Christopher Wolf, director of the law firm Hogan Lovells’ Privacy and Information Management group, addresses his new book with co-author Abraham Foxman, Viral Hate: Containing Its Spread on the Internet. To what extent do hateful or mean-spirited Internet users hide behind anonymity? How do we balance the protection of the First Amendment online while addressing the spread of hate speech? Wolf discusses how to define hate speech on the Internet; whether online hate speech leads to real-world violence; how news sites like the Huffington Post and New York Times have dealt with anonymity; lessons we should impart on the next generation of Internet users to discourage hate speech; and cases where anonymity has proved particularly beneficial or valuable.
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Hot-tempered police offers, pushover judges, and vague laws make for a dangerous combination. In July, a controversy erupted in Renton, Washington (a Seattle suburb) when the town’s police department launched a legal assault on an anonymous YouTube user for merely uploading a few sarcastic videos poking fun at the department’s scandals.
In an op-ed in The Seattle Times, Nicole Ciandella and I explain what happened in Renton and discuss the saga’s implications for constitutional rights in the digital age:
According to Washington state law, a person is guilty of criminal “cyberstalking” if he makes an electronic communication using lewd or indecent language with the intent to embarrass another person. In other words, a Washingtonian who creates a raunchy email message, blog post or Web video to embarrass a foe isn’t just playing dirty; he’s technically breaking the law. One YouTube user recently learned this lesson the hard way.
Last month, the scandal-ridden Renton Police Department launched a criminal cyberstalking investigation against a YouTube user known only as “MrFuddlesticks.” The user had uploaded a series of lewd, animated videos poking fun at recent allegations of wrongdoing by Renton police officers. In one video, a character talks about his civilian superior’s lack of law-enforcement experience; in another, characters discuss the impropriety of a police officer who slept with a murder suspect.
Even though none of MrFuddlesticks’ videos mention the city of Renton or any police officers by name, Renton police managed to convince a county judge to issue a warrant to compel Google, YouTube’s parent company, to disclose identifying information about MrFuddlesticks’ accounts, including credit-card details and even contents of Gmail messages.
You can read the rest of the essay here. (For more on the controversy, see Jacob Sullum at Reason’s Hit & Run; also see Mike Masnick at Techdirt. For an exploration of the case’s constitutional implications, see Eugene Volokh at The Volokh Conspiracy.)
Here on the TLF, we’ve repeatedly cautioned lawmakers about the dangers of criminalizing cyberstalking (1, 2, 3, 4). Back in 2006, CNET’s Declan McCullagh explained why all Internet users should be worried about vague, overbroad cyberstalking laws. As the troubling actions of Renton’s finest illustrate, the potential for such laws to be abused is very real. Let’s hope lawmakers in Washington and in the numerous other states with cyberstalking laws on the books take a hard look at their laws.
My latest Mercatus Center white paper is entitled “Kids, Privacy, Free Speech & the Internet: Finding The Right Balance.” From the intro:
Concerns about children’s privacy are an important part of [the ongoing privacy debate]. The Children’s Online Privacy Protection Act of 1998 (COPPA) already mandates certain online-privacy protections for children under the age of 13. The goal of COPPA was to enhance parents’ involvement in their children’s online activities and better safeguard kids’ personal information online. The FTC is currently considering an expansion of COPPA, and lawmakers in the House of Representatives introduced legislation that would expand COPPA and apply additional FIPPS regulations to teenagers. Some state-based measures also propose expanding COPPA
While well-intentioned, efforts to expand privacy regulation along these lines would cause a number of unintended consequences of both a legal and economic nature. In particular, expanding COPPA raises thorny issues about online free speech and anonymity. Ironically, it might also require that
more information about individuals be collected to enforce the law’s parental-consent provisions. There are better ways to protect the privacy of children online than imposing burdensome new regulatory mandates on the Internet and online consumers. Education, empowerment, and targeted enforcement of unfair and deceptive practice policies represent the better way forward.
The paper can be downloaded on SSRN, Scribd, or directly from the Mercatus website at the link above.
I started to see hints of it last week, but I now believe Google+ is in full stumble-mode over user identity and naming. It looks as though they’ve taken common sense—everyone has one name—and woven it into their terms of service. You can’t use a non-traditional name on Google+. But naming and identity are more complex than that.
