Our firm loves unmasking annonymous online accounts. Whether someone has anonymously uploaded your intimate image online, is using a text app or burner number to harass you, or is e-mailing defamatory statements about you to third parties, we will likely be able to help. The attorneys at Daniel Szalkiewicz & Associates, P.C. relish in identifying people who hide behind the anonymous curtain of the internet to hurt our clients. Initiating a lawsuit against someone should never be taken lightly and can have serious consequences for the person you are suing. That is why you should be absolutely certain that the defendant you are naming is the one responsible for hurting you. Though every situation is different, broadly, we use two strategies to identify anonymous speakers: pre-action discovery and subpoenas.

Identifying Anonymous Speakers Using Pre-Action Discovery

In New York, we use CPLR § 3102 to identify your defendant. Bringing a petition for pre-action discovery allows you to sue companies like Google or Facebook for information about the person who is hurting you online. CPLR §3102 provides that:

Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order.

To avail oneself of pre-action discovery, it is generally required that a petitioner demonstrate that he or she has a meritorious cause of action. In coming to such a determination, a court must consider the evidence presented by the petitioner in the light most favorable to them and give them every benefit of the doubt. Courts are protective of this method of discovery as it issei's ripe for abuse. A petition for pre-action discovery should not be used to make a case or as a fishing expedition, it should only be used when you have a cause of action but need to know the true identity of your future defendant. This is a predicament that our clients often find themselves in when people undertake anonymous means to harass or defame them.

As mentioned above, our firm uses petitions for pre-action discovery to sue interactive computer services like Google, Instagram, Twitter, or Yahoo for information. Because of the Communications Decency Act, we are limited in the type of information we are able to obtain from them. 18 U.S.C. § 2702 provides the following language relating to the voluntary disclosure of customer communications or records:

(a)Prohibitions.—Except as provided in subsection (b) or (c)—

(1)a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and

(2)a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service—(A)on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service;(B)solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing; and

(3)a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any government entity.

What this means for you is that we cannot use a petition for pre-action discovery to gain access to a defendant’s e-mails, text messages, or other private communications without their permission or consent. Accordingly, we seek all non-content information from interactive computer services such as:

• Account holder’s name;

• Account holder’s address;

• Account holder’s telephone number;

• Status of account;

• Detailed billing logs;

• Date account opened and closed;

• Method of payment and detailed billing records;

• Registration information (such as birthdates, authentication details);

• Complete Internet Protocol (IP) addresses for each log in and log off;

• Media Access Control (MAC);

• Complete internet connection logs; and

• E-mail address of the person who created the account and any recovery e-mail accounts associated with the account.

If the information we receive is enough to confidently identify the speaker, our firm then drafts a summons and complaint for filing naming him or her as defendant. If the person has taken additional steps to mask their true identity such as providing a fake name or using an unknown e-mail address to register the account, further subpoenas may be necessary. Our firm frequently issues subsequent subpoenas to determine the true identity of our clients’ harassers. Often these subpoenas are issued to cable companies seeking the account information for the IP addresses used by the person to create and/or access the account, to cable companies for information related to phone numbers associated with the account, or to e-mail providers like Gmail, Yahoo, or Microsoft for information about the e-mail addresses associated with the account.

Identifying Anonymous Speakers Using Subpoenas

Similar to how our firm seeks pre-action discovery from social media companies and e-mail providers, we often serve subpoenas on them. New York allows an attorney of record for a party to an action to issue a subpoena, but some companies - usually cable companies - require that subpoenas be “so ordered” by a judge. Generally speaking, there are two types of subpoenas: a subpoena duces tecum and and a subpoena ad testifcandum. A subpoena duces tecum is a document which requires a witness to produce documents pertinent to a proceeding. A subpoena ad testificandum is a document which compels a person to appear in court. Both types of subpoenas are useful in cases such as these. Subpoenas that call for the production of documents, of course, are helpful in confirming the defendant’s responsibility for the harm that was caused to you. Subpoenas that call for a person to appear in court can be helpful to assist in explaining to a judge or jury the complicated technological concepts and practices that were undertaken to identify your defendant.

Our firm loves finding creative solutions for our clients’ problems.