Unmasking "crack smoking jesus": Do Internet Service Providers Have a Tarasoff Duty to Divulge the Identity of a Subscriber Who is Making Death Threats?

The authors spent nearly a year wrestling with this issue after their clients in civil litigation began to receive pseudonymous threats by email and on an Internet message board maintained by Yahoo! Inc. Three months after the threats began, the U.S. Federal Bureau of Investigation (FBI) determined the identity of the perpetrator. After another seven months, the local Attorney's office commenced prosecution. During the ten-month period before prosecution, however, the perpetrator's identity remained a secret, pursuant to rules of federal grand jury secrecy. The FBI agent and the assistant Attorney handling the case knew, but were not permitted to tell, who was making the threats. It was compelled by the company's clients to use an Internet service provider (ISP) to reveal voluntarily the identity of a subscriber who has pseudonymously posted or emailed death threats. But Yahoo! refused. This article sets forth the reasons why we have concluded that an ISP is not only permitted by federal law, but also obligated by California law, to reveal upon request the identity of a subscriber who has pseudonymously posted or emailed threats of death or great bodily injury.