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Defamation lawsuit seeks to unmask anonymous cowards

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Pinning any liability on Ciolli represents a challenge for the plaintiffs, since he most likely enjoys protection under Section 230 of the Communications Decency Act. This law immunizes operators of websites from lawsuits based on a site's publication of content produced by a third-party, but allows for a lawsuit where the site operator has personally created content.

A recent 9th Circuit ruling, however, has called that immunity into question by holding that a website fell out of the statute's protections by directing users to other users' profiles based on information that the users provided when establishing those profiles. This filtering, according to the court, acts as a layer of information created by the website, and rendered the website open to a lawsuit under the Fair Housing Act.

The decision was widely criticized and the Ninth Circuit has no jurisdiction over a district court in Connecticut. Moreover, it's unclear that any court would consider AutoAdmit.com's activity - which consisted of little more than creating categories for the threads - as amounting to an additional layer of information. Still, the decision should make Ciolli just a little nervous since he's not exactly the most sympathetic defendant to begin with, and a judge might grab onto any precedent in order to send him to trial.

Since the complaint was filed, a different AutoAdmit operator, Jarrett Cohen, has stated in a post to the site that he has offered to remove the threads and implement a system of community moderation, but also that his offer has been rebuffed by the plaintiffs. He then accuses the plaintiffs of acting out of a desire for vengeance, and bringing the lawsuit as a means to identify the posters in order to damage their legal careers.

The plaintiffs' first problem - whatever their motivations - will be, in fact, the identification of those anonymous posters. Since the site claims to not have IP addresses for the users, the plaintiffs will probably begin by subpoenaing the email addresses the users provided during registration. Assuming these aren't sham webmail accounts with no real personal information, the email could be linked to the individuals involved.

Even if the email address is a sham, however, webmail providers do keep IP logs, so the plaintiffs could probably trace the email account to an IP address that opened the email account or that uses the email frequently.

The plaintiffs will also most likely point to a recent decision out of a federal district court in California as a way to recover information from AutoAdmit. That decision required a BitTorrent site, TorrentSpy.com, to preserve the traffic information contained in its servers' RAM. That site, like AutoAdmit, had systematically declined to keep IP logs in an attempt to keep its users anonymous. The judge in the case ruled, however, that the IP information contained in RAM was electronically stored information subject to discovery.

This, in effect, required the website to begin keeping server logs, although it did allow TorrentSpy to mask the IP addresses contained within the servers' RAM. The court ruled that the order to preserve the information in RAM as it was created wouldn't constitute a requirement that the website create new data solely to provide it to the plaintiffs (Columbia Pictures and others, in this case) since the data was automatically created and was already present in RAM. The court also held that the storage costs associated with all the extra information wouldn't constitute a burden on TorrentSpy.

That decision is currently up for appeal, and a California federal district court's opinion has even less clout in a Connecticut federal district court than a decision by the Ninth Circuit. But don't expect that to stop the plaintiffs from bringing it up before their judge in an attempt to force AutoAdmit to collect data on the posters in question should they be brazen enough to post to the site now that this litigation has commenced.

And if the judge goes for it, it will add yet another chink in the armor of sites that claim to offer "anonymous" anything on the web. ®

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