Slashdot Mirror
Appeals Court Sets Guidelines for Penetrating Anonymity Online
stuccoguy writes: "The New Jersey Appeals Court issued an opinion protecting the anonymity of an Internet poster. In a victory for privacy online, the court established a four step series of guidelines for courts and ISPs faced with requests to compromise the identity of anonymous posters." The lawyers Newsbytes contacted seem to think it likely that this procedure will be taken up by other courts.
I think the real reason Dendrite and other companies don't like this ruling is that it turns on defamation. The judge basically said that they've got to show the statements were defamatory before they can use defamation as grounds to discover a defendant's identity. Since the companies aren't interested in proving defamation, just shutting someone up, they don't like this requirement. Tough for them in my book.
As for the ones saying the Constitution doesn't protect anonymous speech, all I can say is "Wrong!". Nowhere in the First Amendment does it require anyone to prove their true identity before they speak. If you want to add that requirement, you know the procedure for amending the Constitution. If you can show the statements made were defamatory or otherwise illegal then the First Amendment no longer applies and you can require proof of identity, but there's this other little provision in the Constitution that says you can't presume someone's guilty until proven otherwise.
They go on to give guidelines for when that motion should be granted:
So it appears that a company cannot simply request your identity for any old reason, but if they can show that your post has harmed them materially, your identity can probably be gotten. This doesn't seem to afford a defendant as much protection as being an anonymous source for a newspaper article or other media source. It seems to me that this doesn't go far enough at all, but is more like a decent first step.
---------The early bird gets the worm, but the second mouse gets the cheese.
(Note that it is a quirk of the American federal system that state supreme courts are final authority on state law, not federal courts. Suppose the U.S. Supreme Court decides a case on the basis of some issue of New York law never before decided by a New York state court. That precedent wouldn't be binding on a small claims court judge in New York who confronted some later case raising the same issue! For this and other reasons, the U.S. Supreme Court rarely takes appeals that have any chance of being decided under state law.)
...the well-established First Amendment right to speak anonymously...
Since when does the first amendment give the right to anonymous speech?
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Nothing about anonymity here.
There have been several postings already that point out that the First Amendment does not in fact protect anonymous speech.
There is a confusion about what 'anonymity' means. Courts have ruled specifically about two aspects of anonymity, and have ruled that one form is protected, and one form is not protected. To lump them both under 'anonymity' is to ensure further confusion.
There is a First Amendment right to 'unsigned' expression. You can CHOOSE not to put your name on something you write, because you have the right to express yourself how you wish to express yourself, and to COMPELL an author or artist or whistleblower or witness to SIGN their own expressions is a blow against freedom of self-expression, and has a chilling effect on expression.
However, there is no right of 'unaccountability'. That is, if a third party is able to prove that you were the responsible author/artist/whistleblower/witness, then this fact is admissible, and you are able to be prosecuted if your expression is libelous, slanderous, or in some other way breaks existing laws. You are always accountable for your actions, including expression.
The Internet makes it easy to elude obvious signatures, but most ISPs keep enough logs to ensure some modicum of accountability. It is because of this linkage, and because of the confusion over the use of 'anonymity' that the courts are beginning to form guidelines.
The guidelines describe what standards must be followed to force ISPs to divulge private records to turn 'unsigned' expressions into 'accountable' expressions. In short, the courts seem to say that the specific expressions must be shown specifically to have a strong case for illegal forms of expression: again, libel, slander, or other legally disallowed forms of expression. This hurdle must be met BEFORE the ISPs are required to divulge private information.
[
"If the plaintiff can present evidence showing a likely case against the defendant, the court still must "balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed," wrote the Appellate Panel."
But:
The constitution doesnt guarantee anonymous speech. In Talley v California (1960), three of the justices said "I stand second to none in supporting Talley's right of free speech -- but not his freedom of anonymity. The Constitution says nothing about freedom of anonymous speech."
--
Free Mac Mini
One need look no further than the framers of the Constitution to realize that the forms of expression protected by the First Amendment specifically included anonymous speech. "Pamphlets"--short tracts akin to today's Op-Ed essays--were a widely read form of communication in 18th century England and America. And those pamphlets were, in the main, written anonymously or pseudonomously. Samuel Adams was a prolific and sometimes vitriolic pamphleteer--it was his rabble-rousing pamphlets that helped foment the Boston Tea Party. Thomas Jefferson was another well-known pamphleteer; Ben Franklin wrote (and printed) many pamphlets, as well as producing an anonymous periodical known as "Poor Richard's Almanac." In a similar manner, anonymous pamphlets were a common form of political expression in England. The Hanover kings did not tolerate dissent--they had firm sedition laws, and people were jailed (or transported to America and later Australia) for publicly criticizing the government or the King.
