Slashdot Mirror
Anonymity not a "Free Speech" right
EngrBohn writes " A Federal judge has ruled that anonymous "defamation" on the Internet is not covered under Free Speech". This relates to the case of an anonymous user on Yahoo!, who was making claims about Xircom in chat boards, referring to their products as "faulty" and poorly designed. Recently, Raytheon went through a similar situation. (Link is NY Times: Free Login required).
>Make the accuser prove there is a crime before restricting free speach.
So, there is a trial/hearing with an un-named defendant who cannot defend himself because he is anonymous?
So, assuming a crime is proven to exist, perpetrated by an anonymous net user, then your identity is revealed by court-order, there needs to then be a 'real' trial? Seems like that puts you at a real disadvantage, as the crime has already been proven, linked to your identity, and now its just a formality to pin it on you.
>Rumours tend to die fast without someone to take responsibility for them, even on the Net
Ok, but the damage can occur pretty fast also and not be recoverable. Take the case where some AC posts lies about a company where a lot of e-traders prowl and then the stock gets run up until the lie is revealed and then the stock drops down below where it was before.
Sure, the dolts that trade on these rumors and get burned deserve what they get for being stupid. But what about everyone else (including the employees with savings plans/retirement accounts) that get screwed over because their company's reputation is damaged because of this incident?
This AC should (IMO) be no more protected from prosecution then someone who causes a stampede in a crowded theatre (overused analogy, i know). Maybe most people are smarter than to start a panic when someone shouts fire, but there's always a few who aren't (smart enough to not panic) and their actions can affect everyone else.
Unfortunately, whether you're telling the truth or not, bad things will often happen to you if you've annoyed someone powerful. That's the thing that is good about anonymity. You can be protected from those who are more powerful (read: have more money for more lawyers) than you. Unfortunately, it seems that all they need to do is accuse you of something in order to have your anonymity removed. After that, it doesn't matter whether you were actually guilty, they know who you are.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Last I checked, "defamation" wasn't legal anyway, with "defamation" being defined as spreading untrue information about someone or something with malicious intent (similar to libel or slander).
Anonymity is, naturally, a right just as any other. But as someone once said, "the right to swing my fist ends where the other man's nose begins." No one has the right to start spreading bad things about someone or something without being able to back it up, and to hide behind anonymity is an abuse of the right to be anonymous. I think the judge might be in the right on this one.
How does it apply to this specific case? Well, there I'm not sure. Can this person back up his (her?) claims about Xircon? If so, then it isn't defamation anyway, and Xircon can't do a thing about it. If not, the person has no right to hide behind anonymity.
My $0.02: like other top-down control methods, controlling the right to influence others (which is really what tampering with free speech is all about) is best left to the people themselves. Yes, anonymous posters can spread scandalous, libellious drivel - but who listens to them? A few people perhaps, but not many.
Rumours tend to die fast without someone to take responsibility for them, even on the Net. I find unnamed flameboys odious, as do most people who never post anonymously - but I don't worry about them, and I wouldn't interrupt their right to do it. As their method of posting suggests, anonymous posters are literally nobodies, with reputations to match. So let's stop talking about top-down regulations - the bottom-up ones we've grown on the Net are far better.
- Read fiction at www.espressostories.com
Every action has its consequences -- this is a hidden truth in TANSTAAFL that a lot of people miss. In this case, instead of standing up to take personal responsibility for his statements, John Doe is facing the consequences of putting the ability to anonymously express opinions in jeopardy.
I (mostly) agree with your conclusion, but your final argument has a hole in it -- using the same logic, one common person stealing from another common person should be encouraged because a totalitarian state would discourage it. A free society is not defined in the negative (such as anti-totalitarian), but rather in the affirmative. True freedoms are not "freedom from..." but rather "freedom of..."
Christopher A. Bohn
cb
Oooh! What does this button do!?
This is not legal advice. WHile I am an attorney, I am probably not admitted in your jurisdiction. If you need legal advice on this matter, consult an attorney licensed in your jurisdiction.
Those cases address a *prohibition* on *speaking* in the first place. Furthermore, the prohibition is by a government.
That is a far cry from using anonymity to protect oneself from the *consequences* of speech.
Free speech governs the right to make the statement. It does not protect one from the consequences. To look at your second example, while the local government can't block the distribution of the pamphlets, if teh information was defamatory, the employer would still be able to issue supoenas to determine her identity in a defamation action. There is no conflict.
Hawk, Esq.
Under U.S. law, defamation/slander/libel == false and injurious statements of fact regarding a living person or entity.
[Important 1st Amendment qualification: If the person/entity is a public figure, a negligently-made statement can't be the basis of a D/S/L claim.]
Do you believe that there are not occasions when it is necessary?
