The majority of online defamation is posted anonymously or pseudonymously. Thus, many cases require issuing subpoenas—including to internet service providers (ISPs)—to identify the unknown posters.
This process often involves obtaining internet protocol (IP) addresses from an entity, in response to an initial subpoena; determining the ISPs that own the respective IP addresses produced by the subpoenaed entity; and then issuing additional subpoenas to those ISPs.
Subpoena process generally
Individuals looking to attack others on the internet rarely use their real names or email addresses. In most cases, harmed parties cannot immediately identify the online posters with certainty. This is generally the case even if they have suspicions of the posters’ identities.
Therefore, to pursue legal claims against a presently unknown poster, it might be necessary for a defamed party to first issue a subpoena to the relevant website (or its parent company) for documents containing certain identifying information. This generally includes basic contact information and IP addresses – subject, of course, to the information that websites actually require users to provide for account registrations.
Many online posters are naïve in thinking they can post harmful statements online and not be identified. This, of course, includes when they purposely provide fake contact information or create new email accounts, separate from their actual personal accounts, to register with a website.
Through the subpoena process, harmed parties can typically determine the identities of the unknown posters, notwithstanding any information that is withheld or falsified (and barring the unknown parties successfully moving to quash the subpoenas).
For more on this process, including the standard (generally) that an issuing party must satisfy to subpoena an entity to unmask an anonymous online poster, download our “Subpoena Guide for Identifying Anonymous Internet Posters.”
Even if an initial subpoena does not yield information sufficient to identify an unknown poster, such as an actual name or a name discernible from a legitimate email address, there is typically value in any IP addresses a subpoenaed entity produces.
For instance, a subpoena to Google Inc. relating to a Google review might not produce any information that allows the harmed party to immediately ascertain the poster’s identity. However, Google might produce the IP address from which the Google account was registered and related IP logs.
From there, the harmed party can determine the ISPs that own the relevant IP addresses through a search on an IP lookup website. From there, the party can prepare a subpoena to the respective ISPs for documents containing subscriber information.
It is important to note that cable provider ISPs are subject to the Cable Privacy Act, 47 U.S.C. § 551. This statute prohibits entities from releasing any personally identifying subscriber information, absent a court order or subscriber consent.
Thus, a party attempting to subpoena a cable provider ISP for documents containing subscriber information must first file a motion with the relevant court requesting an order permitting the cable company to disclose the requested information.
Subpoenaing an ISP, in general, involves providing the IP address or addresses in question with the particular time and date listed in the initial subpoena production. Many IP addresses are considered “dynamic.” This essentially means the IP addresses that ISPs assign to certain customers change sporadically. Thus, it is critical to provide timestamps.
It is worth noting that many ISPs keep subscriber information relating to IPs for just six or nine months. Some for even less.
Therefore, any party contemplating serving subpoenas should do so sooner rather than later (including being prompt in filing any potentially necessary motion(s) to authorize and ensuring that the court does not sit on the motion(s) for too long).
A valid subpoena to an ISP will often lead to the production of legitimate information that can help a harmed party confirm the identity of its detractor and pursue its claims against that person (including amending the complaint to name the identified party as the defendant or attempting to reach an out-of-court settlement).