Eclipse Aviation, a manufacturer of "affordable" jets, recently sent a subpoena to Google seeking to uncover the identities of 28 users who posted on Eclipse Aviation Critic NG, a blog that Google hosts on its Blogger service.
The subpoena, which includes a colorful list of pseudonyms such as "Turn-and-Burn," "Bill E. Goat," and "Niner Zulu," does not state why the information is necessary. AINonline, an aviation news site, gives us a bit more insight:
According to Eclipse president and CEO Vern Raburn, the Albuquerque, N.M. aircraft manufacturer has been irreparably damaged by the “lies” posted by anonymous visitors on the blog, and he seeks to unmask them via the subpoena. But the blog hasn’t been far off the mark on several occasions, suggesting that some of the anonymous posters might be Eclipse employees who could be breaking a non-disclosure agreement signed when they were hired.
Wisely, the website operator Shane Price plans to fight the subpoena. Because the First Amendment creates a qualified right to speak anonymously, courts require a party seeking to unmask an anonymous critic to make a preliminary showing of the merits of the underlying legal claim. While it's not precisely clear how high this standard is in California -- for example, Columbia Insurance v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999) established a "motion to dismiss" standard that puts a relatively low burden on a party seeking to unmask an anonymous speaker, yet a more recent case, Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008), applied a high-burden test that requires a party to make a "prima facie" showing on its underlying legal claim -- it is clear that Eclipse will be required to provide some explanation as to why it is entitled to the information it seeks. (For more information on the standards California courts apply, see our legal guide section on Legal Protections for Anonymous Speech in California.)
It remains to be seen whether Eclipse can meet this threshold showing that it is entitled to uncover the identities of these anonymous posters, but it will be interesting to watch this play out in the California courts. According to news reports and comments on Eclipse Aviation Critic NG, the posters plan to file a motion to quash in Santa Clara Superior Court where the subpoena was filed. You can follow further developments in the case in our Legal Threats Database entry: Eclipse Aviation Corporation v. John Doe.
(Kudos to Robert Ambrogi, who first brought this to our attention via a post on Law.com.)