Cyberslapp Suits and John Doe Subpoenas: Balancing Anonymity and Accountability in Cyberspace
This article proposes an amendment to the Electronic Communications Privacy Act (“ECPA”) to restore the balance between anonymity and accountability. The amendment ensures that before the ISP discloses John Doe’s identity, John Doe will have had notice and an opportunity to appear through counsel at a hearing where a court reviews the subpoena. The amendment also requires a judicial finding that the plaintiff has sufficient evidence to prove a prima facie case and that the plaintiff’s need for John Doe’s identity outweighs John Doe’s interest in anonymity. This careful judicial review will prevent the needless intrusion on John Doe’s First Amendment interest in anonymity, while preserving a remedy for those legitimately harmed by anonymous online speech.
Shaun B. Spencer, Cyberslapp Suits and John Doe Subpoenas: Balancing Anonymity and Accountability in Cyberspace, 19 J. Marshall J. Computer & Infor. L. 493 (2001).