How to Subpoena a Web Hosting Company
The internet is still the Wild, Wild West, and it's so easy for people to post information, to upload information, to review, to comment that there are a lot of things that happen on the internet that are very difficult to trace. That is to say, to find out who did it and so if it is something that is a defamatory comment that someone has posted about you.
You're trying to figure out who said it, or someone has stolen your copyright protected material and engaged in copyright infringement by posting that copyright protected material on their website or some other website. Then you have to find out who they are.
The same issue can arise in the trademark infringement context, where people are using your trademark. But they've registered a domain name which incorporates your trademark, and they're using a privacy or proxy service to hide their identity.
Announcer: Welcome to Internet Law Radio, where we discuss the hottest topics in internet law. If you are facing an internet law issue, cyber law complaint, website or e-commerce issue, we have an internet lawyer ready to help.
Matt: Hello and welcome back to Internet Law Radio. I'm Matt Plessner and we're talking again today with Enrico Schaefer, an internet law and website attorney from the Traverse Legal Office in Traverse City, Michigan about how to subpoena an ISP web hosting company or other service provider. Enrico, how are you?
Enrico: I'm doing great today, Matt. How about you?
Matt: I'm doing very well, thank you. Now, Enrico, sometimes bad things happen on the internet without knowing who did it to you. There's a lot of opportunity for people to steal their identity and post anonymously. Is this the issue or at least one of them that you have to deal with as an internet law attorney?
Enrico: As an internet law attorney, you deal with this issue all the time, Matt. The internet is still the Wild, Wild West, and it's so easy for people to post information, to upload information, to review, to comment that there are a lot of things that happen on the internet that are very difficult to trace. That is to say, to find out who did it and so if it is something that is a defamatory comment that someone has posted about you.
You're trying to figure out who said it, or someone has stolen your copyright protected material and engaged in copyright infringement by posting that copyright protected material on their website or some other website. Then you have to find out who they are.
The same issue can arise in the trademark infringement context, where people are using your trademark. But they've registered a domain name which incorporates your trademark, and they're using a privacy or proxy service to hide their identity.
Even the identity that they provided the registrar is sometimes false, and shows Russia or some other foreign country as the origin of their identity. You have to be able to go through and find out who these people are in many instances in order to be able to get the relief that you're seeking through your attorney.
Matt: Now, when someone retains you as their attorney in one of these types of issues, what are some of the things you are thinking about in terms of how to proceed, Enrico?
Enrico: Well, a good internet law attorney or law firm will really try and figure out the extent of the problem, and the category of problems. So, is it a defamation law issue? Is it a copyright law issue? Is it a domain name dispute? Is it trademark infringement issue? What exactly is the area of law that we're talking about?
The other thing that we're thinking about when we're trying to get our brain around these issues with these clients is how serious is the problem? Because we always, at Traverse Legal, look at these things from kind of a double-edged sword, we say, "Look at it. These things can cost you and can bleed you in terms of money, and they can bleed you in terms of reputation."
So, if someone says something bad about you on the internet or is infringing your trademark or copyright, you're losing money. Someone didn't pay you for something and someone's trying to divert your traffic, these types of things. So, you have to look at it from a return on investment point of view, "How much money am I losing?
The other issue that can really bleed you dry is reputation. So, it may not be costing you any money, but because of the permanency of the things that get posted on the internet and on these websites, it can last forever. So, if your neighbors, your friends, your family, your business associates, your clients, your patients, your customers can see these things that were posted about you on the internet, or a domain name that's diverting your traffic but isn't really costing you any money, it can still cost you reputation.
So, if the reputation and the money issue line up in such a way to make it worthwhile to spend some funds in legal fees in order to deal with the problem, then that's when we step in and we really try and help the client. But the first thing is to figure out, does it make sense to try and remedy the bad situation on the internet?
Matt: Now, many of our listeners here at Internet Law Radio may not know exactly what a subpoena is. Enrico, can you please explain what it is, how it works, and how do you help identify somebody engaging in unlawful activity on the internet?
Enrico: Well, that's a great question, Matt, because sometimes you can find out who the person is if you're a good internet law sleuth or investigator. You can find out who the person is without doing much more than good, comprehensive, back-end data analysis, and figure out who this person is.
So, let me give you an example, Matt. Sometimes in order to post a defamatory statement on the internet, the website requires you to register a name. Sometimes people will use a pseudo name that they think is untraceable, and yet they forgot that two years ago they used that pseudo name to post a recipe to their friends in a certain community. Okay? So, you can sometimes back track that pseudo name in order to find out where that person is located or who that person is, and you don't need to get access to the court or file a lawsuit.
In most instances, however, the only way to really find out who engaged in the unlawful activity on the internet is to issue a court subpoena to, for instance, a website host, where the defamatory statements are posted, in order to find out the account information of who that person is.
