Online Commenter Did Not Waive Right to Anonymity by Agreeing to News Website’s Privacy Policy — Sedersten v. Taylor

[Post by Venkat]

Sedersten v. Taylor, 2009 U.S. Dist LEXIS 114525 (Case No. 09-3031-CV-S-GAF) (W.D. Mo. Dec. 9. 2009).

A Missouri district judge rejected a plaintiff’s attempt to unmask an online commenter based in part on the argument that language in the website’s privacy policy resulted in a waiver of anonymity.

Plaintiff allegedly suffered injuries at the hands of defendant Taylor. Plaintiff sued Taylor, the City of Springfield, and its chief (the claims against the city and the chief were based on theories of negligent hiring and retention). The Springfield News-Leader published an article about the incident in question and the prosecutor’s decision to drop charges against Taylor. A commenter “bornandraisedhere” criticized the prosecutor’s decision. Plaintiff issued a subpoena to the News-Leader requesting the identity of the commenter.

The court rejected plaintiff’s motion to compel the production of information sufficient to identify “bornandraisedhere.” The court found that the sought after information was cumulative, and the identity of “bornandraisedhere” would add little to plaintiff’s argument (that the city negligently hired Taylor).

Plaintiff argued that “bornandraisedhere” waived any right to anonymity by agreeing to the terms of the News-Leader’s privacy policy, which provided that the News-Leader:

reserve[s] the right to use, and to disclose to third parties, all of the information collected from and about [users] while [users use] the Site in any way and for any purpose . . . .

I haven’t seen the waiver argument come up in online anonymity cases. It came up in oral argument in the Brodie case but the court did not mention this argument in its opinion. (See coverage by Citizen Media here). Courts in other contexts (e.g., employer monitoring, government surveillance, attorney-client privilege) have looked to the operative terms or policies to determine whether there’s an expectation of privacy. (See Jennifer Granick’s discussion of Quon v. Arch Wireless here, Jeff Neuburger’s discussion of Alamar Ranch, LLC v. County of Boise here (imputed knowledge of employer monitoring results in waiver of attorney-client privilege), and PogoWasRight’s discussion of the Oregon case involving gmail/Fourth Amendment notice here.) Here, despite a policy which allowed for disclosure, the court found that there was no waiver. Among other reasons, the court relied on the fact that the provision governing disclosure was buried in a privacy policy which the commenter probably did not read in the first place. The online anonymity cases (which involve the First Amendment right to anonymity) present slightly different issues than the employer and government surveillance cases, but in any event, as Jennifer Granick notes in her post about Arch Wireless, “user consent to access for some purposes [should not destroy] the expectation of privacy for every purpose.”

Kudos to the News-Leader for spending the resources to protect the privacy of “bornandraisedhere,” notwithstanding the News-Leader’s extremely open-ended privacy policy. (Websites typically retain the right to disclose personal information in response to subpoenas or law enforcement requests, but the News-Leader’s policy allows it to disclose personal information “in any way and for any purpose.”)

Related: The Supreme Court today accepted review of the Arch Wireless case, which involved a public employee’s privacy rights in text messages. (See coverage by the LA Times here.) Also, the EFF is pursuing a claim for attorney’s fees (under a California statute) against a company who is trying to out an anonymous commenter: “USA Technologies Attempts to Out Anonymous Online Critics, Runs Into New California Fee Statute.”