Law in the Internet Society

-- By ShakimaWells - 15 Oct 2012

After President Barack Obama and Mitt Romney debated over the future of nation’s economy, healthcare and domestic policies a few weeks ago, user TheDailyConversation? posted the 1.5 hour long video on Youtube. While many of the comments regarding the video focused on the personal and political attributes of the candidates, there were also some less relevant and unsavory remarks. Joh2628, for instance wrote, presumably in regards to the President, “People are mad because that half-black motherf*cker doesn’t know what he is doing!” Roshg1 contributed, apparently in reference to Mitt Romney, “Mormons are just as f*cked up as Jehovah’s Witnesses.” As America nears the eve of an election where it will choose between re-electing its first black president and electing its first Mormon president, such comments seem to be in stark contrast to the progress that the country has made over the years in regards to racial and religious tolerance. Indeed, the internet is commonly host to inflammatory speech in comments, posts and blogs. Hidden under the garb of anonymity, trolls--individuals who post inflammatory and/or off-topic messages with the primary goal of garnering an emotional response— have found the internet to be an effective and high profile platform in which to articulate their ideas (cite). This paper examines laws the problem of trolling and the ways in which private and public entities have attempted to address the problem. It concludes that while government action may have its place, the actions of private entities and the internet community itself are also useful in curbing troll behavior.

I'm not sure how you've established that there is any problem to find in the well-known crudity of YouTube comments. It's a locale of demotic utterance: high visibility because of the primitive design of YouTube, which is by no means permanent, but without any other advantage. So the expressive conduct occurring there is simply the speech of the street. The reader has reason to expect that in your first paragraph you will at least announce reasons to believe that: (1) the speech of the street causes harm; and (2) we should therefore try to do something about it, regardless of principle and practicability. If not, you have claimed that a problem is the subject of the essay, but there is no problem about which to write.

Perhaps this is merely the result of a badly-selected example. Perhaps "trolling" is actually something other than the speech of the street. But your supposedly analytic definition, which appears to treat irrelevance, offensiveness and provocation as occupying one compound category, doesn't establish what else it is, or why we should be worried.

As noted above, the rampant nature of online trolling can at least partially explained by anonymous nature of online posting. This concept has also been formally referred to as the Online Disinhibition Effect, which is described as the “loosening (or complete abandonment) of social restrictions and inhibitions that would otherwise be present in normal face-to-face interaction during interactions with others on the Internet” (cite).

Formally referring to something doesn't establish anything about it, just about the label one puts on it. You might actually want to abandon whatever source you thought would substantiate the label, and look a little more closely at the differences between anonymity, pseudonymity, and physical impunity. What constrains the speech of the street isn't anonymity: people in the street might not know your name, but if you get in too many faces you will be deterred by physical force. Pseudonymity is beloved of those who behave both provocatively, to get a response, and offensively, to harm, but the social psychology is more subtle than you let on. What really "disinhibits," if you want to be simply behaviorist about it, is the awareness of physical impunity: the speech of the street asymptotically approaches the attributes of YouTube commentary as the speaker approaches impunity to retaliatory force.

This is analytically not the same as Online Disinhibition Bullshit, even before one adopts a slightly more complex personality psychology and places something actually useful as social psychology on top of it.

Because the individuals is able to navigate the internet without others knowing their true identity, without being seen and even without returning to read the fallout from their post, anonymous posters can engage in behavior that they would not attempt in an ordinary social setting.

Companies like Youtube have already begin to brainstorm ways in which to limit the trolling. One new policy prompts commenters to change their username to their real name. Although the initiative was launched earlier this year, it is still optional and users can decide to continue to post under their usernames if they provide a reason. The explanation “I’m not sure, I’ll decide later” is currently accepted as sufficient (cite). Twitter has also changed its policy to prohibit specific threats of violence and prevent user abuse (cite). In its terms of service, Twitter notes that such behavior will result in permanent suspension. It is not clear, however, whether individuals will be able to circumvent these rules by opening an account with another user name, for instance. In New York, the State Assembly proposed the Internet Protection Act, which allows for web site administrators to remove comments by posters who do not have a verifiable name, IP address and home address.

The State Assembly doesn't propose legislation: it either passes bills or it does not. You mean a particular legislator proposed something stupid. This happens everywhere all the time. So what? There is no doubt whatever that the proposal violates the First Amendment, and there is zero chance that such legislation will ever pass. What about this merits discussion?

This has riled the passions of some observers who note the Supreme Court’s assertion that individuals have a right to be anonymous in some circumstances.

I doubt anyone's passions are riled. Someone has said the obvious, that this is both stupid and unconstitutional. Again, I don't understand why the matter justifies discussion. Are we showing even-handedness between accuracy and inanity? Seriously recommending the wisdom of inconveniently unconstitutional policy?

