Mobilisa, Inc. v. Doe

• Decision Date: 27 November 2007
• Docket Number: No. 1 CA-CV 06-0521.,1 CA-CV 06-0521.
• Citation: 170 P.3d 712,217 Ariz. 103
• Parties: MOBILISA, INC., a Washington corporation, Plaintiff/Appellee, v. John DOE 1 and The Suggestion Box, Inc., Defendants/Appellants.
• Court: Arizona Court of Appeals

170 P.3d 712

217 Ariz. 103

MOBILISA, INC., a Washington corporation, Plaintiff/Appellee, v. John DOE 1 and The Suggestion Box, Inc., Defendants/Appellants.

No. 1 CA-CV 06-0521.

Court of Appeals of Arizona, Division 1, Department B.

November 27, 2007.

Whitten Berry, PLLC by Christopher T. Whitten, Phoenix, Law Offices of Charles Lee Mudd, Jr. by Charles Lee Mudd, Jr., Chicago, Illinois, Attorneys for Appellants.

Lewis and Roca, LLP by Randy Papetti, Robert G. Schaffer, Phoenix, Preston Gates & Ellis, LLP by David A. Linehan, Michael K. Ryan, Seattle, Washington, Attorneys for Appellee.

Tiffany & Bosco, P.A. by John P. Flynn, Phoenix, Public Citizen Litigation Group, by Paul Alan Levy, Washington, D.C., Electronic Frontier Foundation by Corynne McSherry, San Francisco, California, Attorneys for Amicus Curiae.

OPINION

TIMMER, Judge.

¶ 1 This appeal presents our first opportunity to consider the First Amendment rights of internet users to engage in anonymous speech. In doing so, we decide whether the superior court erred by granting a request by appellee Mobilisa, Inc. ("Mobilisa") to discover from appellant The Suggestion Box, Inc. ("TSB"), an Arizona email service provider, the identity of appellant John Doe 1 ("Doe"), a TSB account holder. For the reasons that follow, we adopt a three-step test for use in evaluating such requests. Although the superior court properly applied the initial two steps of this test, it did not consider the third step. We therefore remand for application of that step.

BACKGROUND

¶ 2 Nelson Ludlow is the founder and chief executive officer of Mobilisa, a Washington company that provides wireless and mobile communication systems to customers that include government and military entities. In light of the confidential nature of its business, Mobilisa secures its computer and email systems.

¶ 3 On June 21, 2005, Ludlow used his Mobilisa email account to send an intimate message to Shara Smith, who was involved in a personal relationship with Ludlow and was not employed by Mobilisa. Ludlow also sent a copy of the message (the "Ludlow/Smith email") to his personal email address and to his mobile phone. Six days later, an unknown number of individuals, including members of Mobilisa's management team, received an email from an anonymous sender with an address from theanonymousemail.com, which is owned and maintained by TSB, an Arizona corporation. The anonymous email contained the contents of the Ludlow/Smith email and the subject line, "Is this a company you want to work for?"

¶ 4 Mobilisa subsequently filed suit in the State of Washington naming John Does 1-10 as defendants and alleging violations of two federal laws relating to electronic communications, 18 United States Code ("U.S.C.") sections 1030 & 2701 (2000),¹ and asserting a common law claim of trespass to chattel. The central contention of Mobilisa's claims was that the defendants accessed Mobilisa's protected computer systems and email accounts without or in excess of authorization. Mobilisa sought damages and injunctive relief.

¶ 5 In August 2005, Mobilisa filed an application pursuant to Arizona Rule of Civil Procedure 30(h) in the Arizona Superior Court in Maricopa County requesting the court to issue a subpoena based on a commission for subpoena authorized by the Jefferson County Superior Court in Washington. Mobilisa sought to compel TSB to disclose the identity of the person who used its services to send the anonymous email. Upon a subsequently filed motion, the superior court granted Mobilisa's request and permitted it to engage in limited discovery.

¶ 6 TSB subsequently filed a motion to vacate the discovery order, which the court granted on December 28. In its ruling, the court adopted the two-step approach used in Doe v. Cahill, 884 A.2d 451 (Del.2005), to decide whether the identity of an anonymous internet speaker should be compelled in light of the speaker's First Amendment rights. Under Cahill, the speaker's identity can be divulged if: (1) the requesting party makes reasonable efforts to notify the anonymous speaker of the discovery request and that person is afforded a reasonable time to respond, and (2) the requesting party demonstrates its cause of action would survive a motion for summary judgment. Id. at 460-61. The court then found that although Mobilisa had not satisfied the Cahill standard, it would be allowed an opportunity to supplement its application in an attempt to do so. The court further ordered TSB to notify its email account holder of Mobilisa's subpoena request.