In my book, Identity Crisis, I wrote that an identity is a collection of information other people and institutions have about a person. Others use identity information they have to distinguish you from other people (or to group you) in their minds or records. This makes identity a gating mechanism: you can allow people into a part of your life by making them privy to the relevant set of identifiers, or keep them out by denying them that information.
Commonly, people use varied identities to exclude others, for social or professional reasons, such as when they open a social network account in a false name to keep their parents or their students from accessing parts of social life that are not meant for them to see. Sometimes identity is varied for political reasons, such as when an account opens in a pseudonym for the purpose of avoiding reprisal. This is an area where Facebook’s “real names” policy has stepped in it. The further one lives from conventional life in a given society, or the more contrarily to power, the more important it is to control identity.
Identity Woman—who tells her story at the first link above—uses her non-traditional identity in a non-traditional, but completely reasonable, way. It’s just the name that identifies her better to the community she plans to reach on Google+. But Google+ thinks that the name she is supposed to use is the same one her parents gave her, is the same one on her tax return, is the same one on her college degree, is the same one on her driver’s license.
Google+ has smartly replicated the real-world concept of social circles in its “circles” function. But they haven’t replicated real-world practice in terms of naming and identity. Why? Among other reasons, because doing so would allow users to decide which “circle” Google itself is in. Google doesn’t want that. Like Facebook wants to be your super-friend, Google wants to be your super-circle.
Google+ is seeing like a state, vastly simplifying the use of identity on its platform to serve its purposes. That will be a continuing discomfort and an impediment to its fullest success. But the fullest success of social networking will probably not be on an owned platform anyway.
Of the many tech policy-related books I’ve read in recent years, I can’t recall ever being quite so torn over one of them as much as I have been about Jaron Lanier‘s You Are Not a Gadget: A Manifesto. There were moments while I was reading through it when I was thinking, “Yes, quite right!,” and other times when I was muttering to myself, “Oh God, no!”
The book is bound to evoke such strong emotions since Lanier doesn’t mix words about what he believes is the increasingly negative impact of the Internet and digital technologies on our lives, culture, and economy. In this sense, Lanier fits squarely in the pessimist camp on the Internet optimists vs. pessimists spectrum. (I outlined the intellectual battle lines between these two camps my essay, “Are You An Internet Optimist or Pessimist? The Great Debate over Technology’s Impact on Society.”) But Lanier is no techno-troglodyte. Generally speaking, his pessimism isn’t as hysterical in tone or Luddite-ish in its prescriptions as the tracts of some other pessimists. And as a respected Internet visionary, a gifted computer scientist, an expert on virtual reality, and a master wordsmith, the concerns Lanier articulates here deserve to be taken seriously— even if one ultimately does not share his lugubrious worldview.
On the very first page of the book, Lanier hits on three interrelated concerns that other Net pessimists have articulated in the past:
- Loss of individuality & concerns about “mob” behavior (Lanier: “these words will mostly be read by nonpersons–automatons or numb mobs composed of people who are no longer acting as individuals.”)
- Dangers of anonymity (Lanier: “Reactions will repeatedly degenerate into mindless chains of anonymous insults and inarticulate controversies.”)
- “Sharecropper” concern that a small handful of capitalists are getting rich off the backs of free labor (Lanier: “Ultimately these words will contribute to the fortunes of those few who have been able to position themselves as lords of the computing clouds.”)
