Caveat Orator: Anonymous Free Speech in the Blawgosphere

“Gossiping. Shaming. Rumor-mongering. All have pernicious effects on people’s lives, yet they all involve acts of expression. When the law restricts the circulation of information, it creates potential threats to free speech. This is one of the main reasons that the law of defamation and privacy are limited in scope. If the law’s goal is to restrict the spread of information when it causes harm, how can the law do so without unduly infringing upon freedom of speech?” – Daniel J. Solove, The Future of Reputation:Gossip, Rumor and Privacy on the Internet (New Haven/London: Yale University Press, 2007) at p.12.

I have previously blawged about internet anonymity in the context of cyberlibel or internet defamation here, here, here and here.

The perennial debate in the blawgosphere over the limits of free speech and internet anonymity was mentioned in a post by Fresno criminal lawyer Rick Horowitz who relates a story about a recent flamewar between well-known blawgers @gideonstrumpet and Norm Pattis. The posts by “Gideon”, the allonymous author of the Public Defender blawg and Norm Pattis are available here and here.

 Horowitz wades into the anonymity debate, stating:

“But what finally makes me speak out is Norm Pattis, one of the few bloggers who compares (in my mind) favorably to Scott Greenfield, taking yet another great blogger to task because a) he blogs anonymously and b) he disagrees with Norm about something. Norm normally “agree[s] with what is written there [on the anonymous blogger’s blog]“ so he gives him a pass for being a coward.

Ok. What he said was he gives him a pass for his “feet of clay.” I take that as an accusation of cowardice. A completely unfair and false accusation of cowardice unbefitting someone of Norm’s stature and intelligence.”

Scott Greenfield’s comments to Horowitz’s post are particularly incisive and decisive on the issue. However, my focus here is slightly different, albeit supportive of the views of many blawgers regarding the anonymity vs. free speech debate.

I preface my remarks in the words of Voltaire who said: “If you wish to converse with me, define your terms.” As Solove notes:

“Traceable anonymity is for the most part what currently exists on the Internet. Many people use the term anonymity rather imprecisely—to refer to both anonymous speech (no name or identifier attached) and pseudonymous speech (using a pen name).”

Online anonymity and pseudonymity are often used interchangeably, but the following Wikipedia reference (yes, I appreciate the irony in using a secondary source created by anonymous collaborators) provides a useful dichotomy between the two inter-related concepts:

“Anonymity is derived from the Greek word ἀνωνυμία, anonymia, meaning “without a name” or “namelessness”. In colloquial use, anonymous typically refers to a person, and often means that the personal identity, or personally identifiable information of that person is not known.

Sometimes it is desired that a person can establish a long-term relationship (such as a reputation) with some other entity, without his/her personal identitypseudonym, with the other entity. Examples of pseudonyms are nicknames, credit card numbers, student numbers, bank account numbers, and IP addresses. A pseudonym enables the other entity to link different messages from the same person and, thereby, the maintenance of a long-term relationship. Although typically pseudonyms do not contain personally identifying information, communication that is based on pseudonyms is often not classified as “anonymous”, but as “pseudonymous” instead. Indeed, in some contexts, anonymity and pseudonymity are separate concepts.

However, in other contexts what matters is that both anonymity and pseudonymity are concepts that are, among other things, concerned with hiding a person’s legal identity. In such contexts people may not distinguish between anonymity and pseudonymity.

The problem of determining whether or not the identity of a communication partner is the same as one previously encountered is the problem of authentication.”

Anonymity or pseudonymity are often heralded as cornerstones for freedom of speech and democracy; facilitating the protection of an individual’s right to express his or her opinion to further legitimate political, legal or social objectives, particularly in an age where the Chinese government actively censors internet traffic and the Iranian government cracks down on political activists opposing the Ahmadinejad regime. Real people are risking their lives and physical harm just to get the message out.

However, freedom of speech is not an absolute: Justice Oliver Wendell Holmes, Jr.’s famous metaphor in Schenck v. United States, 249 U.S. 47 (1919), remains à propos in 2010:

“the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

But, is the converse true? Does free speech protect those who falsely spread lies, defame, harass, or intimidate others in the modern theater known as Social Media? For an excellent analysis from a law and technology perspective, see, Lucock, Carole and Yeo , Michael , “Naming Names: The Pseudonym in the Name of the Law”, University of Ottawa Law & Technology Journal, Vol. 3, No. 1, 2006. Available at SSRN: http://ssrn.com/abstract=999675

Another commentator on Horowitz’s blawg, Venkat Balasubramani, suggests that the debate over anonymity is over-hyped by lawyers:

“…W/respect to anonymity, I’ve never understood why people get so excited about anonymity. People see it as coming out of weakness. Some see it as generational. At the end of the day, it’s really not that big of a deal, and in situations where it is a big deal, people put in the requisite amount of energy and will expose what needs to be exposed. I really don’t get why all of this energy is spent on this. I personally don’t see blogging anonymously as somehow negative, and I’ve never understood why people attack ideas put forth by others because they are offered anonymously. That just makes me discount the person attacking on the basis of anonymity a bit. But we’re all human, and I probably would attack someone for approaching blogging in a way that doesn’t feel acceptable to me…” [emphasis added]

In a post entitled “Blogging Under a Pseudonym”, “Timethief” frames the issue thusly:

“The proponents of blogging under your real name take the position that doing so provides:
* a sense of responsibility for the things they blog about and publish;
* readers a clear idea of their interests and preoccupations;
* business and professional advantages of becoming a well know name in a chosen field.

