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.

Download

Related Links

• Viral Hate: Containing its Spread on the Internet, Amazon
• About Christopher Wolf, Future of Privacy
• Christopher Wolf Biography, Huffington Post

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.

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:

1. 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.”)
2. Dangers of anonymity (Lanier: “Reactions will repeatedly degenerate into mindless chains of anonymous insults and inarticulate controversies.”)
3. “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.]

Singularity Silliness & a Kantian Categorical Imperative for High-Tech

Lanier is fairly thoughtful when walking us through these concerns, although at times his passions get the best of him as we’ll see later. He does a nice job asking people to think twice before taking too big of a gulp of the “free culture” kool-aid and extreme varieties of cyber-collectivism.  More broadly, his book is an attack on what he calls “cybernetic totalism,” or the belief by some extreme digital age optimists that a “hive mind” or “noosphere” is coming about; it’s a vision of the Net as an organism powered by the wisdom of crowds. Lanier thinks such thinking is all bunk and, worse yet, that it has dangerous ramifications for humanity and individuality. He is guided by the equivalent of the Kantian categorical imperative:

I take a mystical view of human beings. My first priority must be to avoid reducing people to mere devices. The best way to do that is to believe that the gadgets I can provide are inert tools and are only useful because people have the magical ability to communicate meaning through them. (p. 154).

Lanier is refocusing the inquiry (about the Net’s impact on society & culture) around the question of whether it has bettered the lot of the individual human being, not the group. What he laments is that the early cyberspace dream was supposedly guided by “a sweet faith in human nature,” but this “has been superseded by a different faith in the centrality of imaginary entities epitomized by the idea that the Internet as a whole is coming alive and turning into a superhuman creature.” (p. 14)  Referring to these folks as “digital Maoists,” Lanier argues that this movement “starts to look like a religion rather quickly”:

The Singularity and the noosphere, the idea that a collective consciousness emerge from all the users on the web, echo Marxist social determinism and Freud’s calculus of perversions. We rush ahead of skeptical, scientific inquiry at our peril, just like the Marxists and Freudians. (p. 18)

I too have grown tired of such quixotic techno-utopianism and those Internet pollyannas who sound like they long for the Singularity, global cybernetic consciousness, and life in The Matrix. (Kevin Kelly, I’m looking at you!) But I think Lanier casts this critical net far too wide by suggesting that this thinking has become the dominant mindset among modern digerati. While I agree it has caught on in some circles, I think plenty of others have called out this kookiness or refused to embrace it as a enthusiastically as Lanier suggests.

Lanier’s Critique of the Free Culture / Open Source Movement

Lanier is on safer ground in pushing back against the occasional narrow-mindedness of the free culture / open source movement and their frequently hostility to traditional forms of content creation. Like other Net critics before him, he stresses the occasional downsides of “the wisdom of the crowd” (groupthink, mob-like behavior, puerile comments, etc). And Lanier rightly points out that—contrary to what some free culture / open source advocates would have us think—personal expression and proprietary models have driven some amazing recent innovations, from great video games to Pixar movies to the iPhone. When specifically referring to the work of famed video game innovator Will Wright, creator of The Sims and Spore, Lanier notes:

Wright offers the hive a way to play with what he has done, but he doesn’t create using a hive model. He relies on a large staff of full-time paid people to get his creations shipped. The business model that allows this to happen is the only one that has been proven to work so far: a closed model. You actually pay real money for Wright’s stuff. (p. 132)

And, yet, Lanier notes that, “When Spore was introduced, the open culture movement was offended because of the inclusion of digital rights management software,” and “as punishment for this sin, Spore was hammered by mobs of trolls on Amazon reviews and the like, ruining it public image. The critics also defused what should have been a spectacular debut,” he claims.  I think Lanier makes many fair points here. First, it is certainly true that we occasionally see an entitlement mentality at work with some digital natives who seem to think that intellectual property rights and DRM are akin to a form of slavery. The notion that all intellectual creations must be released immediately into the wild without any constraint, protection, or form of payment is surely the height of digital utopianism, and Lanier is quite right to castigate those who adopt such an approach to culture and its creation.

But, again, one must be careful not to go overboard here. In particular, I think Lanier goes too far when he questions whether open source software has really advanced since the early days of its inception. “Open wisdom-of-crowds software movements have become influential, but they haven’t produced the kind of radical creativity I love most in computer science,” he says. (p. 126) He calls Linux merely “a superbly polished copy of an antique” bit of code, and says that he “long(s) to be made obsolete by new generations of digital culture, but instead I am tortured by repetition and boredom.”  Really? How hard are you looking, Jaron?  Because I believe you can find more—and more interesting—forms of culture today than at any point in human civilization. I’m constantly amazed by the creativity and innovation of all sorts that we see on display every day thanks the Internet and digital technologies— including open source-based efforts.