¶ 7 On February 23, 2006, TSB's counsel filed an affidavit stating counsel had agreed, with TSB's consent, to also represent Doe in this matter, and Doe had received notification on February 9 of Mobilisa's request for his identity. Through counsel, Doe objected to Mobilisa's request and asserted that he did not access or obtain the Ludlow/Smith email through Mobilisa's computers.

¶ 8 On February 27, the superior court ruled that Mobilisa had made a sufficient showing to meet the Cahill standard and granted Mobilisa leave to conduct discovery regarding Doe's identity. TSB and Doe (collectively "TSB-Doe") timely appealed.²

¶ 9 We review the superior court's ruling on a discovery matter for an abuse of discretion. Brown v. Sup.Ct., 137 Ariz. 327, 331, 670 P.2d 725, 729 (1983). The court abused its discretion if it committed an error of law in formulating its ruling. Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982). Whether the superior court applied the correct legal standard in reaching its discretionary conclusion is a matter of law that we review de novo. State v. Sanchez, 200 Ariz. 163, 165, ¶ 5, 24 P.3d 610, 612 (App.2001).

DISCUSSION

I.

¶ 10 TSB-Doe argues that although the superior court correctly adopted Cahill, the court misapplied that standard. In contrast, Mobilisa contends the superior court applied the wrong standard, but reached the correct result.³ Before addressing TSB-Doe's arguments concerning the superior court's application of Cahill, therefore, we first determine the appropriate standard to apply in balancing an anonymous internet speaker's First Amendment right to engage in free speech against the need for discovery of the speaker's identity.

A.

¶ 11 The United States Supreme Court has held that the First Amendment to the United States Constitution protects a person's right to speak anonymously, Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 199-200, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-51, 357, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995); Talley v. California, 362 U.S. 60, 64-65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), and that the protections of the First Amendment fully extend to speech on the internet, Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997).⁴ Because a court order is state action that is subject to constitutional restraint, courts have acknowledged that the issuance of discovery orders and subpoenas compelling disclosure of the identities of anonymous internet speakers raises First Amendment concerns. See, e.g., Sony Music Entm't, Inc. v. Does 1-40, 326 F.Supp.2d 556, 563 (S.D.N.Y.2004); 2TheMart.com, 140 F.Supp.2d at 1091-92; Dendrite Int'l, Inc. v. John Doe No. 3, 342 N.J.Super. 134, 775 A.2d 756, 760-61 (App.Div.2001); Cahill, 884 A.2d at 456. Recognizing the internet as a unique "democratic forum for communication," one court concluded, "the constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded." 2TheMart.com, 140 F.Supp.2d at 1097.

¶ 12 The right to speak anonymously, however, is not absolute. For example, an anonymous speaker, like a known one, has no First Amendment right to engage in obscenity, Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), libel, Beauharnais v. Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 96 L.Ed. 919 (1952), copyright infringement, Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 555-56, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985), misleading or commercial speech, Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 563-64, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), or use of "fighting words," Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Thus, victims of wrongful internet communications should be able to seek legal redress unimpeded by wrongdoers' attempts to hide behind an unwarranted shield of First Amendment rights. To balance the competing rights of anonymous internet speakers and parties seeking redress for wrongful communications, courts in this emerging area have employed differing standards.

¶ 13 In Sony Music, the Southern District of New York afforded the Doe defendants, who had downloaded copyrighted music on the internet, a lesser degree of First Amendment protection than those speakers who engaged in pure expressive speech. It held that disclosure of the Doe defendants' identities was warranted after considering the following five factors: (1) plaintiff's ability to establish a prima facie claim, (2) the specificity of plaintiff's discovery request, (3) the availability of alternative means to obtain the subpoenaed information, (4) the central need for discovery to advance plaintiff's claim, and (5) defendants' expectation of privacy. 326 F.Supp.2d at 564-67.

¶ 14 In Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D.Cal. 1999), the Northern District of California also expressed concerns about the possible chilling effect of allowing discovery of an internet user's identity in a trademark infringement case. The court held that limited discovery for the purpose of identifying defendants for service of process may be warranted if plaintiff can: (1) identify the defendant with sufficient specificity such that the court can determine if ...