8/14/2019 EFF: EFF bootcamp anonymity

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ELECTRONIC FRONTIER FOUNDATIONProtecting Rights and Defending Freedom on the Electronic Frontier

4 5 4 S H O T W E L L S T R E E T, S A N F R A N C I S C O , C A , U S A 4 1 5 . 4 3 6 . 9 3 3 3 W W W . E F F. O R G

Tom Moore, The Moore Law Group

EFF Staf Attorney Matt Zimmerman

Aoyty ad Otr Cvl SupoasT h i n g S T O R e m e m b e R

#1: Udrstad Your Prvacy Polcy ad Trs of Srvc. Your policies can strongly protect yourinterests or your users’ interests, but there’s requently tension between the two. Policies that strongly weighin your avor may permit you to disclose personal inormation with ewer restrictions but may not impressyour users. On the other hand, policies that grant strong protections to your users may limit your ability tovoluntarily turn over inormation and even legally obligate you to fght or their privacy.

#2: Proptly notfy t Tart of a Supoa. Develop procedures to promptly notiy the target o subpoena that a litigant is attempting to discover her identity. Tis not only allows the target to consider herown options, it is legally required in some instances.

#3: Do’t b Afrad to Oppos a Supoa. Courts don’t ordinarily review the substance o a subpoenabeore it issues, and procedures are in place to slow down the process i you think that the subpoena goes tooar. Follow the opposition procedures laid out in the subpoena, and the burden will then shit to the issuingparty to pursue the matter urther. In many cases, the matter will end there.

#4: “A Supoa Fro Where? ” Subpoenas are only valid rom courts that have proper jurisdiction overyou. I you received a subpoena rom a court in another state where you don’t do substantial business, you may

not be obligated to respond. Check with your lawyer to be sure.

#5: Protct Usr Aoyty: Factors Courts Consider. While not universal, courts increasingly weighthe ollowing actors when deciding whether to enorce a subpoena seeking identiying inormation about a siteuser or customer.

(1) Whether the litigant has shown that she has viable claims;

(2) Te specifcity o the material sought in the subpoena;

(3) Te existence o alternative means o getting that inormation;

(4) Whether the litigant has attempted to notiy the anonymous target o the subpoena;

(5) Te magnitude o the litigant’s need or the inormation.

Legitimate questions about any o these actors will give you a good basis to challenge a subpoena seekingidentiying inormation about your users.

#6: Kp T Ls Of Coucato Op. Just because a subpoena asks or inormation by a certaindate doesn’t mean that that can’t change. I you’re unclear as to what a litigant is looking or, or think that thesubpoena is overreaching, consider giving the attorney who issued the subpoena a call. It’s not uncommon ordeadlines to be pushed back or the scope o targeted inormation to narrow i you have a good reason.