Generally speaking, I’ve tried to stake out a middle ground, Rodney King (“why-can’t we-all-just-get-along?”) position by arguing that free and open source software (FOSS) and remix culture more generally has offered society enormous benefits, but that FOSS (or collective “wiki” models) will not replace all proprietary business models or methods entirely. Each model or mode of production has its place and purpose and they will continue to co-exist going forward, albeit in serious tension at times.  We should appreciate the benefits of both models and be thankful these distinct modes of cultural production are at work in our modern society and economy.

That said, I find myself increasingly agreeing with Lanier’s worry that “The distinction between first-order expression and derivative expression is lost on true believers of the hive.” He elaborates:

First-order expression is when someone presents a whole, a work that integrates its own worldview and aesthetic. It is something entirely new in the world. Second-order expression is made of fragmentary reactions to first-order expression. A movie like Blade Runner is first order expression, as was the novel that inspired it, but a mashup in which a scene from the movie is accompanied by the anonymous masher’s favorite song in not in the same league.(p. 122)

He’s onto something here. I sometimes find myself perplexed by the amount of remix worship going on in cyberspace and worry that the underlying creativity of the original, first-order work is being downplayed or forgotten. And there are plenty of epigones out there who are butchering someone else’s original work of art on a regular basis. Just search YouTube for the phrase “guitar solo” and be prepared to have your ears violated by those who fancy themselves the reincarnation of Jimi Hendrix or Stevie Ray Vaughn.

Of course, some would claim that a redo, remix, or mashup of first-order creations is the highest form of adoration of that original content—even if it is poorly done. Perhaps. But all too often the focus and adoration is on the redo or remix itself, which often doesn’t share the same degree of creative genius as the underlying first-order expression. And then, of course, there are the sticky copyright / fair use battles. Do I need permission to remix first-order expression?  To be clear, I am not against remix; I made that clear here when commenting on Lessig’s book of the same name. But I generally side with those whose adoration and amazement lies with the original creator(s) of the underlying first-order work. Moreover, I also fear that too often there is a blurring between remix culture and“ripoff culture” (i.e., those who aren’t out to create anything new but instead just take something without paying a penny for it).

For those reasons, I sympathize with Lanier’s critique of the free culture movement when it comes the question of derivative works and how little focus is on the underlying first-order expression. And this is exacerbated when the free culture movement adopts an entitlement mentality regarding access to that first-order expression, regardless of the impact of unlimited use on the first-order creator. Lanier fears that eventually this will result in the loss of a great deal of original culture and creativity:

I don’t claim I can build a meter to detect precisely where the boundary between first- and second-order expression lies. I am claiming, however, that the web 2.0 designs spin out gobs of the latter and choke of the former. It is astonishing how much chatter online is driven by fan responses to expression that was originally created within the sphere of old media and than is now being destroyed by the Net. Comments about TV shows, major movies, commercial music releases, and video games must be responsible or almost as much bit traffic as porn. There is certainly nothing wrong with that, but since the web is killing the old media, we face a situation in which culture is effectively eating its own seed stock. (p. 122)

I’m not sure I would go that far, and in some ways Lanier is undercutting his own argument here since he points out that those free culture fanatics in the webosphere are still plenty enamored with old media!  But his broader concern—about us eating our own seed stock—deserves to be taken seriously. It’s great that the online mob still appreciates professional, first-order cultural production, but will they support it monetarily going forward so that it can be sustained? It’s a fair question.

Lanier’s Short-Sighted Critique of Modern Culture

At other points in the book, Lanier’s critique of the free culture movement and the modern Web 2.0 world goes off the rails because it devolves into a subjective attack on almost all modern culture. I find that many Net pessimists engage in this sort of philomaths-vs-the plebians, elites-vs-common folk critique. In defending the continued importance of professional content creators, proprietary business models, or intellectual property rights, many Net critics unfortunately often feel the need to denigrate all digital era culture or digital natives themselves. Helprin, Keen, and Siegel were guilty of this in the extreme in their books; Lanier somewhat less so here.  But he still does so occasionally throughout the book.

