On Speech And Subpoenas, New York Giveth And Taketh (First, The Good News On Platform Jurisdiction)
from the I-love-New-York-decisions-like-this dept
There are a few recent cases to note out of New York that address speech and subpoenas on third parties. This first post is about a good one, and soon we’ll have another… less good one. In Amelius v. Grand Imperial LLC a court in New York has recently reaffirmed that a New York-issued subpoena is only enforceable on an Internet platform if the New York courts have jurisdiction over the platform. Furthermore, relying on a 2014 US Supreme Court ruling, Daimler AG v. Bauman, the court in Amelius concluded that having merely registered to do business as an out-of-state company is not enough to give New York jurisdiction over platform companies with no other connection to the state than that, nor is their having information that might be relevant to a New York case. Instead the platform would either need to be incorporated or headquartered in New York for its courts to have jurisdiction over them.
Which does not mean that out-of-state platforms like Yelp (the platform at issue in this case) cannot be subpoenaed to supply information relevant to a New York case. What it does mean, however, is that the New York subpoena would need to be “domesticated” in the platform’s home jurisdiction so that its own local courts would be able to enforce it. It is not necessarily hard to do this: for instance, in California, pretty much all that needs to happen is for a California court clerk, or even just a licensed California attorney, to add a California subpoena form to the out-of-state subpoena for it to become an enforceable California subpoena.
But what’s good about this arrangement is that platforms can have some control over what laws will govern the subpoenas propounded against them and anticipate which courts will be able to compel them to act. In fact, they can choose to base themselves in states that offer the best laws and procedural rules most protective to them and their users’ speech, because not all states do so equivalently. For instance, the test for whether a subpoena can be allowed to unmask an anonymous speaker in California is the Krisnky test (which requires the pleading to make a prima facie case against the speaker), but in other states the test is either the Dendrite test, the Cahill test, the “good faith” test (as was the case in the Virginia Hadeed Carpet case, which raised similar jurisdictional issues as this one), or no test at all (thus rendering all the subpoenas potentially enforceable, no matter what the effect on speech). These tests obviously vary greatly in the protection they afford to anonymous speakers.
California also includes mandatory fee-shifting to help deter abusive subpoenas and to compensate those who have had to fight them off. Like the anti-SLAPP statute does for unmeritorious litigation Section 1987.2 of the Code of Civil Procedure allows for mandatory recovery of fees for unmeritorious unmasking subpoenas that courts quash. Unfortunately, like robust anti-SLAPP laws, not all states have such a provision, which is another reason why it’s important that platforms not be exposed to these other jurisdictions simply because they may have completed the purely ministerial task of registering with the Secretary of State or having some users there and not any more substantive connection. Platforms are in the business of facilitating speech, and they should be able to choose which laws to expose themselves to that will give them the best ability to do it.
Filed Under: california, free speech, jurisdiction, new york, platforms, subpoenas
Companies: amelius, grand imperial, yelp
Comments on “On Speech And Subpoenas, New York Giveth And Taketh (First, The Good News On Platform Jurisdiction)”
> Platforms are in the business of facilitating speech, and they should be able to choose which laws to expose themselves to that will give them the best ability to do it.
Wait… so when a platform goes venue-shopping for favorable laws, this is a good thing, but when someone with a grievance against them goes venue-shopping for favorable laws before seeking redress in court it’s a sleazy legal tactic, as Techdirt has so often affirmed in the past?
This doesn’t seem like a very principled stance, and it feels like a good way to incentivize abusive business practices…
Re: Response to: Mason Wheeler on Jul 16th, 2018 @ 2:52pm
Its more like stopping abuse as shown by the problems in the courts of east Texas.
Re: Re:
Wait… so when a platform goes venue-shopping for favorable laws, this is a good thing, but when someone with a grievance against them goes venue-shopping for favorable laws before seeking redress in court it’s a sleazy legal tactic, as Techdirt has so often affirmed in the past?
That’s not what that sentence is saying. It’s saying they should be able to choose which laws to expose themselves BY WHERE THEY CHOOSE TO DO BUSINESS. It’s not talking about jurisdiction shopping for lawsuits. It’s talking about picking a location where the business is based on laws that protect what those platforms can do IN that jurisdiction.
Re: Re: Prior Decision vs. Subsequent
Indeed, choosing where you live (or headquarter your business) based on local laws is a choice you make before any action that gives rise to civil or criminal procedure. Perhaps I chose to live in TX due to it’s rather lax gun laws, or WA because I prefer sales tax to property tax. Perhaps, like many companies, I headquarter or incorporate, in DE because of it’s favorable tax structure, etc. I made the choice of which rules would apply before the “game” started. Jurisdiction shopping is trying to change the rules after someone has performed an action to which I object in an attempt to obviate their choice.
The Problem with Jurisdiction Shopping
The problem is that the sorts of services most commonly seen in these cases have users from all over. Arguably they are subject to the laws of the states in which they have users. Zippo Manufacturing v. Zippo Dot Com, 952 F.Supp. 1119 (W.D. PA 1997).
There, the bulletin board service had many users in the district, and the court found it not unreasonable to hale them into the wilds of western PA. Where does it end: Techdirt has readers in many states, should it be sued for our posts in every state wherein pI and my fellow users are to be found?
Alternatively, shall we artificially limit access to on-line fora, so that only people in states with good anti-SLAPP laws may post? How shall we enforce this? Technology is not there.
All of this assumes good faith. That assumption is unsound. Consider Carefirst of Maryland v. Carefirst Pregnancy Centers, 334 F.3d 390 (US 4th Cir. 2003). There, the Maryland atty made a small donation to the Chicago entity via its web site, and used that donation as its basis for claiming jurisdiction in Maryland. Atty’s donation was only contact with Maryland, but of course the web site could be viewed virtually anywhere.
The trial court correctly found no jurisdiction in Maryland, and was upheld on review. But a large entity such as Blue Cross (the Maryland plaintiff, using the “Carefirst” name) has the resources to be offended, and to at least require appearance is a foreign jurisdiction. There is no injury to Blue Cross from such abuse. The Chicago entity has the pleasure of paying both its Illinois counsel and the counsel in Maryland.