Email acct not protected by 1st amendment

[Faithless]

At issue: is this particular email a form of anonymous free speech and protected under the First Amendment?

Supreme Court requires Time Warner to identify anonymous e-mailer (http://news.mainetoday.com/apwire/D88TIP281-76.shtml)

Friday, March 18, 2005 2:45 pm * By DAVID SHARP

PORTLAND, Maine — The state supreme court ruled Friday that Time Warner Cable must turn over account information about the sender of an insulting e-mail in a case that sought to test the waters of Internet anonymity in Maine.

The court ruled that federal law allows a judge to order Time Warner to turn over information about the sender of the e-mail.

The case stemmed from an e-mail sent to several residents of Great Diamond Island. The sender made it appear that the e-mail came from Ronald Fitch, and it featured a cartoon lampooning Fitch, his wife and their dead St. Bernard.

The unanimous ruling by the Maine Supreme Judicial Court means that the e-mail sender´s name will be revealed in a civil lawsuit brought by Fitch.

Paul Alan Levy, lawyer for watchdog group Public Citizen in Washington, D.C., said he was discouraged that the narrowly focused ruling did not address First Amendment concerns. Public Citizen contends e-mail is a form of anonymous free speech and protected under the First Amendment.

"I´m disappointed on the one hand," Levy said. "On the other hand, the issue plainly remains alive, to be decided another day."

Fitch´s lawyer, Tom Connolly, said the court was right to let the lawsuit proceed and force the Internet povider to identify the e-mail sender. "It´s not a First Amendment issue," Connolly said. "You don´t have a right to harass people."

The e-mail that angered Fitch was sent on Christmas Eve 2003 in the wake of an acrimonous dispute among residents over the use of golf carts on Great Diamond Island, which is two miles from Portland´s watefront.

Fitch was being ridiculed because some islanders didn´t like the influence he was exerting in the dispute, which was eventually resolved.

Fitch traced the e-mail to a Time Warner Cable account and sued the sender, who was identified in the suit as "John or Jane Doe." He brought civil action, and the judge ordered Time Warner to turn over the account information.

In its ruling, the supreme court said the federal Cable Communications Policy Act allowed a court to compel Time Warner to produce the account information.

The court declined to address the issue raised by First Amendment advocates of whether a higher standard should be imposed for Internet Service Providers to release account information in deference to the right to anonymous speech.

Justice Howard Dana, writing for the court, said there was no need to address the issue this time because Doe´s lawyer did not preserve the First Amendment argument, which he failed to raise before the judge in Superior Court.

Connolly said the supreme court´s ruling ensures that the same laws that apply to other forms of harassment also apply in cyberspace.

"It simply says that subpoenas apply to the Internet, and that´s a good thing. The process that we´re used to applies," he said.

[ism]

The anonymous writer forged the emails. How is that any different from forging a letter? Speech isn't the issue, misrepresentation is. Anonymous speech misrepresents no one and should remain protected but that isn't an issue here, unless Doe is contending that the forgery is the speech itself.

[Faithless]

As I understand it, the issue is also a poor example for claiming "identity theft".

Should E-Mail Fraud Cancel Privacy Rights (http://www.privacy.org/archives/001469.html)

A court case in Maine filed by Ronald Fitch who is suing the anonymous sender of insulting e-mail is claiming identity theft is challenging the privacy right of e-mail senders. The message sent to other community residents was made to appear as if it had come from Ronald Fitch. The sender of the e-mail is fighting to not have their name disclosed by the court case. The standard for determining the need to reveal the identity of an anonymous e-communication should be higher than that the e-mail was critical.

Part of the reasoning behind the court's ruling:

Court discussion, in part (http://www.courts.state.me.us/opinions/2005%20documents/05me39fi.htm)

[27] The record in this case reveals that Doe never raised a First Amendment claim in the trial court. Doe's opposition to disclosure was based entirely on 47 U.S.C.A. § 551. "No principle is better settled than that a party who raises an issue for the first time on appeal will be deemed to have waived the issue, even if the issue is one of constitutional law." Cyr v. Cyr, 432 A.2d 793, 797 (Me. 1981). Because Doe failed to raise the issue in the trial court, we decline at this time to consider the extent to which the First Amendment affects the consideration of motions to disclose information about anonymous ISP subscribers.

The entry is:

Judgment affirmed.

[ism]

It's not identity theft since there was no fraud involved. It's just the first component of forgery (although I'm not sure if e-mail is considered a document as much as one on physical paper), or perhaps libel or defamation since claiming to be Fitch is an outright falsehood. In that case, can't a civil action still be brought on without revealing the anonymous author?

