The majority of online defamation is posted
anonymously or pseudonymously, and many cases require issuing
subpoenas—including to internet service providers (ISPs)—to identify the
unknown posters.
As discussed below, this process often involves
obtaining internet protocol (IP) addresses from an entity, in response to a
subpoena; determining the ISPs that own the respective IP addresses produced by
the subpoenaed entity; and then issuing additional subpoenas to those
ISPs.
Subpoena process generally
Individuals looking to attack others on the internet
almost never use their real names or email addresses. In most cases, harmed
parties cannot immediately identify the online posters with certainty, even if
they have suspicions of the posters’ identities.
Therefore, to pursue legal claims against a
presently unknown poster, it might be necessary for a defamed party to issue a
subpoena to the relevant website (or its parent company) for documents
containing certain identifying information like basic contact information and
IP addresses – subject, of course, to the information that the posters actually
provided to the website upon registering an account with the websites.
Many online posters are naïve in thinking that they
can post harmful statements anonymously or pseudonymously and never have their
identities discovered – especially if they provide fake contact information or
create new email accounts, separate from their actual personal accounts, upon
registering accounts with the websites.
Through the subpoena process, the identities of
unknown posters can typically be determined, notwithstanding any information
that is withheld or falsified (and barring the unknown parties successfully
moving to quash the subpoenas).
For more on this process, including the standard
(generally) that an issuing party must satisfy to subpoena an entity
to unmask an anonymous online poster, download our “Subpoena Guide for Identifying Anonymous Internet Posters.”
Subpoenaing ISPs
Even if an initial subpoena does not produce
information sufficient to identify an unknown poster, such as an actual name or
a name discernible from a legitimate email address, there is typically value in
any IP addresses produced.
For instance, a subpoena to Google Inc. relating to
a Google review might not produce any information that allows the harmed party
to immediately ascertain the poster’s identity. However, Google might produce
the IP address from which the Google account was registered and IP logs related
to the Google account.
From there, the harmed party can determine the ISPs
that own the relevant IP addresses through a search on an IP lookup website,
and the party can then prepare a subpoena to the respective ISPs for documents
containing subscriber information.
It is important to note that Cable provider ISPs,
such as Time Warner Cable (TWC) and Comcast, are subject to the Cable Privacy
Act, 47 U.S.C. § 551. These entities are prohibited from releasing any
personally identifying customer information, absent a court order.
Thus, a party attempting to subpoena a cable
provider ISP for documents containing subscriber information must first file a
motion with the relevant court requesting an order permitting the cable company
to disclose the requested information.
This frequently necessary additional step in the
process is essentially one that comes down to luck: sometimes defamatory content
is published using (or from an account that was registered using) a cable
provider ISP, while sometimes it is not.
Subpoenaing an ISP involves providing the IP address
or addresses in question with the particular time and date listed in the
initial subpoena production. Many IP addresses are considered “dynamic,”
meaning the IP addresses assigned to certain customers change sporadically, so
it is critical to provide timestamps.
It is important to note that many ISPs only keep
subscriber information relating to IPs for just six or nine months – maybe even
less. Thus, any party contemplating serving subpoenas should do so sooner
rather than later (including being prompt in filing any potentially necessary
motion(s) to authorize and ensuring that the court does not sit on the
motion(s) for too long).
A valid subpoena to an ISP will often lead to the
production of legitimate information that can help a harmed party confirm the
identity of its detractor and pursue its claims against that person (including
amending the complaint to name the identified party as the defendant or
attempting to reach an out-of-court settlement).
For more information, contact Colleen Devanney at
855.542.9192 or cmdevanney@vorys.com. Read more about the practice at http://www.defamationremovalattorneys.com/.
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