Is Information About “Sexual Orientation” Subject to Federal Privacy Protection?

An opinion by U.S. District Judge William Young (District of Massachusetts) issued on October 31, 2011, in Liberty Media Holdings, LLC v. Swarm Sharing Hash File & Does 1 through 38, 2011 WL 5161453, raises the issue whether anonymous defendants being sued for copyright infringement regarding gay pornographic films are entitled to maintain their anonymity while participating in the lawsuit, on the grounds of a right to avoid being "outed" as part of the litigation.  Judge Young's answer, at least at this point, is generally "No."

This is one of several lawsuits brought by Liberty Media, owner of the copyright in Corbin Fisher gay sex films, to try to stem the unauthorized downloading and redistribution of their films.  The only identifying information Liberty Media had of the alleged copyright infringers prior to filing suit was their IP addresses – the trail left when they accessed the film online. 

In this case, involving 38 ISP addresses identified as being in Massachusetts, the film in question is "Corbin Fisher Amateur College Men Down on the Farm."  After filing a lawsuit against the 38, who Liberty Media claims are part of a "swarm" of individuals who download and trade segments of the film in a process the court describes in a way beyond this writer's technical comprehension, Liberty Media asked the court to order the internet service providers (ISP) that serve these IP addresses to disclose the subscriber information associated with the addresses.  Judge Young granted Liberty Media's motion on May 10, 2011, "authorizing the ISPs to disclose the subscriber information for the unknown defendants to whom they provided service, after notifying the subscriber of the subpoena.  Subscribers were permitted twenty-one days after receipt of notice from their ISP to challenge the subpoena."  In the absence of a challenge, their names would be disclosed to Liberty Media.

Three of the individuals filed motions to quash the subpoenas after being informed by their ISPs that their identifying information had been subpoenaed in this lawsuit.  Two identified themselves as John Doe together with their ISP address, while one only identified himself as John Doe.  The identities of the other 35 were disclosed to Liberty Media, whose counsel evidently contacted them about settling the case, and almost half of the defendants have settled.

Judge Young denied the motions to quash on July 22, and apparently the remaining three names have been disclosed to Liberty Media, since the court reports that at least one of the John Does is lsited among those who have settled with Liberty Media.  At the time he ruled on the motion, he indicated that a written opinion would be forthcoming discussing the issues raised by the motions to quash.  The October 31 opinion is the result.

Judge Young easily disposed of the argument that Liberty Media had failed to state a prima facie case of copyright infringement in its complaint.  This incidentally seems to raise the issue whether pornographic films can be copyrighted, as to which there is some difference of opinion among federal courts.  Young identified this in a footnote as an issue of first impression in the First Circuit, cited opinions on both sides of the issue from other circuits, and asserted that the question "is not presently before the Court and the Court expresses no opinion on it," presumably because this opinion is dealing solely with a motion to quash a subpoena directed at non-parties (the ISPs), and the court is not interested in taking on the substantive legal question in this context.

After a complicated description of the factual allegations about how the infringement is taking place, Judge Young concluded that the essential elements of an infringement case had been sufficiently alleged.  He also ruled that the John Doe defendants did not have standing to raise various procedural issues concerning the subpoenas, because the subpoenas were served on the ISPs, none of whom had raised any procedural objections to them.  He also rejected an argument that joinder of these 30 anonymous defendants in one lawsuit was inappropriate because the facts as to each of them were likely to be different.  Young countered with Liberty Media's allegation that all 38 were part of a common "swarm" that was engaged in downloading and uploading segments of the film until at least some members of the swarm possessed substantially the entire film.  "This is sufficient to satisfy the 'same transaction or occurrence' requirement of permissive joinder," he concluded, and he found that although there might be separate factual questions pertaining to individual defendants, there were sufficient common issues of law and fact to make joinder appropriate, at least at this point in the litigation.

The most interesting issue, however, is Liberty Media's argument, responding to the motions to quash, that the court should not be accepting anonymous "John Doe" motions to quash in any event.  LM argues that any of the anonymous defendants who want to participate in the lawsuit in any manner should be forced to disclose their identities by filing any motions in their own names, relying on the general proposition that parties to federal litigation may not participate anonymously unless the court finds special circumstances justifying anonymity.  Responding to this argument, "Unnumbered Doe and Doe 15 argue that their anonymity should be protected because of the risk of coerced settlement and public humiliation that may follow allegations of infringing hardcore pornography."

Actually, the argument, which is developed more straightforwardly and with less delicacy in an anonymous blog posting that came to my attention through Westlaw from a blog called Techdirt (See 2011 WLNR 22824271, posted on Nov. 4), was that by obtaining the names of the defendants who had anonymously downloaded a gay porn film, Liberty Media could effectively "blackmail " some of them into settling by threatening to make public the identities of these men (presumably) who were downloading and distributing gay porn, thus effectively "outing" them, if not as gay, then at least as somebody who is downloading gay pornography from the internet, which in the minds of most people is pretty much the same thing.  Even as to men who are open about being gay, they might be coerced into settling to avoid having it made public that they were downloading and presumably viewing gay porn.

Judge Young's response to this is to hold that potential "embarrassment" of the defendants upon revelation that they are gay porn downloaders is not sufficient to justify allowing them to proceed anonymously. 

