It's amazing how many times you can hear a phrase without really understanding it. Take "splitting the baby" for instance. Excuse my ignorance, but I'd always thought it had a more-or-less neutral connotation, suggesting a pragmatic compromise to a question or problem. But consider the Solomonic origins of the phrase, and you get quite a different picture. Split the baby and you kill it, and nobody likes a dead baby. So, I have to apologize up front for the title of this post — I haven't decided yet whether the approach to unmasking online commenters described below deserves praise or blame, but I couldn't resist this awesome wikicommons reproduction of Guissepe Cades' Judgment of Solomon.
The Sacramento Bee and the Chronicle of Higher Education point us to a new online anonymity case from California. Last week, Superior Court Judge Shelleyanne Chang ruled (scroll to Item 7) on blogger David Greenwald's motion to quash a subpoena seeking the identity of commenters to his blog, the People's Vanguard of Davis. Taking an approach I've never seen before, the court — ahem — split the baby. Judge Chang decided that former UC Davis police officer Calvin Chang (no relation to the judge) cannot obtain directly any identifying information for the commenters in question, but he can employ a third-party expert to determine whether the comments were posted by specific UC Davis personnel whose names Chang will provide in advance.
Here's the back story: This summer, Mr. Chang's attorney served the subpoena on Google, Greenwald's former blog host, as part of Chang's employment discrimination and breach of contract action against the UC Davis. Greenwald published blog entries about Chang's lawsuit back in February 2009, a few days after the suit was filed, and several readers posted negative comments about Chang and his case. The subpoena seeks identifying information for seven anonymous and pseudonymous comments. Chang maintains that the individuals who left these comments are "managing agents" of the university, and that the comments themselves constitute evidence of breach of a previous settlement agreement by the university. Google informed Greenwald of the subpoena, and he challenged it, arguing that the First Amendment protects the rights of his commenters to speak anonymously and that the information is not relevant to Chang's suit against the university.
The court largely agreed with Greenwald's arguments, finding that Chang "has not made the requisite prima facie showing of a valid libel claim against [the commenters] in order to justify the requested disclosure of their personal information," apparently in a subtle nod to Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231 (Cal. Ct. App. 2008), a California appellate decision Greenwald relied on heavily. The court went on to explain that Chang's opposition papers "nowhere showed or attempted to show that the comments posted to the blog were 'assertions of fact which are provably false' and not non-actionable opinions, as required by Paterno v. Superior Court (Ampersand Publishing) (2008) 163 Cal. App.4th 1342, 1349-1350." The court therefore concluded that Chang failed to justify the disclosure of the posters' identity in order to proceed with libel claims against them.
This reasoning is a little awkward given the posture of the subpoena. The court is not dealing with a situation like Liskula Cohen's effort to unmask the Skanks in NYC blogger (granted she didn't end up suing), the Ottinger case I blogged about earlier this week, or the TCI Journal subpoena. Chang doesn't appear overly concerned with suing the commenters for libel; his real concern is using their comments as evidence in his case against the university.
Sensing this mismatch, the court recognized that "if the comments posted on the blog were authored by 'managing agents' of the university, they would constitute evidence relevant to existing claims against the university." Here, the plaintiff did much better. The court found that Chang "identified specific reasons" to believe that the postings were made by university personnel because of "the use of unique terms" and "reference to information not generally known." Still, the court worried about stripping unrelated Internet speakers of their anonymity without justification and therefore imposed the following conditions on Chang's discovery of the identity of the posters to the blog:
- At his own expense, Chang will retain an independent third party to perform an IP address trace of the sources of the comments posted to the blog;
- Chang will provide the third party with the names of the specific university personnel believed to have posted the comments;
- The third party will be the "exclusive recipient" of records and information produced by Google or Greenwald in response to the subpoena or similar subpoenas seeking the identify of the commenters;
- If the third party determines that any of the comments were posted by the specific university personnel identified in advance by Chang, then he/she will release the associated records and information to the parties; and
- If the third party determines that any of the postings were not authored by someone on Chang's list, then he/she will be prohibited from releasing any records or information relating to the posting(s) or individual(s).
Right now, I'm still not sure what to make of this middle path. It seems a reasonable enough way to make sure that Greenwald's commenters are not unmasked without proper justification. Heck, given that Chang came forward with specific reasons to suggest university personnel wrote the posts, the court may have been justified in ordering immediate and full disclosure under the test used by some other courts when faced with subpoenas seeking the identity of anonymous Internet users for evidentiary purposes in ongoing litigation. See, e.g. Enterline v. Pocono Medical Ctr., 2008 WL 5192386, at *5 (M.D. Pa. Dec. 11, 2008) (considering whether subpoena is in good faith, whether it seeks information relevant to a core claim or defense, and whether the information is available elsewhere); Doe v. 2TheMart.com, 140 F. Supp. 2d 1088, 1095 (W.D. Wash. 2001) (same). If that's the case, then adding this extra level of protection is a boon to the anonymous speakers involved. On the other hand, the court's procedure sounds kind of expensive and messy, and it involves a third party handling potentially sensitive information with relatively little oversight from the court.
Do any of our fair readers have a view on this one way or the other?