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To read comments to this article, go here
The EFF Letter: Sony's subpoenas "impact the free speech interests of myriad third parties"
Sunday, March 06 2011 @ 12:21 PM EST

Wired's David Kravetz has published the EFF letter [PDF] it sent to the judge in SCEA v. Hotz, and I have it for you as text.

George Hotz's lawyers agreed to the subpoenas issuing, so long as the information gleaned is kept attorneys' eyes only, according to the letter [PDF] Sony sent the Magistrate Judge Joseph Spero, and the judge merely signed off on it. I don't see Hotz's lawyer signing the letter too, which I'd normally expect. Why he'd agree to such a broad reach is disturbing. EFF noticed, telling the judge that the subpoenas implicate free speech interests of third parties not involved in the litigation, but nobody else seems to care. EFF is most concerned about the subpoena to YouTube, but the one I find overbroad is the subpoena to the company that hosts his web site, as I'll show you. No one else is looking out for the third parties in this picture, so if I were one of the third parties and I knew it, I'd be on the phone to my lawyer or EFF super pronto, asking him if I could block.

Let me show you what I mean about overbroad, looking at just one piece of what Sony demands that Hotz's web host supply:

3. Documents reproducing all records of IP addresses that have accessed or downloaded files hosted using your service and associated with the www.geohot.com website, including but not limited to the "geohot.com/jailbreak.zip" file, from January 1, 2009 to the present,.
To the *present*? Think they'll haul in some dolphins with that tuna? Zillions of people went there out of simple curiosity when the story broke, I'm sure, and lots of people download articles to read them later. Is there a law against that? Their IP address belongs to Sony now. How narrowly tailored is such a request? So, that's why EFF sent its letter.

Now, there's a case that lets parties in civil litigation go after discovery of third parties, Doe v. 2theMart.com, Inc, but the normal rule from that case is that it has to be materials that are core, meaning related to a core claim or defense. EFF cited the case in its letter. Here, this is about jurisdiction, trying to prove a link to California. Sony is free to sue Hotz in New Jersey, and if they did, none of this deep-water fishing would be necessary. So I ask you: is it core? Or is it just that Sony wants to stay in California? Is that a core claim or defense sufficient to override the First Amendment rights of third parties?

Let's look at that case. It was about putting a name to anonymous commenters, and the court wouldn't allow it. Bear with me, because I need to quote a fair-sized chunk to make my point clear, and to further that purpose, I've highlighted particularly relevant sections:

C. Analysis of the present motion.

In the present case, TMRT seeks information it says will validate its defense that "changes in [TMRT] stock prices were not caused by the Defendants but by the illegal actions of individuals who manipulated the [TMRT] stock price using the Silicon Investor message boards." This Court must evaluate TMRT's stated need for the information in light of the four factors outlined above.

1. Was the subpoena brought in good faith?

This Court does not conclude that this subpoena was brought in bad faith or for an improper purpose. TMRT and its officers and directors are defending against a shareholder derivative class action lawsuit. They have asserted numerous affirmative defenses, one of which alleges that the defendants did not cause the drop in TMRT's stock value. TMRT could reasonably believe that the posted messages are relevant to this defense.

However, as originally issued the subpoena seeking the identity information was extremely broad. The subpoena would have required the disclosure of personal e-mails and other personal information that has no relevance to the issues raised in the lawsuit. This apparent disregard for the privacy and the First Amendment rights of the online users, while not demonstrating bad faith per se, weighs against TMRT in balancing the interests here.

2. Does the information sought relate to a core claim or defense?

Only when the identifying information is needed to advance core claims or defenses can it be sufficiently material to compromise First Amendment rights. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977) (in order to overcome the journalistic privilege of maintaining confidential sources, a party seeking to identify those sources must demonstrate, inter alia, that the "information goes to the heart of the matter[.]") If the information relates only to a secondary claim or to one of numerous affirmative defenses, then the primary substance of the case can go forward without disturbing the First Amendment rights of the anonymous Internet users.

The information sought by TMRT does not relate to a core defense. Here, the information relates to only one of twenty-seven affirmative defenses raised by the defendant, the defense that "no act or omission of any of the Defendants was the cause in fact or the proximate cause of any injury or damage to the plaintiffs." This is a generalized assertion of the lack of causation. Defendants have asserted numerous other affirmative defenses that go more "to the heart of the matter," such as the lack of material misstatements by the defendants, actual disclosure of material facts by the defendants, and the business judgment defense. [FN6] Therefore, this factor also weighs in favor of quashing the subpoena.

