This article is one of a series of articles discussing matters relating to speech and conduct on the Internet. Assuming a lawsuit has been filed over content on the Internet (whether files allegedly downloaded, statements alleged to be defamatory, or private content and/or photos posted) and a subpoena has been issued to an Internet Service Provider (“ISP”), this article addresses what to do when an individual receives a notice from an ISP indicating a subpoena has been received seeking the individual’s identity.
Receiving a Notice from your Internet Service Provider
Upon receiving a subpoena for a subscriber’s information, an ISP will need to determine whether it possessed the IP address on the particular date and time in question. If it did not, the ISP usually will respond to the subpoena and indicate it possesses no responsive information. In some cases, it may identify who owns or owned the IP address or the block of IP addresses in which the particular IP address belongs. This response will be sent to the attorney or pro se (representing themselves) party who issued the subpoena. It would not typically be filed with the Court.
If it did possess the IP address on the particular date and time in question, the ISP will then likely determine which of its subscribers used the IP address on the date and time in question. Upon identifying the subscriber at issue who used the IP address, most ISPs will send a notice to the subscriber informing the subscriber that a party seeks to obtain the subscriber’s identity. The notice from the ISP will possibly send a copy of the subpoena it received. Most importantly, it will specify a date by which the subscriber needs to respond to avoid disclosure (or suspend disclosure) of the subscriber’s or customer’s identity. This response will typically need to be a motion to quash filed in the litigation from which the subpoena has been issued (simply calling the ISP and objecting will not be sufficient).
The date by which to file a response constitutes your most important piece of information. You need to speak to an attorney sufficiently before the deadline so that a motion to quash can be adequately drafted and filed. A motion to quash is not a simple document that can be drafted in a day or two. So, you need speak to an attorney promptly.
Additionally, there will be circumstances where a motion to quash is not practical or viable (the attorney will need to determine this with you). If you contact and retain an attorney sufficiently before the ISP deadline, there exists the possibility of negotiating an anonymous settlement or resolution (that may or may not involve monetary aspects) where the matter becomes resolved without the disclosure of your identity.
What Information Should I Provide An Attorney?
Most states provide that communications between an attorney and a prospective client will be treated as privileged or confidential information even before one engages the attorney to represent them. So, you should not be concerned about speaking honestly and in a forthright manner with potential lawyers.
However, before you identify yourself to a prospective attorney who might file a motion to quash on your behalf or represent you with respect to the subpoena seeking your identity, you should identify the Plaintiff or Petitioner who filed the lawsuit. By doing so, you – and the attorney – can ensure that the attorney and/or the law firm does not represent the Plaintiff or Petitioner, or otherwise have a conflict that would preclude them from representing you.
Assuming no conflict, you will need to provide the attorney with the date by which a response is required. You will likely need also to send the attorney by email, facsimile or otherwise the documents received from your ISP. The attorney will need to determine the Court in which the lawsuit has been filed, the parties involved, the ISP, and the date by which a response is required (again, this is the most important).
Additionally, the lawyer will need to know whether you have had contacts with the state or jurisdiction in which the litigation or lawsuit has been filed.
Finally, the attorney will need to review the statements, content, or conduct at issue. Although many presume that all statements and conduct on the Internet may be protected by the First Amendment right to anonymous speech, this is not true. So, the attorney will need to analyze the statements, speech, content, conduct, or publication at issue to determine how viable a motion to quash might be or some other strategies.
For more than a decade, Mudd Law has represented individuals whose identify is sought in relation to speech on the Internet. Mudd Law also represents individuals who have been defamed online or whose privacy has been violated. Additionally, Mudd Law has represented ISPs and other third party vendors who possess identifying information. With this background, our attorneys have the perspective to provide representation to individuals in these situations. Contact attorneys at Mudd Law to discuss your options.