We have stepped in to defend a blogger against a motion to compel him to identify the author or authors of two anonymous comments to one of his stories. The First Amendment and other arguments are interesting in themselves, but it currently appears that
the case is going to become important for a different reasons – the subpoenaing party appears to be claiming the right to a forensic examination of the blogger’s computer system to see whether discarded identifying information can somehow be retrieved.
The case involves Escape Media Group, the host of a music streaming web site that is currently defending lawsuits brought in New York federal and state courts by various record labels accusing it of copyright infringement. The blogger had written several stories about the controversy. On one story reporting about complaints by a band member about the hosting of his music, an anonymous commenter, claiming to be an employee of Escape Media, posted comments purporting to “blow the whistle” on the creation of quotas for employee uploading which, in turn, encourages employees to grab copyrighted recordings for the streaming site without the owner’s consent. The plaintiffs in one of the copyright actions actually cited one of the anonymous postings in arguing that they had a legitimate basis for alleging copyright infringement.
Escape then sent a subpoena to the blogger claiming both that it needed to know who the poster was to know how to sue for defamation, and that it needed the identity of the poster in order to show that the basis for one of the allegations in the complaint is false. The blogger began by representing himself pro se, claiming protection against the subpoena based on both the “Dendrite” standard and the California shield law.
We decided to represent the blogger because it seemed to us that the argued basis for the subpoena was transparently spurious. To be sure, the anonymous posts said things about Escape Media that could damage its reputation, and that could well be defamatory if false. But Escape Media wasn’t actually suing for defamation (and its reply brief seems to step away from the desire to sue for defamation as a ground for the subpoena). And anonymous posts are not admissible evidence in the underlying infringement lawsuits; so showing the falsity of the anonymous comments would not, in itself, aid the defense of the lawsuit. Indeed, the truth or falsity of claims about what Escape Media tells its employees to do, and what those employees actually do, can only determined through discovery of those employees and, perhaps, a careful review of Escape Media’s own documents (and computers).