Hastings Communications and Entertainment Law Journal


Based on a personal experience. During ongoing litigation, the authors' clients began receiving pseudonymous threats by email and on an Internet message board maintained by Yahoo! Inc. This experience led the authors to ask themselves a question: What should lawyers do when their clients receive anonymous death threats electronically during the pendency of litigation? In their case, the Federal Bureau of Investigation (FBI) determined the identity of the perpetrator and the local United States Attorney's office eventually commenced prosecution. However, pursuant to rules of federal grand jury secrecy, the perpetrator's identity still remained a secret. When the identity was sought from Yahoo! Inc, it refused. Only after prosecution began and the veil of grand jury secrecy was lifted was the perpetrator's identity finally known. Based on this experience, the authors argue that an ISP is not only permitted by federal law, but also obligated by California law, to reveal upon request the identity of a subscriber who has pseudonymously posted or emailed threats of death or great bodily injury.