Slashdot Mirror
Model Drops Lawsuit After Outing Anonymous Blogger
JumperCable writes "The NY Daily News is reporting that model Liskula Cohen, who was suing the 'Skanks of NYC' blogger for defamation, is dropping the lawsuit now that she has outed the anonymous blogger, who is a Fashion Institute of Technology student named Rosemary Port. This brings up the question of potential abuse of the legal system to 'out' anonymous authors even if there is no intention actually to pursue a case against an anonymous individual. Also, according to the article, the outed blogger intends to sue Google for $15 million because it 'breached its fiduciary duty to protect her expectation of anonymity.' Do Web hosting services even have a fiduciary duty to protect their clients, or is this all legal bluff and bluster?" Should such anonymity-busting court rulings include a provision for penalties if the plaintiff does not follow through with legal action after outing their target?
Liskula Cohen is a skank and a ho. For that matter, so is Rosemary Port.
It is possible that Google guarantees Anonymity when you register for a Blog. Maybe it says something along the lines of "Your private information will not be shared?" If so, while it may be stupid for them to advertise this, they still have to uphold their end of the bargain as best they can.
http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250896617
Seen the fall out from Lori Drew case? Cause emotional distress to a minor and your violating the law. Granted the example cited on volokh is downright not nice but some of the clauses, like four and six, are so vague as to play into any prosecutor's hands.
Lori Drew stories on /. include
http://yro.slashdot.org/story/09/07/02/2017217/Judge-Tentatively-Dismisses-Case-Against-Lori-Drew?art_pos=1
http://news.slashdot.org/story/08/11/30/2014248/Groklaw-Summarizes-the-Lori-Drew-Verdict?art_pos=5
* Winners compare their achievements to their goals, losers compare theirs to that of others.
Following through after 'outing' seems a non-solution; you could still start cases you know you have a small (if any) chance of winning to 'out' someone.
My initial reaction actually was people cannot and should not expect anonymity on the internet, unless extreme measures are taken which often still do not guarantee anonymity 100%. Furthermore, it is not something people should want; if crimes are committed via internet or with assistance of it, then through proper procedures law-enforcement should be able to track culprits.
This however was not the case here, and so far I can see the only 'solution' would be to keep the identity of the accused anonymous during the trial and make it known only after a guilty verdict. This won't work, however, since often the daily life of the accused is relevant to the court proceedings; the accusing party has a right to be able to research what more the accused has been up to.
Perhaps an anonymous trial is only feasible for a small subset of charges. Don't see it happening though, this is probably just a necessary evil.
On a sidenote, if the charges are too ridiculous, any court would just dismiss the charges entirely without anyone being drawn out.
"Expectation of anonymity"? Where did that come from?
Even better, where did the idea come from that there's a "fiduciary duty" to protect anonymity? A fiduciary duty is to a shareholder, to maximise their return, or to a trustor, to correctly manage the entrusted property. Does Rosemary Port think that she gave her identity to Google to look after for her until she grew up?
HOWEVER...
If she really does go through with the lawsuit, contract law will be the deciding factor here, specifically whether Google's Terms of Service promised any kind of anonymity. I expect it doesn't.
Let this be a lesson to all the bloggers out there, to post using TOR.
Request your free CD of my piano music.
Yes, but in those cases your anonymity was only protected to the extent that someone didn't track you down.
If you're a revolutionary looking to pamphlet, for example, I imagine you'd go to pretty long lengths to ensure your printer won't turn you over to the authorities. Additionally, if your printer did turn you over, the argument, "he promised he wouldn't" doesn't wouldn't carry much weight.
To extend the analogy, someone decided to use google as their printer, without bothering to verify that google wouldn't tell anyone her identity. In other words, you don't have a right to make anonymous public speech. You do have a right to take steps to protect your anonymity yourself - if those steps are insufficient that's your own problem.
The right to anonymity, so far as it exists, is an extension of your right to privacy. You don't have any expectation of privacy when hanging signs on telephone poles or making posts on blogs because those are PUBLIC acts.
I did say along the lines of SLAPP. Not SLAPP directly.
