INTRODUCTION

Generally, an attorney can issue subpoenas. However, when you seek to serve an Internet Service Provider ("ISP) to find out the name and address of the subscriber (who may be an infringer of your IP), the Cable Privacy Act is implicated, potentially requiring a court order to seek this identifying information. Generally, trying to obtain the name and address of an internet subscriber from their ISP can be seen as an invasion of a defendant's privacy interests. However, a valid need for a subpoena can override a defendant's expectation of privacy where the subpoena is designed to uproot and identify an infringer of copyright, trademarks, trade secrets or patents and there is no other way to obtain the information.

Under federal law, “cable operators” are prohibited from disclosing personally identifiable information ("PII") concerning a subscriber without their written or electronic consent, and the ISPs (ex. Verizon, Comcast, Cox, Chater/Spectrum, and others) must “take such actions as are necessary” to prevent unauthorized access to a subscriber's PII. See 47 U.S.C. § 551(c)(1). This blog discusses the potential need to obtain a court order to obtain this information.

47 U.S. CODE § 551: PROTECTION OF SUBSCRIBER PRIVACY

As noted, in these situations, federal privacy laws have established a general process.

(c) Disclosure of personally identifiable information

(1) Except as provided in paragraph (2), a cable operator shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned and shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the subscriber or cable operator.

(2) A cable operator may disclose such information if the disclosure is—

(A)necessary to render, or conduct a legitimate business activity related to, a cable service or other service provided by the cable operator to the subscriber;

(B)subject to subsection (h), made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed;

See 47 U.S.C. § 551(c)(2)(B).

One example of a Plaintiff that uses court orders to obtain the name and address of internet subscribers from their ISP's is Strike 3 Holdings, LLC. This Plaintiff seeks to hold anonymous users accountable for downloading and sharing their adult videos over the torrent networks. They will first file a lawsuit alleging copyright infringement, and sue the defendant as a "John Doe" defendant. Then, needing their name and address (of the subscriber, who may or may not be the downloader), we need to send a subpoena to the ISP. They do this with a court order. This allows them to serve the defendant.

An example of how this works in real life litigation can be found in the ruling in Strike 3 Holdings, LLC v. Doe, case 1:21-CV-0586 (W.D.N.Y. 10/12/21). Strike 3 filed a lawsuit for copyright infringement under 17 U.S.C. §§ 101. They then sought the court-ordered subpoena, which the judge granted after applying the factors necessary to be explored

The court held that “good cause” was required to be shown before the subpoena would be ordered against Verizon. See In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80 (E.D.N.Y. 2012). See Rotten Records, Inc. v. Doe, 107 F. Supp. 3d 257 (W.D.N.Y. 2015) and Catlin v. Global (W.D.N.Y. Aug. 13, 2014, No. 14-CV-6324L) 2014 U.S.Dist.LEXIS 112656, at *4-5.) which held:

In the similar context of copyright infringement cases based on online activity, courts have identified several factors that are of particular relevance in that context, where plaintiffs generally know only the internet protocol ("IP") address associated with the alleged offender, and cannot identify the proper defendant absent a subpoena to the relevant internet service provider ("ISP"), requesting the name and address of the person or entity associated with that IP address. See e.g., Collins v. John Does 1-11, 2012 U.S. Dist. LEXIS 75986 at *3-*4 (E.D.N.Y. 2012).

In such circumstances, the issuance of a subpoena to the ISP is typically granted where there is:

(1) a concrete showing of a prima facie claim;

See Sony Music Entm't Inc. v. Doe, 326 F. Supp. 2d 556 (S.D.N.Y. 2004), consists of two elements: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.

(2) a specific discovery request;

Strike 3 sought only the name and address of the individual assigned to the IP address so that they could identify and serve the complaint.

(3) the absence of alternative means to obtain the subpoenaed information;

Strike 3 had no alternative method of obtaining the information, and it needed the information to investigate and pursue its claims against the defendant. If the court did not grant the subpoena, there was no other way to identify the infringer. Moreover, it can be argued that if the subpoena is not granted, the data can potentially be lost, since ISP's can and do routinely delete data.

(4) the need for the subpoenaed information to advance the claim;

Again, Strike 3 has no way to protect its copyrights unless the subpoena is granted, allowing them to obtain the subscribers identification and investigate the household.

and

(5) a minimal expectation of privacy by the defendant in the requested information.

Courts have also held that the privacy interests of the defendant can be outweighed in certain circumstances. See Arista Records LLC v. Doe, 604 F.3d 110 (2d Cir. 2010),

"We note that we are skeptical of the magistrate judge's view that "any pretext of privacy" on the part of a computer owner is "render[ed] void" simply by "the notion [that he] allow[s] others to have access to [his] database by virtue of the Internet in order to pluck from a computer information and data that the computer owner or user wishes to share, " The privacy claimed here is not for the information that the computer owner or user wishes to share but rather for his or her identity. Instead, we regard Doe 3's expectation of privacy for sharing copyrighted music through an online file-sharing network as simply insufficient to permit him to avoid having to defend against a claim of copyright infringement.

