No uniform standard exists in the United States for determining the circumstances under which an anonymous online speaker may be unmasked. The federal and state courts that have considered the issue have applied a variety of tests.
Summary judgment standard This standard requires an ISP to divulge the identity of an anonymous poster if the plaintiff's case would be able to withstand a motion for
summary judgment. This means that the plaintiff must "make a sufficient showing on [every] essential element of its case with respect to which it has the burden of proof." The lead case applying the summary judgment standard is
Doe v. Cahill, in which a city council member sued an anonymous poster for two allegedly
defamatory blog comments. The
Delaware Supreme Court held that the plaintiff had failed to demonstrate that the comments were "capable of a defamatory meaning," an essential element of any defamation claim. As a result, the plaintiff was not entitled to discovery of the Doe defendant's identity. Other courts have applied a "
prima facie showing" test, which functions like the summary judgment test but avoids the "potentially confusing" attachment of a procedural label, since the standards governing such motions may differ depending on the
jurisdiction. In
Krinsky v. Doe 6, the
California Court of Appeals applied the prima facie showing test in the
libel context, holding that "[w]here it is clear to the court that discovery of the defendant's identity is necessary to pursue the plaintiff's claim, the court may refuse to quash a third-party subpoena if the plaintiff succeeds in setting forth evidence that a libelous statement has been made." The prima facie standard was also favored by a
New York state district court in
Sony Music Entertainment Inc. v. Does. The court first found that the Doe defendants, who had used a
peer-to-peer network to download
copyrighted music files, warranted a lesser degree of
First Amendment protection than speakers who engaged in "true expression" intended "to communicate a thought or convey an idea." It then held that disclosure of the Doe defendants' identities was warranted based on a consideration of: (1) the plaintiff's ability to establish a prima facie claim; (2) the specificity of the plaintiff's discovery request; (3) the availability of alternative means to obtain the subpoenaed information; (4) the central need for discovery to advance the plaintiff's claim; and (5) the defendants' expectation of
privacy.
Summary judgment standard followed by balancing This test provides a higher level of protection to anonymous online speakers, in that it requires a court to first apply the summary judgment standard of
Doe v. Cahill and then, if the plaintiff is able to meet its burden, to balance the strength of the plaintiff's prima facie case against the poster's interest in remaining anonymous. A
New Jersey appellate court applied this hybrid test in
Dendrite International, Inc. v. Doe No. 3. The court set forth five guidelines for judges to follow in deciding whether to compel disclosure of an anonymous poster's identity: (1) the plaintiff must make good faith efforts to notify the poster and give the poster a reasonable opportunity to respond; (2) the plaintiff must specifically identify the poster's allegedly actionable statements; (3) the complaint must set forth a prima facie
cause of action; (4) the plaintiff must support each element of the claim with sufficient evidence; and (5) "the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed." The so-called
Dendrite standard was adopted by the
Arizona Supreme Court in
Mobilisa, Inc. v. Doe, and most recently, by
Maryland's highest court in
Independent Newspapers v. Brodie. After reviewing the treatment of anonymous online speech by other state and federal courts, the Maryland court concluded that "a test requiring notice and opportunity to be heard, coupled with a showing of a prima facie case and the application of a balancing test—such as the standard set forth in
Dendrite—most appropriately balances a speaker's constitutional right to anonymous Internet speech with a plaintiff's right to seek judicial redress from defamatory remarks."
Motion to dismiss standard Some early cases required plaintiffs to demonstrate that their cause of action could withstand a
motion to dismiss. This standard holds plaintiffs to a much lower evidentiary burden than the summary judgment standard, as it only requires the allegation of facts that, if true, would entitle the plaintiff to a
legal remedy. A
California district court applied this standard in one of the first cases to consider the discovery of an anonymous online speaker's identity,
Columbia Insurance Co. v. Seescandy.com. The court analogized the motion to dismiss standard to the requirement in a criminal investigation that the government show
probable cause before obtaining a
warrant, in that both prerequisites were necessary to "prevent abuse." The court concluded that an anonymous poster could only be unmasked if the plaintiff made "some showing that an act giving rise to civil liability actually occurred and that the discovery [was] aimed at revealing specific identifying features of the person or entity who committed that act." Inconsistent with a motion to dismiss standard, the court also relied on evidence of actual confusion in finding a basis for allowing discovery to identify the anonymous speaker.
Good faith standard Under a good faith standard, plaintiffs are simply required to show that their claim is made in
good faith and not with the intent to harass the Doe defendant. In an early case, the
Circuit Court of
Virginia applied this standard in
In re Subpoena Duces Tecum to America Online, holding that a court may compel an ISP to reveal a subscriber's identity if it finds "that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction" and that "the identity information is centrally needed to advance that claim." In
Doe v. 2themart.com Inc., the U.S. District Court for the Western District of Washington required showing of good faith, as well as the compelling need for the discovery of the identifying information. Courts and commentators have subsequently deemed this standard the "most deferential to plaintiffs," as "it offers no practical, reliable way to determine the plaintiff's good faith and leaves the speaker with little protection." ==Statutory limitations to obtaining IP addresses==