COURT FILE NO.: CV-22-682808
DATE: 20220715
ONTARIO SUPERIOR COURT OF JUSTICE
RE: BUNGIE INC., JAMES DOE, AND JANE DOE Applicants
-and-
TEXTNOW INC., Respondent
BEFORE: FL Myers J
COUNSEL: Neil Paris, Adam Stikuts, and Zach Parrott, for the Applicants
READ: June 15, 2022
ENDORSEMENT
The Motion
[1] I granted ex parte relief in this urgent motion in writing on June 15, 2022. In view of the serious nature of the allegations of danger to the individual applicants, I have withheld reasons until counsel for the applicants advised recently that the need for confidentiality had abated.
[2] This is an application for an urgent and confidential Norwich Pharamacal order requiring the respondent to disclose the identity of customers who are using the respondent’s anonymized telephone numbers to make racist and serious physical threats against the individual applicants.
[3] The applicants have submitted evidence that customers of the respondent are “doxxing” the individual applicants. Doxxing refers to a malicious use of the internet to search for and expose on social media and elsewhere private information about individuals so as to threaten to harm them or to enable others to do so.
[4] The application raised a number of procedural issues to which the applicants responded.
The Facts
[5] Bungie Inc. operates the popular multiplayer online game known as Destiny 2. More than 40 million users play or stream it (i.e. watch others play the game online).
[6] The applicants James Doe and Jane Doe are employees of Bungie Inc. One is a developer. The other is a “Community Manager” who receives player feedback and communicates with players.
[7] The two employees live together with their child in the United States. The precise location is not important. What is clear however is that the underlying criminal and tortious activity against the two employees is aimed at them in the US and not in Ontario.
[8] The respondent TextNow Inc. is a CBCA company with its registered office in Waterloo, Ontario. It is a mobile virtual network operator.
[9] TextNow buys access to phone networks operated by telephone companies. It then provides its customers with access to telephone numbers in its name throughout North America for very little cost.
[10] TextNow’s terms of service make clear its intention to protect the anonymity of its customers.
[11] While protecting customers’ private information is usually a good and necessary function of any business, it comes as no surprise that a business that provides cheap, anonymous telephone numbers for customers might find its services used for nefarious purposes. One might pause to wonder whether this is the intent of TextNow’s business model. But it makes no difference to the outcome and I have no evidence to make any findings on the point in any event.
[12] On June 2, 2022, one of the applicant employees tweeted an advertisement for Destiny 2 on his or her personal account on Twitter. The ad consisted of two videos of a Destiny player who goes by the online name or handle “Uhmaayyze”.
[13] Uhmaayyze is African-American. He is well known among those who play and watch Destiny 2 because he performs freestyle rap on live-streaming platforms while he plays the game.
[14] The video ads tweeted by an applicant name Uhmaayyze as a “Hero”. They are part of a series of ads celebrating unique contributions of members of the “Destiny Community”.
[15] The Twitter account used by the applicant identified her as a representative of Bungie Inc.
[16] Later that day, an anonymous person posted messages on Twitter directed at Bungie accounts threatening to kill Bungie employees on June 14, 2022. Shortly after, several employees of Bungie began receiving voicemails and text messages on personal, unpublished telephone numbers repeatedly using the racial slur referred to colloquially as the “N-word”.
[17] That night a person who called himself “Brian” left a voicemail on the personal telephone line of the employee who posted the ads. Brian referred to the employee by name and requested that Destiny 2 provide a scene or a downloadable piece of the game (a “DLC”) for “N-word killing”. A few minutes later he called back and identified himself as a member of a far-right-wing social network known to publish material that is censored from mainstream social media. He repeated the request for an “N-word killing” DLC to be added to Destiny 2.
[18] About an hour later, the other employee spouse received an anonymous text message saying:
Hey actually scratch that. You’re a fat bitch and [OTHER EMPLOYEE’S NAME] is a limp wristed homo. Tell him to pass this up to the team. ADD A N****R KILLING DLC.
[19] Several voicemail messages were then left for the second employee including a recorded voice saying the N-word electronically chopped and edited to rapidly repeat the word in different pitches over 20 times.
[20] In another voicemail, the caller said “Enjoy your pizza.”