Like I said, depending on what she's blogged about in the past, one could argue that being forced out into the open has diminished her chances of seeking gainful employment compared to when no one could just google her name and find that Liskula Cohen is a psychotic skank ho ...
Liskula Cohen was still the blogger, right?
But as others have pointed out, the blogger will have no stance in court with her suit against Google, as Google is obviously required to follow a court order, not to mention that following such court orders are specifically mentioned in the terms of service for that particular service.
But a counter suit against the model could work. Might work. I'm not a lawyer, obviously, but I would think that a good lawyer could cook up some argument that being forced out into the open has diminished her chances of seeking gainful employment compared to when no one could just google her name and find that Liskula Cohen is a psychotic skank ho ...
IIRC, her belief was that the blog might have been written by somebody close to her (ex-boyfriend or similar), and thus someone she would want to press charges against. Of course, the only way to know if it was someone close to her was to sue and get the identity.
I wouldn't say this is an abuse of the system, since if the blogger was someone she knew, I'll bet charges would have been pressed. That said, there are certainly circumstances where the system could be abused, but this isn't one of the,.
Write your representatives! Repeal the 2nd Law of Thermodynamics!
It is pretty obvious from the some of the things mentioned in the earlier article that Liskula Cohen thought the blogger was someone else (perhaps someone who has an ongoing feud with her). When she discovered that the blogger was not who she thought it was, she dropped the suit. It is even possible that her case for defamation was partly based on other behavior of the person she thought was the blogger.
The truth is that all men having power ought to be mistrusted. James Madison
I would so be laughing right now, if this was a cool scam on their part...2 friends get together and plan how to launch or boost the models presence as well as make money...she write a nasty column, the model fake sues to out the anonymous friend blogger, then she sues google for 2 million and wins, then the model because of this gets tons of free publicity, she lands a 2million contract and everybody wins, cause they get to watch the drama unfold!
You have a right to anonymity. You forfeit it the instant you use it to commit a crime or defame someone.
But, and this is the crux of this case, do you forfeit it the instant someone accuses you of defamation? Back to the case in hand, the model should be dragged back into court for contempt. This is clearly abuse of the court system to get revenge without caring about justice.
(the Arpanet was never this bad)
Speaking as one who has been on the internet since when there were fewer than 10,000 hosts connected, I'd say your memory is flawed. "Flame wars" were as bad (or even worse) then.
There is a LOT more fear about what you can get away with now, because there are a LOT more laws about whether some speech is too free. And yet the flame wars have not been reduced one iota. Here again we've given up freedom for NO improvement in our situation.
I think generally the powerful have more to gain from anonymity then the poor. If it was ever possible to air everyone's dirty laundry I think I would welcome it.
Control is an illusion, order our comforting lie. From chaos, through chaos, into chaos we fly
Didn't some of the founding fathers publish a series of letters highly critical of the King's government before the revolution?
There is a difference -- practical and emotional, if not necessarily legal -- in speaking Truth to Power and saying that a private citizen is a whore. The Founding Fathers knew they had no chance if the King sent a squad of soldiers to their house in the middle of the night, but they were all about "settling differences like men" when it came to perceived personal insults (just ask Alexander Hamilton...)
There's no mystery here. I wouldn't be surprised that upon learning that the defendant is a student, it was decided that any chance for fiancial gain was lost and the case was dropped to save legal costs.
Do you honestly believe that you should be able to sue someone simply for calling them a skank, online or otherwise?
If so, I can't wait till you have a daughter in high school,, you will be an instant millionaire the first week, followed shortly by being bankrupt the next.
The obvious counter-example to your assertion is Facebook - still plenty of idiots there, using their real names.
Even if it was true, I think privacy has more important implications (e.g., people who don't want to implicate their company, or future job interviews seeing pics of wild parties in your youth) than whining about someone being unpleasant on a forum.
Indeed, people here usually ridicule Facebook users for posting so much information publically.
In RL, there is no anonymity.
People in real life can see my real name? I don't think so. The only difference is seeing my appearance. I'd also argue that privacy is more important online, because there is often a long lasting or permanent record of everything done, which can often be easily searchable. If this was the case with real life, you can bet that people would be a lot more careful about showing themselves.
