American Civil Liberties Union · Center for Democracy and Technology · Electronic Frontier Foundation · Electronic Privacy Information Center · Public Citizen
Re: Notice of Subpoenas
Dear General Counsel:
As you may be aware, Internet service providers and community hosts are increasingly the target of civil subpoenas aimed at learning the identity of Internet users who communicate anonymously. The purpose of this letter is to urge you to protect your users' privacy and free speech interests by instituting a policy under which you simply let users know when you receive a civil subpoena for their information.
Often these subpoenas are issued in meritless lawsuits the true purposes of which are to identify anonymous speakers and, at times, to intimidate individuals who have exercised their First Amendment right of free speech. If these tactics are allowed to continue, it will threaten the Internet’s prospects as a robust medium of communication. And that isn't good for your business, or for a democratic society.
While no individual should be able to defame others (or engage in other prohibited speech) with impunity, individuals should not be stripped of their online anonymity unless a subpoena or underlying lawsuit can withstand scrutiny by an objective person who is presented with both sides of the matter -- namely, a judge. But a judge cannot rule on a subpoena unless the target challenges it, and that cannot happen if the target does not know about the subpoena.
Many ISPs and community hosts are especially protective of their users' privacy, and will expend legal fees fighting illegitimate subpoenas. While we strongly applaud these efforts, we understand that not all service providers are able or willing to take such steps. Your users, however, can act to protect their own interests – provided they are notified. If you do not notify a user of a subpoena, there is no other reliable mechanism by which he or she will find out about it in time to mount a challenge.
We write to strongly encourage your company to adopt a general policy of providing notice to your customers who may be the target of or affected by a civil subpoena. We believe that such a policy both would promote the development of the Internet as a medium for robust speech, and would make clear your company’s commitment to protecting the rights of your customers. Moreover, such a policy of notification would plainly delineate your obligations in the event you receive a subpoena, and would reduce the risk that your company would get entangled in legal disputes with either third parties or your own customers. In order to assist your consideration of this policy, we ask that you review the attached documents:
We hope you will agree that a clearly articulated and enforced policy of notification provides the best legal protection to both your company and your customers. And we hope that you will act to protect the rights of your customers by adopting the proposed policy language. We would appreciate an opportunity to discuss this issue with you. At a minimum, we would appreciate learning what action, if any, you take on this concern. We look forward to hearing from you.
Very truly yours,
American Civil Liberties Union
Sample Privacy Provision on "Notice of Subpoenas"
The purpose of this policy is to let you know that if we receive a subpoena for your personal information or usage records, we will send you notice of that subpoena (unless prohibited by doing so by a court order or applicable law) with sufficient time for you to decide whether you want to go into court to try to block the subpoena.
Sample Notice to Customers
The subpoena is issued in [name of case, case number, name of court]. The subpoena was issued by [name of attorney, address, and phone number]. It requests information about [quick description of subpoena].
We cannot advise you regarding the law or an appropriate response to the subpoena. If you want to resist or otherwise seek to limit the subpoena, you should seek the advice of an attorney. For more information about responding to subpoenas like this, see www.cyberslapp.org. If we receive a motion to quash the subpoena from you or your lawyer, we will not release the requested information until we receive direction from a court.
Unless we receive such a motion from you or your lawyer, we must provide the information requested by this subpoena on [date].
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