So, let me give you an example of one of the common uses of a subpoena. If someone posts something on the internet, the website where that post exists will almost - well, most of the time they'll track the IP address where that post was made from. So, it might be Los Angeles, California provided the internet connection through an ISP in Los Angeles, in order to connect, in order to upload. So, that would be one thing that would be out there to get.
You could subpoena the ISP and say, "Who's the account holder for that internet connection?" and they will provide you with the account holder. Now, the account holder may or may not be the person who posted the information, but that will get you pretty far down the line in terms of identifying that person. So, we see these ISP subpoenas as a very common thing.
The other thing that you could do with a subpoena is issue a subpoena to the website owner or web hosting company in order to get account information from those as well. When you can't find out who exactly the person is who is associated with an account because they provided false information, if there is some sort of e-commerce transaction - let's say it's unlawful activity going on, on eBay, there's usually a credit card back there associated with that account. Then you could subpoena the credit card company in order to find out who has that account.
The one thing you need to understand, Matt, when it comes to subpoenas, in many states you do have to file a lawsuit in order to get a subpoena issued. Other states allow you some flexibility on that. But the general rule is, you have to file a lawsuit in order to get the subpoena.
Matt: Now, do you always have to file a lawsuit in order to gain subpoena power?
Enrico: Yeah. I mean, again, the answer is most of the time, and you should plan on it. The reason why that's important is that lawsuits tend to cost, number one, more money. The attorney's fees are going to be higher for a lawsuit. Number two is once you step into court and file a lawsuit, sometimes it's very hard to get out of court. So, you can't just turn off the spigot.
So, the number of matters that actually justify filing a lawsuit and getting a subpoena is obviously smaller than the universe of problems that are out there. A good internet law attorney who specializes in either defamation or copyright or trademark, or internet law will know when it makes sense for the client to take that more drastic step of filing the lawsuit in order to get the subpoena.
Matt: Finally, Enrico, can you ask just one of these third-party web companies to turn over their information, the ones that you're seeking? If so, do they ever comply?
Enrico: You can, but rarely do they comply. The reason is because of the administrative cost of providing that information upon all requests, number one. Number two, these websites certainly have their own reputation, and part of the website or web hosting company, or ISP reputation is built on protecting the privacy of their user base. So, they typically don't want to provide any information absent subpoena.
So, while they may take down information under a particular federal law provision, such as the Digital Millennium Copyright Act, or what have you, they may not take the next step of telling you who did the deed.
Matt: Well, Enrico, as always, thanks for talking with us.
Enrico: You're welcome, great to be here, Matt.
Matt: Join me, Matt Plessner, next time on Internet Law Radio.
Announcer: You've been listening to Internet Law Radio. Whether you are facing a domain name, intellectual property, or complex litigation issue, we have an internet law attorney ready to answer your questions.Announcer: Welcome to Internet Law Radio, where we discuss the hottest topics in internet law. If you are facing an internet law issue, cyber law complaint, website or e-commerce issue, we have an internet lawyer ready to help.
Matt: Hello and welcome back to Internet Law Radio. I'm Matt Plessner and we're talking again today with Enrico Schaefer, attorney at law, from the Traverse Legal Office in Traverse City, Michigan about how to subpoena an ISP web hosting company or other service provider. Enrico, how are you?
Enrico: I'm doing great today, Matt. How about you?
Matt: I'm doing very well, thank you. Now, Enrico, sometimes bad things happen on the internet without knowing who did it to you. There's a lot of opportunity for people to steal their identity and post anonymously. Is this the issue or at least one of them that you have to deal with as an internet law attorney?
Enrico: As an internet law attorney, you deal with this issue all the time, Matt. The internet is still the Wild, Wild West, and it's so easy for people to post information, to upload information, to review, to comment that there are a lot of things that happen on the internet that are very difficult to trace. That is to say, to find out who did it and so if it is something that is a defamatory comment that someone has posted about you.
You're trying to figure out who said it, or someone has stolen your copyright protected material and engaged in copyright infringement by posting that copyright protected material on their website or some other website. Then you have to find out who they are.
The same issue can arise in the trademark infringement context, where people are using your trademark. But they've registered a domain name which incorporates your trademark, and they're using a privacy or proxy service to hide their identity.
Even the identity that they provided the registrar is sometimes false, and shows Russia or some other foreign country as the origin of their identity. You have to be able to go through and find out who these people are in many instances in order to be able to get the relief that you're seeking through your attorney.
Matt: Now, when someone retains you as their attorney in one of these types of issues, what are some of the things you are thinking about in terms of how to proceed, Enrico?
Enrico: Well, a good internet law attorney or law firm will really try and figure out the extent of the problem, and the category of problems. So, is it a defamation law issue? Is it a copyright law issue? Is it a domain name dispute? Is it trademark infringement issue? What exactly is the area of law that we're talking about?
