A Doe subpoena is a subpoena that seeks the identity of an unknown defendant to a lawsuit. Most jurisdictions permit a plaintiff who does not yet know a defendant's identity to file suit against John Doe and then use the tools of the discovery process to seek the defendant's true name. A Doe subpoena is often served on an online service provider or ISP for the purpose of identifying the author of an anonymous post.
Legal process
Unmasking an anonymous online poster is a two-step process. First, the plaintiff must issue a subpoena to the hosting website requesting the IP address of the poster. Most websites collect and temporarily store the IP addresses of visitors in a web server log, although no U.S. law requires that they retain this information for any particular length of time.
If the website provides the poster's IP address, the plaintiff must then subpoena the ISP that owns the address. This second subpoena requests the contact information associated with the account of the computer to which the IP address was assigned at the time the post was made.
Courts do not require the target of a subpoena to provide notice to the person whose identity is sought. The hosting website is unlikely to notify the defendant, as it generally will not have access to contact information; subpoenas for IP addresses are therefore seldom subjected to legal challenge. The ISP, however, may be required by law to notify its subscriber before revealing any personally identifiable information in connection with a subpoena.
A defendant who does receive notice may file a motion to quash, which asks the court to block the subpoena and prevent the ISP from complying. ISPs may also challenge Doe subpoenas on their customers' behalf, but they are not required to do so.
Legal standards
No uniform standard exists in the United States for determining the circumstances under which an anonymous online speaker may be unmasked. The federal and state courts that have considered the issue have applied a variety of tests.
Summary judgment standard
This standard requires an ISP to divulge the identity of an anonymous poster if the plaintiff's case would be able to withstand a motion for summary judgment. This means that the plaintiff must "make a sufficient showing on [every] essential element of its case with respect to which it has the burden of proof."
The lead case applying the summary judgment standard is Doe v. Cahill, in which a city council member sued an anonymous poster for two allegedly defamatory blog comments. The Delaware Supreme Court held that the plaintiff had failed to demonstrate that the comments were "capable of a defamatory meaning," an essential element of any defamation claim. As a result, the plaintiff was not entitled to discovery of the Doe defendant's identity.
Other courts have applied a "prima facie showing" test, which functions like the summary judgment test but avoids the "potentially confusing" attachment of a procedural label, since the standards governing such motions may differ depending on the jurisdiction. In Krinsky v. Doe 6, the California Court of Appeals applied the prima facie showing test in the libel context, holding that "[w]here it is clear to the court that discovery of the defendant's identity is necessary to pursue the plaintiff's claim, the court may refuse to quash a third-party subpoena if the plaintiff succeeds in setting forth evidence that a libelous statement has been made."
The prima facie standard was also favored by a New York state district court in Sony Music Entertainment Inc. v. Does. The court first found that the Doe defendants, who had used a peer-to-peer network to download copyrighted music files, warranted a lesser degree of First Amendment protection than speakers who engaged in "true expression" intended "to communicate a thought or convey an idea." It then held that disclosure of the Doe defendants' identities was warranted based on a consideration of: (1) the plaintiff's ability to establish a prima facie claim; (2) the specificity of the plaintiff's discovery request; (3) the availability of alternative means to obtain the subpoenaed information; (4) the central need for discovery to advance the plaintiff's claim; and (5) the defendants' expectation of privacy.
Summary judgment standard followed by balancing
This test provides a higher level of protection to anonymous online speakers, in that it requires a court to first apply the summary judgment standard of Doe v. Cahill and then, if the plaintiff is able to meet its burden, to balance the strength of the plaintiff's prima facie case against the poster's interest in remaining anonymous.