When the Internet burst on the scene a few years ago, the expression, "on the Internet, nobody knows you are a dog," had some merit. Anyone — even a dog, supposedly — could create an email address or screen name with a pseudonym that did not reveal his or her true identity. As such, individual could cruise around in cyberspace quite anonymously, communicating with others and the world without those communications being traced back to the true point (or, specifically, true identity) of origin.

But as Dylan sang about the pre-cyber era, "the times, they are a-changing." Indeed, strenuous efforts are being made to unmask the identity of otherwise anonymous Internet communicators. It is becoming more and more common for companies in particular to seek to unveil the true identities of speakers of online content.

For example, it's not unusual for companies to take the position that postings on Internet bulletin boards or contained in e-mails defame the reputation of the companies and even adversely impact the performance of the companies in the stock markets. In such a context, when the supposedly offending online content comes from anonymous sources using pseudonyms (which often is the case), companies issue subpoenas to Internet service providers (ISPs) seeking the true identities of the sources, so that the companies then can pursue legal recourse against these individuals.

The ISPs normally take the position that they do not reveal the true identities of their customers absent a court order. Therefore, the ISPs provide notice to the individuals letting them know that a subpoena has been issued that, if answered, would reveal the identity of the individuals. If the individuals do not respond on a timely basis, the ISPs usually will provide the identifying information requested by the subpoenas. However, if the individuals act on time, their recourse is to file a motion to quash the subpoenas.

When that happens, courts are called upon to decide whether the subpoenas should be quashed, meaning that the information disclosing the identity of the individuals will not be provided, or whether the subpoenas should issue, resulting in the identifying information being produced.

So, how is a court to proceed with faced when a motion to quash in this context? First, the court must be cognizant of legal precedent that holds that First Amendment free speech rights remain protected even when engaged in anonymously. The court also must keep in mind that the United States Supreme Court has held that First Amendment protections extend to speech on the Internet.

But these opening principles do not mean that the inquiry always ends with a ruling in favor of anonymous Internet speech. Otherwise, people could engage in all sorts of damaging conduct on the Internet anonymously without having any legal responsibility for the harm caused.

Accordingly, the courts have started to fashion a balancing test. A court first is to evaluate a complaint to determine whether the plaintiff has set forth a prima facie cause of action against the anonymous defendant. As such, the plaintiff must provide sufficient evidence that each element of the cause of action against the defendant is satisfied, so that identities of otherwise anonymous Netizens are not revealed simply based on a conclusory and unsupported complaints.

Assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court then must balance the defendant's First Amendment right of anonymous speech against the strength of the prima facie case presented and the necessity of disclosure of the anonymous defendant's identity to allow the plaintiff to proceed properly.

With any legal balancing test, there is plenty of discretion to be applied by a judge. Because there's no bright-line test, one cannot be assured in advance that a judge is going to apply the balancing test to the facts in a particular case in favor of anonymity or disclosure.

The lesson then is to be very careful about how one communicates on the Internet. Even a dog cannot feel confident that he is immune from liability stemming from Internet speech simply because he own his own does not provide his true identity with his online communications.

While anonymity is appropriate and should be protected for certain communications on the Internet, to be absolutely safe, do not say anything online that you would not be comfortable having traced back to your true identity.

Eric Sinrod is a partner in the San Francisco office of Duane Morris (www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. His column appears Wednesdays at USATODAY.com. His Web site is www.sinrodlaw.com, and he can be reached at ejsinrod@duanemorris.com. To receive a weekly e-mail link to Mr. Sinrod's columns, please send an e-mail with the word Subscribe in the Subject line to ejsinrod@duanemorris.com.

Reprinted with permission.