So I stole your identity . . . sue me!

We take it for granted that there are some fairly clear lines that you don’t cross – and if you do, supposedly you’ll get into a lot of trouble.

Take identity theft. Say you’re Enterprise A with Competitors B, C and D. If an overzealous salesperson for Competitor B were to go to Hotmail.com, set up an account using your vice president of sales’ name and identity, and then send out e-mails to your clients stating falsehoods about your products, this clearly would be over the line, illegal and the perpetrator would get in big trouble over it, right?

Unfortunately, it’s not as clear-cut as you might think. Take the case of Ron Fitch v. John Doe, now going before the Maine Supreme Court. On Christmas Eve, someone (John Doe) created a Hotmail account in Fitch’s name, using Fitch’s dead Saint Bernard’s name as the password, and sent an e-mail to Fitch’s neighbors containing a cartoon lampooning Fitch, his wife and their dead dog. Fitch, understandably upset, traced the e-mail to a Time Warner account using the e-mail header information and sued John Doe, obtaining a subpoena from the court for Time Warner to release John Doe’s subscriber information. John Doe, not wanting to embarrass himself, has been spending a ton of money to try to stop the release of his identity. (In the interest of disclosure, Fitch is my father-in-law. Read more.

It turns out one of the major arguments John Doe’s attorneys are making is that much of the hoopla we’ve heard out of Washington about going after spammers and protecting people’s identity and the like has been geared toward criminal cases. The case law regarding the civil-case use of subpoenas and court orders to release subscriber information is less clear.

Moreover, trying to get the police interested in a situation like Fitch’s – which the Portland police thus far have deemed a neighborhood spat not worth their attention – is almost impossible. It takes a lot of money – damages, that is – to get the police involved these days. So the burden becomes one of having to sell your criminal case to the police to get a sense of justice, or having to deal with a far less specific body of civil law.

I’m sure there are a lot of lawyers out there who will chime in with, “Well, what about Schintler v. Boogyman in Nebraska,” or something like that. Sure, there are probably isolated cases here and there, but what’s been clear in the coverage of the Fitch case is that: 1) it’s hard to get the police excited about your case, even when someone clearly has committed a crime against you, when the damages are hard to prove and more likely to involve pride than the pocketbook, and 2) it’s harder to make decent progress in civil cases lacking clear support in the legislation and case law.

Take our example of Enterprise A. The hypothetical e-mail could be set up to look like a standard notification from your company and could say totally factual things – exposing the pitfalls and downsides of your product, in an “alert” to customers. Clearly, this is something of which Competitor B could take advantage and turn into sales.

But how do you prove that? And even if you prove it, do you have the money and time to do something about it? (Fitch might have to wait a year just to find out if the Maine Supreme Court will order the release of John Doe’s identity.) And lacking clear-cut major revenue impact, will you be able to get the police interested in your case?

Unfortunately, the law does not appear to be on our side. We should not have to rely on proving to a police investigator that situations such as this could be really damaging. Washington needs to reaffirm the intent of its legislation to be binding in civil and criminal cases, and put some real legal teeth into civil statutes to allow discovery of identities in cases where such flagrant abuse has occurred.