And even if it was true, there is your counter-example: last time I looked, there were still plenty of idiots there in real life.
It's an interesting point, I remember in the first episode of Penn & Teller: Bullshit! Penn Jillette said "...you'll notice more obscenity than we usually use...It's also a legal matter. If one calls people 'liars' and 'quacks' one can be sued and lose a lot of one's money...If we said it was all scams, we could also lose a lot of money. Bullshit's pretty safe."
"He is so stupid. And now back to the wall!" Moe Szyslak
In fact, there's a cause of action for just this sort of thing. And it's called "abuse of process". According to Wikipedia (sorry, don't have Blacks Law Dictionary handy), "The person who abuses process is interested only in accomplishing some improper purpose that is collateral to the proper object of the process and that offends justice, such as an unjustified arrest or an unfounded criminal prosecution. Subpoenas to testify, attachments of property, executions on property, garnishments, and other provisional remedies are among the types of "process" considered to be capable of abuse."
So, suing someone for defamation not for the purpose of obtaining damages or equitable relief, but rather to strip them of anonymity (and thus perhaps ruining their future employment prospects) before the case is decided, might count as "abuse of process". But it still seems she's suing the wrong party. Suing Google for complying with a court order is just not going to get her anywhere.
Actually, she had a lawyer. Apparently, neither she nor the lawyer thought to make a motion that would protect her anonymity. Or, if they did think of it, the motion was thrown out.
The fact of the matter is, the skanky ho shouldn't have made the blog posts if she wasn't willing to stand behind them. The skanky ho that she attacked was entirely within her rights to expose the blogger, and she was entirely within her rights to drop the case after she attained her goal.
I'm all for anyonymity, but a moron who doesn't know how to protect their own anonymity, and expects some corporation to do so for them, is just a moronic skanky ho. Charles Darwin would have something to say on the matter, I"m sure.
"Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
Once the model found out who had made the posts, she may have decided the "you can't get blood out of a rock." That is, it wasn't worth the legal expenses to continue the action since the person responsible for the defamation didn't have sufficient resources to even pay those expenses; let alone pay any sort of punitive penalty.
Why should the model be "forced" to continue an action that won't bring her any compensation?
Cheers,
Dave
They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.
Ben
I think it's more a case of "if you're going to be an asshole, don't be a coward as well." You can be critical without being a dick (and in that case anonymity is worthwhile/necessary) but if you're being a dick just for the sake of being a dick, you shouldn't expect to be protected.
John Doe subpoenas should result in the name being released to either a special master or to a "firewalled" lawyer whose only job it is is to contact the named defendant and serve him with papers. The named defendant should be given an opportunity to either quash the original subpoena after the fact or petition the court that the lawsuit will be in to be allowed to use a pseudonym.
If there is no forthcoming lawsuit, the would-be plaintiff never gets "usable" access to the defendant's information.
If this can't happen for whatever reason, the court issuing the subpoena to the ISP should issue a gag order on the plaintiff, which can be lifted after a lawsuit is actually filed. The lawsuit should be filed with the defendant's name sealed until it's determined that it's in the public interest to name the person.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Anonymity
Many people don't want the things they say online to be connected with their offline identities. They may be concerned about political or economic retribution, harassment, or even threats to their lives. Whistleblowers report news that companies and governments would prefer to suppress; human rights workers struggle against repressive governments; parents try to create a safe way for children to explore; victims of domestic violence attempt to rebuild their lives where abusers cannot follow.
Instead of using their true names to communicate, these people choose to speak using pseudonyms (assumed names) or anonymously (no name at all). For these individuals and the organizations that support them, secure anonymity is critical. It may literally save lives.
Anonymous communications have an important place in our political and social discourse. The Supreme Court has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment. A much-cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reads:
Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.
The tradition of anonymous speech is older than the United States. Founders Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers under the pseudonym "Publius," and "the Federal Farmer" spoke up in rebuttal. The US Supreme Court has repeatedly recognized rights to speak anonymously derived from the First Amendment.
The right to anonymous speech is also protected well beyond the printed page. Thus, in 2002, the Supreme Court struck down a law requiring proselytizers to register their true names with the Mayor's office before going door-to-door.