[Faithless]

In that case, can't a civil action still be brought on without revealing the anonymous author?
That's fine, but how? Who do you name as the defendant?

I'm beginning to wonder what the difference is -- just because it is email verses some other form of communication -- like writing something down on paper or typing it up in Word.

Apparently, the Fitch issue is not without precedent:

Court makes landmark email libel ruling (http://www.vnunet.com/news/1112449)
A disgruntled ex-employee who made false accusations in a series of emails has been ordered to pay £26,000 damages and costs estimated at £100,000. * Pete Morris, uk.internet.com, internet.com 13 Oct 2000

A disgruntled ex-employee who made false accusations in a series of emails has been ordered to pay £26,000 damages and costs estimated at £100,000.

The landmark ruling is the first involving anonymous email libel to come before the civil courts in the UK.

David Frankl, of Hatchgate Gardens, Burnham, Buckinghamshire, was found liable after sending three emails under a false name to his former employer, construction company Takenaka (UK), from a Hotmail account.

The emails, written under the name Christina Realtor, falsely accused deputy managing director Brian Corfe of having an affair, failing to support a son, and of making death threats.

Frankl, who was working for Thames Water at the time that the emails were sent, denied writing them, but Justice Alliott, sitting at the High Court, ruled that Frankl was the author.

The judge said that expert evidence traced the emails back, via the IP address, to a laptop used by a member of Thames Water staff in Turkey. The hunt for Frankl included disclosure orders being issued against ISP CompuServe and Microsoft to force them to hand over account information.

He awarded Takenaka, which had been accused in the emails of hypocrisy, double standards and callousness, £1000 libel damages and Corfe £25,000 for what the judge said were much graver libels.

Frankl was given 28 days to pay the damages and refused permission to appeal. Rupert Earle, at top internet lawyer Theodore Goddard, said the judgement "sent a clear message that anonymous emailers run the risk of being made to pay the price for their cowardice and subterfuge".

And there's this story:

e-mail Libel Suit Could Make History (http://www.rediff.com/news/1999/oct/13us.htm)

A P Kamath in Vancouver, British Columbia

Jilted lovers, beware. Next time, you are thinking of sending a nasty note to your former friend, resist any temptation of sending a copy to anyone else. Otherwise, you might face the kind of libel suit Shaine Virani is currently dealing with.

Believed to be the first e-mail libel case of its kind, the lawsuit filed in the British Columbia supreme court by Tasleem Suleman claims her former friend, Virani, libelled her in an e-mail sent to her on September 30 -- with copies to at least four others including her boss.

She has not specified the damages, but those who know her believe she is not after money, but she certainly wants to see some punishment meted out to Virani.

The claim filed last week by Ravi Hira, Suleman's lawyer, says Virani alleged that Suleman was 'a wicked, evil witch, who could not handle seeing people do better than her or having a better life than what she enjoyed.'

Suleman also notes in the court papers that Virani falsely claimed she 'was a disgusting cheater, liar, a despicable and downright ugly human being' and 'was loyal to no one at all."

Virani refused to comment. His mother, who took calls for reporters, would not say if he has hired a lawyer.

Legal experts believe the case could be a precedent making because unlike other Internet libel cases where a message was read by thousands, in this case only a handful had seen the message.

Last year White House counsel Sydney Blumenthal filed a $ 30 million defamation lawsuit against Internet gossip columnist Matt Drudge after he posted allegations of spousal abuse against Blumenthal on the Drudge Report.

"I would be surprised if an e-mail sent to four people could be considered in any sense like publication,'' said Richard Rosenberg, a computer science professor at the University of British Columbia, and vice-president of Electronic Frontier Canada, a group that advocates free speech on Internet. He told the Canadian media that if Internet users could be held legally liable for the veracity of every note they send, "it would seriously discourage the use of e-mail.''

But Hira rejects the argument. He believes the number of people who read Virani's e-mail is not the issue. If the person's reputation is damaged, whether in the print or electronic or cyberspace media that person has the right to fight for his or her fair name, he believes.

[pikachupacabra]

So as long as you only send it to one person it's safe? is that the gist of the article pretty much? But if, say, you sent a nasty letter to a coworker and then BCC to someone else, then it's grounds for being subpeonad, etc etc?

Or is it just the intent and end result of the e-mail, like what Hira says? Telecommunications law is so damn fuzzy. And all the laws were written like 20 years ago. Isn't it about time for an update?