The other thing that we're thinking about when we're trying to get our brain around these issues with these clients is how serious is the problem? Because we always, at Traverse Legal, look at these things from kind of a double-edged sword, we say, "Look at it. These things can cost you and can bleed you in terms of money, and they can bleed you in terms of reputation."
So, if someone says something bad about you on the internet or is infringing your trademark or copyright, you're losing money. Someone didn't pay you for something and someone's trying to divert your traffic, these types of things. So, you have to look at it from a return on investment point of view, "How much money am I losing?
The other issue that can really bleed you dry is reputation. So, it may not be costing you any money, but because of the permanency of the things that get posted on the internet and on these websites, it can last forever. So, if your neighbors, your friends, your family, your business associates, your clients, your patients, your customers can see these things that were posted about you on the internet, or a domain name that's diverting your traffic but isn't really costing you any money, it can still cost you reputation.
So, if the reputation and the money issue line up in such a way to make it worthwhile to spend some funds in legal fees in order to deal with the problem, then that's when we step in and we really try and help the client. But the first thing is to figure out, does it make sense to try and remedy the bad situation on the internet?
Matt: Now, many of our listeners here at Internet Law Radio may not know exactly what a subpoena is. Enrico, can you please explain what it is, how it works, and how do you help identify somebody engaging in unlawful activity on the internet?
Enrico: Well, that's a great question, Matt, because sometimes you can find out who the person is if you're a good internet law sleuth or investigator. You can find out who the person is without doing much more than good, comprehensive, back-end data analysis, and figure out who this person is.
So, let me give you an example, Matt. Sometimes in order to post a defamatory statement on the internet, the website requires you to register a name. Sometimes people will use a pseudo name that they think is untraceable, and yet they forgot that two years ago they used that pseudo name to post a recipe to their friends in a certain community. Okay? So, you can sometimes back track that pseudo name in order to find out where that person is located or who that person is, and you don't need to get access to the court or file a lawsuit.
In most instances, however, the only way to really find out who engaged in the unlawful activity on the internet is to issue a court subpoena to, for instance, a website host, where the defamatory statements are posted, in order to find out the account information of who that person is.
So, let me give you an example of one of the common uses of a subpoena. If someone posts something on the internet, the website where that post exists will almost - well, most of the time they'll track the IP address where that post was made from. So, it might be Los Angeles, California provided the internet connection through an ISP in Los Angeles, in order to connect, in order to upload. So, that would be one thing that would be out there to get.
You could subpoena the ISP and say, "Who's the account holder for that internet connection?" and they will provide you with the account holder. Now, the account holder may or may not be the person who posted the information, but that will get you pretty far down the line in terms of identifying that person. So, we see these ISP subpoenas as a very common thing.
The other thing that you could do with a subpoena is issue a subpoena to the website owner or web hosting company in order to get account information from those as well. When you can't find out who exactly the person is who is associated with an account because they provided false information, if there is some sort of e-commerce transaction - let's say it's unlawful activity going on, on eBay, there's usually a credit card back there associated with that account. Then you could subpoena the credit card company in order to find out who has that account.
The one thing you need to understand, Matt, when it comes to subpoenas, in many states you do have to file a lawsuit in order to get a subpoena issued. Other states allow you some flexibility on that. But the general rule is, you have to file a lawsuit in order to get the subpoena.
Matt: Now, do you always have to file a lawsuit in order to gain subpoena power?
Enrico: Yeah. I mean, again, the answer is most of the time, and you should plan on it. The reason why that's important is that lawsuits tend to cost, number one, more money. The attorney's fees are going to be higher for a lawsuit. Number two is once you step into court and file a lawsuit, sometimes it's very hard to get out of court. So, you can't just turn off the spigot.
So, the number of matters that actually justify filing a lawsuit and getting a subpoena is obviously smaller than the universe of problems that are out there. A good internet law attorney who specializes in either defamation or copyright or trademark, or internet law will know when it makes sense for the client to take that more drastic step of filing the lawsuit in order to get the subpoena.
Matt: Finally, Enrico, can you ask just one of these third-party web companies to turn over their information, the ones that you're seeking? If so, do they ever comply?
Enrico: You can, but rarely do they comply. The reason is because of the administrative cost of providing that information upon all requests, number one. Number two, these websites certainly have their own reputation, and part of the website or web hosting company, or ISP reputation is built on protecting the privacy of their user base. So, they typically don't want to provide any information absent subpoena.
So, while they may take down information under a particular federal law provision, such as the Digital Millennium Copyright Act, or what have you, they may not take the next step of telling you who did the deed.
Matt: Well, Enrico, as always, thanks for talking with us.
Enrico: You're welcome, great to be here, Matt.
Matt: Join me, Matt Plessner, next time on Internet Law Radio.
Announcer: You've been listening to Internet Law Radio. Whether you are facing a domain name, intellectual property, or complex litigation issue, we have an internet law attorney ready to answer your questions.
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