How Corporate Criticism Threatened Online Anonymous Speech

Yahoo! was the first search engine to cover all publicly traded businesses in the 1990’s. Yahoo! Finance Bulletin Boards. Yahoo! Yahoo! allowed its users to use pseudonyms for their messages, making it a great place to share rumors and information about businesses across the nation.

Public relations and corporate executives regularly monitored bulletin boards. They were acutely aware of the potential for one bad post to affect employees’ morale, and even worse, stock price movements. Although companies are used to dealing with negative media coverage, Yahoo!’s pseudonymous criticism is a new phenomenon. The financial world was quite different. The executives knew who they could complain to if the newspaper’s columnist on business wrote about inflated share prices and pending layoffs. Yahoo! Yahoo!

It’s not surprising that Yahoo! The Yahoo! Yahoo! companies’ efforts to demask Yahoo! Financial posters could set the scene for many years of First Amendment litigation over online anonymity.

Companies would sue John Doe defendants to identify pseudonymous posters. The company will subpoena Yahoo! as part of its early discovery. Yahoo! would subpoena it for Internet Protocol addresses and email addresses. It also requested any data about its pseudonymous critics. Yahoo! Yahoo! Yahoo!Yahoo! provided.

Yahoo! The Yahoo! Finance discussion board was where Xircom’s heated, colourful, and occasionally offensive, debate took place. Xircom is a California-based modem maker that sparked intense speculation regarding its financial performance.

Posts that caught Xircom management’s attention came from a poster named “A_VIEW_FROM_WITHIN.” A poster titled “A_VIEW_FROM_WITHIN” was posted in April 1999. He claimed he was an Xircom engineer and criticized the company’s quality products as well as its inability retain staff. “Xircom use [ sic ]Yahoo! wrote that while it is a good place to work, there is now a cloud of negativity surrounding the environment at Xircom. Finance. Finance.

Some posters questioned if the poster was employed by Xircom. You are clearly one of those dead engineers who were dumped due to incompetence. . . . One wrote, “You are a fraud.” The possibility of an employee posting comments about Xircom led the company to sue A_VIEW_FROM_WITHIN, Ventura County, California state court, on May 5, 1999. They alleged breach of contract and defamation. Xircom summoned Yahoo! His identifying information.

In a John Doe-type subpoena case from 1999, Xircom would secretly have received A_VIEW_FROM_WITHIN’s identifying data from Yahoo! as well as the ISP of the poster. Unfortunately for the company, three days after it filed the complaint—and before it could obtain identifying information from Yahoo!—the Ventura County StarA front-page story was published about the suit.  The story was further covered by other media.

One of the article’s posters happened upon it and he began to call lawyers in an attempt to fight the Yahoo! Subpoena. The poster gave the information.

Because there were no challenges to the lawsuits, it was not possible for any lawyer to specialize in subpoena defense. He called Los Angeles technology lawyers, with limited success at first. He wanted free legal advice. However, lawyers from white shoe law firms were not motivated to pro bono to a Yahoo! A poster for the Finance messageboard.

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, who worked in Intellectual Property cases became quickly the Internet lawyer guru at Baker & Hostetler. Gray said that she thought immediately of Supreme Court opinions protecting anonymous speech when Gray was contacted by the poster. However, it wasn’t clear how courts would respond to an argument like one applied to John Doe subpoenas.

She was aware that Yahoo! required her to quickly work and get rid of all the other options. Xircom was provided with the identifying data. Gray, together with 15 exhibits, filed a 15 page motion to quash less than three weeks after Xircom sued. Gray claimed that the subpoena was in violation of First Amendment anonymous speech protections. “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! Gray stated that message boards are not a good idea.

While temporarily blocking the subpoena for procedural purposes, the judge indicated that he would not accept the First Amendment argument. Xircom was allowed to issue a second subpoena. Gray negotiated with Xircom. He offered to look at a list that Xircom believed might have been the poster and sign a statement that Gray was not one of those names. Gray’s tactics were successful and the client reached a settlement with Xircom. Although the terms of the settlement were not disclosed by the company, it announced that the poster was neither an engineer nor had ever been used by Xircom.

Gray was determined to win the case, despite its disappointing conclusion. She quickly became known as Jane and John Do’s go-to attorney for any subpoenas they received for their identifiable information. In 2000, Yahoo!! brought a surge in demand for her services. Yahoo! changed their policy to notify users via email when subpoenas were issued for their personal information. Users had 15 days to contest the subpoena.

Gray would continue to defend John Doe defendants for the following few years, before quitting her firm in 2002. Gray had to deal with a rainmaker partner, who was furious that she represented anonymous posters on the Internet criticizing corporate executives. She was eventually allowed to represent them, but the experience gave her an insight into why Yahoo! Posts ranked the institution.

Gray explained that Gray didn’t appreciate the powerful white privilege an older generation had. They had not been spoken to back in a way that made them feel insecure. Although they knew that people would speak about them, subconsciously they didn’t pay much attention. It was right in front of them, and in print.

Gray, Paul Alan Levy, Cindy Cohn and others challenged Gray’s claims. Courts eventually established legal standards for John Doe subpoena plaintiffs. These legal standards require them to prove strong cases and comply with procedural requirements in order to get speaker information. Although these requirements may vary by court, they all stem from the First Amendment anonymity safeguards which the Supreme Court long recognizes.

While the First Amendment allows anonymous speech, it has its limits. This applies to all government attempts to ban or pierce anonymity. Court subpoenas can also be used to mask anonymous posters. However, the First Amendment doesn’t restrict any nongovernmental threats of anonymity. In fact, private companies are increasingly in control of more identifying information. Tomorrow we will discuss how privacy laws can complement the First Amendment’s anonymity protections.