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Subpoenaing ISPs For User Identities May Now Be More Difficult–At Least in Florida

In decisions that could have positive implications for bloggers and other social media users who wish to maintain their anonymity, two judges in the Eleventh Judicial Circuit of Miami-Dade County, Florida have recently quashed subpoenas seeking the disclosure of the identify of hundreds of nationwide “John Doe” defendants.

In the two cases, plaintiffs Open Mind Solutions, Inc. and Boy Racer Inc. issued the subpoenas to a number of Internet Service Providers (“ISPs”).  Although the John Does are alleged to have infringed the plaintiffs’ copyrights in motion pictures through file sharing, rendering jurisdiction exclusive in federal court, the cases were filed in state court under a procedure called a “pure bill of discovery.”  One judge noted in dismissing the suit filed by OpenMind Solutions without prejudice that OpenMind Solutions could amend the suit if it named the ISPs from which it sought discovery as parties (to allow the ISPs to assert available defenses) and alleged that any specific John Doe actually committed a tortious act in Florida.

Many state courts, including Texas, have procedures for filing suits against unnamed John Doe defendants for purposes of obtaining discovery to reveal the identities of the John Does.  Such suits have become prevalent in the Internet Age to discover the identities of anonymous posters of online content.  Once the suits are filed, subpoenas are often issued to ISPs, requesting that they reveal the identities, if known, or at least the IP addresses of those posting defamatory, infringing, or otherwise unlawful content on their sites.

While the Digital Millenium Copyright Act and Communications Decency Act provide substantial protections to ISPs, ISPs do not generally have a legal privilege to shield the identities of offending posters in response to a valid subpoena.  Some ISPs, such as Yahoo!, will traditionally notify posters targeted by a subpoena of the request and give them an opportunity to move to quash before releasing identifying information.  Others will simply comply with the subpoena.

While the recent rulings out of Florida are specific to Florida law, it is possible that other state courts could follow suit and place restrictions on the ability of Plaintiff’s to use John Doe lawsuits to obtain the identities of anonymous online actors.

Jason Bloom is a partner in the Intellectual Property Practice Group in the Dallas office of Haynes and Boone. Jason chairs the firm's Copyright Practice Group and has litigated copyright disputes in federal district courts, the Fifth Circuit Court of Appeals, and the United States Supreme Court. Jason also routinely represents clients in First Amendment and media cases before trial courts, appellate courts, and the Supreme Court of Texas, as well as trademark, trade secret, breach of contract, and complex business litigation disputes.

He may be reached at jason.bloom@haynesboone.com or 214.651.5655.

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