isp refuses to reveal customer's name

[Paul Howell]

Here's a news story about an ISP refusing to reveal
a customer's name even after a subpoena was served.

< paul

At: http://dailynews.yahoo.com/headlines/technology/zdnet/story.html?s=n/zdnn/technology/19990326/199903261503

Friday March 26 11:54 PM ET 

@Home in fight for subscriber name

By Paul Elias, ZDNet

Service provider @Home Corp., fighting a subpoena to reveal a
subscriber's name, is putting forward a novel argument in the
sensitive area of customer confidentiality.

Among other arguments disclosed in court papers this week, the
ISP is citing the privacy provisions contained in the Cable
Communications Act as a possible reason against divulging the
subscriber's name.

A commercial Web site wants the name to sue the @Home
(Nasdaq:ATHM) customer for posting allegedly defaming comments
on the site.

The company, which offers high-speed Internet access via cable
modem, argued that since it gets some of its subscribers from
cable companies, the cable act may, indeed, prevent it from
honoring the subpoena.

"The Cable Act argument is certainly a new wrinkle in this area,"
said David Soble, general counsel for the Washington D.C.-based
Electronic Privacy Information Center.

Subpoena
@Home Network was hit with a court subpoena in December by a
wholesale distributor of construction and hardware supplies that
wants to sue the subscriber, who allegedly "mail bombed" and
defamed its Web site.

Elmhurst, Ill.-based McMaster-Carr Supply Co.'s Web site allows
customers to post questions and comments about the company.

On at least eight different occasions, the @Home subscriber
posted comments that the company maintains are defamatory. On
Dec. 3, the first posting began: "WHY DOES YOUR COMPANY CALL
BLACKS THE 'N' WORD" and then rambled on that "it is a shame
that many people lost their jobs because of discrimination."

Three subsequent postings that day urged customers to patronize
a McMaster competitor because of McMaster's "history of
discriminatory practices."

800 messages a minute
The site was also slammed on Dec. 10 with 800 messages a
minute, forcing it to shut down for 23 hours.

McMaster then sued the unidentified subscriber in a New Jersey
federal court, promising it would name the alleged culprit as soon
it as it could.

Accordingly, McMaster asked @Home for the name and when the
Internet provider refused, McMaster served its subpoena on the
Redwood City, Calif.-based company on Dec. 28.

"These kind of subpoenas are a new phenomenon that has
sprouted in the last year or so," Sobel said. "And there is a problem
that there is no guiding legal authority."

In fact, nearly every large ISP, including America Online
(NYSE:AOL) and Yahoo! (Nasdaq:YHOO), have been hit with similar
subpoenas. Almost always, the providers end up complying with
the subpoenas. AOL, for instance, in July gave up the name of an
Orange County Register reporter who maintained a Web site
critical of the newspaper after the paper served AOL with a
subpoena.

Privacy at stake
But so far, @Home has refused to divulge the subscriber's name,
and on Monday of this week filed a brief saying some privacy laws
could be violated if it did.

"For example, if the subscriber is a California resident," @Home
court papers filed in San Francisco state, "California's
constitutional right of privacy may be implicated."

The Internet provider pointed out that the California Supreme
Court has ruled that unlisted telephone numbers are "privileged,
private information protected by the California Constitution." And
@Home argued that its California subscribers' identities may be
similarly protected.

"In addition, because in some instances, @Home only obtains the
name, address, telephone number and other personal information
of its subscribers from one of the cable companies that serves as
@Home's distribution affiliates, the privacy provision of the Cable
Communications Act may also be implicated."

That federal act provides that information about cable subscribers
may only be disclosed through a court order.

Laws not Net-related
But McMaster, through its lawyers, countered that neither the
privacy laws dealing with unlisted telephone numbers or cable
subscribers apply to the Internet.

"@Home is not a telephone company," McMaster argued in its
court papers. "It does not 'list' any telephone numbers. And, it does
not charge any additional fees to its customers to keep their
telephone numbers 'unlisted.'"

Furthermore, the company argued that @Home is not a telephone
provider and, therefore not covered by the laws it cites. Besides,
McMaster continued, the California Supreme Court ruling
concerning unlisted telephone numbers was about a criminal
investigation and dealt with illegal police searches and seizures.

"Those constitutional issues are hardly implicated by McMaster's
civil subpoena," the company argued.

The company concluded its argument by also pointing out that
@Home is not a cable company either and can not use the Cable
Communications Act to keep from giving up the subscriber's
name.

Federal District Judge Thelton Henderson will hear oral
arguments in San Francisco on April 5.