• by Wendy Davis , Staff Writer @wendyndavis, January 17, 2012

In a move that defies logic -- not to mention due process -- a federal magistrate in the District of Columbia has ruled that people accused of copyright infringement, and who want to oppose unmasking orders, can only do so by placing their names in the public court docket.

The ruling came in one of numerous “reverse class-action” lawsuits throughout the country filed against Web users by porn company Hard Drive Productions. The company typically compiles a list of hundreds of IP addresses of suspected file-sharers, and then seeks court orders requiring Internet service providers to provide the names of subscribers tied to those IP addresses.

In the Washington, D.C. matter, Hard Drive filed suit in September against around 1,400 anonymous Web users, and then sought to subpoena the users' names from their Internet service providers. U.S. District Court Judge John Bates ruled in November that anyone who objected could file an anonymous motion to quash.

But a different judge, U.S. Magistrate John Facciola, recently decided that Bates shouldn't have allowed anonymous motions opposing the subpoenas. “No one will be permitted to proceed any further in this case without identifying himself or herself,” Facciola said in a written decision quietly issued late last year. “Individuals who subscribe to the internet through ISPs simply have no expectation of privacy in their subscriber information.” 

The users' choices, therefore, are to withdraw their motions -- in which case they might well be unmasked -- or to place their names on the record, effectively unmasking themselves.

Judges throughout the country have ruled on motions to quash subpoenas in copyright cases, with varying results. But no other judges appear to have issued a blanket prohibition banning people from filing motions anonymously. 

Facciola himself acknowledges the impossible situation he has created, yet appears unconcerned by it. “Those persons who have already filed motions to quash have a choice to make,” he wrote. “If they wish to have this court consider those motions, their motions will be filed on the public docket. That means, of course, that plaintiff and any one else who accesses the docket will know who they are. If, on the other hand, they would prefer not to have their identities disclosed at this point (because their names are on the motions to quash), they will have to withdraw their motions.”

Aside from the practical effect of Facciola's ruling, the decision is puzzling procedurally because it directly contradicts a ruling by Bates, who still presides over the case. The users are expected to appeal Facciola's decision to Bates -- and a host of digital rights groups, including Public Citizen, anticipate filing a friend-of-the-court brief in the case, says Paul Levy, an attorney with the organization.

Meanwhile, legal experts are weighing in on the troubling decision. “Typically, consistent with due process (and common sense), IP address owners responding to a disclosure subpoena have the right to preserve their anonymity while a judge reviews the propriety of the class action and the corresponding subpoena,” writes attorney Elliott Alderman on Eric Goldman's technology and marketing blog. “Without the protection of anonymity, a motion to quash a disclosure subpoena is rendered moot, since disclosure of personal information on a public docket reveals the name and address information sought by the subpoena.”

Adds Goldman: “By creating a no-recourse situation for anonymous/pseudonymous defendants, the court has stripped them of essential due process rights.”