The Aware Woman Center For Choice in Melbourne, Florida, has accused CompuServe, which is now owned by America Online, and TML Information Services of New York, of charging for access to databases that allowed the activists to plug in clinic visitors' drivers license numbers and then pull up their home addresses, phone numbers, and other personal information.
The lawsuit also alleges that Meredith Raney of the antiabortion group Women's Legal Action Coalition and Christians for Life then used the information to harass patients and to discourage them from visiting the family planning clinic.
The case cuts across a wide range of Internet legal debates, from service provider liability to personal privacy. It also touches on one of the most volatile debates of modern society. The lawsuit is being brought by veterans of the abortion rights movement: Roy Lucas, who wrote the winning brief in the landmark Roe vs. Wade case, and Patricia Baird Windle, who along with her husband fought and won the Supreme Court decision upholding protest boundaries around abortion clinics.
"This a terrible breach of privacy, and it's forcing women to drive to other cities instead of getting community care," said Baird Windle, who founded the Aware Woman Center For Choice clinic in 1977 and runs two other facilities in the area, which have served an estimated 200,000 women.
"We need to stop these online services from providing this information without tightening their security," she added. "They are careless."
In its case against the ISPs, which also names antiabortion activists as defendants, the clinic cites a violation of the Federal Drivers Privacy Protection Act of 1994.
The law took effect in 1997 and prohibits state motor vehicle departments from disclosing personal information about individuals unless the data is requested, for example, by law enforcement agencies, court officials, businesses that need to verify information, statistical researchers, or licensed private investigators.
It is unclear whether the databases offered by the ISPs were in fact obtained from the Florida Department of Motor Vehicles.
TML Information Services claims on its Web site to be the "largest provider of online interactive access to motor vehicle records in the United States and Canada." But a company official could not be immediately reached for comment.
CompuServe, for its part, maintains that it only offered access to the database, which is now shut down, and that it did not collect information on its own. "As a premium service, we offer members access to databases, but this is third-party content that was maintained by the state of Florida," CompuServe spokeswoman Anne Bentley said today.
According to section 230 of the federal Telecommunications Act, ISPs are not to be held legally liable for content published on their services by third parties. Major online services, including AOL, have been let off the hook for content posted by their subscribers and partners.
"We're really clear--and so is the federal law on this question of liability for online providers of content--that ISPs are not liable for third-party content," Bentley said. "We are just providing access to this information."
But Windle argues that the ISPs are responsible for making this type of information publicly available, especially in the wake of several killings of abortion doctors around the country last year.
The lawsuit claims that Compuserve and TML have "negligently, recklessly, and tortuously facilitated the foregoing security- and privacy-invading activities of Mr. Raney, and others not yet fully known."
Windle, 64, is no stranger to legal battles over the privacy of abortion providers, as this is the second such case in which she has been involved. In a precedent ruling in 1994, the Supreme Court upheld the establishment of a 36-foot buffer zone around a clinic owned by Windle and her husband, to prevent protestors from physically interacting with patients.
"We know of a number of other cases in the country where the license plates are being looked up. The ISPs are making it too easy for them," she said. "It's dangerous. We have lost 24 doctors [who were afraid of retaliation by abortion foes] since 1989."
Still, it may be hard to hold the online service providers legally responsible for the actions of others.
"If the service providers are just making things available, that defense has been successful in the past," said Jim Butler, an attorney with Arnall Golden & Gregory who works with online service providers. "Even if they were offering the service themselves, there are 14 defenses for making that data available through the law."
But there are many other issues the court will take into consideration.
"The Drivers Privacy Protection Act recognized that information had become a commodity, and that there were risks to individuals due to the availability of that information," said Deirdre Mulligan, staff counsel on privacy issues for the Center for Democracy and Technology.
"There are lots of question here, such as where the services got the information," she added. "If they got it from the DMV, the DMV would have an obligation to abide by the law, too."
The Aware Woman Center For Choice clinic hopes that by taking online services to court, other online service providers will consider the consequences of their broader privacy practices, especially when the information can be traced back to medical patients.
"When it comes to abortion and privacy, the sale of massive mailing lists based on drivers license numbers gives activists the ability to invade the privacy of thousands of people," said clinic attorney Lucas, who came out of retirement to take on the case. "Women have a fundamental right to privacy to not only obtain the procedure, but to not have their name put on a bulletin board after."