Subpoenas

Two recent decisions may give your customers additional grounds on which to protest subpoenas for their subscriber information. In McMann v. Doe, the Arizona Superior court held that plaintiffs must specifically and definitely allege the wrongs they have suffered in order to justify a subpoena demanding the names of anonymous individuals and give the targets of the subpoena the opportunity to oppose it.

While this seems to be a pretty low standard, it is important for two reasons. The first is that it acknowledges that many litigants bring suit simply to uncover the names of people who write things about them that they disagree with. This court determined that an individual's right to anonymous speech trumps another's desire to simply see who's disagreeing with them. It also held that the anonymous individual be given the right to oppose the subpoena. This part of the holding is important to web hosts, because at least in Arizona, you may now have an obligation to notify your customers when you receive a subpoena for their identity.

The second case is State of New Jersey v. Reid. In this case, a New Jersey Court of Appeals held that the New Jersey state constitution gives its citizens a constitutional right to privacy in information handed over to third parties. Federal courts have uniformly held that under the U.S. Constitution, citizens have no right to privacy in information voluntarily handed over to third parties. The New Jersey court held that before this type of information could be subject to a subpoena, law enforcement authorities must have probable cause to suspect an unlawful use of the information.

This case is very interesting because the New Jersey court expressly recognized a right informational privacy. This means that data about customers that is turned over to companies for billing, record keeping, and administration, may be private under the New Jersey constitution. It will be interesting to see if Federal courts begin to look at this decision and re-evaluate their interpretation of Smith v. Maryland, the U.S. Supreme Court decision which found no Constitutional right to information privacy.