The proponents of blogging under a pseudonym take the position that blogging under your real name has led to:

* situations where bloggers lost their jobs because of their Facebook activity.
* harassment and stalking and criminal threats made by internet trolls.
* being placed on government and/or police watchlists.
* becoming a target for identity theft.”

I hasten to add that my attempt to provide source attribution to “Timethief” itself is a conundrum; quaere whether it constitutes plagiarism if the author is unknown and cannot assert moral rights under copyright law?

As Scott Greenfield points out, the issue of online anonymity/pseudonymity is often “oversimplified”. One only needs to point to the alarming increase in the incidents of cyberbullying, cyberstalking and cyberlibel to fully appreciate the implications of unbridled “anonymous free speech”. I use the phrase parenthetically with purpose; in my mind, “anonymous free speech” is not the grandiloquence of the Founding Fathers’ writing as “Publius” or famous authors using nom de plumes. Few blawgers venture to fly into the sun like Icarus to reach the the “Pantheon” of political revolutionaries or will their names be added, even as a footnote, to the Canon of Western Literature.

My interest is not merely academic. There are a number of significant legal issues arising from the proliferation of anonymous and pseudonymous online personas.

As The Charlotte Observer reports:

“A move to help identify people who anonymously post libelous messages on blogs and other Internet sites was rejected Monday by South Dakota lawmakers after opponents said the state would have trouble regulating the worldwide network.

The House States Affairs Committee voted 10-3 to kill a bill that would have required those who operate Internet sites to keep logs of Internet Protocol addresses so they could identify people who contribute libelous messages anonymously or under false names. (H/T Laura McWilliams: http://lauramcwilliams.wordpress.com)

Clearly, the South Dakota legislators realized that they had bitten off politically more than they can chew. Cyberspace is ubiquitous and borderless—there is no World Internet Court to impose universal jurisdiction—although there are concerted efforts to battle child pornography and human slavery among various local and national organizations and police forces, including the FBI and Interpol.

All it takes is one vindictive, cyberstalking gang-rapist with a vendetta to cause internet havoc (I demur in naming this individual to avoid feeding into his narcissism but many on Twitter will be familiar with this “model citizen”). Suffice it to say that anonymity has its benefits and I do not, for an instant, begrudge any blawger who wishes to use a nom-de blawg for reasons of privacy or fear of retribution from current or prospective employers. I do, however, draw the proverbial line in the sand to those who think that they can hide behind the cloak of internet anonymity to promote a malignant agenda of cyber-harassment, intimidation or, ironically, shouting down those who may disagree with their so-called iterations of free speech.

A final thought.

For those who believe that social media platforms, such as Twitter, provide a safe harbour to protect account holders from anonymous users who “abuse, harass, threaten, impersonate or intimidate” them, compare Twitter’s Terms of Service (Version 1) with the Twitter’s Terms of Service (Current) . In particular, consider the following Limitation of Liability “click-wrap” clause:

Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TWITTER AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; AND (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT TWITTER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

According to the so-called Twitter Rules:

Content Boundaries and Use of Twitter
In order to provide the Twitter service and the ability to communicate and stay connected with others, there are some limitations on the type of content that can be published with Twitter. These limitations comply with legal requirements and make Twitter a better experience for all. We may need to change these rules from time to time and reserve the right to do so. Please check back here to see the latest.

*Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others
*Trademark: We reserve the right to reclaim user names on behalf of businesses or individuals that hold legal claim or trademark on those user names. Accounts using business names and/or logos to mislead others will be permanently suspended.
*Privacy: You may not publish or post other people’s private and confidential information, such as credit card numbers, street address or Social Security/National Identity numbers, without their express authorization and permission.
*Violence and Threats: You may not publish or post direct, specific threats of violence against others.
*Copyright: We will respond to clear and complete notices of alleged copyright infringement. Our copyright procedures are set forth in the Terms of Service.
*Unlawful Use: You may not use our service for any unlawful purposes or for promotion of illegal activities. International users agree to comply with all local laws regarding online conduct and acceptable content.
*Verified accounts: You may not use the Verified Account badge unless it is provided by Twitter. Accounts using the badge as part of profile pictures, background images, or in any way implying false verification will be permanently suspended.


Restrictions on Content and Use of the Services

We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services and to terminate users or reclaim usernames.

Please review the Twitter Rules (which are part of these Terms) to better understand what is prohibited on the Service. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Twitter, its users and the public.

Tip:Twitter does not disclose personally identifying information to third parties except in accordance with our Privacy Policy.

So why the change? According to Erna Mahyni on Tech.Blorge.com: Twitter amends TOS to allow harassment:

“When a user complained of being harassed on Twitter, Twitter’s response was to announce changing its terms of service. In other words, it’s not going to act on the complaint but instead is going to amend its TOS. Ariel Waldman made a complaint to Twitter support about a user who was making derogatory comments about her on Twitter, to the extent of publishing her full name and slurring her with coarse insults. Twitter’s TOS clearly states as article 4:

‘You must not abuse, harass, threaten, impersonate or intimidate other Twitter users.’

Caveat Orator.


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