Essay

Pseudonymous Litigation

Lior Jacob Strahilevitz

Deputy Dean, Professor of Law and Walter Mander Teaching Scholar, The University of Chicago Law School

The author thanks Omri Ben-Shahar, Alison LaCroix, Jonathan Masur, Paul Ohm, KarlNicholas Peifer, Matt Tokson, Paul Schwartz, and my editors at The University of Chicago Law Review for helpful comments and suggestions on earlier drafts, as well as Katie Heinrichs for excellent research assistance, and the Morton C. Seeley Fund and Milton and Miriam Handler Foundation for research support.

In March of 2003, Jane Doe, a sixteen-year-old student at Springfield High School, slept with Jason Smith. Subsequent events would show this to be a serious mistake. By sleeping with Smith, she was unwittingly casting herself for the leading role in an amateur pornographic film. After videotaping their sexual encounter, Smith allegedly circulated his footage to fellow students at Doe and Smith’s school. One of these students allegedly posted the media file on the Internet, and it seems to have been widely viewed by Doe and Smith’s peers. Doe sued Smith for violating the federal Wiretap Act, and asserted state law tort causes of action for intentional infliction of emotional distress, invasion of privacy, eavesdropping, and battery. The case of Doe v Smith eventually came before a panel of the Seventh Circuit, where Frank Easterbrook was the presiding judge. The trial court dismissed Doe’s claims based on a faulty reading of the Wiretap Act. Writing for the court, Judge Easterbrook cogently explained how the trial court had erred. The portion of the opinion dealing with the Wiretap Act is a model opinion.

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