For example, Lanier dismisses most modern culture as “retro” and “a petty mashup of preweb culture.” “It’s as if culture froze just before it became digitally open, and all we can do now is mine the past like salvagers picking over a garbage dump.” (p. 131) I find this argument largely uncompelling and quite myopic. I believe many Net pessimists (and many other cultural critics, for that matter) are guilty of a form of hyper-nostolgia about those mythical “good ‘ol days” when all was supposedly much better. It’s a common refrain we’ve heard from many social and cultural critics before, of course. But the problem with such cultural critiques is that they are highly subjective in nature. And, like many other critics before him, it seems likely that Lanier’s “adventure window” has slammed shut. Our willingness to try new things and experiment with new forms of culture—our “adventure window”—fades rapidly after certain key points in life, as we gradually get set in our ways. Many cultural critics and average folk alike always seem to think the best days are behind us and the current good-for-nothing generation and their new-fangled gadgets and culture are garbage.

But Lanier’s specific assertion that modern culture has “frozen” and is little more than “a petty mashup of preweb culture” demands closer inspection.  I will be guilty of a bit of subjectivity here myself, but looking back over the list I put together here of my choices for “Best Albums Every Year Since Your Birth,” I am struck by how much incredibly innovative music has been made over the past decade. Among my favorites: Muse, The White Stripes, The Flaming Lips, The Secret Machines, Vampire Weekend, The Killers, Modest Mouse, White Lies, Arcade Fire, Them Crooked Vultures, Silversun Pickups, Stufjan Stevens, Wolfmother, The Airborne Toxic Event, Phoenix, Manchester Orchestra… these bands are making some absolutely amazing music.

Now, if by “retro” Lanier means that some of these modern bands draw upon past musical influences well, then, that is pretty much the history of all music in a nutshell!  Consider my favorite rock band of all time: Led Zeppelin.  Zep was creative beyond belief with a thunderous sound that many others have tried, but failed, to reproduce ever since. If you know anything about Zep, however, you realize how profoundly they were influenced by blues artists. Not only are the influences unmistakable, but their first album is practically a tribute to the genre. But then Zep began experimenting with new sounds based on alternative influences and elevated their art to a whole different level. By their third album, they were drawing upon Celtic influences. By their fifth, east Asian influences can be detected. By their last, they were even toying with a bit of disco. So, are we to conclude from this that Zep was “retro” and “a petty mashup of [previous] culture”? The answer is YES! But only in the sense that all musicians are influenced to some degree by those that came before them.  And the same is true of some modern bands like The White Stripes, Wolfmother and Them Crooked Vultures, all of which are clearly influenced by Zeppelin. (Of course, John Paul Jones of Led Zeppelin is also a member of Them Crooked Vultures, so it only makes sense in that case!) Regardless, these are great bands making great original rock music, even if they also draw upon earlier sounds and influences.

In sum, Mr. Lanier and other cultural critics who lament supposed declines in the quality of modern music (or other culture) typically fail to acknowledge the highly subjective nature of their critiques. Moreover, even if we had a metric by which to judge, it is simply much to early to judge how this generation’s music stacks up against previous eras. Regardless, I wish Net critics like Mr. Lanier would stop tying their critiques of the free culture movement to such subjective theories about the supposedly death of quality content or modern culture. It seriously undercuts their case. There are ways to properly express concerns about the potential downsides of the free culture mindset without suggesting the entire digital generation is a lost cause or that all modern culture is moribund.

“Lords of the Cloud” & False Consciousness

I also find Lanier’s “lords of the cloud” critique of social networking and advertising unpersuasive.  Lanier seems to believe that Google, Facebook, MySpace, Twitter, and other Web 2.0 sites are all just part of the hive mind indoctrination scheme. Or, at a minimum, they are turning our brains into Jello: “Something like missionary reductionism has happened to the Internet with the rise of web 2.0,” he claims.  “The strangeness is being leached away by the mush-making process,” and “using computers to reduce individual expression is a primitive, retrograde activity.” (p. 48)  I don’t know what the hell that even means, but Lanier’s general crankiness here goes back to his nostalgic view of the supposed passing of Web 1.0’s halcyon days.  As Glenn Harlan Reynolds noted in his review of Lanier’s book:

Mr. Lanier is nostalgic for that era and its homemade Web pages, the personalized outposts that have largely been replaced by the more standardized formats of Facebook and MySpace. The aesthetics of these newer options might be less than refined, but tens of millions of people are able to express themselves in ways that were unimaginable even a decade ago. And let’s face it: Those personal Web pages of the 1990s are hardly worth reviving. It’ll be fine with me if I never see another blinking banner towed across the screen by a clip-art biplane.

