From the credit-where-credit's-due department (with the requisite hat-tip to David Ardia's Twitter account):
I've written previously about clothing company Façonnable's lawsuit against an anonymous Wikipedia editor. To sum up: The company sued a pile of John Does, then tried to subpoena an ISP (Skybeam) for the editors' identities. A magistrate judge granted Façonnable's request, but the ISP has been fighting it.
Well, it looks like the ISP won the day. CMLP's entry on the case is now updated with the new developments: Façonnable reached some sort of settlement with the Does, but Skybeam continued to fight the subpoena, looking to avoid bad precedent. And last Wednesday, the district judge agreed, vacating the subpoena.
In my last post, I was fairly dismissive of the idea that we should trust the free market to protect online anonymity. And, to tell the truth, I remain skeptical, and would like to bake more protections into our system. But at least this time, the market did its job.
In its motion to vacate the subpoena, Skybeam was primarily concerned with one thing: a competitive disadvantage. If the subpoena, granted based on a much more plaintiff-friendly standard than other courts have used, were to stand, Skybeam could be stuck with it as precedent. And that, they argued, would leave Skybeam "at risk of a competitive disadvantage compared to other ISP’s who can tell prospective users that they can be subpoenaed only in jurisdictions that follow a tighter standard." (The ISP did also argue that its current users' rights would be jeopardized by the precedent-setting subpoena.)
So, here we do see anonymity-protection as a marketable selling point, at least in the context of smaller, regional ISPs. (Skybeam is a Colorado-Wyoming-Texas provider.) It's interesting that Skybeam actually thinks consumers might shop around for Internet access based on a given ISP's anonymity protections -- or, at least, that the company doesn't want to take the chance. (It should be noted that the procedural step to get the subpoena vacated was a pretty easy one, and completely unopposed. So the costs here were low. But, on the other hand, Skybeam had already shown the willingness to fight, before Façonnable bailed on the lawsuit.)
Where does that leave us? Hard to say. Skybeam-as-example should still give us some hope: some companies are still willing to duke it out over important free-speech issues, even with Section 230 protection. Unless we're confident that Skybeam is less exception than rule, though, I'd still stand behind what I said last time: we should be doing more to motivate corporations to re-enter the free-speech game.
John Sharkey is a CMLP blogger fresh off his first year at Harvard Law School. Since his last post, the Twins have been sinking... sinking...