[21] Around the same time, a person using the same telephone number as the anonymous caller ordered a pizza to the employees’ home address.
[22] Not surprisingly, the use of the employees’ home address frightened them. They called the local police and made a report.
[23] The applicants’ evidence also reports that recently, a Destiny 2 user with the username “@Inkcel” had been making threats against one of the employee applicants. Inkcel tweeted a picture of the employee’s Bungie staff ID card. He tweeted that he had moved to live 30 minutes from the employee.
[24] Inkcel tweeted that the employee “is not safe”. Inkcel tweeted the employees full legal name.
[25] The similarity of the name “Inkcel” to the term “incel” makes the threats more frightening to the applicants as well. The term “incel” stands for “involuntary celibate” and refers to a violent misogynist ideology espoused by some who identify themselves with that term.
[26] The employees also fear that the use of their home address may be a prelude to a dangerous attack referred to as “swatting”. This is a “prank” where someone reports to the police that a serious crime is under way at the victim’s house. The goal is to induce the police to dispatch a SWAT team to the victim’s home. If the victim is livestreaming at the time, the people watching on the internet presumably find it entertaining to watch the police invade the home of the unsuspecting victim.
[27] Not only is it terrifying to have a SWAT team descend upon one’s house, but it is dangerous. People have been killed in such “pranks”.
[28] Sending a pizza to a doxxing victim’s home is a threat by the doxxer that he knowns where the victim and his or her family live.
The Respondent
[29] The telephone number through which the anonymous person has been harassing the applicant employees is operated by the respondent TextNow.
[30] I quote from the applicants’ factum to describe information held by TextNow about its customers:
According to [TextNow’s] Privacy Policy, TextNow collects and retains information about its users, including: name; user ID; email address; phone number; Internet protocol (“IP”) address; device ID; advertiser ID; device type, settings, and operating system; logs of calls and messages sent and received; credit card number; records of purchases of TextNow services, information about the user’s interactions with the TextNow application and advertisements; and latitude/longitude coordinates and general physical location or movements of the user from IP and Wi-Fi access information.
To create a new TextNow user account, the user must connect their TextNow account to a pre-existing Google, Facebook, or Apple account. TextNow likely has additional information connected to the Facebook, Apple, or Google account that John Doe used to register for TextNow’s services. TextNow states it will only preserve its records for 90 days and absent a non-disclosure order, TextNow will inform users of any requests for their customer information and give them seven days to dispute the request in court.
Form of the Order
- To its credit, TextNow publishes a help page on its website describing the directions and details that it requires to process a court order for the production of user data. TextNow’s policy specifies that the order must: be Addressed to “TextNow, Inc.”; contain a valid TextNow number or username; contain a specific list of user data; contain a specific date or date range of the requested records due to number recycling; contain a specific time zone the requested records are in; be signed and dated; and include a requested due date of the Order. TextNow also provides an email address for receiving subpoenas and court processes. [Emphasis added. Footnotes omitted.]
Procedural Issues
[31] On June 13, 2022, counsel submitted a request for an urgent hearing by email under s. C.1.8 of the Notice to Profession – Toronto; Toronto Expansion Protocol for Court Hearings During COVID-19 Pandemic. Counsel provided an unissued draft notice of application. It named only TextNow as the applicant. The draft application was accompanied by an affidavit of in-house counsel. The evidence in the affidavit was entirely based on unattributed hearsay and a fair degree of speculation.
[32] In granting an urgent hearing in writing the next morning, I had the Trial Coordinator send the following endorsement to the counsel:
This matter is urgent. It is brought without notice. Applications without notice are heard in writing under s. C.1.3 of the Notice to the Profession in the Toronto Region.
I have several concerns about this application. The applicant is the employer of two people who are allegedly being harassed. Its standing to act for the victims is not at all clear. Moreover, the affiant has little personal knowledge of the matters to which he attests. The filing of articles about swatting and professing a fear of increasing degrees of risk of harm to the employees is purely speculative. This may be more a criminal matter for law enforcement where the employees reside.
This is a Norwich Pharamcol [sic] proceeding to learn the name of the alleged harasser. Usually these orders are made on notice to the respondent and orders go on consent or are unopposed. The only rationale for proceeding ex parte here is the concern that the respondent has a policy to tell its customers of applications of this type. The court should hear submissions about the availability of an interim order prohibiting disclosure of the application by the respondent to its customer pending the outcome of the application on notice.