Amen. Most of us who endured the Web 1.0 world wouldn’t want to go back to the floppy disk era for one second, regardless of Lanier’s romantic view of it.  And are Web 2.0 sites really “de-emphasizing individual humans” as Lanier suggests?  I think that would come as a surprise to a lot of other web critics who think such sites over-emphasize humans by allowing us to have the equivalent of the “Daily Me”, or hyper-tailored content and endless interactions with chums. Of course, the reality is somewhere in between: modern social networking sites and Web 2.0 offer opportunities for us to engage in, or view moments of, both beautiful self-expression and embarrassingly excessive narcissistic immaturity.

But even if Lanier could be convinced that Web 2.0 offered more opportunities for exactly the sort of individual excellence he desires, he wouldn’t care because his view of the modern Netizenry is that we are all just mindless sheep who are being ruthlessly exploited by our commercial masters. “The whole artifice, the whole idea of fake friendship, is just bait laid by the lords of the clouds to lure hypothetical advertisers–we might call them messianic advertisers–who could someday show up.” (p. 54) He then goes into some nonsense about social networking sites manipulating people and “violating privacy and dignity.”  What’s ironic about this argument is that Mr. Lanier goes around calling people “digital Maoists” and yet here he is trotting out some classic Marxist tripe about consumer manipulation! As Clive Thompson’s correctly noted in his review of the book:

Lanier’s critique of online life has a strong whiff of the “false consciousness” dicta that gained currency in the aftermath of the New Left. Lanier assumes people are essentially imprisoned by the software around them and are so witless that they aren’t aware of how impoverished their lot has become—Facebook as the high-tech iteration of Plato’s cave. Now, it’s certainly true that software can influence our behavior… But it’s also true that users aren’t so easily controlled. Indeed, the history of technology is full of people using software in ways the designers never intended or even imagined.

Quite right. Indeed, someone as sapient as Lanier should have a little more faith in humanity and their ability to use new tools and adapt to new realities to better the lot of mankind. Sadly, he’s bought into the sad ‘we’re-all-just-sheep-being-led-to-the-slaughter’ view of things.

Conclusion

Despite the reservations I’ve raised here, Jaron Lanier’s You Are Not a Gadget is an important book worthy of your attention. It will certainly find a slot high up on my next end-of-year “Most Important Info-Tech Policy Books” list since we’ll be talking about Lanier’s book for many years to come.

____________

Additional Thoughts on Jaron Lanier’s You Are Not a Gadget:

• review by Michael Agger in Slate
• review by Glenn Harlan Reynolds that appeared in The Wall Street Journal
• a review by Ellen Ullman that appeared in The Washington Post
• a review by Clive Thompson
• New York Times article by John Tierney, “The Madness of Crowds and an Internet Delusion“
• Lanier interview on NPR’s “On Point” with Tom Ashbrook, “Where the Web Went Wrong“
• WNYC radio debate between Nina Paley and Jaron Lanier
• some typically snarky commentary from Mike Masnick of TechDirt
• + Jaron’s personal website and his bio
• + some videos featuring Jaron discussing or debating the themes from You Are Not a Gadget…

A PBS News Hour Debate

Jaron Lanier: Staying Human in a Tech-Driven World from Richard Huskey on Vimeo.

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:

• Randy Cohen’s “Guideline” for Anonymous Blogging: Ethical or Legal Matter?
• Guidelines & Best Practices for Anonymous Blogging (Pt.2)
• Anonymity, Reader Comments & Section 230
• The AutoAdmit Case and the Future of Sec. 230
• The Future of Sec. 230 and Online Immunity: My Debate with Harvard’s John Palfrey

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:

When you read or hear an anonymous or pseudonymous attack on someone else, you should not just assume — barring persuasive evidence of the charge — that it’s false. Assume that the accuser is an outright, contemptible liar.

I am generally sympathetic to Gillmor’s principle, but I think he goes a bit overboard in asking us to assume that all anonymous or pseudonymous attacks are false. So, here’s a reformulation of it: We should discount, by at least some small measure, anonymous online speech that attacks others in a heated manner and which lacks supporting evidence for the assertions made or charges levied. However, the more heated or vicious the attack, the greater we should discount the veracity of the claims asserted.

Of course, this is simply a guideline for readers, not speakers or the sites that host online speech.  Each speaker will have to decide for themselves whether to post anonymously or reveal their identities. As I noted in my previous essay, however, I think it makes sense to generally encourage people to reveal their true identities when blogging or commenting.  I have always lived by that rule personally when blogging or posting comments on other sites, whether they are blogs, discussion boards, or even shopping sites.

