Most websites collect and temporarily store the IP addresses of visitors in a web server log, although no U.S. law requires that they retain this information for any particular length of time.
[4] The hosting website is unlikely to notify the defendant, as it generally will not have access to contact information; subpoenas for IP addresses are therefore seldom subjected to legal challenge.
[6] A defendant who does receive notice may file a motion to quash, which asks the court to block the subpoena and prevent the ISP from complying.
"[10] The lead case applying the summary judgment standard is Doe v. Cahill,[11] in which a city council member sued an anonymous poster for two allegedly defamatory blog comments.
[12] The Delaware Supreme Court held that the plaintiff had failed to demonstrate that the comments were "capable of a defamatory meaning," an essential element of any defamation claim.
[17] The court first found that the Doe defendants, who had used a peer-to-peer network to download copyrighted music files, warranted a lesser degree of First Amendment protection than speakers who engaged in "true expression" intended "to communicate a thought or convey an idea.
[23] After reviewing the treatment of anonymous online speech by other state and federal courts, the Maryland court concluded that "a test requiring notice and opportunity to be heard, coupled with a showing of a prima facie case and the application of a balancing test—such as the standard set forth in Dendrite—most appropriately balances a speaker's constitutional right to anonymous Internet speech with a plaintiff's right to seek judicial redress from defamatory remarks.
[25] The court analogized the motion to dismiss standard to the requirement in a criminal investigation that the government show probable cause before obtaining a warrant, in that both prerequisites were necessary to "prevent abuse.
"[27] Inconsistent with a motion to dismiss standard, the court also relied on evidence of actual confusion in finding a basis for allowing discovery to identify the anonymous speaker.
In an early case, the Circuit Court of Virginia applied this standard in In re Subpoena Duces Tecum to America Online, holding that a court may compel an ISP to reveal a subscriber's identity if it finds "that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction" and that "the identity information is centrally needed to advance that claim.
There is no provision within ECPA, other than voluntary disclosure or with consent, that allows civil litigants to force an ISP or website to reveal the contents of a user's emails via a subpoena.