originated tortious activity must be identifiable as a foundational and evidentiary matter. Once the lawsuit is filed, service needs to occur. The only way to identify and serve an unknown party is through additional investigation of the owner of certain websites, email addresses, IP Addresses and other information that you may have available to you.

3.  Identify The Owner Of A Web Site, Email, IP Address, Etc.:  Every Anony who gains access to the Internet or has a web address is assigned an IP Address. Even when using your email, you must go through an assigned IP Address that identifies a connection.  The IP Address is tied to an ISP or a Host.  As stated, this includes activity on web addresses/Web sites and e-mails. The Internet Corporation for Assigned Names and Numbers (ICANN) requires that every web address be owned and tied to a name, address, and e-mail. The owner of any web address can allow a “proxy” to be listed in their stead, maintaining the owner’s anonymity. The name, address, and e-mail of the proxy must be public information listed with ICANN for service of process and billing. Thus, by researching ICANN, one can find the proxy/owner of any web address where tortious activity may be occuring.  However, since the proxy is created for the exclusive purpose of masking the identity of the true owner, the proxy will generally not provide the identity of the IP Address owner without a Court Order, some will respond to a simple subpoena.

4.  Identifying The Owner Of A Statement On A Website Or From An Email:  The retention of an expert who has the ability to forensically track IP Addresses tied to websites or emails will be required in identifying the owner of a given statement. A forensic Internet expert will be able to gather valuable information that ties certain web addresses, e-mails, or other identifying information to other statements. Though not simple, once the relevant technical information is gathered that connects the IP Address to the tortious activity and a profile is created around the IP Address, connecting it to the tortious activity, one has the support for the “John Doe” lawsuit. In other words, you may not have a name, but you have an IP Address and there is an ISP out there that has an actual name and contact information.

5.  File Suit & Petition The Court To Conduct Pre-Discovery Investigation To Identify The Tortfeasor:  Given that we have no specific procedure allowing for this type of a subpoena generally across the states, a Complaint must first be filed, immediately followed by a Petition for Pre-Discovery Subpoenas should be made to the court in order to demonstrate the necessity for issuance of subpoenas prior to discovery. In other words, one need request from the court authority to conduct pre-discovery subpoenas to identify the tortfeasor.  However, it should be noted that this better not be your first attempt to identify the Anony.  It is suggested that you take several other actions prior to filing the petition so the judge understands that this is the last resort.  Prior actions include: attempting to serve the owner of the website or the proxy, attempted service on the ISP of the Website with a copy of the complaint; drafting request letters to the Website owner seeking the identity of the “John Doe”; emailing the tortfeasor with the Complaint if emails are known; and requesting the identifying information from the ISP.
Be prepared, though.  As you attempt some of these actions, these “John Does” may actually appear and file a motion to quash or dismiss; the ISP may appear to file a motion to quash; if one is lucky, though, the party will appear (not specially) and subject themselves to your jurisdiction.  If so, job done, you may proceed with the lawsuit.

If "John Doe" does not appear, one can take a default against the “John Doe,” in the event one can substantially establish Website or email ownership via a proxy and adequately perform service. Often times, these activities alone provide the identity needed to uncover an identity.  Once the ISP receives the subpoena or court order, they in turn forward it to the owner or proxy. The ISP will generally provide the personal identifying information, unless the owner files a motion to quash the subpoena. Matching the IP Addresses provided by the forensic expert and the ISP log information gathered via subpoena or court order will allow connection of activity to identity of the tortfeasor.

6. Watch Out For The Motion To Quash:  In the wake of the “John Doe” lawsuits and the resulting subpoenas, jurisdictions have had to wrestle with various Motions to Quash. In response to promptings from the California Court of Appeals, the California legislature enacted California Code of Civil Procedure Section 1987.2, drastically changing the “John Doe” subpoena landscape and setting the standard for which a subpoena to a California ISP must contain. In a nutshell, Section 1987.2 provides that when out of state subpoenas are issued in California “for personally identifying information…for use in an action pending in another state…and that subpoena has been served on any Internet service provider,” if a motion to quash is granted, if the “underlying action arises from the moving party’s exercise of free speech rights on the Internet,” and if the subpoenaing party fails to “make a prima facie showing of a cause of action,” the court “shall” award attorney’s fees and costs incurred by the moving party. WOW!  Yes, you heard that right.  Since so many ISP’s are located in California, significant compliance with local procedure is necessary or your clients risk paying an ISP's or Anony 's fees and costs that file a Motion to Quash.

While there are many cases on point in various jurisdictions relevant to what constitutes “a prima facie showing of a cause of action” that involves libelous speech on the Internet, the only way to push the weight of the evidence in one’s favor is to plead the Complaint with particularity, naming specific Websites, statements, actions, e-mails, etc. Essentially, plead one's cause of action for Internet libel the same way you would fraud.  This will provide the additional information necessary when an ISP of the Anony specially appears and files a Motion to Quash the subpoena.

7.  The Identity Of The Anony:  There is no way getting around the fact that putting an identity to an Anony is complicated, time consuming, computer expert necessitated, and court involved. Many times, identity can be discovered through simple online investigation, emails, phone calls or pure common sense. Other times, filing a “John Doe” lawsuit will be the only remedy. As the courts continue to amend procedural rules and the common Internet user continues to become more astute, hiding your identity online will continue to be an often litigated topic and the subject of much legal debate.  One thing is for sure, persistence will win this battle.  You need the right expert, with the right experience and with a smidge of luck.