"While there is no case law directly on point in the First Circuit," he wrote, "the Superior Court of Massachusetts has dealt with this issue in the context of an action for declaratory judgment and breach of privacy.  In Roe v. General Hospital Corp., Civil Action No. 11-991-BLS1, 2011 WL 2342737, at *1 (Mass. Super. Ct. May 19, 2011) (Lauriat, J.), the court stated that the proponent bears the burden of demonstrating the need to proceed anonymously, and that relief will be granted only in exceptional circumstances.  The court held that determining whether a litigant may proceed anonymously requires balancing the 'litigant's substantial right to privacy' with the 'constitutionally embedded presumption of openness in judicial proceedings,' noting that circumstances such as economic harm or mere embarrassment will not suffice to overcome the public's interest in disclosure."  Why a federal district judge ruling in a federal question case would rely on a state trial court decision to deal with a question of federal procedure is…. slightly puzzling.  Perhaps it is the only published court decision that said what he was looking for.

Young treated the movants' argument that Liberty Media wanted the identity information in order to coerce settlements as "purely speculative and not grounds for allowing the moving defendants to proceed anonymously," and in a footnote he refused to treat the fact that LM had actually achieved settlements (on undisclosed terms) with 17 of the 35 defendants after learning their identity as any sort of confirmation that this was LM's strategy.  "Rather," he commented, "Liberty Media may simply have validly vindicated its legitimate interest in the 'openness of judicial proceedings.'"

He was similarly dismissive of the argument that disclosure of identities "may cause reputational harm and intrusion upon their privacy," mentioning that "Unnumbered Doe" had argued that "being named as a party to this action amounts to 'a public accusation' that the defendants downloaded and viewed homosexual pornography," and that the disclosure "will expose the defendants to 'intrusive public scorn.'"  (Could it be that "Unnumbered Doe" is a public official or candidate for office??)  Rejecting these arguments as justification for allowing the movants to proceed anonymously, Judge Young wrote:

"The potential embarrassment to Does 1-38 of being associated with allegations of infringing hardcore pornography does not constitute an exceptional circumstance that would warrant allowing the defendants to proceed anonymously."  Invoking again the recent Massachusetts Superior Court decision in Roe v. General Hospital Corp., he asserted that "potential embarrassment or social stigma" did not provide grounds for shielding their identity.

In a footnote, however, Judge Young "acknowledges that publicly identifying an individual as homosexual may fall within the recognized exceptions to the general proposition that all parties to a lawsuit be named in the pleadings," and he cites several decisions on point, including a very recent ruling by the U.S. Court of Appeals for the 3rd Circuit, Doe v. Megless, 654 F.3d 404, 408 (2011). But, he writes, "This case, which involved the alleged infringement of homosexual pornography, only creates an innuendo as to the defendants' sexual orientation.  Nevertheless, should individual defendants be concerned about being publicly 'outed' as discovery proceeds, the Court will entertain those arguments on an individual basis.  The Court presently expresses no opinion on whether homosexuality continues to be a protected privacy interest warranting anonymity.  If such a privacy interest exists, the Court will be careful to draw a line between the 'mere embarrassment' of being publicly named in a lawsuit involving hardcore pornography, which does not provide a basis for anonymity, and concern over the exposure of one's sexual orientation.  The Court presently declines, however, to grant anonymity to all of the defendants based on the generalized concerns of public scorn expressed by only two of the thirty-eight defendants."

Thus, this is not the last word on the issue of anonymity for the individual defendants.  If any of the defendants in this case can persuade the court on an individual basis that there are important reasons why their individual identity should be kept out of the public record, he will give them a hearing, although how sympathetic a hearing is open to some speculation.

The blog posting mentioned above suggested that if these defendants seeking anonymity are closeted gay men, the threat of revealing their identity and thus "outing" them can be a potent coercive element that Liberty Media could wield to extract a monetary settlement of its claims, without LM ever having to actually prove the elements at trial or on a substantive summary judgment motion.  And, the blogger pointed out, the consequences of "outing" somebody can be much more than merely "embarrassing," depending upon who the individual is and how he is situated in life.  It can result in loss of employment or housing, rejection by family members, and in some extreme cases individuals might end up committing suicide with their "cover" being blown. 

Which raises the larger question, of course, whether the movement for LGBT rights has progressed so far in this country — in terms of social acceptance as well as legal equality — that the traditional reasons for the law allowing gay litigants to proceed anonymously in certain circumstances still pertain.  It can be easy for a federal judge sitting in the cosmopolitan, politically gay-friendly city of Boston and state of Massachusetts – the first in the nation to have same-sex marriage – and think that revealing a person's sexual orientation is no big deal, or perhaps merely "embarrassing" for somebody, and to say that they brought this on themselves by signing up with an ISP to get internet service and then downloading gay porn, but such a conclusion may overlook the enormous variety of social strata in a state. 

This writer would be astonished, for example, if there were not homeless gay teens living on the streets in Boston after being thrown out by their families for being gay, a phenomenon that affects hundreds of kids living on the streets in "liberal" New York City.  And over the past year we have seen all too many reports of gay teens killing themselves after having been subjected to homophobic bullying at school with inadequate protection from the adults who are supposed to be responsible for their welfare, even in jurisdictions where anti-gay discrimination is officially outlawed by statute or ordinance.

The progress towards social and legal equality has actually been spectacular considering how much has happened so quickly, but it has been uneven and incomplete.  The decision raises interesting questions to ponder about how much is left to accomplish.


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