Electronic Frontier Foundation Media Release

EFF Asks California Court to Quash "John Doe" Subpoena

Argues that High Standard is Required Before Terminating First Amendment Rights of Anonymous Internet Speakers.

For Immediate Release: Aug. 7, 2001

San Francisco, CA - A California state court will hear oral argument this week in a case that may determine the legal standard California will apply to subpoenas requesting the identity of anonymous Internet speakers.

The case involves a subpoena issued by Pre-Paid Legal Services Inc. of Oklahoma (PPLS) requesting the identity of eight posters on Yahoo!'s "Pre-Paid" message board. The Electronic Frontier Foundation (EFF) represents two of the J. Does whose identities were subpoenaed, in a dispute between PPLS and another (known) party.

PPLS argues that it needs the Does' identities to determine whether they are subject to a voluntary injunction preventing former sales associates who work for a competitor from revealing PPLS's trade secrets. The messages cited by PPLS, however, indicate only that the eight Does were critical of the company and how it treats its associates. EFF will argue that revealing the identity of these speakers will give PPLS the opportunity to punish its critics for speaking out against it.

"Without proper safeguards on Doe subpoenas, a company can use a court as a detective agency to ferret out its critics," said EFF's Lee Tien. "We hope that the court will adopt a standard that protects anonymous speech against such subpoenas."

Tien will ask the court to apply a four part test adopted by the federal court in Doe v. 2TheMart.com, Inc., 140 F. Supp.2d 1088 (W.D. Wash., 2001) ("2TheMart") to determine whether a subpoena for the identity of non-party Internet speakers should be upheld. That test asks:

Was the subpoena brought in good faith?
Does the information relate to a core claim or defense?
Is the identifying information directly and materially relevant to that claim or defense?
Is the information available from other sources?

The 2TheMart decision was issued as a result of a motion to quash brought jointly by the EFF and the ACLU of Washington on behalf of a J. Doe whose identity had been subpoenaed by 2TheMart.com, Inc. "We were extremely pleased that the court set such a high standard for protecting the identity of anonymous online speakers in 2TheMart," said Lauren Gelman, EFF's director of public policy. "EFF will continue to defend the rights of J. Does to speak anonymously on the Internet until companies realize that they can no longer turn to the courts when they want to silence their critics."

The case will be heard on Friday, August 10th, at 9:00 AM, before the Honorable Neil Cabrinha in Department 18 of the Santa Clara County Superior Court.