One article (cite) cites the ruling in McIntyre? v. Ohio Elections Commissions, where the Supreme Court stated, “Anonymity is a shield from the tyranny of the majority…It thus exemplifies the purpose behind the Bill of Rights and of the Frist Amendment in particular; to protect unpopular individuals from retaliation…at the hand of an intolerant society.”


On an international level, the UK has been noted for its active, if heavy-handed, reaction to trolls. One well- known case in the UK involved a Welsh student in his young twenties who was jailed for making racist tweets against Fabrice Muamba, an athlete who had a heart attack and collapsed during a soccer match. The student, Liam Stacey, who had been drinking while watching the match, was sentenced to 56 days for a “racially aggravated public order offense.” The chief crown prosecutor noted “Racist language is inappropriate in any setting and through any media. We hope this case will serve as a warning to anyone who may think that comments made online are somehow beyond the law” (cite).

As data concerning UK internet speech regulation, a single criminal prosecution result not yet tested by appeal is not very useful. As implied comparative information (the UK conducts "heavy-handed" legal regulation of speech on the Net compared to other places), it is both not probative and wrong. Nor are you adequately dealing with the complexity of the line between content-regulation of the speech of the street and maintenance of public order. Simplifiers refer to this by talking about shouting fire in a theater, American First Amendment dogma responds to the Heckler's Veto Problem. If you want to consider events in one of the world's many democracies without constitutional free speech protection and nonetheless holding complex and sometimes productive public policy discussion about offensive online speech and public disorder, you might want to consider India rather than the UK. Unfortunately, all these doctrinal categories and the legal issues they raise are orthogonal to your category of "trolling," which is shown to be both sociologically and legally wooly, therefore difficult to manage.

Is law, however, even the right way to handle trolls online? In many cases, trolls are challenged socially, either through the response of other users or by being ostracized and/or ignored online. In the case of Liam Stacey, above, the backlash was so intense that he tried to delete the messages, claimed that he had been hacked and then deleted his account altogether before being arrested.

And so? To which point in what analytical process is this information relevant?

Given that social isolation can be a powerful modifier of human behavior, would society and the online community have been better served with Stacey simply deleting his account and finishing his Biology degree without a jail sentence?

Now we are presented with a dichotomy between absence of social response and criminal incarceration. Even a reader predisposed to ignoring the behavior cannot help but notice that this is a completely false decomposition. And why is the false choice supposed to arise from the predicate that "social isolation can be a powerful modifier of human behavior?" There's no obvious analytical connection between the premise and the consequent. The premise too seems faulty. If we are really talking about this case, isn't the real given alcohol rather than social isolation? Alcohol intoxication causes a great deal of offensive speech and behavior in the street, which is subject to a range of social control, including sometimes arrest, incapacitating incarceration, and criminal conviction of low-level offenses against public order, which, dependent on the record of the accused and the disposition of the carriers of the public force, can result in various degrees of punishment. None of this has anything to do with the Net, any more than it has to do with any of the other forms of public expression—including vomiting on the statue of Oliver Cromwell in Parliament Square, or on the arresting officer—to which intoxicated social aggression often leads. What have you offered to show that this is a problem of the Net?

On the other hand, it was perhaps precisely the threat of police action that forced Stacey to take down his Tweets. Although the words of the UK court suggests that Stacey was pursued as an example, the comments under the video of the Obama-Romney debate indicate that trolls remain a persistent problem. While governmental or police action may be too extreme and unrealistic to tackle the every day problem of trolling, perhaps the actions of private entities, such as Twitter or Youtube, can help curb the scourge of trolling and promote more effective and socially beneficial online communication. Such actions may have to have more teeth than they currently do, however, so that trolls actually fear the repercussions of their actions and other users also know that they have recourse, even if not legal, to deal with other antisocial users.

This graf says owners of property should band together to exercise power in support of respectability, to control the discourse in public spaces, and to limit the insolence and intimidatory behavior of the riff-raff.

I'm puzzled about this idea as a conclusion. In the first place, is it necessary, ever, to encourage the classe dirigente to hegemonize popular culture to the greatest extent their effective power will permit? In the second, is their power ever effective enough, and is it here? I already don't read the YouTube comments containing the speech of the street, and if YouTube decided to close its street to canaille or hoi polloi, the speech of the street would go somewhere else and I wouldn't listen to it there either. In the third place, just sort of by the way, is freedom of speech a value, or just a constitutional provision? Encouraging non-state actors to do what the state is forbidden clearly implies that our interest is not in expanding freedom, but merely in disempowering the state. That's not the side I'm on, and I wonder if it is the side you are trying to join.

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.


Webs Webs

r2 - 28 Oct 2012 - 07:21:42 - EbenMoglen
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM