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NYT on cyberstalkers

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6 Responses

  1. Bruce says:

    That said, I hope that the stalking victim described in the article can — assuming her facts are verified — get a subpoena and access the information that will allow her to identify and stop her tormentor.

    The process for doing so is a convoluted mess, however. I’ve taught and practiced identifying anonymous defendants, and it’s a fascinating but frustrating issue. The problem is that modern civil procedure rules just weren’t designed with a lot of John Doe suits in mind. The federal rules put plaintiffs filing John Doe suits in a weird netherland of rule-less procedure: You can’t conduct discovery until the 26(f) conference, but you can’t identify the defendant for service until you’ve had some third-party discovery. Some state legislatures and courts are just beginning to grapple with this problem by spelling out specific procedures for serving early discovery on ISPs. But there’s no rule on it in federal courts, meaning a court order is required for each subpoena, and there can be multiple rounds of subpoenas depending on whether the ISP has any identifying information beyond an IP address (if not, you start the whole process all over again).

    The amount of “verification” that the plaintiff’s complaint should be subjected to is another vexing question. Under the modern rules, there isn’t supposed to be any “verification” prior to service of the complaint, and none beyond determining whether the action is well pleaded until the end of discovery. Some courts have been unhappy with that low level of scrutiny in defamation cases (other causes of action get less scrutiny, although no court has officially so held). So some have subjected complaints to a sort of summary judgement procedure, or worse. In practice courts have not required proof of the plaintiff’s entire case prior to allowing a subpoena, but rather require some minimal evidence on each of the elements of the claims to meet the plaintiff’s burden of going forward. It seems to me that a specific procedure to handle such cases would be desirable, one that gets the court out of the business of determining the validity of the action and instead gives wrongly identified defendants a remedy down the road if the process is abused. I doubt criminals are going to really want to march into court to begin with, so they are going to be weeded out by the mere filing requirement.

  2. MR says:

    There’s a great and very scary episode of “The Closer” (with Kyra Sedgwick) on this very issue – someone posted a woman’s profile and address, and posted where she kept a key and how she liked to be surprised and “dominated.”

  3. Dissent says:

    Bruce wrote: The problem is that modern civil procedure rules just weren’t designed with a lot of John Doe suits in mind.

    That’s just one problem. As I mentioned in my own commentary on the NY Times story, the use of remailers really complicates identifying and prosecuting a cyberstalker from both the legal and technological standpoint. Suppose, for example, a determined cyberstalker has more than one ISP. And suppose that he also uses chained remailers to threaten or harass his victim — via emails, public usenet posts soliciting sexual assault on the victim, web sites registered via offshore anonymous domain registry and secure ftp upload, or some combination of any of those. So the victim’s counsel goes to court and asks for what… you don’t even know where to look half the time, and some ISPs do not retain logs forever.

    While EFF and other organizations work to protect online free speech, I wish someone gave more of a damn about the victims of cyberstalking and that Google did not effectually abet cyberstalkers by archiving their harassing usenet posts and web sites that would show up if any potential employer or client were to search on the victim’s name.

  4. Bruce says:

    and that Google did not effectually abet cyberstalkers by archiving their harassing usenet posts and web sites that would show up if any potential employer or client were to search on the victim’s name.

    Ah yes, Section 230. Poor Ken Zeran. Don’t even get me started…

  5. Dissent says:

    Ah yes, Section 230. Poor Ken Zeran. Don’t even get me started…

    Consider this an invitation to start — either here or on my own blog. Wasn’t the whole history and logic behind Section 230 supposedly to encourage a more creative Internet and to encourage the industry to police itself and develop filters, etc.? It seems to me that the ISPs pretty much just took Section 230 as a free pass to do nothing.

    In their defense, I have heard somewhat articulate arguments, e.g., “I don’t want to be put in the role of judge as to what is libel and what isn’t. If a court tells me to remove something or if there’s adequate legal documentation, I will do it, but other than that, I’m not going to impose my own views on content.”

    Such arguments may sound good, and may even have some genuine merit, but that is small consolation to cyberharassment or cyberstalking victims.

    Google was contacted by U.S. mail over two months ago by a cyberstalking victim on this issue of how they are, in at least some cases, effectually abetting cyberstalkers and cyberharassers. The question was posed to them as to whether — at the very least — they could change their web archiving system so that usenet posts (which tend to be a total free-for-all with accusations of pedophilia, criminal conduct, etc.) and web pages that archive usenet posts are not indexed in their search for web pages. Google reportedly did not respond to that letter at all. I can point to examples (as I’m sure you can) of people who have had thousands of defamatory or libelous posts published about them that are now archived in Google for the whole world to find.

    Is this the price we must pay for “free speech?” I don’t think so.

    At the risk of having the EFF and every free speech group come down on my head, I continue to oppose Section 230 and think it should be repealed. And I’ve even written to my Representative to request a meeting on exactly that issue.

    I do not know what a “good law” would look like, and I think it’s obvious from my posts that I am not a lawyer. I just know that the current system isn’t working well for those who have become victims of cyberstalking or persistent online harassment.

  6. Tammy Rowe says:

    i feel that many internet providers provide lip service to online victims. I have been harassed, stalked, impersonated in slanderous ways online, had my children exposed online and while i have made AOL aware of this, that it is now breaking the law, AOl turns a blind eye. I realize being a victim is not fair, but it is a slap in the face when the harassers can go anywhere online, do anything they want, and someone who abides by the normal etiquitte rules of real-life and terms of service of the internet provider, cannot do anything safely online.