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Company asks judge to throw out anonymous poster ruling

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  1. Protecting Sources and Materials
An Internet service provider in Colorado earlier this month asked a federal court to throw out a magistrate judge’s ruling…

An Internet service provider in Colorado earlier this month asked a federal court to throw out a magistrate judge’s ruling that, the provider says, ignored legal precedent regarding the unveiling of anonymous Internet posters.

Skybeam Inc., a local Internet service provider, filed on July 22 in U.S. District Court in Colorado a motion to vacate a magistrate judge’s order compelling the company to identify two IP addresses in a ruling it says “squarely rejected the consensus approach followed by other courts in evaluating subpoenas to identify anonymous Internet speakers.”

The case arose when fashion company FaçonnableUSA, a high-end clothing brand, sought information about Skybeam customers who allegedly posted critical comments about Façonnable’s on Wikipedia.

Skybeam has refused to identify the customers, arguing the magistrate judge omitted a decade of legal precedent that requires notice to be given to the anonymous poster and for a plaintiff to present evidence of any wrongdoing. The judge instead ruled that Façonnable was entitled to the information once it met a significantly lower standard that only required the company to show that the comments at issue were false and harmful, the Internet provider's lawyers said.

Façonnable and Skybeam’s customers, referred to as John Doe, eventually settled the case, and rendered Skybeam’s objections and its chance for appellate review moot. Skybeam wants the court order thrown out so that it does not set a legal precedent that would govern similar cases in the future.

“Skybeam has been deprived of the opportunity to obtain review of the Magistrate Judge’s order, through no fault of its own,” the lawyers said. “In this case, equity requires that the motion to vacate be granted so that Skybeam and its customers will not face the legal and economic consequences of a ruling that Skybeam firmly believes was erroneous.”

The John Does allegedly posted on Façonnable’s Wikipedia page statements that the company’s owner, the M1 Group, a Lebanese conglomerate, supports Hezbollah, a Shiite Islamist militia and political party in Lebanon designated by the U.S. State Department as a terrorist organization.

Façonnable sued for trade libel/commercial disparagement, and a violation of the Lanham Act and the Colorado Consumer Protection Act in the federal court in Colorado, where the IP address are listed under Skybeam. The fashion company claimed the anonymous posts by Internet users caused “irreparable harm."

Skybeam declined to hand over its customers’ information without a subpoena. Therefore, in conjunction with its suit, Façonnable asked the magistrate judge to order the Internet provider to provide the identifying information.

Magistrate Judge Boyd Boland approved the subpoena, but, in an order on May 24, he admitted to not being aware of “a substantial body of law in other jurisdictions addressing First Amendment concerns and the issuance of John Doe subpoenas like those requested here.” Despite this, he stuck with his ruling and denied Skybeam's motion to quash.

Skybeam then filed objections to the magistrate judge’s order, arguing it violated the First Amendment. U.S. District Judge Christine Arguello in Denver granted a stay on June 2 to protect Skybeam from having to identify the two IP addresses until after she reviews the magistrate order.

Façonnable’s response to Skybeam's objections was due on July 12. However, on July 11, the company settled the case with John Doe.

Skybeam's attorneys argued the Internet provider “has significant institutional interest at stake" in getting the court order thrown out.

“The Magistrate Judge approved a much lower standard for enforcing subpoenas to identify anonymous Internet users than courts elsewhere have adopted, thus endangering the rights of other Skybeam users and, at the same time, putting Skybeam at risk of a competitive disadvantage compared to other ISP’s who can tell prospective users that they can be subpoenaed only in jurisdictions that follow a tighter standard," they said.

Most courts follow the Dendrite rule, from New Jersey appellate court case Dendrite International v. Does 1-14, which sets forth guidelines for courts faced with requests to compel websites to reveal identities of anonymous Internet speakers. This balancing test, which includes five factors, weighs the defendant’s First Amendment right of anonymous free speech against the case presented by the plaintiffs.

The 1950 U.S. Supreme Court case United States v. Munsingwear authorizes a court to vacate a judge’s order below when a case becomes moot during the course of an appeal through no fault of the party seeking to have the judgment vacated, Skybeam's lawyers said.