In Faconnable USA Corporation v. John Does 1-10, 2011 WL 2015515 (D. Colo. May 24, 2011), the United States District Court for the District of Colorado rejected a ISP's motion to quash a subpoena issued to discover the identity of anonymous editors of Wikipedia. Plaintiff alleges that the anonymous editors violated the Lanham Act and comitted trade libel and commercial disparaging by falsely posting that plaintiff is a support of Hezbollah, a Shiite Islamist militia and political party which has been designated as a terrorist organization.
Wayne Chang, a former partner in ConnectU, Facebook's social networking rival, brought suit against his former ConnectU partners (the "Winklevoss Defendants") and their attorneys over a settlement reached with Facebook in a separate litigation. Chang v. Winklevoss, No. 09-5397-BLS1, 2011 WL 1758963 (Super. Ct. Mass. May 3, 2011). After the defendants filed motions to dismiss, the Superior Court of Massachusetts held that Chang lacked standing to assert claims against the attorneys, but found that Chang's complaint sufficiently alleged subject matter jurisdiction and state law claims.
On May 9, 2011, the United States District for the District of Utah granted Defendants' Motion to Quash Subpoenas, Issue Protective Order, and Dismiss Complaint in a case that stemmed from Defendants' anonymous online speech. Koch Industries, Inc. v. Does, 2011 WL 1775765 (D.Utah). Koch Industries is a large corporation that is involved in a wide variety of industries, including the energy business. Koch maintains a website describing its business and its policy on various political issues, such as editorials rejecting the science of climate change. Defendants were individuals who later identified themselves as anonymous members of Youth for Climate Truth. The case arose after Defendants created a fake press release purporting to announce a decision by Koch to cease funding organizations that deny climate change. The press release included a link to a website created by Defendants, www.koch-inc.com, designed to look like Koch's actual website.
Teachbook, a social and professional networking Web site dedicated to teachers, successfully moved to dismiss Facebook's trademark infringement claims by arguing that it was not subject to personal jurisdiction in California. Facebook, Inc. v. Teachbook.com, LLC, No. CV 10-03654 RMW, 2011 WL 1672464 (N.D. Cal. May 3, 2011). The District Court for the Northern District of California held that although Facebook presented sufficient evidence to show that Teachbook intentionally adopted a "confusingly similar trademark," it did not purposefully avail itself of doing business in California because it did not register users in that state.
A plaintiff suing a John Doe defendant known only as "Tazmanian353" was granted leave to serve discovery on Google and Blogspot.com to determine, among other things, registration information, assignment, billing and payment information, source IP addresses and log files for the user known as Tazmanian353. Fodor v. Doe, No. 3:10-CV-0798-RCJ, 2011 WL 1629572 (D. Nev. Apr. 27, 2011). The District Court for the District of Nevada granted plaintiff's request for third party discovery after finding that the plaintiff had established a prima facie case of defamation per se and had sufficiently shown that the balance of the equities weighed in his favor.
A federal district court judge characterized Plaintiff's motion to compel as a "fishing expedition" and held that the over 1.46 million pages of electronically stored information (ESI) produced by the Defendants was sufficient production pursuant to the parties' Agreement for Electronic Discovery. Thermal Design, Inc. v. Guardian Building Products, Inc., No. 08-C-828, 2011 WL 1527025 (E.D. Wisc. Apr. 20, 2011). Holding that the Defendants had met their burden to show that the additional discovery sought was "not reasonably accessible," the Court denied Plaintiff's motion to compel further discovery of ESI.
Our existing Internet privacy protections are insufficient. The FTC is not empowered or able to shoulder the entire burden of protecting our Internet privacy. Recent anecdotal evidence certainly suggests that the present system isn't working.
Congress should follow the lead of other nations in establishing an omnibus Internet privacy law that balances the needs of Internet users against those of the Internet businesses that drive the e-commerce economy. In formulating a federal Internet privacy statute, Congress should be guided by the FTC's adoption of the core principles of fair information practices: notice, choice, access, security, and enforcement. In a free market economy, a website user who is fully and accurately notified of what personally identifying information a website collects, stores, and discloses; how, and for what purpose, such information is used; how such information is stored and protected; and to whom such information is going to be disclosed can make an educated choice about what, if any, information to reveal to the website. Our federal statute should incorporate aspects found in state Internet privacy statutes enacted by California and Connecticut.
In a couple of months, the William Mitchell Law Review is publishing an article I wrote with Charity Price and Leigh Murray entitled, "Putting the Genie Back in the Bottle: Leveraging Private Enforcement to Improve Internet Privacy." The article discusses, in much more detail than would be possible in a blog post or 15-minute radio interview, the efforts by the FTC and private parties to enforce Internet privacy rights, the protections afforded by federal and state law, the protections afforded to UK and EU citizens, and the form an omnibus federal statute should take.
A Montreal-based producer and distributor of adult entertainment content petitioned a District Court for leave to issue early discovery in order to obtain identifying information on 17 "Doe defendants" whom it alleges violated copyright laws by reproducing and distributing a portion of its adult video through peer-to-peer file sharing. VPR Internationale v. Does 1-17, No. C 11-01494 LB, 2011 WL 1465836 (N.D. Cal. Apr. 15, 2011). The District Court for the Northern District of California held that Plaintiff, VPR, had established "good cause" to conduct preliminary discovery on the ISPs that assigned an IP address to the Doe defendants.
In the on-going struggle for courts to clearly define the limits of personal jurisdiction for content posted and transmitted over the Internet, the Tenth Circuit reigned in the breadth of such non-territorial activities by requiring an Internet user to "intentionally direct" activities or content to a particular state to sufficiently confer personal jurisdiction on the forum. Shrader v. Biddinger, 633 F.3d 1235 (10th Cir. 2011). In doing so, the Court dismissed a pro se plaintiff's complaint for defamation, invasion of privacy and intentional infliction of emotional distress filed against a former business associate who authored an allegedly defamatory email about the Plaintiff and sent the email to the Plaintiff's customers.