For sites that host speech, things get trickier.  Luckily, we have Section 230 of the CDA to protect online operators from onerous forms of liability for the content they host on their sites, although some would like to change that. Also, as I’ve discussed here before, some critics of online anonymity would like to see “civility check” or “cooling off periods” instituted that would prevent instantaneous comments from being posted without some sort of human or automated review of the content.  But tweaking Sec. 230 liability norms or requiring “cooling off periods” for comments could have a profoundly chilling effect on many beneficial forms of online speech. As Gillmor wisely notes in his essay:

anonymity has crucially important value. We need it for whistleblowers, for political dissidents in dictatorships — for those who have important stories to tell but whose lives or livelihoods would be in jeopardy if their identities were exposed.

And one has to think through the mechanics of regulation before willy-nilly proposing to “ban anonymity” online.  As Gillmor points out, that could lead to some troubling outcomes:

People who’d ban anonymity don’t seem to realise that it’s technically impossible unless we’re willing to turn over all of our communications in every venue to a central authority — a system that would herald the end of liberty. They can’t really want such a regime, can they? Meanwhile, even that kind of structure could and would be hacked by motivated types, though with more difficulty.

That’s exactly right. Nonetheless, online speakers and websites shouldn’t just treat Sec. 230 as a “get-out-of-jail-free” card or let their anonymous speech rights go to their heads.  There’s nothing wrong with a little sensible site policing and self-regulation to deal with the baser elements of the blogosphere.

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.

Some might say, why not? Isn’t it just as good of a legal principle as a social norm? Absolutely not. The chilling effect would be substantial.  Of course, some would say, ‘Fine, we need to chill a little speech when that speech gets too heated or vulgar.’  But that’s a dangerous line we should be wary of asking judges to cross.  As is always the case in matters such as this, it comes down to a line-drawing exercise regarding what should constitute “acceptable speech.”

The better approach is to take Mr. Cohen’s “guideline” and push for its general acceptance for some (perhaps most) websites, but leave everyone free to decide whether anonymous posting and comments remain in place.  We don’t demand identification here at the TLF, for example, because we don’t necessarily mind what some shitheads (you know who you are!) will say about us or our views. But we certainly try to encourage people to self-identify by signing in first and “claiming” their comments.  Most do. A handful don’t. And still others do sign in but leave comments under a pseudonym.  I say let the various models continue to flourish across the web while also encouraging bloggers and websites to adopt Randy Cohen’s general rule as a website “best practice.”

Can self-regulation, social norms, public and press attention, and external pressure form others encourage some of the most vitriolic voices of the Net to moderate their tone?  Perhaps not.  With a platform like the Internet, you have to be willing to accept some silliness from those loonies who haven’t quite learned how to responsibly use this wonderful tool that has been put at their disposal.  But I will take this approach over the forced surrender of our anonymity any day of the week.

Other views: Dan Solove;  Kathleen Parker of the Washington Post;  Maureen Dowd of the New York Times; UK Guardian “Belle de Jour” column; Richard Korman of ZDNet; Chris Matyszczyk writing at CNet News; JR Raphael writing at PC World; Lance Ulanoff of PC Mag.com

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.”

I applaud Mr. Feaver for this.  This is a struggle not just for journalists at major media outlets but also for bloggers like us here at the TLF.  There are times when very annoying, even hurtful things are said by anonymous commenters here at the TLF. Our policy, however, has generally been to allow a vibrant exchange of views, except in the rare circumstances where the commenter utters racial epithets or starts issuing death threats. Or, if a specific commenter goes into “stalker mode” and does nothing but post harassing, irrelevant comments all day, then those will occasionally be discarded. But, generally speaking, it’s “anything goes” here. (We even allow spam!)  Each author, however, is free to decide for themselves where to draw the line, but we all generally err on the side of completely unmoderated exchange for the reasons Feaver lists.  We know it is far more likely that we’ll get hostile anonymous comments rather than nice ones, but it’s good to get feedback of all varieties, even when it’s nasty.

