Meet John Doe

Let's say you're a disgruntled employee working for corporation, and your boss, the CEO, really pisses you off. You've grown weary of his sharp business practices, his wasteful spending, his penchant for young women.

Let's say you are sitting at home in front of your computer, and you decide to log on to an Internet message board, where thousands of like-minded bitchers and moaners can post their thoughts, frustrations, and opinions virtually uncensored. You assume a screen name--something cute like cybervengeance4me--believing you have the reached that final frontier of free expression where, under the cloak of anonymity, you can say anything without fear of retribution or litigation.

Let's say you're wrong.

You might suffer the same fate of John Does 1, 2, 3, and 4, who are being sued by Dallas-based Trinity Industries Inc. By publishing messages on a Yahoo message board, these anonymous posters, alleges Trinity, have either unlawfully disclosed proprietary information about the company or disparaged its reputation by publishing "false and misleading statements" about its officers and executives. Before the case even approaches a trial, the manufacturing company is seeking to unmask the identity of these John Does, who company honchos believe are former and current employees.

So if your Yahoo alias is de_boned, stkhlder3, trin_vendor, or mcfooglestick, beware. You are in the crosshairs of a new weapon in the legal arsenal of corporate America to protect its reputation from online assault--the John Doe petition. This style of lawsuit pits business interests bent on ensuring that cyberspace affords them the same legal protection they get in the real world against free-speech advocates who believe the Internet must be protected against bogus litigation meant to silence critics and fire employees.

The legal tactic is fairly simple: The plaintiff (usually a corporation) files a lawsuit against John Doe and says it will provide the true name of John Doe as soon as his identity is known. The company then subpoenas the owner of the message board--in Trinity's case, Yahoo--demanding that it disclose whatever information is available regarding the identity of these allegedly errant posters.

Historically, Yahoo has fessed up without putting up much of a fight. Though it is not legally responsible for the content of the messages posted on its boards, Yahoo does inform all posters of their own precarious position: "Any messages are solely the opinion and responsibility of the poster," warns Yahoo. "Never assume that you are anonymous and cannot be identified by your posts."

Or that Yahoo won't identify you.

"Yahoo doesn't do anything to protect the privacy rights of its users," says Dallas attorney Michael Linz, who has handled a local John Doe lawsuit for the American Civil Liberties Union. Yahoo "will tell people they [Yahoo] have been served and will give them 15 days to file a motion to quash the subpoena before they turn over any information. But since the Internet is global, a user may be in Oshkosh and the lawsuit may be in Miami, which makes it difficult to hire a lawyer and defend."

If mcfooglestick or trin_vendor had any concern about their online anonymity, it certainly didn't censor their posts to the Trinity Industries message board. Among mcfooglestick's 10 messages are his accusations that the company has engaged in "nepotism" and maintained a "good ole boy business management" that wastes corporate assets on frivolities like a "personal chef" and "imported marble" floors. "Timmy [CEO Timothy Wallace] needs to step down," posted mcfooglestick on September 19.

Trinity does not claim mcfooglestick defamed Trinity; rather, it alleges the poster was an employee who, by disclosing proprietary information in his messages, breached a signed confidentiality agreement.

Although Trinity's attorney Michael Pegues refuses to comment on the lawsuit, he strongly denies his case is intended simply to silence any criticism of his client. "Our claims are not frivolous and have substantial merit."

To First Amendment advocates, that's the point: Whether a company has a legitimate claim must be decided before the identities of the John Does are revealed.

"We believe there is a clear right to communicate anonymously under the First Amendment," says ACLU national staff attorney Ann Beeson. "And when that conflicts with the right to sue, the courts need to apply some balancing test to determine whether there is a likelihood that the plaintiff will win before it requires disclosure."

Beeson admits she is in uncharted territory; there is scant legal precedent for cyber-defamation. But if a judge rules that a lawsuit is frivolous after the poster's identity has been revealed, it may be too late; the employee is already canned. "In many of these cases, the bottom-line issue is whether this person will or will not be identified--that is all the company is seeking to accomplish," says David Sobel, general counsel for Electronic Privacy Information Center, a First Amendment advocacy group for the Internet. "But the company doesn't have the right to abuse judicial process to smoke out the identity of employees who are being critical."

Advocates of business interests believe that individuals who commit crimes and torts on the Internet should not be afforded greater legal rights simply because they use the vehicle of the Internet. The First Amendment has never protected libel or the public disclosure of trade secrets or the manipulations of stock prices by the dissemination of false information, they say.

Only two lower courts have agreed with the ACLU's position, but the organization is confident it will ultimately prevail because John Doe suits, it argues, are so fraught with abuse. "The vast number of these cyber-defamation cases are slap suits whose sole purpose is to shut up defendants," Beeson says. "Most of them are big-guy corporations suing little guys, and it is very unlikely they could get money from these people."

Even if the Trinity Industry lawsuit has no merit, it may have already chilled much of the rough-and-tumble discourse on the Yahoo message board. On September 16, three days before the lawsuit was filed, a Yahoo user, posting under the screen name Pro Pick R, wrote: "Where did everybody go? Used to be 10, 15 posts a day."

Certainly stkhlder3, whose real name is Barbara Penninger, has no intention of ever using the message board again. Rather than contest her identity, she chose to settle with Trinity, who learned that she was a stockholder and a travel agent who had formerly done business with Trinity executives. She had grown critical of Trinity officials after its stock plummeted last year (Penninger refused to comment for the record). As part of her settlement, she signed an affidavit admitting her mistake in publishing "statements that were disparaging to Trinity, its officers, directors, and high-ranking executives." Trinity itself posted the affidavit on the message board.

Perhaps the company had the right idea by posting the affidavit. "The best defense against falsehood is not censorship; it's truthful speech," says Barry Backer, a professor of media and culture at SMU. "If a company believes the truth is on their side, they should use these same technologies to refute these claims instead of ...possibly trampling on freedom of expression."

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Mark Donald
Contact: Mark Donald

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