Again, others have tread this ground before, and it’s strange that Lanier doesn’t bother mentioning any of them. Neil Postman, Mark Helprin, Andrew Keen, and Lee Siegel have all railed against the online “mob mentality” and argued it can be at least partially traced to anonymous online communications and interactions. And it was Nick Carr, author of The Big Switch, who has been the most eloquent in articulating the “sharecropper” concern, which Lanier now extends with his “lords of the computing clouds” notion. [More on that towards the end.] Continue reading →
A terrific Radio Berkman podcast this week on “Adventures in Anonymity” featuring Sam Bayard, a fellow at the Harvard Berkman Center and the Assistant Director of the Berkman Center’s Citizen Media Law Project. Along with host Daniel Dennis Jones, Bayard discusses the intersection of anonymity, free speech, defamation law, privacy, and more. In addition to sorting through the sticky legal and ethical issues, their discussion includes some really excellent historical perspectives on anonymous speech. They also get into the recent “skank” blogger case and the AutoAdmit case. I discussed those cases and some of these issues more generally in these essays:
In a post earlier this week, I discussed Randy Cohen’s “guideline” for anonymous blogging. Specifically, Cohen argued in a recent New York Times piece that, “The effects of anonymous posting have become so baleful that it should be forsworn unless there is a reasonable fear of retribution. By posting openly, we support the conditions in which honest conversation can flourish.” While sympathetic to that guideline, I noted I agreed with it as an ethical principle, not a legal matter. In others words, what might make sense as a “best practice” for the Internet and its users would not make sense as a regulatory standard. I prefer using social norms and public pressure to drive these standards, not regulation that could have an unintended chilling effect on beneficial forms of anonymous online speech.
Dan Gillmor of the Center for Citizen Media of the Harvard Berkman Center has a new column up at the UK Guardian in which he takes a slightly different cut at a new standard or social norm for dealing with some of the more caustic anonymous speech out there:
One of the norms we’d be wise to establish is this: People who don’t stand behind their words deserve, in almost every case, no respect for what they say. In many cases, anonymity is a hiding place that harbours cowardice, not honour. The more we can encourage people to use their real names, the better. But if we try to force this, we’ll create more trouble than we fix. But we don’t want, in the end, to turn everything over to the lawyers. The rest of us — the audience, if you will — need to establish some new norms as well.
Specifically, Gillmor argues that, ” We need to readjust our internal BS meters in a media-saturated age,” because “We are far too prone to accepting what we see and hear.” I think Gillmor has too little faith in most digital denizens; most of us take anonymous comments with a grain of salt and assume that the ugliest of those comments are often untrue. And that’s generally the “principle” he recommends each of us adopt going forward: Continue reading →
Randy Cohen, who pens “The Ethicist” column for The New York Times Magazine, wrote this week about the “skank case,” or the controversy surrounding the recent legal outing for an anonymous blogger who called fashion model Liskula Cohen a “psychotic, lying, whoring … skank.” Thanks to a recent court decision, we now know that the blogger who uttered those words is Rosemary Port, a 29-year-old Fashion Institute of Technology student. And she now apparently plans to sue Google for revealing her identity to the court. [As a shameful aside, can I just say that there has never been a nerdy Internet legal battle that involved two more smokin’ hot women than this! Sorry, I couldn’t resist pointing out the obvious.]
Reflecting on this catfight in his NY Times Magazine editorial, “Is It O.K. to Blog About This Woman Anonymously?” Randy Cohen asks:
Has anonymous posting, though generally protected by law, become so toxic that it should be discouraged? It has. To promote the social good of lively conversation and the exchange of ideas, transparency should be the default mode. […]
Here is a guideline. The effects of anonymous posting have become so baleful that it should be forsworn unless there is a reasonable fear of retribution. By posting openly, we support the conditions in which honest conversation can flourish.
But Mr. Cohen never specifies whether he is talking about an
ethical guideline or a legal guideline. There is a world of difference, of course. As a matter of social or personal ethics, I think many of us would agree that anonymity “should be forsworn” and we should encourage people to “post openly.” I always live by that rule myself when blogging or posting comments on other sites, whether they are blogs, discussion boards, or even shopping sites. But that is my choice. I would not want that choice forced by law upon others. Continue reading →
The Gawker offers a fascinating discussion of the legal right to anonymity:
“There is clearly a moral case that some people should be able to join the public debate and retain their anonymity,” Tench told Gawker. “And I think this will have a chilling effect. Blogs like this can only exist anonymously, and I imagine that anyone who wanted to set one up is thinking about this case.”
As well they should. But the notion that anonymous publishers have a right, in perpetuity, to keep their identities a secret—or that people who learn their identities are honor-bound not to reveal them—is nonsense.
