Jane Doe case ignites confidentiality debate

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The Seventh Circuit sparked a controversy in the realm of legal blogs on Nov. 21, when it suggested sua sponte that the district court may have erred in allowing a party to proceed anonymously.

According to the decision, when Jane Doe (not her real name) was 16, she engaged in consensual sexual relations with Jason Smith, who was a year older. Smith had set up a hidden video camera and recorded the two in bed.

After the couple stopped dating, Smith circulated the tape at their high school. Doe also contends that Smith distributed copies by e-mail and that at least one of the recipients posted the data on the Internet.

Doe brought suit anonymously in Illinois federal court, alleging state law invasion of privacy and federal wiretap claims.

The district court dismissed the wiretap claim, because the complaint failed to allege that the recording was an “interception” within the meaning of 18 U.S.C. 2510(4).

Doe appealed, and the court of appeals reversed in a decision by Judge Frank H. Easterbrook.

The court concluded that the complaint sufficiently stated a cause of action, notwithstanding the absence of an allegation that Smith “intercepted” anything.

The court reasoned, “Plaintiffs need not plead facts; they need not plead law; they plead claims for relief. Usually they need do no more than narrate a grievance simply and directly, so that the defendant knows what he has been accused of. Doe has done that; it is easy to tell what she is complaining about.”

The court added, “Any district judge (for that matter, any defendant) tempted to write ‘this complaint is deficient because it does not contain…’ should stop and think:

What rule of law requires a complaint to contain that allegation? Rule 9(b) has a short list of things that plaintiffs must plead with particularity, but ‘interception’ is not on that list.”

Turning to the merits, the court found the complaint sufficient.

The first element is that the defendant captured a “wire, oral, or electronic communication.” The court found that, assuming the video recorder captures sound, as well as video, this element is met.

The second element is that the defendant intercepted the oral communication. The court found, “If Doe and Smith engaged in ‘oral communication’ in Smith’s bedroom, then its acquisition by a video recorder — an ‘electronic … device’ — is covered.”

The third element is that the interception or disclosure occurred in or through the means of interstate commerce. The court held, “A home taping followed by a viewing at the local high school does not seem connected to interstate or international commerce. But if as plaintiff suspects Smith dispatched copies by email, which uses the interstate communications network, then the problem is solved.”

After rejecting a constitutional argument by Smith, because of his failure to comply with FRCP 25(c), and concluding that both the federal and state claims were properly resolved in federal court, the court reversed.

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Before doing so, however, the court instructed the district court on remand to revisit whether Doe should be allowed to proceed anonymously. The court wrote as follows:

“The judge granted her application to do so without discussing this circuit’s decisions, which disfavor anonymous litigation. The public has an interest in knowing what the judicial system is doing, an interest frustrated when any part of litigation is conducted in secret. Plaintiff was a minor when the recording occurred but is an adult today. She has denied Smith the shelter of anonymity — yet it is Smith, and not the plaintiff, who faces disgrace if the complaint’s allegations can be substantiated. And if the complaint’s allegations are false, then anonymity provides a shield behind which defamatory charges may be launched without shame or liability.

“Everyone at the high school who saw the recording already knows who ‘Doe’ is, and most people acquainted with Smith could find out whether or not they had seen the recording. (Their dating relationship was no secret.) Now perhaps anonymity
still could be justified if the tape has been circulated more widely (as counsel asserted at oral argument), and disclosure would allow strangers to identify the person in the recording and thus add to her humiliation. That question should be explored in the district court — and, if the judge decides that anonymous litigation is inappropriate, the plaintiff should be allowed to dismiss the suit in lieu of revealing her name.”

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David Ziemer can be reached by email.