TECHNOLOGY POLICY, INTERNET PRIVACY, AND THE FEDERAL RULES OF CIVIL PROCEDURE

Technology policy, while perhaps not as high-profile as the war in Iraq or health care, was an important issue in the 2008 presidential campaign. Though technology policy is a broad field that encompasses everything from broadband proliferation to patent reform, the major presidential candidates addressed the necessary balance the government must strike between privacy and other national interests. This was particularly true of candidates who served in the U.S. Senate. In that body, a bill, S. 2248, which proposed retroactive immunity for telecommunications companies who opened up their networks to intelligence agencies in violation of federal privacy law, was introduced during the height of the primary campaign season. Senator John McCain, commenting on that bill, stated that he was "a strong supporter of protecting the privacy of Americans" and, even if retroactive immunity was justified in that particular case, "Congress should include provisions that ensure that Americans' private records will not be dealt with like that again." (1) Similarly, Senator Barack Obama announced that, as president, he would "strengthen privacy protections for the digital age and . . . harness the power of technology to hold government and business accountable for violations of personal privacy." (2) But while the candidates discussed the tension between privacy rights and the war on terror, they said little about how a similar tension between privacy and other governmental objectives should be resolved in the context of civil litigation. This issue has become especially important in recent years, as plaintiffs are increasingly using the civil subpoena process to force anonymous Internet speakers to unveil their identities. Yet neither the Federal Rules of Civil Procedure nor comparable legislation address the issue of when Internet intermediaries must be compelled to provide private information about Internet users to litigants. As a consequence of the statutory silence on this issue, courts have reached widely divergent results, developing at least five different tests to answer this question. Since these tests require different elements or otherwise bear little resemblance to each other, the lack of a uniform national standard for disclosure, and the potential for yet another completely new test, has resulted in substantial confusion, leaving no guidance for litigants, intermediaries, and Internet users to understand what circumstances justify disclosure of otherwise confidential information. This essay will advocate for a technology policy in President Barak Obama's new administration that will provide adequate privacy protection for Internet users in the civil subpoena context. Part I will provide an overview of the First Amendment right to speak anonymously on the Internet. Part II will briefly summarize the different tests various courts have adopted over the past ten years to weigh an Internet user's First Amendment and privacy rights against a litigant's right to use the court system to obtain redress for alleged injuries. Part Ill will outline four guiding principles that technology policy in this area should follow, ultimately arguing that the new administration should request that Congress amend the Federal Rules of Civil Procedure to require that federal courts nationwide apply a "summary judgment plus" test to all instances where a litigant demands an Internet user's identity or other private information as part of the discovery process. I. INTERNET USERS HAVE A FIRST AMENDMENT RIGHT TO SPEAK ANONYMOUSLY ON THE INTERNET The Supreme Court of the United States has held that the right to speak anonymously is protected under the First Amendment of the U.S. Constitution. (3) The Court, in McIntyre v. Ohio Elections Committee, described anonymity as "a shield from the tyranny of the majority" and wrote that anonymity "exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation--and their ideas from suppression. …