Computers, Privacy & the Constitution
I recently read the article Web of Lies, written by Jane Kirtley. Kirtley discusses one of the conflicts posed by an anonymous web -- that of making parties unable to sue for libel based on defamatory comments posted anonymously online. I think this is somewhat of an interesting topic because of the increasing and recognized credibility of some sources that are available to be edited online (such as Wikipedia). It bothered me to read that something someone posted online could lead to a lawsuit. I did find some solace in the DE high court at least ruling that a potential plaintiff must first try to notify the poster that he intends to seek an order disclosing the poster's identity and give him a chance to oppose it (hopefully anonymously). _ Should a person be protected from all legal action for lying online if they choose to post anonymously?_ I can imagine a situation, as mentioned in the article, where a person's reputation is central to their career. If anonymously fabricated slanderous remarks made online are not legally actionable due to a complete cloak of anonymity for the poster, where does that leave the potential plaintiff? Is society better off leaving politicians and other people in the public sphere with no legal remedy?

I also thought it was noteworthy that Wikipedia is mentioned in the article for removing an entry which sparked a complaint, and for turning over the IP number of the person who had posted it.

-- SamuelDostart - 27 Jan 2013

I edited your text to put the link where it belonged, as a link. Please try to use this course as an opportunity to learn to write Webly. Making good use of the powers of hypertext is now a much more socially-important communications skill than learning Bluebook style for footnoting. (Footnotes? Really?)

On substance, and in a limited compass, because this is a course about the so-called "constitutional" aspects of the changes wrought by the Net:

I think you're not taking fully into account the way the First Amendment interacts with state tort law. New York Times v. Sullivan is a state action case: the source of the constitutional problem is the use of the state's courts to intervene against protected speech. The same principle applies also to the use of the courts to force disclosure of anonymous communication's authorship where the anonymity of the communication is constitutionally protected. So your inquiry is about the breadth of the right to anonymous speech. Perhaps at a minimum the question whether "the Internet" has anything to do with this should be postponed to the actual analysis. I don't myself see why forcing the disclosure from an intermediary is different when the intermediary is connected to the speaker by digital rather than analog communication. I don't think Ms Kirtley's approach to the question is calculated to get to the most interesting possible answers. You can do better, I think, by working harder on the constitutional questions (which are really political questions dressed up as law, taking—as always—technology into account), and forgetting "the Internet" for the moment. If you don't make the Great Reification Error, and you substitute "given that everyone's connected to everybody else at low cost with little friction but very uncertain 'anonymity'" for "the Internet," it's really an inquiry into the political structure of limitation we call "respect for free speech."

On Wikipedia:

In thinking about businesses, one tries to understand how they make their livings, and how they can make them better. Because making a living is finally all they care about. In trying to understand anarchist free culture entities, which aren't even like non-profits that are trying to accumulate ownership, how they make their living is not the most important question. What matters most to them is what kind of society they are trying to be. Wikipedia is not a forum for anonymous communication. Wikipedians are responsible to one another for the shared values their society represents. Wikipedia is built accountably. It respects the privacy of all its users, who can also be all its editors. It doesn't track them or spy on them. But it does not aspire to provide anonymity to editors. Its design reflects the community's fundamental commitments, both to privacy and to accountability. The community's approach is expressed operationally in dozens of areas. Its standards for achieving neutral point of view, just to take one example, presuppose the relevance of identity. So the Wikipedia history, as Wikipedia would like to teach you, allows anyone to find out who has edited anything, and from what IP address.

I have spent time contemplating limitations on anonymous free speech after having the opportunity to consider and reflect upon several more class lectures and related readings. I think the most important anonymity to maintain is that related to discussing the government. As decided by the Supreme Court in McIntyre v. Ohio Elections Com'n (1995) and related cases, the right to anonymously pamphleteer is an honorable tradition of advocacy and dissent, and provides an important shield to the majority. The same logic would presumably apply to discussions through other mediums, including the internet. While this is an admirable sentiment, I believe its practical application in today’s society is unfortunately very limited.

I also find the current stance of the government to be at odds with the Federalist Papers. Widely considered to be the most influential analysis of the U.S. Constitution ever written, the Federalist Papers were published anonymously by the author “Publius.” This is a strong argument that the three eventually-revealed authors of the Federalist Papers, the first Supreme Court Justice John Jay, the lead promoter of a strong federal government Alexander Hamilton, and the master builder of the Constitution James Madison, viewed the right to anonymously discuss matters pertaining to the government as fundamental. In fact, the press of their day was heavy with anonymous postings discussing the proposed Constitution. Of course, these conversations occurred before the ratification of the Constitution, and in a very different world than the one existing today.

The reason Web of Lies was interesting to me, especially in light of the recent talk in class about the current state of the First Amendment in India, is that the right to remain anonymous in today’s world seems to be more lip service than anything else despite its often-obvious importance for the perpetuation of freedom. Technically, even a very limited right to remain anonymous could have far-reaching implications, as it may require the government to not take any action that could lead to the discovery of the identity of a Constitutionally-protected anonymous speaker. This may be interpreted to restrict the government from inspecting the records of any email account without just cause, and limiting the government's ability to inspect any communication. I would similarly be very interested in hearing the Supreme Court discuss Professor Moglen's characterization of encrypted communication as a new language protected under the right to free speech, just as the government cannot prevent communication in foreign languages. This calls to mind the notion that those wishing to exercise the ability to speak anonymously could use anonymity networks such as Tor. While I know very little about the technological structure of these networks, I think I know enough to question their effectiveness. The opt-in structure, which requires some level of technological sophistication, is suboptimal, and raises question as to what type of information is being sent across them. This has the unfortunate consequence of materially increasing the government’s interest in cracking the anonymity.

Instead, the right of “anonymity” appears to have diminished to practical non-existence, as it cannot be said to even include a right to not have the government take action to learn the identity of the anonymous speaker, as the government likely already has enough information to identify the speaker. Whether the identity is determined from the use of financial records to track the speaker through purchases, the use of abundant cameras and facial recognition technology, the location of the person’s phone at a given time, or through reading emails, the government has enough information in its possession to make any purported right to anonymity seem like a sad joke.

-- SamuelDostart - 15 Apr 2013



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r4 - 14 Jan 2015 - 22:36:40 - IanSullivan
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