Court rules on weighing e-privacy
PHOENIX – Courts must balance First Amendment concerns and competing interests when considering whether to require identification of senders of anonymous e-mails, an Arizona court ruled Tuesday in a case involving the personal life of an executive for a Washington state company.
A Court of Appeals panel ruled that the test for lifting anonymity during pretrial fact-finding in lawsuits needs to go beyond gauging a lawsuit’s strength and whether the sender was able to respond to the attempt to identify the sender.
Without a balancing test of potential hardships, a court would not be able to consider the type of speech involved, the sender’s expectation of privacy, potential consequences to the sender and others and the availability of alternative fact-finding methods, the ruling said.
“Requiring a balancing of competing interests provides an additional safeguard that comports with Arizona’s broad protection given to free speech and individual privacy,” Judge Ann A. Scott Timmer wrote for the majority.
A lawyer for the Electronic Frontier Foundation, a San Francisco-based group that advocates for online privacy, said the Arizona court’s 2-1 ruling largely tracks other recent court decisions in an area of law still being explored across the nation.
“It’s strong on the side of protection,” said EFF staff attorney Corynne McSherry, one of several advocacy group attorneys who had filed a joint friend-of-the-court brief urging the court to adopt a balancing test.
The ruling was issued in a case stemming from an anonymous e-mail sent to managers of Mobilisa Inc., a wireless and mobile communications company based in Port Townsend, Wash.
The June 27, 2005, e-mail contained the contents of an “intimate message” which Mobilisa’s chief executive and founder, Nelson Ludlow, had sent via his company e-mail account on June 21, 2005, to a woman who did not work for Mobilisa but with whom Ludlow had a personal relationship, according to the ruling.
The anonymous e-mail subject line was: “Is this a company you want to work for?”
Mobilisa filed a lawsuit in Washington state against multiple John Does, alleging trespass and communications law violations through illegal or unauthorized access to the company’s computer system and e-mail accounts.
The company then went to court in Arizona to try to force The Suggestion Box Inc., a Scottsdale-based service to send anonymous e-mails, to identify the sender of the June 27, 2005, e-mail.
A Maricopa County Superior Court judge ruled in favor of requiring disclosure, but the appellate court’s ruling sends the case back to the lower court for a judge to consider the balancing test.