• by Wendy Davis  @wendyndavis, February 4, 2011

In the latest case aimed at unmasking Web users, a company that repairs turbine generators is asking a judge to order Google to disclose the identity of the author of a gossip blog. Mechanical Dynamics & Analysis, which has offices in St. Louis, alleges in court papers filed Thursday that the Sound Off blog defames current and former officers and also reveals company secrets. The court papers, filed with the U.S. District Court in the Eastern District of Missouri, seek "pre-case discovery" from Google.

The blog posts commentary on company executives and purports to reveal their salaries. One post says that a former executive "was the focus of a settled lawsuit and may have been at the centers of fears of another suit that did not materialize."

Another post reports that a former executive gleaned $4 million from the sale of the company. Yet a third says that one company officer "has two faces" -- one "charming and cordial" and another "of a low-life crooked bastard."

Mechanical Dynamics alleges that before filing suit, it unsuccessfully asked Google to remove the blog. An attorney for Mechanical Dynamics refused to answer questions about the case.

While others -- like model Liskula Cohen -- who have found themselves on the receiving end of unflattering blog posts have gone to court to unmask the authors, Mechanical Design's complaint strikes some observers as problematic for several reasons.

First, the complaint appears to be procedurally deficient, says Paul Levy, an attorney with Public Citizen. (Public Citizen represents MediaPost in an unrelated matter.) Mechanical Design is attempting to use the rare "pre-case discovery" procedure to compel Google to turn over information before there's an actual lawsuit. But federal courts are only allowed to order pre-case discovery in extremely limited circumstances, Levy says. He adds that the more appropriate course of action would be for a company to file a lawsuit against anonymous "John Doe" bloggers and then seek to learn their identities.

Matt Zimmerman, an attorney with the digital rights group Electronic Frontier Foundation, adds that using pre-case discovery to obtain information is especially troubling in this situation because it appears that "litigants are using the courts as their own private investigator."

In addition, Levy says the U.S. District Court lacks jurisdiction over the matter because defamation cases can only be brought in federal court when the plaintiffs and defendants live in different states. Because the Web users who authored the Mechanical Design posts are anonymous, the company can't allege that the parties reside in different states, Levy says.

A separate potential problem for Mechanical Design is that the posts all carry the date of 2006. If they actually went live then, a defamation lawsuit against the author and commenters likely would be barred by Missouri's statute of limitations, says Levy. It wasn't immediately clear on Friday whether the 2006 date was accurate or if the blog's author had back-dated the posts. A profile page for the creator of the blog, Florky49, said the user had been on Blogger since February 2008.

In addition, Mechanical Design alleges that the blog posts contained confidential information about company executives, but the company repeated those posts in its court papers -- which are now part of the public record. Therefore, even if Mechanical Dynamics ultimately succeeds in getting the blog taken down, the alleged compensation information and other material will remain public.

"This is a situation where the 'Streisand Effect' is going to kick in," Levy predicts. "They're going to bring more attention to this situation, and it's hard to see any likelihood that they're going to get anything." The term Streisand Effect, coined by blogger Mike Masnick, stems from a lawsuit by Barbra Streisand to remove a photo of her house from the Web; the litigation drew far more attention to the photo than if she had ignored it.