Under what circumstances do you think it might be "necessary" to tell an injurious falsehood about someone? (This is a serious question, incidentally; if you have some theory of why the value of making such statements in certain cases outweighs the harm which would result if anyone were free to make such statements without fear of reprisal, I would genuinely be interested to hear it.)
Well, if I'm not mistaken, there is a specific 'whistleblower' law or something that lets you do just that... rat out your employer for doing something anonymously. Differences are, it has to be true, and you have to do more than just post it anonymously on the net, I think you have to actually go to some government agency and spill it.
Anyone know the specific of this or am I totally confused on this?
It's an and, not an or. It's completely permissible to make true and injurious comments ("Charles Manson is a murderer") or false and non-injurious comments ("Linus Torvalds is from Denmark").
Now I ask you two questions:
1) If the law says that what I've done is illegal, should I go to jail even though what I've said has been in the publics intrest?
To be clear, under U.S. law, you don't go to jail for D/S/L; it's a tort, not a crime. (A "tort" is something you do that someone can sue you for and collect damages if they win. Sometimes the same behavior can be both a crime and a tort; for example, homicide is a crime and wrongful death is a tort. Committing D/S/L isn't a crime, however, unless you commit D/S/L as part of some other crime.)
In the corporate practices example you give, you wouldn't be held liable if your statements were true, even though they may have been injurious. Note that corporations are often reluctant to sue for defamation, etc., even when they have actually been defamed, as the lawsuit often serves to publicize the defamatory statement, and because the defendant may be able to obtain through discovery documents which would further embarrass the corporation. (I understand that this is what happened when McDonalds sued some pamphleteers in the UK under the UK's more restrictive libel laws.)
2) If the law says that this particular scenario is legal, what is the differance between it and the Xircon case?
Presumably in the Xircon case the statements are alleged to be false, as opposed to your example where the statements are true.
Also note that employees of a company have a fiduciary duty to act in the company's best interest, though subject to public policy limitations (e.g., employees are generally not bound to keep quiet if the company is burying bodies in the basement). As I understand the Xircom poster asserted he was an employee, Xircom doubtless brought a claim against him for breach of fiduciary duty as well, which also supported the issuance of the subpoena.
Now for the final wizbang point of my post. The more we limit peoples right to speak out negativley (noise) an equal amount of important (signal) speech will be lost.
I'm not sure this proposition is self-evident in the case of the "right" to make false and injurious statements. Would you care to elaborate?
I understand what you are trying to say, but I aam afraid I disagree. There are instances where people prefer to remain anonymous because they are afraid. However, there are instances where people prefer privacy for other reasons.
You mentioned ACs in Slashdot. Just because they didn't log in does not mean what they have to say is immaterial. Some lost passwords and haven't the time to mail, some disable cookies and choose not to log in every time, and some don't feel like it. I put my name on what I do but I feel it is no right of any Government of any country to say who has can remain anonymous. We can't afford to squelch a potentially important communication medium.
Name by comments or not, we should at least be allowed to choose. Not for the sake of a country or by a law, but for anyone that wants to say anything.
-Clump
What about whistleblowers who wish to remain anonymous for fear of being fired/killed/forced to sleep with the fishes? If I work for Micros~1, and I want to reveal something _really_ nasty, I wouldn't want to put my name in BIG LETTERS at the top of the email! I thought there were laws that protected this type of thing.
Although it doesn't sound like this particular person was whistleblowing, just being a troll, this ruling sets a bad precedent.
Can any people who _are_ lawyers comment?
Since the CDA decision found that the Internet net is worthy of the "highest level" of first amendment protection this decision won't stand for long.
I understand it has to be 'published' materials, and I assume there has to be some component of the statement that can be empirically shown to be false? (And also that the person making the statement can be reasonably shown to have known the statement was false? Not sure about that part, but I assume so...)
Is there a spoken defamation component?
Some examples:
"Company XYZ sucks because their product breaks."
Well, maybe I bought 3 widgets from them, and all three broke down. But for most everyone else they work fine. Is XYZ being defamed because I say they suck?
I'm curious as to how precisely this can co-exist with free speech laws. There seems to be a lot of hazy cases. Clearly if I said about my neighbour, "He tortures small animals." And published it in the newspaper it would be a case of defamation, plain and simple... but if I'm talking about my experiences with XYZ's products, and my opinions of their quality... I don't see how this can be defamation, as it is something of a 'subjective' area.
Anyway, if anyone has the exact details, or knows links to the resources which have details I'd be interested to know.
Obasan
The key word is defamation. Weather it comes from an anonymous source or a non-anoymous source should be irrelevant. Defamation never was a protected form of speech just like you can be arrested for yelling "fire" in a theater when there's no fire.This ruling about defamation- not anonymity.