Amen! One can resist, fiercely, government efforts to reduce online anonymity through age verification or identity authentication mandates, as Adam Thierer have argued most recently in our work about efforts to expand COPPA to cover adolescents (“COPPA 2.0,” which would indirectly mandate age verification for large numbers of adults for the first time). One might even argue that there are moral reasons to resist the urge to out pseudonymous/anonymous bloggers (just as one might avoid outing closeted gays out of respect for their privacy). But one need not accept the pernicious idea that the government should punish the outing of peusodonymous/anonymous writers, which is simply a restraint on legitimate free speech.
This exchange, cited by the Gawker article, is particularly interesting, and demonstrates how one can distinguish the question of whether outing is “right” or “appropriate” from the question of whether it should be punished by law:
When the National Review‘s Ed Whelan revealed Publius, who writes for Obsidian Wings, to be a professor of law at the South Texas College of Law named John F. Blevins earlier this month, the palpable online outrage forced Whelan to apologize.
Doug Feaver, a former Washington Post reporter and editor, has published a very interesting editorial today entitled “Listening to the Dot-Commenters.” In the piece, Feaver discusses his personal change of heart about “the anonymous, unmoderated, often appallingly inaccurate, sometimes profane, frequently off point and occasionally racist reader comments that washingtonpost.com allows to be published at the end of articles and blogs.” When he worked at the Post, he fought to keep anonymous and unmoderated comments off the WP.com site entirely because it was too difficult to pre-screen them all and “the bigger problem with The Post’s comment policy, many in the newsroom have told me, is that the comments are anonymous. Anonymity is what gives cover to racists, sexists and others to say inappropriate things without having to say who they are.”
But Feaver now believes those anonymous, unmoderated comment have value because:
I believe that it is useful to be reminded bluntly that the dark forces are out there and that it is too easy to forget that truth by imposing rules that obscure it. As Oscar Wilde wrote in a different context, “Man is least in himself when he talks in his own person. Give him a mask, and he will tell you the truth.” Too many of us like to think that we have made great progress in human relations and that little remains to be done. Unmoderated comments provide an antidote to such ridiculous conclusions. It’s not like the rest of us don’t know those words and hear them occasionally, depending on where we choose to tread, but most of us don’t want to have to confront them.
It seems a bit depressing that the best argument in favor of allowing unmoderated, anonymous comments is that it allows us to see the dark underbelly of mankind, but the good news, Feaver points out, is that:
But I am heartened by the fact that such comments do not go unchallenged by readers. In fact, comment strings are often self-correcting and provide informative exchanges. If somebody says something ridiculous, somebody else will challenge it. And there is wit.
He goes on to provide some good examples. And he also notes how unmoderated comments let readers provide their heartfelt views on the substance of sensitive issues and let journalists and editorialists know how they feel about what is being reported or
how it is being reported. “We journalists need to pay attention to what our readers say, even if we don’t like it,” he argues. “There are things to learn.”
Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
Anonymity, Reader Comments & Section 230
by Adam Thierer on April 9, 2009 · 18 comments
Doug Feaver, a former Washington Post reporter and editor, has published a very interesting editorial today entitled “Listening to the Dot-Commenters.” In the piece, Feaver discusses his personal change of heart about “the anonymous, unmoderated, often appallingly inaccurate, sometimes profane, frequently off point and occasionally racist reader comments that washingtonpost.com allows to be published at the end of articles and blogs.” When he worked at the Post, he fought to keep anonymous and unmoderated comments off the WP.com site entirely because it was too difficult to pre-screen them all and “the bigger problem with The Post’s comment policy, many in the newsroom have told me, is that the comments are anonymous. Anonymity is what gives cover to racists, sexists and others to say inappropriate things without having to say who they are.”
But Feaver now believes those anonymous, unmoderated comment have value because:
It seems a bit depressing that the best argument in favor of allowing unmoderated, anonymous comments is that it allows us to see the dark underbelly of mankind, but the good news, Feaver points out, is that:
He goes on to provide some good examples. And he also notes how unmoderated comments let readers provide their heartfelt views on the substance of sensitive issues and let journalists and editorialists know how they feel about what is being reported or how it is being reported. “We journalists need to pay attention to what our readers say, even if we don’t like it,” he argues. “There are things to learn.”
Continue reading →