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Question: Isn't my ISP required by law to tell me if someone asks for my Internet-usage records and identity?
Answer: Unfortunately, in practice CyberSLAPP subpenas are rarely challenged becaue ISPs often fail to notify the individual who's personal information is sought. Even when they do, the short deadline (often as little as 7 days) does not provide enough time for the speaker to find and hire an attorney and the attorney to prepare the Constitutional arguments necessary to defend against the subpena.
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Question: What is a subpoena (also spelled "subpena")?
Answer: A subpoena is a formal demand that a person or company produce evidence in or for a civil or criminal lawsuit. A subpoena duces tecum (the kind most commonly used in John Doe cases) requires only the production of identified documents or categories of documents.
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Question: How is Internet anonymity affected by John Doe lawsuits?
Answer: Often called "CyberSLAPP" suits, these lawsuits typically involve a person who has posted anonymous criticisms of a corporation or public figure on the Internet. The target of the criticism then files a lawsuit so they can issue a subpoena to the Web site or Internet Service Provider (ISP) involved and thereby discover the identity of their anonymous critic. The concern is that this discovery of their identity will intimidate or silence online speakers even though they were engaging in protected expression under the First Amendment.
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Question: How do CyberSLAPP plaintiffs discover the identity of anonymous Internet critics?
Answer: CyberSLAPP plaintiffs usually get the personal information you gave an ISP or online message board when you signed up (name, address, telephone number, etc.). Some web sites that host discussion boards might only have your e-mail address, in which case a second subpoeana to the ISP that hosts that address will reveal your identity. In many cases, even more detailed information about your use of the Internet can be obtained; it's important to realize that when you go online, you leave electronic footprints almost everywhere you go. (With advanced knowledge of the Internet, however, there are ways to cover your tracks.)
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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.
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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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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.)
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