From a policy perspective, however, this issue is taking on greater weight because some folks believe that unmoderated, anonymous user comments result in harassment, hate speech, defamation, or privacy violations.  As a result, there has been a growing chorus of critics who claim something must be done to remedy this problem.  Cass Sunstein and Richard Thaler, for example, have advocated a Civility Check that “can accurately tell whether the email you’re about to send is angry and caution you, “warning: this appears to be an uncivil email. do you really and truly want to send it?”” The state of Kentucky has considered legislation that would ban online anonymity, even though that would be clearly unconstitutional. Respected law school professors such as Mark Lemley and Daniel Solove have toyed with the idea of DMCA-like “notice-and-takedown” regime for potentially defamatory comments online.  I once even heard Cal-Western law school professor Nancy S. Kim suggest that blogs, social networking sites, and other interactive sites should institute a “cooling off period” to address cyber-harassment. By requiring all those seeking to comment to wait a certain length of time before a message or image is posted to a website, she hoped that some commenters might choose to tone down or even remove the potentially offending messages or images.

Of course, it is more likely that readers would just choose not to comment at all if any of these proposals where enshrined into law.  And that gets to the heart of what’s wrong with any potential legal response to this “problem” of online anonymous, unmoderated speech and user comments:  It will massively chill free speech and expression.  Sure, that would get rid of the hecklers and the jackasses who cause grief for some, but it would also deprive us of the many constructive user comments and criticisms that make the online experience — for better or worse — the most open, vibrant exchange of views ever known to man.

Finally, it goes without saying that this debate is fundamentally tied up with the future of Section 230 and the question of intermediary liability.  Currently, online service providers of all flavors are generally not required to police or screen user comments or force users to be authenticated and reveal their identities before posting comments.  Section. 230 has been the key to protecting intermediaries from punishing liability that would otherwise force them to severely curtail online expression, or run the risk of being driven under by the weight of endless lawsuits.  This is why I have argued that Sec. 230  is “the cornerstone of ‘Internet freedom’ in its truest and best sense of the term.”  But, again, all this could change if we are not vigilant in defending Sec. 230.

OK, now that I’ve made this impassioned defense of unmoderated and completly anonymous online exchange, let the hateful comments fly!

What would it take to create a more secure Internet?  That’s what John Markoff explores in his latest New York Times article, “Do We Need a New Internet?”  Echoing some of the same fears Jonathan Zittrain articulates in his new book The Future of the Internet, Markoff wonders if online viruses and other forms of malware have gotten so out-of-control that extreme measures may be necessary to save the Net.  Compared to when cyber-security attacks first started growing over 20 years ago, Markoff argues that:

[T]hings have gotten much, much worse. Bad enough that there is a growing belief among engineers and security experts that Internet security and privacy have become so maddeningly elusive that the only way to fix the problem is to start over.

Like many others, Markoff fingers anonymity as one potential culprit:

The Internet’s current design virtually guarantees anonymity to its users. (As a New Yorker cartoon noted some years ago, “On the Internet, nobody knows that you’re a dog.”) But that anonymity is now the most vexing challenge for law enforcement. An Internet attacker can route a connection through many countries to hide his location, which may be from an account in an Internet cafe purchased with a stolen credit card. “As soon as you start dealing with the public Internet, the whole notion of trust becomes a quagmire,” said Stefan Savage, an expert on computer security at the University of California, San Diego.

Consequently, Markoff suggests that:

A more secure network is one that would almost certainly offer less anonymity and privacy. That is likely to be the great tradeoff for the designers of the next Internet. One idea, for example, would be to require the equivalent of drivers’ licenses to permit someone to connect to a public computer network. But that runs against the deeply held libertarian ethos of the Internet.

Indeed, not only does it run counter to the ethos of the Net, but as Markoff rightly notes, “Proving identity is likely to remain remarkably difficult in a world where it is trivial to take over someone’s computer from half a world away and operate it as your own. As long as that remains true, building a completely trustable system will remain virtually impossible.”  I’ve spent a lot of time writing about that fact here and won’t belabor the point other than to say that efforts to eliminate anonymity for the entire Internet would prove extraordinarily intrusive and destructive — of both the Internet’s current architecture and the rights of its users.  There’s just something about a “show-us-you-papers,” national ID card-esque system of online identification that creeps most of us out. That’s why I spend so much time fighting age verification mandates for social networking sites and other websites; it’s the first step down a very dangerous road.

But what if we could apply such solutions in a narrower sense?  That is, could we create more secure communities within the overarching Internet superstructure that might provide greater security?  Markoff starts thinking along those lines when he suggests…

What a new Internet might look like is still widely debated, but one alternative would, in effect, create a “gated community” where users would give up their anonymity and certain freedoms in return for safety.

