A state appeals court has issued a ruling that privacy-rights advocates say offers protection to people who post anonymous comments on the Internet.
The state Court of Appeals ruled Tuesday that people can’t use Arizona courts to discover the identity of those who put anonymous comments on the Internet or send anonymous e-mails unless they first prove their interests outweigh the privacy of those who posted them.
It was the first ruling of its kind in Arizona.
“This is actually a great ruling for privacy,” said Corynne McSherry, an attorney with the Electronic Frontier Foundation which lobbies and intervenes in cases involving Internet privacy.
The divided court set up a three-step test for judges to use when confronted with lawsuits by individuals or companies who contend that someone whose identity they don’t know damaged them.
Judge Ann Scott Timmer called the ruling “a balancing of the parties’ competing interests.”
The 2-1 ruling requires evidence the person whose identity is being sought “has been given adequate notice and a reasonable opportunity to respond.” That notice, usually provided through the Internet service provider, gives the person a chance to hire an attorney and fight the request and remain anonymous.
Potentially more important, the person filing suit has to show a judge there is a real case.
Attorney Charles Mudd Jr., who represents both the Internet provider and the anonymous e-mailer, said the ruling restricts the practice often used by businesses to go on a “fishing expedition.”
“The court system should not be used merely as a means of identifying (an) employee and then using that information to terminate them,” he said.
“Folks would trump up really bogus claims and use them as an excuse to find out someone’s identity who is maybe just saying something they didn’t like,”
Finally, even if a judge concludes there is a legitimate claim, such as evidence someone hacked into a company’s computer, that doesn’t end the matter: A judge can order an Internet provider to surrender the name of the poster only if that balancing test favors disclosure.
The case before the court involved Mobilisa Inc., a company based in the state of Washington which provides wireless and mobile communications to customers, including government and military entities. A company executive had used his e-mail to send a personal message to a woman with whom he was involved.
Several days later, some people, including Mobilisa employees, got an anonymous e-mail with that message and the comment “is this a company you want to work for?” The mail was from an address at TheAnonymousEmail.com which is owned by The Suggestion Box, an Arizona company.
Attorneys for Mobilisa convinced an Arizona judge to force The Suggestion Box to disclose who sent the e-mail. But Tuesday’s ruling sends the case back to the judge with directions to use the new three-pronged test to determine if the company has to be forced to provide the name.
The appellate decision was not unanimous. Judge Daniel Barker said the requirement to weigh the privacy interests of the e-mailer with the needs of the person filing suit could result in situations where the plaintiff effectively is left without the ability to pursue the claim.
David Linehan, the attorney for Mobilisa, did not return a phone call seeking comment.