I will consider the question of whether to make an interim order prohibiting disclosure of this application by the respondent when served. The applicant may deliver further evidence if so advised. It shall deliver a factum to establish (a) its standing to bring the Norwich Pharmacal application; (b) the admissibility of the General Counsel's evidence; and (c) the test for making an order without notice prohibiting a respondent from disclosing a Norwich Pharamcal [sic] application to the target of the investigation. The applicant shall also deliver a draft order. Material can be delivered to my Judicial Assistant at Therese.navrotski@ontario.ça.
[33] Late that afternoon, counsel submitted revised material that resolved all of the issues that I had raised. Their factum was especially helpful and I express my gratitude to counsel for reacting so quickly and thoroughly.
Anonymized proceedings
[34] The applicants solved my concern about its standing by naming the employees as parties. It also delivered brief affidavits from the employees attesting to the information in the lead affidavit. The affidavits did not identify the employees by name. But they were signed and pursuant to my endorsement discussed below, I required that the application be commenced using the employees’ legal names.
[35] Where a party to a proceeding wishes anonymity, they need an order. Typically, the order is obtained in Civil Practice Court or in writing just before the commencement of the proceeding. The order should require the proceeding to be commenced in the parties’ legal names. If there are grounds to do so, the initial material will be sealed immediately and the order will approve the use of pseudonyms to refer to those parties thereafter. In that way, there is a proper record of a proceeding brought by an identified person sui juris or with capacity to sue. Moreover, by using pseudonyms, an order sealing the full court file can usually be avoiding protecting the open courts principle.
Notice to the Respondent
[36] Some case law questions whether notice of applications for Norwich Pharmacal orders ought to be given to the alleged wrongdoer who is the target of the order. See, for example, York University v. Bell Canada Enterprises, 2009 46447 (ON SC). The arguments against doing so usually centre on whether providing notice to the alleged wrongdoer might precipitate dissipation of assets or further wrongdoing. In this case, for example, it would border on the foolhardy to give notice to the alleged wrongdoer given the types of threats that he has made against the employees.
[37] But here, the applicants go further and move without notice to the respondent service provider/recordkeeper. As I said in my first endorsement, usually these orders are made on notice and without opposition by credible recordkeepers like the banks, internet service providers (like Rogers, Bell, and Telus) or major website operators (like Google and Facebook for example).
[38] The applicants submit that given the express promise by TextNow to inform its customers if their names are sought as set out in its terms of service, it is necessary to obtain an order preventing TextNow from doing so before it has a chance to follow through. One does not need a very broad imagination to think that there may be service providers who share the interests of those to whom they knowingly offer anonymizing services. Providing notice of an application for a Norwich Pharmacal order to such a company would be an invitation for it to hurry to notify its costumer before an order is made to prevent it from doing so.
[39] Rule 38.06 allows a party to move for directions as to whether notice of an application is required. No specific factors are provided for the judge to consider on such a motion. However, by way of analogy, Rules 37.07 (2) and (3) allow for motions to be made without notice as follows:
(2) Where the nature of the motion or the circumstances render service of the notice of motion impracticable or unnecessary, the court may make an order without notice.
(3) Where the delay necessary to effect service might entail serious consequences, the court may make an interim order without notice.
[40] In my view, in light of the express terms of service of TextNow, this is a case in which notice of the application should be waived in the interests of justice. The delay necessary to give notice of this proceeding “might entail serious consequences”. If TextNow tells its customer, as it has committed to do, the harm he might commit given his anti-social behaviour and overt threats is very serious.
[41] Accordingly, I made the following endorsement in granting the order sought on June 15, 2022:
For reasons to be delivered, order to go as sought. The applicants shall commence the application in their legal names. The issued Notice of Application and any original amended notices and original affidavits shall be sealed and shall not form part of the public record pending further order of the court.
These proceedings are hereby anonymized. All references to the individual applicants shall use the pseudonyms James Doe and Jane Doe respectively. As soon as the application is commenced in
the parties’ legal names, the title of proceeding is amended to substitute the pseudonyms for the legal names. All parties shall file only anonymized versions of their materials in the public court file.
