Attention anonymous Internet posters and bloggers: this court has good news and bad news for those of you who engage in nontortious discourse. The good news, announced earlier this year: your message will be protected by the First Amendment and your identity will be protected by the court quashing a third party subpoena, unless the requesting party can make a prima facie showing of defamation. (Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154 [72 Cal.Rptr.3d 231] (Krinsky).) The bad news: it may cost you tens of thousands of dollars to preserve your anonymity.
I must concur with my colleagues’ ultimate conclusion that Code of Civil Procedure section 425.16 (section 425.16) does not apply to requests for subpoenas, but I write separately for two reasons: First, I cannot agree with the rationale employed by the majority in reaching the conclusion that the statute is inapplicable here. Second, I urge the Legislature to consider whether the statute should be expanded to include third party subpoena requests of this type.
1. Section 425.16 does not apply because no cause of action is stated.
Although my colleagues have no difficulty rejecting the application of section 425.16 to a request for a third party subpoena, I do not reach this conclusion quite so easily and comfortably.
In enacting this provision, the Legislature expressed specific concern that “participation in matters of public significance . . . should not be chilled through abuse of the judicial process” and it noted “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).)
In Krinsky, this court recognized the exercise of constitutional rights implicated in anonymous Internet message board postings, saying “ordinary *811people with access to the Internet can express their views to a wide audience through the forum of the online message board. The poster’s message not only is transmitted instantly to other subscribers to the message board, but potentially is passed on to an expanding network of recipients, as readers may copy, forward, or print those messages to distribute to others. The use of a pseudonymous screen name offers a safe outlet for the user to experiment with novel ideas, express unorthodox political views, or criticize corporate or individual behavior without fear of intimidation or reprisal. In addition, by concealing speakers’ identities, the online forum allows individuals of any economic, political, or social status to be heard without suppression or other intervention by the media or more powerful figures in the field.” (Krinsky, supra, 159 Cal.App.4th at p. 1162.)
Here, appellant Mordecai Tendler, a rabbi, sought the identity of his online critics on four Web blogs or “blogs” related to matters of interest to members of the Orthodox Jewish community. This New York resident brought an action in Ohio claiming false and defamatory statements made against him and served subpoenas in California on Google, Inc., the Internet Service Provider (ISP) hosting the blogs, seeking the Internet protocol addresses of the respondents and thus their personal identities. Respondents’ motion to quash service of the subpoenas and their motion to dismiss under section 425.16 raised First Amendment objections and contained declarations concerning the potential consequences within the Orthodox Jewish community if disclosure occurred, including religious, economic and social ostracism.
Accordingly, from the trial court’s perspective, the issues before the court in California raised the question whether appellant’s request involved an “abuse of the judicial process” within the meaning of section 425.16.
It is understandable how the trial court reached the conclusion that the statute applied, given the lack of effective opposition on the part of appellant, coupled with the legislative mandate that section 425.16 be “construed broadly” to carry out its purpose. (Code Civ. Proc., § 425.16, subd. (a); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 60 [124 Cal.Rptr.2d 507, 52 P.3d 685].)
However, I reluctantly agree with the majority that even the broadest construction cannot bring this particular proceeding within the statute’s ambit. My colleagues easily dispose of the matter by finding that the statute applies only to complaints, petitions, or their equivalent. (See Code Civ. Proc., § 425.16, subd. (h).) In my view, by contrast, the pivotal point is that this proceeding presents no cause of action to be stricken. (Id., subd. (b)(1).)
As Witkin explains, “the meaning of ‘cause of action’ remains elusive and subject to frequent dispute and misconception . . . .” (4 Witkin, Cal. *812Procedure (4th ed. 1997) Pleading, § 25, p. 87.) Nevertheless, there are well-established precepts that help settle its meaning.
“The essence of a cause of action is the existence of a primary right and one violation of that right, i.e., it arises out of an antecedent primary right and corresponding duty, and a breach of such primary right and duty by the person upon whom the duty rests.” (Hilltop Properties, Inc. v. State (1965) 233 Cal.App.2d 349, 354 [43 Cal.Rptr. 605]; see also, e.g., Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904 [123 Cal.Rptr.2d 432, 51 P.3d 297]; Crowley v. Katleman (1994) 8 Cal.4th 666, 681 [34 Cal.Rptr.2d 386, 881 P.2d 1083]; McKee v. Dodd (1908) 152 Cal. 637, 641 [93 P. 854].) “The primary right and duty and the delict or wrong constitute the cause of action in the legal sense.” (Hilltop Properties, Inc. v. State, at p. 354.) “Action is not the same as cause of action. While ‘action’ refers to the judicial remedy to enforce an obligation, ‘cause of action’ refers to the obligation itself.” (Nassif v. Municipal Court (1989) 214 Cal.App.3d 1294, 1298 [263 Cal.Rptr. 195].)
In this case, appellant asserts his primary right or obligation in another jurisdiction. His subpoena request seeks only ancillary assistance from our state’s courts in order to prosecute his sister state action. (Cf. Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 162 [64 Cal.Rptr.3d 488] [section 425.16 does not apply to prayer for injunction, which “is a remedy, not a cause of action”].)
Under the explicit, operative terms of the statute, the special motion to strike targets a cause of action. (Code Civ. Proc., § 425.16, subd. (b)(1).) Here, there is no “cause of action” on which the special motion to strike can operate. The statute thus does not apply. As a consequence, respondents have no entitlement to statutory fees. (Cf. id., subd. (c).)
2. The Legislature should give this issue its consideration.
As this court noted in Krinsky, “computer users have encountered a proliferation of chat rooms and Web sites that allow them to share their views on myriad topics from consumer products to international diplomacy.” (Krinsky, supra, 159 Cal.App.4th at p. 1158.) Given that fact, there is good reason to believe there has been and will continue to be a corresponding increase in requests for subpoenas served on ISP’s and other site hosts to disclose the identities of writers. Some requests will be based on a legitimate right to discover the source of libelous statements or business disinformation schemes; but some will be solely for the purpose of silencing a critic by harassment, ostracism, or retaliation.
*813I urge the Legislature to consider whether section 425.16 as currently written adequately addresses this rapidly expanding arena of public expression and whether the statute leaves this popular forum open to potential “abuse of the judicial process” without the level of protection afforded “causes of action.”