[FN6. Many of TMRT's affirmative defenses might be viewed by this Court as "non-core," including comparative fault, estoppel, laches, and unclean hands.]

3. Is the identifying information directly and materially relevant to a core claim or defense?

Even when the claim or defense for which the information is sought is deemed core to the case, the identity of the Internet users must also be materially relevant to that claim or defense. Under the Federal Rules of Civil Procedure discovery is normally very broad, requiring disclosure of any relevant information that "appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). But when First Amendment rights are at stake, a higher threshold of relevancy must be imposed. Only when the information sought is directly and materially relevant to a core claim or defense can the need for the information outweigh the First Amendment right to speak anonymously. See Los Angeles Memorial Coliseum Comm'n, 89 F.R.D. at 494 (holding that a party seeking to enforce a subpoena to disclose non-party journalistic sources must demonstrate that the information is of "certain relevance.")

TMRT has failed to demonstrate that the identity of the Internet users is directly and materially relevant to a core defense. These Internet users are not parties to the case and have not been named as defendants as to any claim, cross-claim or third-party claim. Therefore, unlike in Seescandy.Com and America Online, Inc., their identity is not needed to allow the litigation to proceed.

According to the pleadings, the Internet user known as NoGuano has never posted messages on Silicon Investor's TMRT message board. At oral argument, TMRT's counsel conceded this point but stated that NoGuano's information was sought because he had "communicated" via the Internet with Silicon Investor posters such as Truthseeker. Given that NoGuano admittedly posted no public statements on the TMRT site, there is no basis to conclude that the identity of NoGuano and others similarly situated is directly and materially relevant to TMRT's defense.

As to the Internet users such as Truthseeker and Cuemaster who posted messages on the TMRT bulletin board, TMRT has failed to demonstrate that their identities are directly and materially relevant to a core defense. TMRT argues that the Internet postings caused a drop in TMRT's stock price. However, what was said in these postings is a matter of public record, and the identity of the anonymous posters had no effect on investors. If these messages did influence the stock price, they did so without anyone knowing the identity of the speakers.

TMRT speculates that the users of the InfoSpace website may have been engaged in stock manipulation in violation of federal securities law. TMRT indicates that it intends to compare the names of the InfoSpace users with the names of individuals who traded TMRT stock during the same period to determine whether any illegal stock manipulation occurred. However, TMRT's innuendos of stock manipulation do not suffice to overcome the First Amendment rights of the Internet users. Those rights cannot be nullified by an unsupported allegation of wrongdoing raised by the party seeking the information.

4. Is information sufficient to establish TMRT's defense available from any other source?

TMRT has failed to demonstrate that the information it needs to establish its defense is unavailable from any other source. The chat room messages are archived and are available to anyone to read and print. TMRT obtained copies of some of these messages and submitted them to this Court. TMRT can therefore demonstrate what was said, when it was said, and can compare the timing of those statements with information on fluctuations in the TMRT stock price. The messages are available for use at trial, and TMRT can factually support its defense without encroaching on the First Amendment rights of the Internet users.

CONCLUSION

The Internet is a truly democratic forum for communication. It allows for the free exchange of ideas at an unprecedented speed and scale. For this reason, the constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded.

Courts should impose a high threshold on subpoena requests that encroach on this right. In order to enforce a civil subpoena seeking the identifying information of a non-party individual who has communicated anonymously over the Internet, the party seeking the information must demonstrate, by a clear showing on the record, that four requirements are met: (1) the subpoena seeking the information was issued in good faith and not for any improper purpose, (2) the information sought relates to a core claim or defense, (3) the identifying information is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source.

The Court has weighed these factors in light of the present facts. TMRT has failed to demonstrate that the identify of these Internet users is directly and materially relevant to a core defense in the underlying securities litigation. Accordingly, Doe's motion to quash the subpoena is GRANTED.

See how high the bar is supposed to be? What about those dolphins swimming with tunas and now about to be caught by Sony's broad subpoena? Are their First Amendment rights being honored? I don't see how.