The test for a Norwich Pharmacal order is readily met. The respondent’s business model and public policies make it too dangerous to risk providing notice to it before non-disclosure and anonymization orders are in place. There will be no prejudice to the respondent by the issuance of this order. If the respondent moves to set aside this order, the burden will be on the applicants to justify the order afresh.
I am satisfied that a non-disclosure order is required to prevent the purpose of this order from being undermined.
The applicants shall give notice of the making of the sealing and confidentiality order to the press in accordance with the court’s Practice Direction. A case conference may be convened before me if any member of the press advises the applicants’ counsel that it wishes to question the order.
The Norwich Pharmacal Order
[42] In the York University decision mentioned above, Strathy J. (as he then was) set out the legal test for a Norwich Pharmacal order:
[13] On August 21, 2009, the Court of Appeal for Ontario released its decision in GEA Group AG v. Ventra Group Co., [2009] O.J. No. 3457, 2009 ONCA 619 ("GEA Group"), which conducted an extensive review of the Canadian cases in which Norwich orders have been granted and discussed "the circumstances in which this extraordinary discretionary relief may be obtained in Ontario" (at para. 1). The Court of Appeal agreed with earlier authorities that the following factors govern the determination of whether to grant a Norwich order [at para. 51]:
(i) Whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
(ii) Whether the applicant has established a relationship with the third party from whom the information is sought, such that it establishes that the third party is somehow involved in the acts complained of;
(iii) Whether the third party is the only practicable source of the information available;
(iv) Whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure; and
(v) Whether the interests of justice favour obtaining the disclosure. [List of cases omitted.]
[43] The purpose of the order is to let the plaintiffs or applicants obtain the name of the person whom they wish to sue. No money damages are sought. The plaintiffs just seeks discovery of information – usually a name and address.
[44] There also usually is no allegation that the respondent in the Norwich Pharmacal proceeding has done anything wrong itself. But, the target defendant, whom the plaintiff alleges is a wrongdoer, must have implicated the respondent somehow in his or her wrongful acts.
[45] Here he used the respondent’s anonymous telephone line to conduct his racist harassment and to make his threats. In most fraud cases, the fraudster deposits money in one or more bank accounts and uses the bank’s services to move the money away from the plaintiff. The acts of the wrongdoer engage the recordkeeper respondent sufficiently in the wrongdoing that equity requires the recordkeeper to assist as the applicant/plaintiff seeks access to justice.
[46] In GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619, the Court of Appeal stressed the importance for the court to assess the need for discovery and the proposed use to which the information sought may be put:
[85]…It is therefore incumbent on the applicant for a Norwich order to demonstrate that the discovery sought is required to permit a prospective action to proceed, although the firm commitment to commence proceedings is not itself a condition precedent to this form of equitable relief.’
[91]… While an applicant for Norwich relief must establish that the discovery sought is needed for a legitimate objective, this requirement may be satisfied in various ways. The information sought may be needed to obtain the identity of a wrongdoer (as in Norwich Pharmacal), to evaluate whether a cause of action exists (as in P. v. T.), to plead a known cause of action, to trace assets (as in Bankers Trust and Leahy), or to preserve evidence or property (as in Leahy). The crucial point is that the necessity for a Norwich order must be established on the facts of the given case to justify the invocation of what is intended to be an exceptional, though flexible, equitable remedy.
[47] In this case, the applicants have no intention to sue the target(s) in Ontario. Whether they sue in the US or just give the name to the police, I am satisfied that the exceptional equitable remedy ought to be available to identify people who harass others, with base racism, who dox, abuse personal information, and make overt threats of physical harm and death. Obtaining discovery of the identity of a purported criminal and civil wrongdoer is a recognized purpose of a Norwich Pharmacal order. It makes no difference that the wrongdoer target is not in Ontario or that proceedings will not be brought here. We exercise comity with the US courts and justice system and we know we can rely upon them to provide full faith and credit to our requests for assistance. While this request could have come though other routes (criminal or judicial), there is nothing objectionable about the use of a Norwich Order providing its prerequisites are met as they are here.
FL Myers J
Date: July 15, 2022