So, some inflated ego has decided it would be a good idea to subpoena someone over the commments section on their blog.
Now we are into my part of the woods. Come, let me show where the rotting corpses lie.
The relevant case law, that actually has a ruling, not just a filing and some motions, but a real live judge's ruling, is from a case titled State of Illinois v. Priscilla Schrock(PDF, 3.1 MB).
How do I know all this?
Because I paid for the lawyer that won that case.
Priscilla Schrock was the County Clerk of Cumberland County, Illinois, and she was facing criminal charges for the crime of embezzlement.
Her defense attorney believed that it would be in his client's interest for some potential witnesses to be demonstrated before the court as not impartial, mostly by proving that they had made statements disparaging Priscilla Schrock.
Her attorney believed that disparaging comments about his client had been made on an anonymous message board at a local internet service provider. And it was true, there were many disparaging comments about Patricia Schrock on the message board. Her attorney thought that by matching those comments to individuals that may be called to testify to the facts of the trial, he could demonstrate that the witnesses were hostile to Priscilla Schrock, could probably treat them differently under the law as he questioned them, and could possibly call into question the witnesses motivations for their statements against Priscilla Schrock.
So he swore out a subpoena against the internet service provider, requiring them to produce information related to the identity of posters of 40 or so specific messages.
Did you know that lawyers issue subpoenas, not judges? As officers of the court they are given the power to compel people to deliver information or testimony.
Now, the small internet service provider had a problem. See, the law requires that internet service providers vigorously protect their clients privacy, and the failure to do so makes them liable to the client for not protecting those rights if they fail to do so. So, if your internet service provider reveals your identity without attempting to protect that identity, then you can sue your ISP.
And let's not even get into the part of the law that states that an ISP is required to notify any of their customers that are implicated in a lawsuit, so the client has the ability to muster their own defense, if they so choose. So clients are now having to be contacted, in a legally defensible manner, and in such a way that their identity won't be compromised. Did I mention that this is occuring in such a rural area that people don't have their mail delivered to their homes in town, but collect their mail at the local post office. In other words, 40 people picking up registered mail at the local post office doesn't stay very quiet for very long. Small town life, in all it's glory. Quick, hire a bunch of messengers from out of town. Fun, fun.
The small internet service provider looks over the facts, consults with a very expensive lawyer, and decides to file a motion to quash the subpoena filed by Priscilla Schrock's attorney, on the grounds that it violates the first ammendmant rights of the message board posters, and puts an undue burden on the internet service provider to produce the information.
The judge ruled against Priscilla Schrock in her attempts to force the internet service provider to reveal whatever information relating to the identities of message posters, stating that her right to collect information for her defense was not greater than the rights of message board posters to remain anonymous.
And that is how only the fifth ruling on internet privacy from any court in the country came out of a Circuit Court in Cumberland County, Illinois, an area so rural that there isn't even one stop light in the whole county.
Most internet related lawsuits are never ruled on by judges because one or both parties fold up before it gets expensive, or, appalingly, the person's privacy is not defended by the institution charged with doing so, and most people don't sue people for not defending their privacy, even though they have a case.
But our little internet service provider didn't much like being dragged into this mess, and we did what we would hope that our internet service provider would do for us if we were the clients. So we dug in our heels, spent the money, and won a ruling.
And Priscilla Schrock was found guilty of stealing $165,000 from an old couple that weren't able to defend themselves due to infirmities related to age.
Posted by dglynn at October 30, 2003 12:10 AM