And I especially don't see how if the only issue at the moment allegedly is that Sony wants to stay in California. Sony is perfectly free to sue Hotz in another state. Nothing, therefore, blocks Sony's ability to pursue its claims if third parties are protected. How does Sony's desire to remain in its home state override the First Amendment rights of uninvolved anonymous third parties?

I know. Some will answer, Yes, but Sony wants to find out who to sue next.

Precisely.

And that's exactly what the subpoenas are not supposed to be about. If it wants to do that, it has to ask for that, thus giving the third parties an opportunity to ask a court to quash the subpoenas.

How does Sony get around this? Partly by getting Hotz's legal team to agree, or so Sony claimed. I'm still waiting for confirmation on that. The judge accepted Sony's word, but I don't. So let's see how Sony dealt with the issues raised by EFF's letter.

In Sony's letter representing to the judge that Hotz had agreed to the subpoenas, it mentioned the EFF letter and asked the judge to disregard it as "moot", which he did. Let's take a look:

B. The Electronic Frontier Foundation Amicus Curiae Letter Is Improper And Moot

Disregarding the fact that the parties already reached agreement on this subject, on February 24, 2011, the Electronic Frontier Foundation (“EFF”) submitted an amicus curiae letter based on the original subpoenas (not the subpoenas as narrowed by the parties), asking the Court to deny issuance of the purportedly “overly broad” subpoenas to Bluehost, Twitter, Google, and YouTube. Because the parties have already met and conferred and narrowed the subpoenas identified by the EFF, the amicus curiae letter is moot as it essentially amounts to a request for an advisory opinion on an issue that has already been resolved. Had the EFF notified SCEA’s counsel of its intent to submit the letter, counsel would have informed EFF of the modifications agreed to by the parties, thus obviating the purported need for the EFF to burden the Court with its unpermitted letter brief.

Indeed, the EFF has failed to seek leave from this Court to submit its letter, which it is required to do. In any event, should EFF now seek leave to submit its amicus curiae letter, such a request should be denied. Generally, an amicus brief should only be allowed when “a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case, or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide.” Community Ass’n for Restoration of the Env’t v. DeRuter Brothers Dairy, 54 F. Supp. 2d 974, 975 (E.D. Wa. 1999) (citing Northern Sec. Co. v. United States, 191 U.S. 555, 556 (1903)). None of these circumstances are present here. First, nothing in the record suggests that the parties lack competent representation. Second, as the EFF concedes, SCEA “may properly seek information to pursue the limited question of this Court’s jurisdiction over Mr. Hotz.” As discussed above, the subpoenas in question are in fact narrowly tailored toward jurisdictional discovery. Finally, the EFF has not shown that it possesses any information that may assist the Court that the parties’ counsel cannot already provide. Accordingly, the EFF has failed to demonstrate that its amicus brief is warranted and its letter should not be considered by the Court.

Even if the Court was to reach the substance of the amicus curiae letter, the EFF’s assertions are without merit. The proposed subpoenas agreed to by the parties do not implicate the “free speech” concerns suggested by the EFF. The third party subpoenas merely seek information regarding Mr. Hotz’s transactions with entities based in California, as well as information regarding whether California residents accessed Mr. Hotz’s web content and/or had interactions with Mr. Hotz. SCEA is entitled to this jurisdictional discovery.

1. The Third Party Subpoenas Are Narrowly Tailored For Jurisdictional Discovery And Proper Under Applicable Law

None of the authorities cited by the EFF justifies denying the issuance of the third party subpoenas sought by SCEA. Indeed, the legal standard set forth in the very case relied upon by EFF, Doe v. 2themart.com, 713 F. Supp. 2d 1088 (W.D. Wa. 2001), makes clear that SCEA should be allowed to serve the subpoenas. Under Doe, a subpoena to a third party is proper when: “(1) the subpoena seeking the information was issued in good faith and not for any improper purpose,3 (2) the information sought relates to a core claim or defense, (3) the identifying information is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source.” Id. at 1095. As explained below, the third party subpoenas are proper under the Doe analysis.

