Note

Unmasking John Doe: Setting a Standard for Discovery in Anonymous Internet Defamation Cases

The First Amendment to the United States Constitution provides for and protects an open marketplace for the competition of ideas. Oliver Wendell Holmes, Jr. said, “the best test of truth is the power of the thought to get itself accepted in the competition of the market[.]” The Internet, where anonymity is easily achieved and speech is cheap, seems to be a broader and more pure manifestation of such a marketplace than previously seen. In the 1990s, the Internet was a new mode of communication and an untested medium for speech. The intersection of First Amendment law and defamation law in cyberspace has since posed a variety of legal questions that continue to develop nearly two decades later. How should the fundamental right to freedom of speech play out over a medium where anyone’s voice can be heard instantaneously by thousands, even millions, of people? Who should be liable for defamatory speech occurring over the Internet? When is it appropriate to compel disclosure of a “John Doe” defendant’s identity in a defamation case? 

Unmasking John Doe contends that to answer those questions requires a precarious balancing act. Using a hypothetical John Doe lawsuit, the note develops and rigorously tests an obscure standard provided by a Louisiana court, arguing that it may provide the key to ensuring that Internet speakers know the limits of protection guaranteed to them and that meritorious claims of defamation will not be prematurely dismissed.

Consumerism and Information Privacy: How Upton Sinclair Might Once Again Protect Us From Ourselves (And Why We Should Let Him)

This Note will address the salience of a simple analogy: will privacy law be for the information age what consumer protection law was for the industrial age? At the height of industrialization, the market faced instability caused by a lack of consumer competence, lack of disclosure about product defects, and advancements in technology that exacerbated the market’s flaws. As this Note will show, these same causes of market failure are stirring in today’s economy as well. The modern economy is not one of goods but of information, and although consumers have long been aware that their personal information may have marketing value, the internet has fundamentally changed the scope and depth of information collection, exposing more consumers than ever to injuries that require not just a more comprehensive remedy, but a wholesale change in the level of care for the information industry. Just as the mass-production economy precipitated a wave of reforms in consumer protection, in part thanks to a kick-start by author Upton Sinclair, so too must the mass-information economy adapt. After demonstrating the parallels between the problems of today with those of yesterday, this Note will propose parallel solutions, particularly a consolidation of regulatory power and a new tort for breach of information privacy, the latter of which draws its inspiration from general products liability. These proposals show that rather than reinvent the wheel, modern lawmakers can (and should) answer today’s problems with lessons from the last century.

A Fourth Amendment Metamorphosis: How the Fourth Amendment Remedies and Regulations Facilitated the Expansion of the Threshold Inquiry

United States v. Bond and United States v. Kyllo significantly departed from the Supreme Court’s prior Fourth Amendment jurisprudence. The definition of a Fourth Amendment search now captures a broader universe of law enforcement conduct. While this enlargement of the Fourth Amendment search inquiry has heretofore puzzled scholars, this Note argues that this enlargement may be consistent with the dynamic relationship that exists between rights and remedies. The erosion of Fourth Amendment remedial scheme “by making the exclusionary rule less available” has facilitated an expansion of the Fourth Amendment right. 

This Note further argues that the dynamic between rights and remedies does not fully explain Bond and Kyllo. A second dynamic is in place that helps explain why the expansion of the Fourth Amendment right targeted the scope of conduct the Fourth Amendment is understood to regulate rather than the protections that attach when conduct is captured by the threshold inquiry. The Note argues that the rigor (or lack thereof) of these protections helps shape and define the threshold inquiry much the way constitutional remedies help shape and define constitutional rights. The corrosion of such protections in recent jurisprudence enabled the expansion of the threshold inquiry evidenced in Bond and Kyllo. 

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