These long-standing rights to anonymity and the protections it affords are critically important for the Internet. As the Supreme Court has recognized, the Internet offers a new and powerful democratic forum in which anyone can become a "pamphleteer" or "a town crier with a voice that resonates farther than it could from any soapbox."
The Electronic Frontier Foundation has been involved in the fight to protect the rights of anonymous speakers online. As one court observed, in a case handled by EFF along with the ACLU of Washington, "[T]he free exchange of ideas on the Internet is driven in large part by the ability of Internet users to communicate anonymously."
We've challenged many efforts to impede anonymous communication, both in the courts or the legislatures. We also previously provided financial support to the developers of Tor, an anonymous Internet communications system.
Seriously, they know each other. Cohen goes after this, THEN drops the suite. BUT, Porter goes after Google. I wonder if cohen will end up with millions after this? Sounds complicated, but it makes more sense then does the actions that have occurred so far.
I prefer the "u" in honour as it seems to be missing these days.
Any automatic penalty will be abused.
But it certainly is worth it looking into the motives and reasons. They may have just decided that they don't want to bancrupt a student. You know, some people who go to court are still human beings.
Assorted stuff I do sometimes: Lemuria.org
Liskula Cohen obtained the information by asking a court to get it, and the court forced the release. Which means the person who should be sued is... the court. Which doesn't happen.
Going forward, the courts should require that a substantial bond be posted by the plaintiff. If the case is dropped, the bond is forfeited to the defendant. And by substantial, I mean that *at a minimum* it should be 25 times the defendant's annual income so that the defendant doesn't have to worry about loss of income due to the exposure. Yes, this means that the bond would be set between the time that the defendant's identity is discovered by the court and the time it is released. This is a good thing, because it would also allow the defendant to argue for a higher bond, if they were a full-time student or something.
Nothing for 6-digit uids?
Having (unfortunately) been involved in a defamation case myself, I think it would have been an awfully interesting trial. In order to be defamation, a statement must 1) be untrue and 2) cause damage to somebody's reputation.
So what we're talking about here are the words "skank," "ho," and "psychotic." Is calling somebody a skank a statement of fact? We would need a legal definition of what a "skank" is. I figure it would take several days of legal argument just to hash out that part of it. Then, having established the legal definition of a "skank," Ms. Cohen would have to provide at least some evidence that she is not, in fact, a skank (unlike a criminal trial, civil suits are based on a preponderance of the evidence -- if Cohen does not actively defend herself, she loses). So her private sexual life will now become a matter of public record.
How about "psychotic?" Well, that's certainly something we can prove in court. We'll subject Ms. Cohen to a battery of psychological tests to determine her state of mind. That should certainly be pleasant for her.
Now, "ho" is a bit more complicated. Does it literally mean "whore," a.k.a. prostitute? We'll need to legally define this as well.
I think what happened here is that some lawyer with a brain finally clued her in about what exactly would happen in court if she pushed this through. You don't get to just stand there and say "It's not true, poo on you."
Liskula Cohen could have saved thousands of dollars by "outsourcing" all this to India. India Police (Cyber Crime) may not be exactly a private investigator, and they may have done that kind of thing for "extra credits", but I'm speaking of known situations here. In one case bloggers based outside India bad-mouthed the products/services offered by a private party, also based outside India. The private party had an Indian affiliate who complained to India Police (that is all we know, anything else remains hidden). India Police then (eagerly, surprise surprise!) requested Google for IP records. Google's Legal Investigation Support team (Google LIS) supplied the blogger IP records (under Section 91 of India Criminal Procedure Code), hardly any questions asked (surprise?, surprise?). The bloggers were not even based in India. India Police handed the IPs to the private party (mission accomplished). The bloggers were then harassed through a SLAPP-style suit tailored to force favorable settlements.
So all that Liskulla needed was to go through an India outfit, get those India cybercops a little excited (remember that police malfeasance is already a big issue in India).
Note: I am not actually suggesting that anybody take that route. I'm just alerting you all to the dangers of this, in public interest.
Summary: India Police has rights over your IP records, and they are eager to ask for it. And Google obliges them. And you think you have free speech.
I am of course, an Anonymous Coward.