As you see, Sony quoted rather selectively, leaving the real meat and potatoes off the plate. EFF knew the parties had agreed to let the subpoenas issue, but it nevertheless sent the letter. The judge ignored the concerns raised. This isn't necessarily the end, but the problem I see is Sony will already have the IP addresses of the folks they want to sue next, without so much as a direct request. Supposedly this is only about jurisdiction. But it doesn't feel like it to me. It feels to me like Sony is killing two birds with one stone and getting what they want through a back door. That's good lawyering, I guess, some would say, but if you think the First Amendment is truly vital, you do not admire it. I feel for those innocent third parties, who are now wondering how they got roped into something just for reading a web site. Sometimes professional fishermen think a few dead dolphins are worth it to make money on catching tuna. If you care about the dolphins, though, it feels very different. And, yes, I am absolutely appalled.

Meanwhile, there will be a hearing on jurisdictional discovery associated with the impoundment issues Hotz and the third party chosen to search his computers have raised:

91 - Filed & Entered: 03/04/2011
Clerks Notice
Docket Text: CLERKS NOTICE SETTING TELEPHONIC DISCOVERY HEARING. Telephonic Discovery Hearing re: Joint Letter on Impoundment Issues [docket no. 86] set for 3/10/2011 at 11:00 AM in Courtroom A, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. (klhS, COURT STAFF) (Filed on 3/4/2011)
The judge will be in the room, and the parties' attorneys will call in. But you can attend too, should you desire to witness what transpires. But as always, it's prudent to call the court and verify. There can be last-minute changes.

And here's the EFF letter:

******************************

February 24,2011

VIA HAND DELIVERY AND EMAIL
TO [email]

Magistrate Judge Joseph C. Spero
United States District Court
Northern District of California
Courtroom A, l5th Floor
450 Golden Gate Avenue
San Francisco, CA 94102

Re: Sony Computer Enturtainment Americø LLC v. Hotz, et al.,
Case No. C-11-00167 SI (N.D. Cal)
Amicus letter concerning Docket #62

Dear Judge Spero,

I am writing on behalf of the Electronic Frontier Foundation (EFF) as an amicus curiae to raise several concerns regarding the proposed jurisdictional discovery in the above-captioned case, specifically the subpoenas that the Plaintiff plans to issue to various online service providers.

EFF, a donor-supported non-profit organization, is concerned about the proposed subpoenas because they squarely impact the free speech interests of myriad third parties to this case, interests that are not represented by the parties here. EFF has worked for many years to protect the rights of individuals to speak and to access speech online anonymously, including serving as principal counsel or as amicus in several of the leading cases establishing the standards for discovery of the identity of online anonymous speakers.

Specifically, the proposed subpoenas to YouTube, Bluehost, Google and Twitter. (Exhibits F, G, I and J to the Declaration of Holly Gaudreau in Support of Motion for Expedited Discovery ["Gaudreau Decl."], docket no.62) appear to seek identifying information for anonymous individuals who are not parties to this lawsuit, based solely on the fact that they accessed or commented on information that defendant George Hotz published. For example, one subpoena demands production of documents such as identifying information for persons who have accessed any files associated with www.geohot.com (see Ex. F at p. 6); another seeks information regarding persons who have accessed a video apparently posted on YouTube by defendant George Hotz, (Ex. J at p. 6) and even user names and IP addresses (which may reveal identifying information) for persons who have commented on the video (id.).

As this Court has recognized, this kind of discovery raises important constitutional issues. See USA Technologies, Inc. v. Doe,7l3 F.Supp.2d 901, 906-07 (N.D.Cal. 2010). As the Supreme Court long ago acknowledged, the First Amendment includes the right to receive ideas. Stanley v. Georgia, 394 U.S. 557,564 (1969). The First Amendment also shelters the right to speak and read anonymously. See, e.g., Doe v. 2theMart.com, Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001) ("The right to speak anonymously extends to speech via the Internet. Internet

Hon. Joseph Spero
February 24, 2011
Page 2

anonymity facilitates the rich, diverse, and far ranging exchange of ideas."). Accordingly, "efforts to use the power of the courts to discover the identities of anonymous speakers are subject to a qualified privilege" that must be addressed before discovery is proper. USA Technologies, 713 F.Supp.2d at 906.

To be clear, the constitutional privilege to remain anonymous is not absolute. Plaintiff may properly seek information necessary to pursue the limited question of this Court's jurisdiction over Mr. Hotz. Careful application of the constitutional standard is particularly important, however, where, as here, the discovery seeks information about non-parties and where, as here, the relationship to the narrow jurisdictional question at issue seem tenuous at best, particularly where the only basis for the overreaching requests appears to be that third-parties accessed Mr. Hotz's online publications or commented upon them.

