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Anonymity On-Line? It Depends Who’s Asking

November 24, 1995

People who send messages into cyberspace without signing their real names may not be as anonymous as they think.

Consider the case of an America Online subscriber who used the name Jenny TRR. Last month, in response to a petition for discovery, America Online Inc. turned over the subscriber’s real name, address, and credit-card and checking-account information to attorneys representing the Carib Inn, a Caribbean resort, its owner and one of its diving instructors. They say they need the data because they are considering suing the subscriber for defamation for a critical message posted on an America Online bulletin board.

To the surprise and dismay of many computer buffs and privacy advocates, America Online and its competitors say they usually comply with civil subpoenas and motions like the Carib Inn’s that seek information about subscribers and are filed in court. The practice is especially disturbing in the case of America Online, which allows subscribers to use a variety of aliases when they post messages on bulletin boards, visit chat rooms or send e-mail. The other major commercial services have more restrictive policies about the use of aliases.

``You’d hope that the company would have a better privacy conscience and put up a fight,″ says Evan Hendricks, editor and publisher of Privacy Times, a newsletter devoted to privacy issues. Adds Norman Silber, a professor at Hofstra University School of Law: ``What’s the point of letting subscribers think they are protected by a cloak of anonymity″ if the service then ``reveals information about them?″

Critics say there is a big difference between complying with a civil subpoena and a criminal one. When it comes to criminal probes, they say, subscribers may not like it but they’ve been warned that the services cooperate with law-enforcement authorities. That’s what happened in the recent investigation of an on-line child pornography ring that led to more than a dozen arrests in September.

But critics of the services say subscribers don’t expect the services to reveal information about them in civil litigation without a fight. By complying with such requests, some critics add, the services may be compromising the rights of subscribers in an effort to protect themselves.

David Phillips, assistant general counsel for America Online, acknowledges that one of the factors the company considered in weighing the request for information about Jenny TRR was whether it could be sued for defamation, though he says that was a minor consideration.

Mr. Phillips maintains that America Online wasn’t legally obligated to protect the subscriber’s identity. He adds that the subscriber may have violated America Online’s policy against ``ad hominem attacks″ on individuals. (The services say they don’t reveal information about electronic mail, which is protected by the Electronic Communications Privacy Act, unless there is a criminal investigation.)

Before disclosing Jenny TRR’s name and other information, he says, America Online notified the subscriber that the request was pending and gave the individual a chance to fight it. ``The subscriber is in the best position to argue why presenting this information would undermine their interest,″ he says.

Jenny TRR didn’t attempt to fight the subpoena, he says. The subscriber no longer uses that screen name, and couldn’t be reached for comment.

In another case, America Online complied with a subpoena in April and revealed the names and addresses of 68 subscribers that a computer software company was seeking.

The company, Macromedia Inc., had sued the subscribers for copyright infringement. In the suit, which used the subscribers’ screen names, Macromedia alleged that the America Online subscribers were copying its software and exchanging it through ``chat rooms″ and private electronic messages.

Macromedia discovered the copyright infringement after one of its employees received a version of the pirated software through e-mail, says Donald West, Macromedia’s attorney. The company has settled with most of the defendants in that lawsuit, Mr. West adds.

The Jenny TRR affair, meanwhile, is far from resolved.

Lawrence Levin, an attorney representing the resort’s owner, says his client is preparing to negotiate with Jenny TRR and wants a public retraction along with legal expenses and a promise that no other defamatory messages will be posted. ``If the person involved is smart, they will work out a method to resolve this that does not involve a lawsuit,″ Mr. Levin says.

The flap started in June when Jenny TRR posted a message on an America Online bulletin board for scuba-diving enthusiasts. A copy of the posting was included in the discovery petition. In the message, which was fairly tame by on-line standards, Jenny TRR said she and her husband had been disappointed by their recent visit to the Carib Inn in the Netherlands Antilles and had moved to another resort. ``Since I’m a little new to diving, needless to say diving with a stoned instructor was a little scary,″ the message continued. ``. . . I won’t mention his name but he’s the only white instructor there.″

Arnold Bowker, the Carib Inn’s owner, was incensed. Though he had no idea who ``Jenny TRR″ was, he sent several electronic mail messages demanding a retraction. Messrs. Bowker and Levin declined to elaborate about those messages, except to say that there was no retraction.

Mr. Bowker and John Joslin, the scuba-diving instructor, then had their attorneys file a motion in state court in Chicago demanding that America Online reveal the identity of the subscriber because they intended to file a defamation suit.

News about the petition triggered a lively debate on bulletin boards operated by America Online and its competitors. Some said the request was an invasion of a subscriber’s privacy and would have a chilling effect on communication in cyberspace. Others chastised Jenny TRR for posting a defamatory statement.

Mr. Bowker fired back with a message on a scuba-diving bulletin board operated by CompuServe, a unit of H&R Block Inc. ``This is not a situation where every time there is a disagreement or debate or complaint about bad service there will be a lawsuit or, as one misguided commentator put it, millions of defamation suits,″ he wrote. ``This kind of attack has nothing to do with free speech.″

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