(Or How I Learned to Stop Worrying and Love the Net)
by Robert J. Stoney
Feb 22, 2005
[Reprinted from the Fairfax Bar Journal]
It was raining, raining hard, when the call came. My assignment – identify and stop the guy who was posting false information about my client in an e-mail chat room. My client, you see, is a publicly traded company and all this talk was depressing its stock value. Big trouble when options are involved.
They don't teach this stuff in law school and I didn't have a clue how to begin. In my "cyber-lite" world, a cookie is something that you bite and a byte is something you do to a cookie.
The bad guy didn't have the decency to sign his real name, but went by the nom-de-guerre of "Ali Babba." This is the story of how Ali Babba was unmasked.
I instinctively knew that I needed a subpoena and I needed one quick. The chat room was located on the Yabba Dabba Doo! internet service and it seemed likely that Yabba Dabba Doo! would have identifying information. This was borne out by several disclaimers in Yabba Dabba Doo!'s published "Privacy Protection Policy," which noted that it would spare no expense or effort to protect its customer's identity. Unless, of course, it decided not to. I figured that Yabba Dabba Doo! would not go to all the trouble of making a privacy protection policy if it didn't have something private to protect.
To get a subpoena, I needed a lawsuit. To get a lawsuit, I needed a defendant. To get a defendant, I needed a name. To get a name, I needed a subpoena. I think they wrote a book about this catch.
Some states allow you to sue "John Doe." Not the Commonwealth of Virginia. So I sued Ali Babba qua "Ali Babba.” Technically, it was not a John Doe action, as I was suing an actual [virtual] person. Moreover, I was candid in my papers to the Court as to what I was doing and why. When you venture into uncharted territory, it is wise to keep the border patrol informed of your intentions.
The next step was to issue a subpoena to Yabba Dabba Doo!, which is a California outfit. California, it turns out, does not recognize the uniform foreign deposition act. According to a hurried review of the California Code, to get the Superior Court to issue a subpoena in a foreign lawsuit, it needs to be presented with "letters rogatory" from the foreign court.
Letters rogatory: "A written request from one sovereign to another seeking a personal favor." ["Sire, I come with letters rogatory from the King of Prussia"]. Actually the California Code allows the more prosaic "commission," but this was probably my only chance to have letters rogatory issued and I wasn't about to let it slip by. I hadn't been this excited since I first craved oyer.
I have never seen letters rogatory. I have never spoken with anyone who has ever seen letters rogatory. So I asked myself, "In what manner would the King of England ask the Superior Court of California to issue a subpoena"? and drafted it thus.
But how to get the Fairfax Circuit Court to issue the letters rogatory? I couldn't make a motion, for to do so, I would have to give notice to Ali Babba. To give notice to Ali Babba I would have to know his address. To get his address, I would have to know his name. To get his name, I needed a subpoena. To get the subpoena . . . get the point?
Luckily, there is a place for quirky motions, ex parte communications, and bizarre fact patterns. That place, of course, is calendar control. Armed with my self-fashioned letters rogatory, I successfully petitioned our sovereign on bended knee on the fourth floor of the Barnard F. Jennings Courthouse.
I now had letters rogatory. The next step was to use the letters to file a miscellaneous action in California to provide a vehicle for a subpoena on Yabba Dabba Doo!. For this, I found local counsel.
With trembling hands, I ripped open the package from the legal department at Yabba Dabba Doo! twenty days later. I expected pages of zeros and ones and long strings of cartoon curse words. Instead, I got two neatly typed pages of helpful information on Ali Babba, including his name, internet provider address, home city, state, birthday, sex, occupation, alternative e-mail addresses and details about his Yabba Dabba Doo! account. Case closed – or was it?
The cover page from Yabba Dabba Doo!s legal department contained the following disclaimer: "We do not require subscribers to provide proper names, sex, occupation or other information. And we don't verify it either." A closer look revealed certain, er, inconsistencies in the information provided. I mean, how likely is it that a middle-aged white male executive, living in Akron, Ohio, would be named "Bubbles LaVerne?"
More cyber-sleuthing was in order, but the noose was tightening. The Yabba Dabba Doo! documents did contain valuable hints and the key to unlocking his identity turned out to be one of his alternative e-mail addresses: "email@example.com." Typing “www.jonesco.com” took me to an Akron, Ohio-based company's homepage. One of the hyper-links within the homepage was a site helpfully entitled "Who We Are." And listed among the principals of Jonesco, was our man -- Robert J. Smith.
A quick jaunt to http://www.theultimates.com/white, and sites accessible from there provided Mr. Smith's home address, phone number, three additional e-mail addresses, a list of his neighbors, the assessed value and a map to his home.
The rest, as they say, is history. Unmasked, Mr. Smith stopped his covert campaign to defame my client. Because Virginia lacked personal jurisdiction over Smith, the case moved to Ohio and life here returned to normal.
And you thought that the only thing on the web was porn ...