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Lawyers and Technology:
An Allure of Anonymity

National Law Journal - May 3, 1999

A rose is a rose by any other name, and on the Internet, the rose can go by any name it chooses. The ability to post and send electronic messages anonymously or pseudonymously is one of the most appealing, yet troubling, aspects of the Internet. Anonymity is invaluable for survivors of rape or incest, whistleblowers, or anyone who wishes to voice controversial views. In 1995, the Supreme Court held in McIntyre v. Ohio Elections Commission, 115 S. Ct. 1511, that an Ohio statute prohibiting the distribution of anonymous campaign literature was an unconstitutional infringement on First Amendment free speech rights.

E-mail just makes the distribution of anonymous views much easier and saves forests of trees in the process. On April 19, in ApolloMedia v. Reno, No. 98-933, the Supreme Court affirmed in a one-sentence opinion that the Communications Decency Act of 1996 does not protect obscene speech, but otherwise, the activities of the anonymous denizens of a Web site at www.annoy.com, a site "created and designed to annoy" legislators by sending them annoying e-mail anonymously, can continue without interruption.

But before toasting the electronic version of the Federalist Papers (which were published under a pseudonym), it is important to consider how dangerously alluring anonymity can be to criminals online and how important it can be to determine digital identities.

On April 15, the FBI arrested Gary Dale Hoke for allegedly fabricating a report about a takeover of Pairgain Technology Inc., in order to manipulate the company's stock price. According to the federal complaint, filed in a Los Angeles federal district court, Mr. Hoke had launched a Web site that looked like a Bloomberg financial news Web site, and had taken steps to preserve his anonymity. But the FBI was able to trace him through Internet protocol addresses saved when he accessed his Web and e-mail services. Mr. Hoke's arrest came only two weeks after the alleged perpetrator of the fast-spreading Melissa virus was apprehended.

So, is anyone truly anonymous online? And should they be, if the police are out to get them?

"There's always going to be a means of using the Internet anonymously, and the most technically sophisticated people are going to know how to do so,"says David L. Sobel, general counsel of the Electronic Privacy Information Center, at www.epic.org. "I think the real issue is whether the average person is going to have the ability to communicate anonymously.... The bottom line is that the average user has no idea what kind of information is being collected and what is being done with it."

Emphasizing that he does not support shielding criminal activity, Mr. Sobel notes the increase in civil actions seeking to unmask anonymous posters on message boards who are criticizing a corporation. One suit, filed by the Raytheon Co. against 21 John Does in Massachusetts state court, is described at www.intelico.com. "We're seeing increased pressure on providers of [Internet] services to build in some kind of tracking mechanisms," says Mr. Sobel, adding that Internet service providers "seem to be collecting more information than subscribers are aware of."

In contested divorces, seeking damaging information online could become commonplace, he says. The investigation of the Melissa virus has already raised questions in Congress about when identifying data can be turned over to law enforcement. Two sets of digital footprints were followed to trace the Melissa virus author.

First, a code attached to Microsoft software may have disclosed the name of the document's author, who was using an America Online account. "My understanding is that America Online then did its own internal checking," says Mr. Sobel, "and found that it had a telephone number that they could tie to the original posting of the [virus-laden] document. My suspicion is that AOL then asked the FBI to issue them a subpoena" because the company does not turn over subscriber information without a subpoena.

Kim McCreery, an AOL spokeswoman, says, "Our legal team contacted New Jersey state authorities as well as the FBI.... There's a lot of information [AOL] can turn over without divulging any private member information. We don't talk about what kind of information we have. It's pure speculation that it was a phone number."

The lawyer for the 30-year-old programmer who allegedly launched Melissa is Edward F. Borden, Jr., a partner at Philadelphia's Saul, Ewing, Remick & Saul L.L.P. "There's little doubt that [the way his client] was focused upon will be a principal point that we're going to challenge," says Mr. Borden. His client, charged in a New Jersey state criminal complaint, has been released on bail.

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This article is reprinted with permission from the May 3, 1999 edition of The National Law Journal. © 1999 NLP IP Company. LawNewsNetwork.com.


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