Privacy Groups Fight for Chat Room Rights

Anonymity isn't guaranteed, and you could end up in court, say online privacy advocates.

Stephen Chiger, Medill News Service

WASHINGTON-- Caveat poster: Legal loopholes may prevent Internet chat room users from remaining anonymous, privacy advocates warn.

Five privacy groups, including the Center for Democracy and Technology and the American Civil Liberties Union, launched a new Web site and mailed letters to ISPs this week in an effort to protect chat room participants from having their identities revealed without being notified.

The privacy issue arises when information from chat rooms is subpoenaed, the privacy advocates say, explaining that many small ISPs comply with these information requests, often handing over a person's identities without notifying the users, and without giving the chat room a chance to protect itself in court.

The problem is compounded by the fact that these subpoenas aren't always justified, the privacy groups say. They claim that corporations and individuals are able to curb online speech simply by issuing subpoenas against anyone they want to identify or just scare off--a process critics call "cyberSLAPP" litigation. (SLAPP stands for Strategic Lawsuits Against Public Participation.)

"We feel that there's an issue here of fundamental fairness," says Paula Bruening, staff counsel for the Center for Democracy and Technology, which helped send the letters to more than 100 small ISPs and chat room hosts requesting that they develop policies to notify users of subpoenas. "Right now, there is no legal obligation [to notify users], but we feel that it's a good business practice for ISPs," she says.

The new site, CyberSLAPP.org, will serve as a clearinghouse for cyberSLAPP information.

Identifying Employees?

CyberSLAPP suits are typically defamation actions brought by companies and public figures, the groups say. Targets of the suits are often online critics of corporate behavior who post their complaints in financial chat rooms. Although cyberSLAPP critics acknowledge that plaintiffs have a right to recover damages for legitimate defamation, they add that many frivolous suits are filed, not to recover damages, but simply to identify or intimidate online posters.

Companies destabilized by the economic downturn are particularly active in filing lawsuits, says Megan Gray, senior counsel for the Electronic Privacy Information Center, another group pushing for reform. "It started off as a trickle and then it became much heavier when the stock market started declining," Gray adds. Critics say some companies may use a lawsuit to see if one of their own employees has been posting anonymous criticism or revealing corporate secrets on the Internet.

Exact numbers of cases, Gray says, are harder to come by. "We don't know the statistics--that's why we are trying to publicize [the issue]," she says. Gray adds that many posters are never formally notified that their identity has been revealed because the cases often don't go to trial.

"We've had more of these cyberSLAPP suits since September 11 than there have been in the past five years," says Les French, executive director of the John Does Anonymous Foundation, a group that educates and assists cyberSLAPP defendants.

French created the group after winning a $45,000 counterclaim in a 1999 cyberSLAPP case, but not before his ISP released records of his online use to the company suing him, including records of what sites he had visited and what purchases he had made online.

Serious Concerns

One chat room poster, who requested anonymity, says he received death threats after his ISP disclosed his identity without telling him. He adds that the ISP wouldn't even tell him if it had released the information.

"Fortunately, most of the ISPs have been doing a better job [of notification] this past year," French says.

Privacy groups applauded efforts by some of the largest Internet services--including Yahoo, EarthLink, AOL, and Microsoft--to create notification policies. Nevertheless, Gray says, most of these companies have yet to put the promises in writing.

Small companies may simply not know about the issue, in part because they aren't often subpoenaed. Kitty Sachs, executive director of the Virginia ISP Alliance, says only one of the approximately 40 groups she represents has been subpoenaed.

"It may become a bigger problem, but it certainly hasn't been one that I'm aware of," she says.

However, Gray believes that it's extremely easy for lawyers to issue civil subpoenas because the underlying legal challenge is not generally scrutinized. "There are lawsuits out there suing God," Gray says.

Lacking Laws

In the absence of federal law in this area, rules vary in different states. Though California and New Jersey have recently created protections for online posters, the rules are binding only within those states.

Even in such states, however, the costs of defending a defamation suit filed by a big company are enough to scare many posters into silence, French says.

Colorado geophysicist Joe Titzer is now two years into a lawsuit being filed against him for postings he made online. He says his defense has cost him $30,000 so far.

French says the fees can reach up to $100,000.

"I don't condone libel or slander, but I feel anyone should have the right to publish their information on the Internet," French says.