The leading case in this context is Doe v. 2theMart.com, supra, in which the defendant in a shareholder class action lawsuit issued a subpoena request seeking identifying information for twenty-three participants in an internet message board, ostensibly because it claimed that messages posted on the board, rather than any action by the defendant, had caused defendant's stock to drop. 2theMart.com, l40 F. Supp. 2d at 1090. The court found that "the standard for disclosing the identity of a nonparty witness must be higher . . . Nonparty disclosure is only appropriate in the exceptional case where the compelling need for the discovery sought outweighs the First Amendment rights of the anonymous speaker." Id. at 1095. The court held that the requested information should not be produced unless (1) the subpoena was issued in good faith; (2) the information sought was related to a core claim or defense; (3) the identifying information sought was directly and materially relevant to a core claim or defense; and (a) information sufficient to establish or disprove that claim or defense was unavailable from any other source. Id., see also Foda v. Capital Health, 20l0 WL 2925382 (N.D. Cal. 2010); Enterline v. Pocono Medical Center, 2008 WL 5192386 (M.D.Pa. 2008).

The same standard must apply here, and it is difficult to imagine how Plaintiff can meet it given that it is authorized only to take targeted jurisdictional discovery. (Order Granting Plaintiff's Motion for a Preliminary Injunction; Referring parties to Magistrate Judge Spero for Discovery and Issues Related to Preliminary Injunction, docket no. 79). The identities of individuals who visited Mr. Hotz's website and viewed or commented on his video seem unlikely to be directly or materially relevant to the narrow jurisdictional question of whether Mr. Hotz can be sued in this district. And even if a marginal relevance showing could be made, it would not outweigh the First Amendment rights of those individuals to anonymously access the website and video. In any event, we are deeply concerned that it appears that the parties have made no attempt to even address the 2theMart standard. Unless and until the Plaintiff can make the required showing, we respectfully urge the Court to decline to authorize discovery of nonparties' identifying information.

In addition, the Video Privacy Protection Act, l8 U.S.C § 2710, protects some of the records Plaintiff seeks. The VPPA protects "personally identifiable information," which is defined to include "information which identifies a person as having requested or obtained specific video materials or services." § 2710(a)(3). Requests 3, 4 and 5 of the subpoenas to YouTube (Gaudreau Decl. Ex. J), appear designed to uncover this very information. The VPPA permits the disclosure

Hon. Joseph Spero
February 24, 2011
Page 3

of such information in a civil lawsuit only "upon a showing of compelling need for the information that cannot be accommodated by any other means" and then only if the subscriber has received notice and an opportunity to contest the request. § 2710(b)(2)(F). Unless and until Plaintiff meets this high standard, this Court should not authorize the subpoena to YouTube with these requests.

Finally, the Stored Communications Act, 18 U.S.C. § 2701 et seq., absolutely prohibits Request 6 in the YouTube subpoena (Gaudreau Decl. Ex. J), which seeks the content of communications left in comments on the private video. See l8 U.S.C. § 2702, see also O'Grady v. Superior Court, 139 Cal.App.4th 1423, 1448 (Cal.App. 2006) (Pursuant to the SCA, contents of communications may not be disclosed to civil litigants even when presented with a civil subpoena); In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606 (E.D.Va. 2008) ("Agreeing with the reasoning in O'Grady, this Court holds that State Farm's subpoena may not be enforced ... because the exceptions enumerated in § 2702(b) do not include civil discovery subpoenas."); Federal Trade Comm'n v. Netscape Communications Corp., 196 F.R.D. 559, 561 (N.D. Cal. 2000) ("There is no reason for the court to believe that Congress could not have specifically included discovery subpoenas in the [SCA] had it meant to.")

For these reasons, we respectfully request that the Court deny the issuance of the overly broad subpoenas proposed, or, at a minimum, require a showing by the parties that the subpoenas (and any other subpoenas that may be issued) have been narrowed to meet the standards required by law. EFF remains willing to assist the Court with this matter further.

Respectfully submitted,

[signature]
Corynne McSherry, Esq.
Intellectual Property Director
Electronic Frontier Foundation

cc: James G. Gilliland, Jr., Esq., Counsel for Sony Computer Entertainment America, LLC
(via email)
Stewart Kellar, Esq., Counsel for Defendant George Hotz (via email)


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