… but he is still thinking in terms of a replacement model for the entire Internet, which would be misguided for the reasons I stated above.  We don’t want to force a single, intrusive, anonymity-killing replacement model on the entire online universe.  Starting over isn’t even possible in a practical sense.

It’s a shame that Markoff didn’t interview my old colleague Wayne Crews for his story because Wayne has outlined an alternative framework worth considering. For many years, Wayne has been preaching about “spinternets,” or the notion that we need to start thinking about how develop not just one better Internet, but many better Internets. In a visionary piece for Forbes back in early 2001, Wayne argued that the solution to the growth of various online concerns “is more Internets, not more regulations”:

The Internet needs borders beyond which users can escape damaging political resolutions of these battles, which are rooted in the Internet’s nonowned, common-property status. Conflicting legislative visions in a cyberspace populated by exhibitionists at one extreme and would-be inhabitants of gated communities on the other, reveal the basic truth that not everybody wants or needs to be connected to everybody else.

Again, there’s that notion of “gated communities” that Markoff brought up. It’s not for everybody, but those seeking greater security could perhaps find it inside such online communities. Of course, others who wanted a different experience could start a completely different gated community under Wayne’s model.

But the problem with this notion, quite obviously, is that very few people want to stay inside their gated communities all the time. In the physical world of gated communities, for example, members of it still like to get out of there once and awhile to visit shops, events, parks, friends and family, etc.  The same goes for the Internet.  Just ask all those former denizens of AOL’s gated community.  For awhile, many of them — over 25 million strong at the zenith of its popularity — were content to spend most of their digital day inside the walls of Case’s Castle.  Gradually, however, they felt the need to explore outside those walls.  And so they did.  A mass exodus ensued and the walls came crumbling down around AOL’s gated community.

But that doesn’t necessarily mean the idea of online gated communities is entirely dead. There are certainly many closed, tightly-controlled networks out there already — mostly in corporate or government environments — that offer a glimpse of how such a model might work in practice.  Also, smaller social networking sites aimed at kids provide another example since they are usually tightly-controlled walled gardens that offer much greater security.

But Wayne was always thinking of something bigger — much bigger — than just closed corporate / government networks. He was thinking about a world of many different Internet s that didn’t necessarily have a back door to the broader Internet. Think of it as many parallel, but unconnected digital systems and networks, each serving a different set of values and cultures with unique rules.

Wayne envisioned the primary critique of this model in his original piece, noting that “it will be criticized as Balkanization.”  Indeed, Sonia Arrison called it “techno-isolationism, which goes against the very spirit that makes the Internet great.”  Indeed, it certainly would destroy something very precious about the current Internet — universal connectivity and openness.  But that’s sort of the point, isn’t it!  Universal connectivity and openness have given us many wonderful things, but some troubling things, too.  That’s what Markoff was getting at in his NYT piece, and it’s part of what Wayne was aiming to address with his splinternets idea.

But do we really want to encourage a world of multiple Internets where, presumably, they are split right down to the root? In other words, there wouldn’t be a common language for networks to communicate or a way to access many sites and services outside the particular Net you are on at any given time. It would be the equivalent of living on different digital planets that never linked or communicated.

I think it’s unlikely we’ll ever get there, and if we did it would likely be driven by global governments challenging ICANN and existing Internet governance structures. In other words, the DNS root would be completely split by some countries (China?) who didn’t want to play by the same rules as the rest of the interconnected world, or who wanted to try to impose a different vision upon a new, competing global network.

But might there be a way to find a happy middle ground between the Wild West commons of the current Net and the “techno-isolationism” of Wayne’s splinternet model?  Perhaps “Splinternet-lite” is the solution.  Within the confines of the existing Internet superstructure, there are ways to create walled gardens today and limit the number of back doors to the broader Net.  Again, the smaller social networking sites and virtual worlds aimed at kids already do that. Once you’re in there, you’re in a very different world. You have to be fully verified before you’re even let in the door, and once you’re inside their are tight limits on what you say, do, and explore. And you’ll get booted out pretty quickly if you break the rules.  The result is greater safety and peace-of-mind for kids and parents alike. It’s a less clear, however, how that model would “scale up” and apply to the entire universe of online networks.  I think we’ll have to be content with small patches of security within a world of insecurity. That’s the cost of the openness and interconnectivity that the Net current gives us.

In sum, there is no clear answer to John Markoff’s question, “Do we need a new Internet?”  We certainly could do more to address the problems with the current Net, but upending it and starting over isn’t likely an option.  More micro-splinternets within the overarching Net superstructure, however, might help those who are particularly risk-conscious find safe haven from various cyber-security fears. But it won’t shelter them from those problems completely.

