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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.
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.
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One small but significant point here. You're quoting the decenting opinion. Here's a quote from the judgement:
My emphasis added. Anonymous speech is an essential defense of liberty. Thomas Paine's Common Sense, a lightning rod for popular support of the American revolution, was an anonymous publication.
Some people have a way with words, and some people, um, thingy.
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.
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.
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There is no sin except stupidity -- Oscar Wilde
I can finally say Slashdot sucks! Oh wait...did I post that AC?
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Wooden armaments to battle your imaginary foes!
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?
Since when does the first amendment give the right to anonymous speech?
The courts have often written about "prior restraint" when it comes to free speech. Is there something that will prevent otherwise legal and protected speech from being said? For instance, if a new DMCA-like law comes into affect saying that whenever an ISP receives notice of defamation, it must immediately turn over names and addresses, that will keep MANY people from speaking (posting), even if what they are saying is not defamatory.
The best way to do things, and the way this New Jersey court is writing their guidelines, is that you have to show defamation, or infringement, or whatever, FIRST, and then you can try and get the names of the anonymous posters. That way, innocent people can post without fear of prior restraint.
That's how I see it, anyway.