Court Orders ISP to ID Party Responsible in Email Fraud Case

Rhett Pardon
PORTLAND, Maine — In a legal groundbreaking case, Maine’s highest court ordered last week that an Internet service provider must disclose identifying information about a subscriber who is alleged to have misappropriated the identity of an account holder.

In the decision, the Maine Supreme Court upheld a lower court determination that a victim of forged email has the right to unmask the identity and sue the person responsible for sending a derogatory message to his neighbors.

The ruling is important because it is the first time a court has made a definitive ruling on “electronic harassment.”

A lower court ruled last May that Time Warner Cable must furnish information relating to the identity of the person who established an email account using the name Ronald Fitch.

The email was a bogus Christmas card that included a cartoon satirizing a dispute between Fitch and his neighbors. The card included offensive caricatures of his family, Fitch said.

The email was sent on Dec. 24, 2003, to the board of directors of the gated community where Fitch resides.

Fitch filed a “John or Jane Doe” suit, alleging fraud, intentional infliction of emotional distress, criminal simulation and identity theft.

The lawyer for Doe appealed the decision to the state high court contesting the lower court's finding that Doe had authorized Time Warner to release his or her identity to a court, arguing that no criminal activity has been shown.

But Justice Howard H. Dana rejected the rationale relied upon by the lower court — that Doe consented to disclosure when he accepted the company's subscriber privacy policy — and instead found that the "plain language" of the federal Cable Act "allows a cable operator to disclose subscriber information when ordered to do so by a court."

Section 551(c)(2)(B) of the Act allows the release of personally identifiable information "made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed."

Time Warner responded to the lower court's order by submitting to the court a sealed envelope containing the information it had about Doe.

Doe argued that the court should apply stricter requirements of the Act that prohibit government entities from obtaining personally identifiable information without clear and convincing evidence of criminal activity.

But Maine justices said those requirements apply only to governmental bodies, not to individuals like Fitch.

The court rejected Fitch's argument that Doe had consented to disclosure, finding Fitch failed to produce a consent agreement, or any evidence, affidavits, or testimony establishing the authenticity of his arguments relating to the agreement Time Warner requires its subscribers to accept.

Justices also bypassed Doe's opposition to disclosure on First Amendment grounds, ruling that Doe had never raised the argument at the trial court level.

The case is Fitch vs. Doe, No. Cum-04-295.