Declan McCullagh, CNET News’ chief political correspondent, does a nice job debunking the privacy fears about Google Flu Trends that a couple of pro-regulatory privacy advocates have set forth. Flu Trends is a very cool application that uses search terms as an indicator of possible upticks in flu-related illnesses in various regions of the U.S.  Of course, it didn’t take long for some Chicken Littles to rain on the parade with their irrational fears about data privacy. As Declan notes, however, there is no personally identifiable information being collected or shared here. It’s just search term analysis. Moreover, if these privacy-sensitive advocates are really that paranoid about it, they should just just Tor or another anonymizer to cloak their searches instead of calling in the regulators to suffocate another technology while its still in the cradle.

Anyway, make sure to read Declan’s excellent piece.

Great post over on the Tor blog about how “anonymity on the Internet is not going away.” This is a subject I care about deeply. Here, for example, is an essay I wrote about mandatory age verification and the threat it poses to online anonymity.  I love this paragraph from the Tor essay, and agree with it wholeheartedly:

Anonymity is a defense against the tyranny of the majority. There are many, many valid uses of anonymity tools, such as Tor. The belief that anonymous tools exist only for the edges of societies is narrow-minded. The tools exist and are used by all. Much like the Internet, the tools can be used for good or bad. The negative uses of such tools typically generate huge headlines, but not the positive uses. Raising the profile of the positive uses of anonymity tools, such as Tor, is one of our challenges.

Amen brother.

The latest attack on anonymous online speech comes from Kentucky Representative Tim Couch, who proposed legislation last week that would ban posting anonymous messages online. The bill requires users to register their true name and address before contributing to any discussion forum, with the stated goal of cutting down on “online bullying.”

The right to speak anonymously is protected by the First Amendment, and the Kentucky proposal raises serious Constitutional questions. In Talley v. California, the U.S. Supreme Court overturned a Los Angeles ban on the distribution of anonymous handbills on First Amendment grounds. However, the Court has yet to directly address the question of anonymous speech on the Internet, as few existing laws target online anonymity.

The Kentucky bill comes on the heels of controversy over the growing popularity of JuicyCampus.com, a “Web 2.0 website focusing on gossip” where college students post lurid—and often fabricated—tales of fellow students’ sexual encounters. The website bills itself as a home for “anonymous free speech on college campuses,” and uses anonymous IP cloaking techniques to shield users’ identities. Backlash against the site has emerged, with Pepperdine’s student government recently voting to ban the site on campus.

Under current law, websites like Juicy Campus cannot be sued for user-posted messages. As Adam Thierer mentions in a recent post, Daniel J. Solove of George Washington Law School has offered some insightful analysis on anonymity in the digital age. Solove points out that under the Safe Harbor provision found in Section 230 of the Communications Decency Act, providers are immunized from liability if they unknowingly distribute libelous messages so long as they remove libelous postings upon receiving a takedown request. This issue was further clarified in 2006 in Barrett v. Rosenthal, in which the Court found that website operators are immune from liability when distributing defamatory communications.

Normally, finding the perpetrator of libel on a website can be accomplished through subpoenaing the site’s owner. The website then turns over the IP address of the user who posted the offending content, and the ISP to which that IP is assigned reveals the identity of the offending subscriber. Subsequently, the victim of defamation can file a lawsuit.

But with sites like Juicy Campus that help users shield their true identity, finding the perpetrator of libel can be very challenging. If a poster spreads hurtful lies about you on JuicyCampus, you can have the offending material removed—but you may be left with no recourse against the guilty party. Subpoenaing sites that don’t maintain IP logs is unlikely to yield the offender’s actual IP address, so there is little to deter people from going online and defaming their enemies, hidden behind the veil of anonymity.

Despite the appeal of combating defamation by banning online anonymity, lawmakers should be wary about restricting anonymous speech in the name of fighting libel. The same laws designed to deter defamation can also be used to target political dissent or silence whistleblowers for whom the option of remaining anonymous is critical. While Mark Klein and Babak Pasdar elected to reveal their identities, they remind us that whistleblowers are crucial safeguards against government excesses. And as Chinese dissidents know all too well, governments around the world have a long history of suppressing political opinions that undermine state legitimacy.

Perhaps politicians can manage to craft a law that fights defamation without threatening legitimate anonymous speech. Still, living with the occasional bout of slander and libel seems like a worthy sacrifice if it means protecting individuals’ right to anonymous speech.