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America Online, Inc. Civil Subpoena Policy

AOLís Terms of Service provide that AOL will release account information or information sufficient to identify a member "only to comply with valid legal process such as a search warrant, subpoena or court order . . ." Thus, if you seek such identity or account information in connection with a civil legal matter, you must serve AOL with a valid subpoena.

AOL is headquartered in Loudoun County, Virginia and subject to the jurisdiction of Loudoun County Circuit Court and the United States District Court for the Eastern District of Virginia. For applicable requirements governing the issuance of subpoenas in these jurisdictions, please consult Va. Code Ann. ß 8.01-411, Va. Code Ann.ß 8.01-407.1 and Virginia Supreme Court Rule 4:9(c) and/or Rule 45 of the Federal Rules of Civil Procedure.

Upon receipt of a valid subpoena, it is AOLís policy to promptly notify the Member(s) whose information is sought. In non-emergency circumstances, AOL will not produce the subpoenaed Member identity information until approximately two weeks after receipt of the subpoena, so that the Member whose information is sought will have adequate opportunity to move to quash the subpoena in court.† AOL invoices for costs associated with subpoena compliance. We charge $75.00 per hour for research, $14.00 per Federal Express and 25 cents per copy.† Subpoenas should be directed to:

AOL Custodian of Records
22000 AOL Way
Dulles, VA, 20166

Please be advised that the Electronic Communications Privacy Act; 18 U.S.C. ß2701 et seq., prohibits an electronic communications service provider from producing the contents of electronic communications, even pursuant to subpoena or court order, except in limited circumstances. Further, AOLís e-mail system retains e-mail for a period of only approximately two days after the e-mail has been read. After that time, the e-mail is automatically deleted. Unread and sent e-mail is preserved on our system for approximately 27 days. If a member deletes any e-mail, that e-mail is automatically deleted after 24 hours from the AOL systems.† Finally, AOL does not retain the contents of chat room or instant message communications, nor does it store information about member Internet usage or websites visited.

Finally, it is AOLís policy to release information sufficient to identify an AOL member only where the party seeking the information has filed a legal action that implicates the AOL member in some legally cognizable impropriety or wrongdoing. AOL requests a copy of the complaint and any supporting documentation to indicate how the AOL e-mail address is related to the pending litigation.

To contact AOL Legal, please e-mail us at Legaldpt@aol.com

Relevant Case Law

  1. In re Subpoena Duces Tecum to America Online, Inc (IPA v. May, No. 107CL00022399-00 (Va. Cir. Ct. Dec. 6, 1999) (protective order granted excusing AOL from compliance with subpoena due to plaintiff's failure to provide court with mandate, writ, or commission from court in which underlying action was pending).

  2. Melvin v. Doe, 1999 WL 551335 (Va. Cir. Ct. June 24, 1999) (no jurisdiction in Virginia courts over defamation action against anonymous speaker where only alleged basis for jurisdiction was AOL's presence in Virginia; quashing subpoena issued in connection with such action); (Pa. Ct. of Common Pleas Nov. 15, 2000) ("A plaintiff should not be able to use the rules of discovery to obtain the identity of an anonymous publisher simply by filing a complaint that may, on its face, be without merit.").

  3. In re Texaco Inc., Law No. 23163 (Va. Cir. Ct. Mar. 14, 2000) ("[A] Virginia Court does not acquire jurisdiction merely because an actionable email passed through AOL's facilities in Loudoun County, Virginia.") (use of Va. Sup. Ct. R. 4:2 to obtain discovery inappropriate).

  4. In re Subpoena Duces Tecum to America Online, Inc. (Anonymous Publicly Traded Co. v. Does), Misc. Law No. 40570 (Va. Cir. Ct. 2000) ("[A] court should only order a non-party, Internet service provider to provide information concerning the identity of a subscriber (1) when the court is satisfied by the pleadings or evidence supplied to that court (2) 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 where suit was filed and (3) the subpoenaed identity information is centrally needed to advance that claim."), reversed in part, America Online, Inc. v. Anonymous Publicly Traded Co., No. 000974 (Va. 2001) (holding comity inappropriately granted to Indiana court's decision to permit plaintiff to proceed anonymously where no hearing held or evidence received and where order was granted after nonadversarial, ex-parte proceeding with no reasons for decision given).

  5. Dendrite International, Inc. v. John Doe No. 3, No. A-2774-00T3 (N.J. Super. Ct. App. Div. July 11, 2001) (plaintiff must "identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech," "set forth a prima facie cause of action against the fictitiously-named anonymous defendants," and "produce sufficient evidence supporting each element of its cause of action, on a prima facie basis"; court must then "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").

  6. Global Telemedia Int'l. Inc., et al. v. Does, No. 00-1155 DOC (EEx) (C.D. Cal Feb. 23, 2001) (granting Does' motion to dismiss where court found that message board postings contained opinions rather than actionable facts).

  7. Doe v. 2TheMart.Com, Inc. , No. C01-453Z (W.D. Wash. Apr. 26, 2001)("[N]on-party disclosure [of an anonymous online speaker] is only appropriate in the exceptional case where the compelling need for the discovery sought outweighs the First Amendment rights of the anonymous speaker.") (granting motion to quash).

  8. McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) ("[A]n author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.").

  9. ACLU v. Johnson, 4 F. Supp. 2d 1029 (D.N.M. 1998), aff'd, 194 F.3d 1149 (10th Cir. 1999) (First Amendment right to anonymity applies to "communicating and accessing information anonymously" over the Internet).

  10. ACLU v. Miller, 977 F. Supp. 1228 (N.D. Ga. 1997) (protected speech includes "the use of false identification to avoid social ostracism, to prevent discrimination and harassment, and to protect privacy").

  11. Columbia Insurance Company v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999) (because of the "legitimate and valuable right to participate in online forums anonymously or pseudonymously," party seeking discovery to uncover the identity of an online speaker must satisfy a heightened burden, including establishing that suit could withstand motion to dismiss).

  12. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998) (party seeking identity of anonymous speaker must demonstrate a reasonable basis for seeking such information).

  13. Rancho Publications v. Superior Court, 81 Cal. Rptr. 2d 274 (Cal. Ct. App. 1999)† ("The need for discovery [of the identity of anonymous speakers] is balanced against the magnitude of the privacy invasion, and the party seeking discovery must make a higher showing of relevance and materiality than otherwise would be required for less sensitive material.").

To learn more, you may contact us by telephone (203.264.6802) or via E-Mail: info@diogenesllc.com

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