FAQ: Questions and Answers

[back to notice text] Question: What should I do if I receive notice that my ISP has received a subpoena for my data? Answer: First you should decide whether you wish to fight to protect your identity, Internet usage records, or whatever else is being sought. You might want to ask your ISP for a copy of the subpoena if they haven't already provided one. If you decide to fight it, you should inform the ISP immediately, and you may want to request that they delay compliance to give you time to find a lawyer. Then find a lawyer, who will file a motion to have the subpoena thrown out. (If your lawyer can later prove that the lawsuit was frivolous, you may be able to recover legal fees if your state has passed an anti-SLAPP statute.) [back to notice text] Question: Aren?t people required to explain why they?re subpoenaing my identity and other information? Answer: Not with the initial request. The reasons for the subpena are only provided if the subpena is challenged, through a motion to quash. In opposing the motion to quash, the person seeking the information must demonstrate, at a minimum, that it is likely to lead to the discovery of information that would be useful in a lawsuit. [back to notice text] Question: I signed a confidentiality/privacy agreement with my ISP that provides that they will not release my information. Doesn?t that protect me? Answer: No. Most privacy agreements state that information will be turned over in response to legal requests, and a subpena is such a request. Even if the agreement does not say so, a legally issued subpoena overrides such agreements as a matter of public policy. Each ISP has a different policy about notifying users when their information has been subpoenaed, but they cannot simply ignore a subpoena under the law without risking legal santion themselves. [back to notice text] Question: What does "respond" to the subpena mean? Answer: Usually, it means that the ISP will give the requested information to the requesting person. In some cases, ISPs have resisted requests for information on behalf of their customers, but this is not the norm. Unless specifically told differently by your ISP, you should assume that your ISP will turn over your information as part of its response. [back to notice text] Question: How much time would I have to try to fight a subpoena? Answer: The ISP's deadline for complying with a subpoena can vary depending on the judge, the jurisdiction where the case was filed, and other factors. A typical deadline is 7 days. This isn't much time, so again you may want to request an extension of the deadline from the ISP and the court so your lawyer can prepare your challenge to the subpoena. [back to notice text] Question: What is a "motion to quash" a subpoena? Answer: This is a formal request for a court to rule that your information should not be given to the requesting party. This normally includes the request, plus a legal brief (sometimes called a memorandum of points and authorities) explaining why, by law, your information should not be turned over. Samples of briefs filed in John Doe cases are available at: EFF Archive, Cullens v. Doe, http://www.eff.org/Privacy/Anonymity/Cullens_v_Doe/ http://www.citizen.org/litigation/briefs/IntFreeSpch/articles.cfm?ID=5801

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