What To Do When Your Internet Service Provider Tells You Your Information Has Been Subpoenaed
Finding out that someone has issued a subpoena to your internet service provider seeking information about you is scary. But do not despair! This post will give you some information about what this means and what you can do when it happens. You might even be able to “quash” or defeat the subpoena and prevent your internet service provider from giving out your personal information.
What It Means
First, what it means: When your internet service provider — whether it be AT&T, Comcast, or another internet provider — tells you that a subpoena has been issued seeking your personal identifying information, this means that some online activity originating from your IP (“internet protocol”) address is potentially relevant in a lawsuit. (Your IP address is the identifying number your computer uses to access the internet.) Often – but not always – this lawsuit is one for defamation or libel based on comments or reviews made online about a business. Subpoenas to internet providers are also frequently issued in lawsuits for copyright violations stemming from allegedly illegal filesharing.
Before your internet provider gives you this notice, you may have also received a notice of subpoena from a website you have posted on, like Yelp! or Yahoo or another website that provides an online discussion forum. You may have received this notice first because, in order to subpoena your internet provider, the party in the lawsuit first must get your IP address from the website where you posted whatever material is relevant to the lawsuit. Once they know your IP address, they can then subpoena your internet provider to find out the personal identifying information for the account holder who uses that IP address, i.e., who you are, where you live, and other basic information about you that your internet provider has on file.
So those are the legal mechanics of why the subpoena was issued, but why does the party issuing the subpoena need to know your identity in the first place? There are two reasons why they may want to know who you are and how to contact you: (1) The party issuing the subpoena is seeking your personal information so that you can be named as a defendant in the suit and be served with a summons and complaint, i.e., sue you (worst case scenario). Or, (2) the party issuing the subpoena wants you to serve as a witness in the lawsuit, by either providing testimony and/or producing documents or electronically stored information relevant to the lawsuit.
By looking at the subpoena itself, you may be able to get enough information to figure out which of these two situations applies to you.
Initially, you will note that the subpoena gives you the name and contact information for the lawyer who issued the subpoena. DO NOT CONTACT THIS LAWYER OR ANYONE ELSE IN THE LAWYER’S OFFICE. If you do, you will have given away your identity. However, do make a note of which party the lawyer issuing the subpoena represents.
Next, look at who the plaintiff and defendant are. If the plaintiff is a company or individual you have recently written a bad review of on Yelp! or Yahoo or RipoffReports.com or another website, and the lawyer issuing the subpoena represents the plaintiff, chances are the plaintiff is trying to sue you. This is especially likely if the defendant is listed on the subpoena as “Does 1-10″ or something similar — a Doe is an unnamed defendant that the plaintiff can later amend the complaint to add once he or she knows the Doe’s real name.
However, just because you do not recognize the plaintiff’s name, or there is already a defendant or defendants not named “Doe,” does not mean you are not being sued. It’s possible the plaintiff has sued many people by name already, and is seeking to add you as a new defendant in a larger lawsuit.
The subpoena will also give you the name of the court where the lawsuit is filed and the lawsuit’s case number. This information is also very important to figuring out why someone wants to know who you are. By going to that court’s website and clicking on the link for “Civil Register” or “Online Case Information,” you may be able to view the complaint and other documents in the lawsuit. The complaint will tell you the allegations that are the basis of the suit, and thus possibly why the plaintiff (or another party) is looking for you. If the court’s website does not let you view the complaint, you can also try contacting the court clerk to find out how you can view a copy of the complaint in person (assuming the courthouse is near where you live).
What You Can Do
Now that you know all this, what can you do to prevent your internet provider or the website where you posted a review from giving away your personal information or your IP address? Fortunately, you do have rights in this situation. However, you need to move quickly to take advantage of those rights.
Just because a subpoena was issued by a court or a lawyer does not mean it should have been issued or was issued properly. You may have the right to file what is called a “motion to quash” the subpoena in court. If the court grants that motion, then the subpoena is void and your information will remain undisclosed.
There are a variety of legal objections you can raise to quash the subpoena. For example, California law provides that any subpoena issued by a California court regarding an out-of-state lawsuit that arises from an exercise of First Amendment rights – i.e., participating in an online discussion about an issue of public interest – is subject to a motion to quash, unless the plaintiff can show the lawsuit has merit. The subpoena may also seek information that is not relevant to the lawsuit, in which case it may also be quashed. These are by no means the only grounds for filing a motion to quash, however.
In order to file a motion to quash, the most important thing you need to do is CONTACT A LAWYER AS SOON AS POSSIBLE. (We here at CASP may be able to help you, especially if the lawsuit stems from an online review you wrote or you might be accused of writing. Contact us here.) It takes time for a lawyer to determine whether a motion to quash is appropriate in your case; it then takes even more time to prepare the necessary paperwork in support of the motion to quash. A few days before the due date listed on the subpoena for production of the information by your internet provider will not be enough time. Moreover, the longer you wait, the more likely the court will be to consider your motion to quash untimely. Courts do not like to help those who sleep on their rights.
Finally, for more information, check out the Electronic Frontier Foundation’s more in-depth FAQ about subpoenas here. EFF’s discussion is especially relevant if you think your information is being subpoenaed because of any file-sharing activities you may have engaged in through BitTorrent or similar programs.