Free Speech On The Net? Not Quite

Companies are waging war on online critics-and winning

They called it the HAVOC campaign. Organized late last year by a small band of Northwest Airlines flight attendants, the plan was to wage guerrilla warfare on the carrier until it offered a better bargaining agreement. HAVOC stood for "Having a Voice in Our Contract."

On a message board hosted by veteran flight attendant Kevin M. Griffin on his personal Web site, several anonymous employees urged co-workers to stage sickouts, which are outlawed by federal labor statutes. The goal: to force Northwest to cancel profitable flights during the Christmas season. A "sickout en masse is one way the company will be convinced we are serious.... Let's not talk about it. JUST DO IT!" said one post.

After a flood of sick calls forced the cancellation of 317 flights from Dec. 30 to Jan. 2, Northwest Airlines Corp. struck back. On Jan. 5, it sued the flight attendants' union and several others for staging an illegal strike and got permission from a Minneapolis federal judge to launch an investigation into who was behind it. Armed with a court order, the airline's private investigators on Feb. 3 forced Griffin to turn over his computer so they could copy his hard drive. They also subpoenaed the company that hosts Griffin's Web site, 9NetAvenue Inc. in Secaucus, N.J., for the Internet addresses of the people who posted pro-sickout messages--which could ultimately allow the airline to track down HAVOC's activists.

To Griffin, who wrote several messages condemning the sickout strategy, Northwest's lawsuit has been a witch hunt. While Northwest has investigated 236 postings, Griffin says only about 20 of those advocated bogus sick calls. Because of this broad-brush inquiry, he says, the company has scared away law-abiding employees from discussing the many legitimate subjects that arise on his message board, such as retirement benefits, workplace hazards, and the union's political activities. "Everybody is afraid to write," says Griffin. "Since they brought the suit, the number of postings [on the message board] has dropped from 50 to 100 a day to 10 to 20 a day."

The company says it has only investigated relevant messages and that it has no desire to infringe on free speech--so long as the speakers confine themselves to legal topics. It also insists that it had little choice but to peer into Griffin's hard drive. "These days, documents are electronic. It's not at all uncommon to search computer records," says Northwest spokesman Jon Austin.

The dispute raises tough policy issues--and they are arising all over the Internet. Angry about the flowering of lies, self-serving day-trader rumors, and other types of mischief on Web message boards, Corporate America is cracking down. In recent months, Raytheon, Varian Medical Systems, and more than 100 other companies have sued over statements made anonymously online. Targets include employees and nonemployees alike, and the offending postings are appearing everywhere from tiny sites such as Griffin's to the teeming financial message boards run by Yahoo!, America Online, and Microsoft.

Because most of the cases have been filed over the past six months, few have reached final resolution. Nonetheless, companies have been successful in unmasking their prey, thanks to the digital tracks people leave on the Net. And that has the American Civil Liberties Union (ACLU), the Electronic Privacy Information Center (EPIC), and other rights groups worried. While acknowledging that corporations are entitled to prevent the release of trade secrets or the spread of lies about them, rights groups argue that the crackdown on message boards is going way too far--and that, in some instances, the suits may simply be intended to silence critics. "There's a real need to weed out the legitimate cases from the bogus ones," says EPIC's David L. Sobel. "A lot of these cases are simply fishing expeditions." (Raytheon and Varian say their suits are legitimate.)

BLINDSIDED. To their frustration, however, Sobel and other rights advocates haven't been able to do much to help people who are the targets of litigation. In a typical scenario, the process begins when a company sees an anonymous posting it doesn't like on an Internet message board and files a lawsuit, usually alleging defamation and a laundry list of other charges. Since it generally doesn't know the identity of the author, the company names "John Doe" as the defendant. In order to find out who John Doe is, attorneys ask a judge for permission to subpoena the host of the message board. Unlike Griffin, most hosts comply with the request without much of a fight. That means that the people who made the anonymous postings usually get identified before they even know they have been sued (table).

That's what happened to Leslie L. French. In 1998, he left a series of postings on a Yahoo message board savaging the management of ITEX Corp., a publicly held company in Portland, Ore., that runs an online barter exchange. The company filed a John Doe suit in September, 1998, alleging defamation and unlawful trade practices, among other things, and got his Internet protocol address from Yahoo. It then tracked the address back to his local Internet service provider, CompuServe Inc., and filed a second subpoena "for any and all records" related to the person who had anonymously criticized ITEX.

In response to this broad request, CompuServe turned over not only French's name but also his credit-card numbers, the location of his checking account, and a list of some of the books and software he had purchased online. Yet French didn't even discover he had been sued until months later, in July, 1999. "By then, it was too late to do anything about it," such as objecting to the subpoenas, says the Portland resident. "Imagine how it feels when your enemies get ahold of that information." (Now owned by America Online Inc., CompuServe says it no longer gives out this type of information.)

He's far from the only person to be so unpleasantly surprised. While Microsoft Corp. and AOL now notify people when they have been targeted in a John Doe lawsuit, other message-board hosts, including Yahoo, don't. That makes it all but impossible for people like French to protect their anonymity. "Out of the hundreds of suits that have been brought, I can think of only five where the John Doe managed to get a lawyer involved," says Los Angeles attorney Megan E. Gray, who last year successfully protected the anonymity of a person who had attacked Fort Worth-based physician practice-manager ProMedCo. on a Yahoo message board.

"CHILLING." Yahoo Assistant General Counsel Jon Sobel (no relation to David Sobel) says the company is legally bound to honor court subpoenas. He also says the portal's "terms of service" section warns customers that their anonymity may be compromised if the company is served with a subpoena. "We try to provide a forum for speech," says Sobel. Noting that the company sponsors thousands of message boards about public companies, he says there's no way Yahoo can tell when these suits "are legitimate or not."

Because companies are likely to keep catching John Does under the current rules, ACLU attorney Chris Hansen says people are going to fear saying anything critical about a company online--whether it's factual or not. "The word is getting out that when you anonymously post a message on the Internet, your identity may be revealed without you knowing about it. That can't help but have a chilling effect," he says.

To combat this, the ACLU has filed amicus briefs and represented defendants in three John Doe cases since December. It's also urging message-board hosts to give anonymous speakers notice when they are sued. But for the time being, most John Does are still being exposed. So for those who think Internet message boards are open, anonymous forums, the message is: Criticize companies at your own risk.