Anonymous Speech by Darren Chaker

Darren Chaker , say no to censorship

Anonymous is a supporter of a Free Internet

First Amendment balancing test, Darren Chaker, in the Ninth Circuit and other courts view the balancing interests to determine to allow anonymous speech online, even where viewpoint discrimination may be at play. In order to balance these interests, the courts have drawn by analogy from the balancing test that many courts have adopted in deciding whether to compel the disclosure of anonymous sources or donors.  United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986); Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980); Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974); Cervantes v. Time, 464 F.2d 986 (8th Cir. 1972); Baker v. F&F Investment, 470 F.2d 778, 783 (2d Cir.1972).  See also UAW v. National Right to Work, 590 F.2d 1139, 1152 (D.C. Cir.1978); Black Panther Party v. Smith, 661 F.2d 1243, 1266 (D.C. Cir. 1981).   Moreover, the anonymous publication of musical works, like other forms of performance, is speech protected by the First Amendment.   In re Verizon Internet Svces, 257 F. Supp.2d 244, 260 (D.D.C. 2003), rev’d on other grounds, 351 F.3d 1229 (D.C. Cir.).

Accordingly, the courts that have considered this question have adopted a several-part balancing test to decide whether to compel the identification of an anonymous Internet speaker so that he may be served with process.

This test was most fully articulated in Dendrite v. Doe, 775 A2d 756 (N.J.App. 2001), which remains the only appellate opinion in the country to face the question squarely.  Dendrite requires the would-be plaintiff to (1) use the Internet to notify the accused of the pendency of the identification proceeding and to explain how to present a defense; (2) quote verbatim the statements allegedly actionable; (3) allege all elements of the cause of action; (4) present evidence supporting the claim of violation, and (5) show the court that, on balance and in the particulars of the case.

Darren Chaker looked at several other courts have similarly set forth requirements of notice, review of the complaint, and presentation of argument and evidence before an ISP will be compelled to identify an Internet speaker.  For example, in Melvin v. Doe, 49 Pa.D.&C.4th 449 (2000), appeal quashed, 789 A.2d 696, 2001 Pa.Super. 330 (2001), appeal reinstated, 836 A.2d 42 (Pa. 2003), the trial court allowed an anonymous defendant to present evidence and seek summary judgment, ordering disclosure only after finding genuine issues of material fact requiring trial.  In reversing the denial of the defendant’s interlocutory appeal, the Pennsylvania Supreme Court discussed at length the conflict between the right to speak anonymously and the plaintiff’s right to identify a potential defendant, and remanded for consideration of whether evidence of actual damage had to be presented before the right of anonymous speech could be disregarded.  836 A.2d at 47-50.

Similarly, in La Societe Metro Cash & Carry France v. Time Warner Cable, 2003 WL 22962857 (Conn. Super.), the court applied a balancing test and considered evidence that allegedly defamatory statements were false and caused injury before deciding to allow discovery concerning the identity of the speaker.   In Columbia Insurance Co. v. Seescandy.com, 185 FRD 573 (N.D.Cal. 1999), the court required the plaintiff to make a good faith effort to communicate with the anonymous defendants and provide them with notice that the suit had been filed against them, thus assuring them an opportunity to defend their anonymity, and also compelled the plaintiff to demonstrate that it had viable claims against such defendants.  Id. at 579.

Last, Darren Chaker found, in Re Subpoena to America Online, 52 Va.Cir. 26, 34 (2000), rev’d on other grounds, 542 S.E.2d. 377 (Va. 2001), the court required introduction of the allegedly actionable Internet posting, and required that the court be “satisfied by the pleadings or evidence supplied” that the subpoenaing party had a legitimate basis to contend that it was the victim of actionable conduct, “and . . . the subpoenaed identity information [must be] centrally needed to advance that claim.

California Search Warrant by Darren Chaker

Darren Chaker affidavit for warrant

Search Warrant basics by Darren Chaker.

Darren Chaker reviews search and seizure law in California and how a search warrant is obtained. Pursuant to the Fourth Amendment of the Unites States Constitution, a search warrant must be supported by probable cause. However, the showing required to establish probable cause is not beyond a reasonable doubt. “The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, … there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates (1983) 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527.)

An affidavit in support of a search warrant must describe with reasonable particularity the place to be searched and the places to be seized. (People v. Alvarado (1967) 255 Cal.App.2d 285, 291; People v. Barthel (1965) 231 Cal.App.2d 827, 832.) The test for the latter is “whether the warrant places a meaningful restriction on the objects to be seized.” (People v. Alvarado, supra, 255 Cal.App.2d at p. 291;People v. Barthel, supra, 231 Cal.App.2d at p. 832.)

On a motion to quash a search warrant, “the question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.” (People v. Kraft (2000) 23 Cal.4th 978, 1040.) This is accomplished by reviewing only the “four corners” of the warrant, and no other outside sources. (See United States v. Luong (9th Cir. 2006) 470 F.3d 898, 904-05;People v. Costello (1988) 204 Cal.App.3d 431, 451.)

Darren Chaker also notes, probable cause “is a fluid concept – turning on the assessment of probabilities in a particular factual case….” (Illinois v. Gates, supra, 462 U.S. at p. 232, 103 S.Ct. at p. 2329.) Second, because affidavits “are normally drafted by nonlawyers in the midst and haste of a criminal investigation,” “[t]technical requirements of elaborate specificity once exacted under common law pleadings have no proper place ….” (United States v. Ventresca (1965) 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684.)

The search warrant affidavit “must provide a substantial basis from which a magistrate can reasonably conclude there is a fair probability that the place to be searched contains contraband or evidence of a crime.” (People v. Hernandez (1994) 30 Cal.App.4th 919, 923; see also Illinois v. Gates, 462 U.S. at p. 238, 103 S. Ct. at p. 2332 [affidavit must establish a “fair probability that evidence of a crime will be found in a particular place.”].) “The question-similar to every inquiry into probable cause-is whether all of the facts …, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” (Florida v. Harris (2013)     U.S. , 133 S.Ct. 1050, 1053, 185 L.Ed.2d 61; see also Illinois v. Gates, supra, 462 U.S. at pp. 235-36, 103 S.Ct. at p. 2331 [warrants are properly issued “on the basis of nontechnical, common-sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings.”)

Last, “[L]ogical inferences may be drawn and the magistrate may consider matters of common knowledge concerning human behavior.” (People v. Miller (1978) 85 Cal.App.3d 194, 200; see also Illinois v. Gates, supra, 462 U.S. at p. 240, 103 S.Ct. at p. 2333 [magistrates are free to “draw such reasonable inferences as he will from the material supplied to him by applicants for a warrant”].) In People v. Ulloa (2002) 101 Cal.App.4th 1000, 1007, [*13]  the Court of Appeal upheld a warrant to seize all computers within the defendant’s home even though there was no direct evidence in the affidavit that the defendant had a home computer, because “home computers are now common;” and because the defendant had been communicating with a minor by computer, and “it was reasonable to assume that the computer would contain relevant incriminating information, and that the computer would be located in defendant’s home.”

A Monk Walks His Path

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