Did you ever wonder why the Declaration of Independence is such a significant document? It isn't because it is particularly eloquent (though it is); or that it specifies the reasons for declaring independence (though it does). Think about it: the Declaration of Independence is revered in the U.S. (and around the world) as a cornerstone of democracy and freedom. But--the Declaration of Independence has no force of law in the United States. To the contrary: the U.S. Constitution specifically rejects the notion that "each man is endowed by his Creator with certain inalienable rights, among these life, liberty, and the pursuit of happiness." The Constitution, instead, reserves that to white men--"negro" slaves had no rights, and were only counted as worth 60% of a white man for purposes of the census. So what made the Declaration of Independence a big deal?
What made it a big deal was that it specifically maligned the King in explicit sedition--and it was signed. The revolutionary sentiments of nameless, anonymous "patriots" were inflammatory--the public statement of the criminal acts of the King (the "charges against the King" is the section of the Declaration of Independence that you typically don't read in high school), signed by the leading men of the colonies, meant an open break with England. That the Declaration was not anonymous is precisely why it is significant.
Still don't believe me? Note the Federalist Papers--most of them were unsigned.
It's not, in general. There's the Investment Advisor Act, but that regulates people who charge fees and have clients. There are laws against insider trading, but you have to be an insider and you have to trade in the stock of the company of which you are an insider to violate them. There are laws against stock manipulation, but you have to have a financial interest in the outcome. And truth is an absolute defense to libel in the US.
I run Downside, and I get occasional threats from companies. But they've never actually done anything. I'm not anonymous, I'm not an employee of any of the companies mentioned, and I don't trade in those companies. (I'm into "value investing", companies with, like, profits.) Companies hate it when you point out that their business model is totally bogus, or that their CEO put in a golden parachute scheme just when the company was tanking. But somebody has to do it.
It looks to me like the court made a serious attempt to balance two competing but legitimate interests.
We should always keep in mind that what we generally call the "right of free speech" is really the right to be free from prior restraint, not the right to be free of the consequences of what we say. It should be possible, but not easy, to breach the "veil of anonymity" and hold people accountable under some circumstances.
Remember - words matter. They do have an effect. If they didn't, then we wouldn't need to worry about free speach.
** The opinions expressed here are my own, and do not reflect those of my employers - past, present, or future**
I noticed the same thing. Last I grep'ed through the good ole constitution (sorry to you Non-US peoples out there), I don't recall seeing anything about anonymous speech. This whole thing seems out of line, somehow.
The thing is, restricting anonymity will restrict speech. Whistleblowers, people with unpopular opinions, political dissidents, and so on will be much less likely to speak without anonymity. And, in case you've forgotten, *those are the people the First Amendment was written for*. If Congress passes a law restricting the anonymity of anonymous speech, Congress is violating the First Amendment.
In addition, look up the Ninth and Tenth Amendments sometime. Just because it isn't listed doesn't mean it isn't a right we have. The courts have, in fact, consistently ruled that we have a right to anonymous speech.
When are companies going to learn that public opinion can't be litigated? Seems to be a reflection of the American view that if something happens we don't like or personaly agree with: take 'em to court.
Actually, it's called a "slap suit". Sue the bastard into oblivion, so the next guy will just shut up and be a polite little consumer/employee. It's not a matter of greed, or throwing a temper tantrum. It's "well, since this stupid First Amendment is in place, we can't get our Congress to outlaw speech we don't like. So, we'll have to frighten those inconvenient outspoken people into shutting up and never saying anything we don't like."
In this case, they probably know they don't have a real case against them. So as soon as they've got the identities of the John Does, they drop the case. Since the John Does are employees, they then procede to quietly make their lives a living hell until they can come up with some kind of trumped-up excuse to fire them. And you better believe their names will get around to other potential employers.
--
There is no sin except stupidity -- Oscar Wilde
I can finally say Slashdot sucks! Oh wait...did I post that AC?
--
Wooden armaments to battle your imaginary foes!
Couldn't both the content provider and the ISP better protect themselves by only keeping the log files for a few days, or 24 hours? Then if asked, threatened, or served with a warrant, they could honestly say they didn't know which user did what. Is there a LAW that requires ISPs to keep logs and know who their users are?
From McIntyre vs. Board of Education:
I don't think it should be illegal or againsty SEC regulations to "talk a stock down" as long as it's not defamatory or a blatant lie. People on CNBC, etc, are ALWAYS talking stocks up, usually right after their company bought a bunch of it for their inventory to sell to clients through their brokers or something like that. Sometimes they do the opposite too (trying to bring a stock down). It's a big dishonest mess and I always wonder why it's any different when someone does it on a Yahoo board.
An another note, doesn't this quote from a lawyer interviewed in the article make you bristle a little:
Eh, too much First Amendment rights?
What happens if it is impossible to identify an anonymous user?
I attend a university which has a large number of public terminals that allow www use. I could go to one of these terminals, whether I attend the university or not, log on to yahoo, and post confidential or defamatory material about my evil employer (disclaimer: this is hypothetical. My employer is NOT evil) WITHOUT logging in to anything but Yahoo. This way, the IP address I leave says nothing about my identity. Who does the company sue then? Could the university be held responsible?