Attorney Steve® Tip: These are the factors that should be addressed by one seeking a subpoena to unmask an internet subscriber's name and address for pursuing various types of infringement claims (copyright, trade secret, trademark, and patent), and potentially defamation claims as well.

Check your local rules, but you may need to file a motion with memorandum of points and authorities along with a declaration, proposed order and the proposed subpoena (see form 88B for one such option).

POINTS AND AUTHORITIES

Here is some additional potential case law to consider for a motion:

The Ninth Circuit instructed that “‘where the identity of the alleged defendant [is] not
known prior to the filing of a complaint, the plaintiff should be given an opportunity through
discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the
identities, or that the complaint would be dismissed on other grounds.'” Wakefield v. Thompson, 177
F.3d 1160, 1163 (9th Cir. 1999) quoting Gillespie v. Civiletti, 629 F.2d 637, 642-43 (9th Cir. 1980). See also Cottrell v. Unknown Corr. Officer, No. 99-15567, 2000 U.S. App. LEXIS 21969, at *2-3 (9th Cir. Aug. 18, 2000). Stevenson v. Beard, 2017 U.S. Dist. LEXIS 166368, at *7 n.3 (S.D. Cal. Oct. 6, 2017). See also Grizzle v. Cty. of San Diego, 2017 U.S. Dist. LEXIS 121040, at *6 n.3 (S.D. Cal. July 31, 2017)
(same).

Courts in infringement actions have applied “a three-factor test when considering motions for
early discovery to locate certain defendants.” MGM Resorts Int’l v. Does, 2017 U.S. Dist. LEXIS
138204, at *3-4 (D. Nev. Aug. 28, 2017).

First, “the plaintiff should identify the missing party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court.”

Second, the plaintiff “should identify all previous steps taken to locate the elusive defendant” to ensure that the plaintiff has made a good faith effort to identify and serve process on the defendant.

Third, the “plaintiff should establish to the Court's satisfaction that plaintiff's suit against defendant could withstand a motion to dismiss.” Id. (citing Gillespie, 629 F.2d at 642); Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-579 (N.D. Cal. 1999).

IF YOU DO SOMETHING WRONG, YOU MAY RECEIVE A LETTER LIKE THIS.

Here was a rejection letter I reviewed when a subpoena was sent to Charter WITHOUT the court order:

Charter Communications Operating, Inc., (“Charter”) acknowledges receipt of the above referenced subpoena for subscriber information. Please note that a cable operator, such as Charter, must protect its subscribers' privacy in compliance with Section 631 of the Communications Act of 1934 (codified at 47 U.S.C. § 551), pursuant to which Charter may not provide subscriber information to a third party without first ensuring compliance with the requirements of Section 631(c). This section requires written subscriber consent before their information can be disclosed to third parties.

Because there is no written consent from the subscriber, Charter must determine if one of the exceptions in Section 631(c)(2) has been met before making any disclosure. The exception applicable here is in Section 631(c)(2)(B), which requires a court order and notice to the subscriber before disclosure of any information could be made. Since a court order has not been issued in this case, Charter cannot disclose the information you requested to you under this exception.

Attached to this letter you will find an example court Order. If you obtain a court Order on this template and signed by a judge, Charter will comply with the court Order. Please be aware that Charter will need sufficient time prior to disclosure to process and provide our customer with notice of the court order as required by Section (c)(2)(B) of the Act.

Click here to view a sample order and consent form.

Subpoena---Charter.pdf

ISP subpoena court order

OBTAINING A SUBPOENA - CALIFORNIA CENTRAL DISTRICT

Here is general information about obtaining a subpoena in the Central District of California.

A party with a case pending in the United States District Court for the Central District of California may request, by mail or in person, that the clerk issue a subpoena.

A request by mail must include:

1. A cover letter containing the request for a subpoena, including the case name and case number;
2. A subpoena form (AO-88, AO-88A or AO-88B); and
3. A self-addressed stamped envelope.

A party may request a subpoena in person in Room from the intake window at any of the Court's three divisions. The party must bring a subpoena form (AO-88, AO-88A or AO-088B) and be prepared to provide the case name and case number. The clerk will issue a subpoena, signed but otherwise in blank, to the requesting party.

The party must complete the subpoena before service. See Fed.R.Civ.P. 45(a)(1)(A).

An attorney who is a member of the Bar of this Court may also issue a subpoena from this Court. See Fed.R.Civ.P. 45(a)(3).

Refer to Fed.R.Civ.P. 45 for additional information.