The immediate problem is easy enough for an experienced user to handle. Go to an anonymous remailer that handles news postings and post whatever amuses you. Real (cryptographically based) anonymous remailers don't depend on the ability of the owner to avoid search warrants.
For those who are unfamiliar with this, go to http://www.well.com/user/abacard/privacy.html and learn about anon remailers and other privacy protection methods.
The long term issues are whether or not court and politicians will try to close down anonymous remailers.
The justification for anonymous remailers has been for protecting whistle-blowers and people who *need* their privacy protected, i.e. people talking about their own abuse experiences.
It isn't surprising to find a judge that believes that such people don't deserve protection on the basis that protecting our masters in corporation and government is more important than any possible right to personal privacy. It is my opinion that such a judge has no place on the bench.
The biggest problem is that we have politicians and judges making decisions on high-tech issues that have literally never seen a C: prompt and think that all the Internet is some sort of online porn shop. The solution is to GET RID OF THEM. (disclaimer: I meant legal means)
Tech Public Policy stuff
What it comes down to is that free speech is not a "postive right," or a right *to* something, but a negative right, the right to prevent government from silencing you.
It has absolutely nothing to do with avoiding the consequences of your speech, or with remaining anoynymous.
hawk, esq.
In the McIntyre case, the court protected the right of a woman to distribute anonymous handbills expressing her opposition to a referendum. In the Talley case, the courts protected the rights of a protestor to distribute anonymous leaflets alleging employment discrimination. Both distribution attempts violated local ordinances banning anonymous communication.
In Talley the court stated that "Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment."
The court has recognized in McIntyre a general right to anonymous speech, finding that "[t]he decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment. "
In both of these decisions, the court noted that the highest protections should be given to political speech.
As I recall, Cmdr Taco has assurred us that slashdot doesn't store records of Anonymous Cowards. Whether he would be required to turn over the identities corresponding to named accounts is an open question.
To the dismay of some, the best prophylactic against subpoenas may be to increase the level of political discussion on slashdot. Since accounts could be used to post protected anonymous opinions, it might well infringe on protected free speech rights to reveal the actual owner...
I always post as me, use a real email address etc for a very important reason that I think a lot of us have overlooked.
/. you can demote the AC's. Maybe we need a Net-Wide 'license to post' as well.
The net gives the above-average/saavy user great power, greater than say the phone to which the average person uses to connect to it, but in most cases, not as great as say, broadcast tv.
What it does not do is add a level of *personal responsibily* on parity with that power.
I'm going through this right now. I'm being defamed on a 'public forum' on a privately-owned website by someone using an assumed name because this person *thinks* I am someone else.
Now for the most part, we learn to ignore it. In this case the poster is making quite nasty, and patently untrue statements, some even with racial overtones (which I generally ignore as well) to an audience that I write for, and cannot verify the basis of his false claims do to software/platform related issues.
What's more, is that since this individual feels that he is 'protected' by his ISP's 'hands-off'-ish policy, he can continue, despite repeated warnings, with impunity.
Now I ask you: is this what we had in mind, people?
Sure, not quite on the same scale as spreading false financial info...or is it?
As we move ever-forward, many (many) of us make our living totally within the confines of BitSpace.
And word, true or otherwise, travels real fast out here.
Sure, we want to be protected from the spammers, etc.
But for the level of power the net gives the indiviual, we may need another level of checks and balances as well for public posting.
At least here on
-K
One day, you'll learn to watch what you post...
If you're a whistleblower then you go to the authorities or media who, in turn, should responsibly deal with the situation and your identity, you don't air your problems in a public forum anonymously. It won't fix the problems and it only stands to hurt the organization that has the problems, at that point your free speech is an act of aggression and not an act of whistleblowing. The only case where there may be no authorities is if it is the government you are blowing the whistle one but you're given explicit protection to speak against them. The Xircom case involves a pseudowhistle blower who lacked any responsibility, you should get in trouble for that.
I think anonymous registries will be a good thing for this reason: what happens when the companies and the government catches on to the information revolution? I'm thinking about what happened a few years ago with all those anti-scientologists on the net. The church of scientology is a big and powerful organization and it legally shut a lot of people down by controlling information. Think of a microsoft of IBM or tobacco company controlling the information. If you want to have your privacy and the ability to slander and defame people and companies there will be serious motivation for those companies and the government to start mastering information and the value of tracking down "anonymous" people will be much higher. The other side of that coin is to have registered anonymity and as soon as you start crossing the line of legality someone can get a subpoena and learn your identity. Of course this is going to cause some serious issues with the civil libs and the privacy nuts who absolutley refuse to be numbered but it's going to happen if people continue to abuse anonymous speech.
This is my signature. There are many signatures like it but this one is mine..