How should courts determine whether to expose an anonymous internet speaker's identity? Millions of Americans anonymously use the internet. The overwhelming majority of anonymous users obscure their identity while engaging in political or otherwise protected speech. A substantial minority, however, obfuscate their true identity while defaming others, pirating intellectual property, and otherwise breaking the law to escape liability for their wrongful actions, crying "free speech" when sued. Courts tread a razor-thin line between protecting legitimate exercises of free speech and exposing wrongdoers, as wrongful disclosure chills speech and exposes innocent persons to the very real threat of doxing. Conversely, failure to grant discovery into IP theft in a timely manner imposes significant penalties on the injured party and the economy at large given the huge sums of money bled out over time and practical difficulties associated with actually unmasking bad actors. Currently, courts trend between two tests that overprotect bad acts while underprotecting legitimate speech. Courts should instead adopt a defendant-friendly standard with a presumption in favor of unmasking defendants in IP piracy cases so as to protect legitimate speech while providing a shortcut to unmask wolves in free-speech clothing.
Weeding out Wolves: Protecting Speakers and Punishing Pirates in Unmasking Analyses,
22 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol22/iss1/5