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Law students draft Internet privacy bill

– For many Internet users, logging onto the Web and anonymously posting their thoughts in a chat room, Web log, or other interactive site is part of the allure of the World Wide Web.

But while the Web may appear to be an open and free area for comment, a controversial remark posted about a company or individual by a Web user can quickly draw Web users into a complex and protracted legal battle.

A legislative bill that will be considered tomorrow (Tuesday, May 6) by the judiciary committee of the California state Assembly would address the matter by providing Internet users with more legal protections.

The bill, AB 1143, is being sponsored by Assemblyman Joe Simitian (D-Palo Alto). It was drafted by a law clinic at the University of California, Berkeley, School of Law (Boalt Hall) that is serving as legal counsel for the Electronic Frontier Foundation, a San Francisco-based Internet civil liberties organization pushing for such legislation.

Deirdre Mulligan, director of the Samuelson Law, Technology and Public Policy Clinic and an expert on privacy law, will attend Tuesday's committee hearing along with law clinic students.

"California has a long Constitutional and statutory tradition of providing strong protections for privacy," said Mulligan. "This legislation builds upon that history in an important area of First Amendment law: Protecting anonymous communication on the Internet."

Assemblyman Simitian, a Boalt Hall alumnus and chair of the Assembly's select committee on privacy, also noted the importance of this issue.

"Internet users deserve to have their privacy and their anonymity protected," Simitian said. "And, they deserve due process in defending themselves against frivolous lawsuits."

The goal of the legislation is not to give Web users free reign to post whatever they want on the Web. Rather, the plan is to ensure that these Jane Does and John Does have equal legal footing when ensnarled in a legal battle.

Law student Yan Ge said the bill aims to make sure that Internet users have the time and information necessary to participate in their own defense. This is especially important because these cases involve complex legal matters that include the First Amendment, the Securities and Exchange Commission, and trade secret and defamation law.

In many of these cases, company officials who feel damaged by an anonymous Internet posting will file a civil case in court and subpoena the individual's Internet service provider - such as America Online - for the individual's name and other identifying information. This can occur without individuals knowing anything about the case against them until their information has been released and they have been hauled into court. If provided with information early on in the process and in adequate time, Mulligan said, an individual might successfully quash a subpoena that seeks to reveal his or her identity. Or, the person might mount a successful defense on free speech grounds.

Each year, large Internet service providers receive hundreds of such subpoenas from companies or individuals seeking the identity of Internet users who posted some questionable comment or information online, according to the law clinic.

Two law students in Mulligan's legal clinic, two of the four students who have researched the matter and for months have been reviewing and recasting the proposed legislation, say they are surprised by what they have learned.

Yan Ge, a second year law student, learned of a case in which someone wrote in a chat room that no one should buy stock in a certain company because of its bad management practices. A company representative contacted the Internet service provider, obtained the identity of the person who posted the comment, and sued the defendant - a California resident - in an Illinois court.

Emily Zarins, another second-year law student, was surprised to learn of cases where companies have used this process as a means to confirm that an employee was the author of an online comment and to take disciplinary action against the employee.

"It's scary," said Zarins. "I told my friends; they didn't realize how serious it can be."

When it comes to posting harsh comments on the Web, one person's innocent comment may be another's person lawsuit seeking damages.

"'Wrong' can be in the eye of the beholder,'" said Mulligan. "In the end, there does need to be some legislative fix."

The Assembly bill would do the following:

  • Require Internet service providers or e-mail service providers to notify the Internet user within 14 days of receiving a subpoena to release the Internet user's identify. Currently, there is no requirement that this be done.

  • Prohibit Internet and e-mail service providers from disclosing the Internet user's identity for 44 days from the date that the provider receives the subpoena. This would allow Internet users more time to mount a defense. Currently, Internet users have 10 or fewer days to file a motion to quash a subpoena.

  • Require the subpoenaing party to provide, along with the subpoena, information that allows the Internet user to know why his or her information is being requested and what court the case is filed in, so that an adequate legal defense can be mounted.

  • Require subpoenaing parties to reimburse Internet service providers for any costs associated with serving as an intermediary and passing the subpoena along to the Internet user.

  • Create a heightened standard of judicial review by codifying California case law and requiring the court to consider the defendant's constitutional rights to privacy and to anonymous free speech.

The Boalt Hall legal clinic began working on this draft legislation in August, a process that involved thorough research, careful consideration of the wording of the bill, and consultation with Internet service providers, judges, trial attorneys and public interest organizations.

"The students and the law clinic are at the cutting edge of where law and technology meet in the 21st century," said Assemblyman Simitian. "This bill comes straight from their casework-which shows us that we must be vigilant about protecting privacy rights, especially as our surveillance abilities grow."