The Electronic Frontier Foundation is waging a constitutional challenge against an Illinois politician seeking to unmask an anonymous MySpace user accused of creating impostor profiles and posting defamatory material on them.
Cicero, Illinois, Town President Larry Dominick filed a discovery petition (PDF) last month after finding two profiles on the social networking site that claimed to belong to him. Dominick's legal document, which was filed on taxpayers' dime, claimed the profiles constituted defamation and an invasion of privacy, but stopped short of providing any evidence to support the allegations. It went on to demand that MySpace turn over the IP addresses of the people who created the accounts.
According to a friend-of-the-court brief (PDF) the EFF filed Wednesday, First Amendment guarantees of freedom of speech permit internet users to anonymously voice their opinions. Court orders forcing parties to reveal the identity of such people can only be issued after a plaintiff has demonstrated a viable legal claim.
"The Town President of the Town of Cicero has asked this Court to approve of an illegal and unconstitutional discovery request expressly aimed at exposing anonymous speakers who posted information to MySpace," the brief argues. "This court should decline to do so. While Petitioner may ultimately be able to meet the requirements imposed by the First Amendment and the Stored Communications Act, he has not done so with the Petition currently before the Court."
The Stored Communications Act, the EFF said, prohibits government entities from obtaining customer information through normal civil lawsuits.
Dan Proft, a spokesman for the town of Cicero, disagreed that Dominick's petition is unconstitutional or violates the Stored Communications Act. And he said he had no doubt the MySpace posts were actionable, even by a public official who faces a high bar in pursuing such claims.
"We're aware of what the burden is to prove defamation against a public official and some of the information that was posted meets the burden," he said. "We are attempting to elicit information from MySpace that would lead us to the offending party so we can zero in on the offending party."
But he refused to discuss in even general terms how the posts invaded Dominick's privacy or defamed him. "Trust us," he seemed to be saying.
The EFF's action comes three weeks after federal prosecutors in Los Angeles indicted a 49-year-old Missouri woman for using a fake MySpace account to befriend, and then reject, a 13-year-old girl. After the girl committed suicide, prosecutors charged Lori Drew with conspiracy and hacking for violating MySpace terms of service that, among other things, forbid the creation of fictitious accounts. Legal experts, including some from the EFF, have roundly criticized the action. ®