In recent years, Arizona established itself as a frontrunner in testing and evaluating the bounds of the First Amendment right to free speech on the internet.  Its most significant contribution in this regard has been the case law established by Mobilisa, Inc. v. Doe, 217 Ariz. 103, 170 P.3d 712 (App. 2007).  In Mobilisa, the Arizona Court of Appeals upheld the First Amendment right of online anonymity when it has not been abused.  It also established some limits.

This case arose from an anonymous message sent to the management team of Mobilisa, a Seattle provider of wireless and mobile communications systems.  The message forwarded an email from the company’s CEO to his mistress.  Mobilisa sued the anonymous speaker, claiming that the underlying email must have been obtained by hacking into Mobilisa’s computer system, essentially a form of trespassing.  Mobilisa then subpoenaed The Suggestion Box, Inc. dba www.TheAnonymousEmail.com, an Arizona company that provides anonymous emailing services, to obtain the identity of the anonymous message sender.  The company refused to turn over any information identifying its subscribers.

In Mobilisa, the Court recognized that the right to speak anonymously is not absolute and that certain classes of speech, including defamatory and obscene speech, are entitled to no Constitutional protection.  The court adopted a three-part test for use in evaluating discovery requests such as the one at issue, and held that in order to compel discovery of an anonymous internet speaker’s identity, the requesting party must show: (1) the speaker has been given adequate notice and a reasonable opportunity to respond to the discovery request, (2) the requesting party’s cause of action could survive a motion for summary judgment on elements not dependent on the speaker’s identity, and (3) a balance of the parties’ competing interests favors disclosure.  Id. at 112, 170 P.3d at 721.  Because the trial judge did not apply this third prong of the test, the Court of Appeals sent the case back to the trial court for the application of this balancing of interests element.

In discussing the third prong of this test, the Court emphasized the importance of balancing competing interests.  First, this balancing test provides the court with flexibility necessary in determining the parties’ competing interests on a case-by-case basis.  Second, an unmasked anonymous speaker is no longer anonymous, so no relief is available for reversing such a disclosure.  Third, this balancing test provides an additional safeguard that comports with Arizona’s broad constitutional protection given to free speech and individual privacy.

The Mobilisa case specifically addresses the discovery of an anonymous emailer, but the Court’s analysis would be instructive in similar contexts relating to internet anonymity.  At least two other Arizona companies provide internet services that may implicate anonymous speech issues.

  1. Domains by Proxy, LLC is an Arizona company started in 2002 by GoDaddy founder Bob Parsons. It provides private registration of a domain name by listing proxy contact information in the WHOIS database instead of the registrant’s personal contact information.  This process effectively delegates responsibility for managing unsolicited contacts from third parties and keeps the identity of the domain owner safe from the public eye.  Domains by Proxy has three affiliate registrars:  com (the world’s largest web hosting provider and the internet’s number one domain registrar, based in Scottsdale, Arizona), Blue Razor Domains, and Wild West Domains.

 

  1. Ripoff Report, online since 1998, is a privately owned for-profit website operated by Xcentric Ventures, LLC which is based in Tempe, Arizona. The Ripoff Report is a worldwide consumer reporting website and publication, “by consumers, for consumers,” to file and document complaints about companies or individuals.  It allows users to post free, unmoderated, and uncorroborated complaints. The site requires users to create an account which includes an unconfirmed email address before reports can be submitted.  Users are required to affirm that their reports are truthful, but the site does not guarantee that all reports are authentic or accurate.

Although Arizona appellate courts have not yet reported a decision applying the Mobilisa three-part test to require companies like Domains by Proxy or the Ripoff Report to produce an anonymous speaker’s identity, it is likely only a matter of time before additional decisions are published.  This firm has handled cases involving these issues, in the trial court and on appeal, and continues to watch this area of law develop.

 

Written:  9/23/14

Approved:  10/07/14

Published:  10/27/14

Categories:  Technology, Business Litigation, Commercial Litigation, General Litigation

Key Words:  First Amendment; anonymous internet speech; internet reviews; Mobilisa; GoDaddy; Domains by Proxy; Ripoff Report

Title:  Arizona is a Leader in Debate over Anonymous Internet Speech

Description:  In the landmark AZ case, Mobilisa v. Doe, the court adopted a 3-part test to apply before compelling discovery of an anonymous internet speaker’s identity.

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