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  From: Josh Kolsky <jmk2118@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Wed, 29 Mar 2006 00:37:59 -0500

Re: [CPC] Paper 1: The Danger of Absolute Internet Anonymity

Thanks for the response.

I agree with you that websites like the ones I described do not
create problems so great as to require some form of identification
of the users.  That type of speech - posting true but private
information about someone - is improper as a matter of social
decency, but should not be considered improper as a matter of law. 
I think the Internet will create a problem of true speech that
doesn't quite exist in the physical world.  Because of infinite
memory and the ability to conduct an exhaustive search, details of
our lives are now available to the entire world.  Whereas before,
private things were kept private (say, in a diary), they are now
moving online for the whole world to read (say, in the form of
blogs).  This is a somewhat scary concept, but I don't think it
should be regulated by requiring people to identify themselves
online.  This is the issue of what I called relative anonymity and
what you call pseudonymity.  I think relative anonymity is a good
thing.

I also agree that the VAWA provision against anonymous annoying
speech is problematic.  Again, that speech is true and worthy of
protection, so it would be improper to require identification. 
Perhaps if the annoyance rose to the level of serious harassment or
cyber-stalking, it would be a different matter.

Your paper makes a good point about the value of anonymity that I
missed in mine: "Those with controversial views can communicate
without worrying about the repercussions."  I think this can be
accomplished with relative anonymity, without the need to allow
absolute anonymity.

On the other hand, I do think attempts to combat false speech can be
legitimate.  Defamation serves no useful purpose and only threatens
the quality of debate, so I would support measures that require
users to be ultimately identifiable on the Internet (even if they
do use psuedonyms).  So, they would not be identifiable to other
Internet users, but they would be trackable through their IP
address.  The NJ law you cited is interesting.  I think someone or
some entity needs to be responsible for the defamatory statements
made online, even if its not the person who posted the statement -
perhaps the website should have the option of recording its users
IP addresses or accepting liablity for any defamation posted on its
site.  So long as someone is liable, there will be a deterrent
effect to keep websites honest.  In general though, I support
tracking IP addresses to protect against defamation, provided that
the addresses would only be kept temporarily (perhaps as long as
the statute of limitations for a defamation claim) and that the
addresses would only be available to certain enumerated authorities
complying with established procedures, or parties to a lawsuit, etc.

Perhaps one way to draw the line would be to say that users should
be able to remain anonymous so long as their speech is
constitutionally protected.  But speech without such protection,
defamation or extreme harassment, would lose its right to
anonymity.  In order to remove the shield of anonymity, we need
some way of identifying Internet users through IP addresses.

I guess in the end, I don't believe that having one's IP address
recorded will really deter any valuable (i.e., protected) speech. 
Maybe I'm wrong though.


Quoting Kenneth Canfield <ksc2103@columbia.edu>:

>
> Very interesting paper, Josh!  I do agree that anonymity can lead
> to
> some of the undesirable, offensive communication that you
> mentioned.
> While I haven't seen the websites you specifically referenced
> regarding
> women posting about ex-boyfriends, I can see how that can be
> problematic.  However, on the whole, I still believe that
> anonymity (and
> pseudonymity) are important in fostering communication in a way
> that we
> are used to.  I wrote about this some in a paper for Law in the
> Internet
> Society (http://moglen.law.columbia.edu/LIS/discuss/119.html).
>
> I'd be interested to hear more about your solution and how you
> think it
> could be.  Under the current situation, despite all of the
> intrusions
> going on, the "normal" person certainly feels like he/she can
> have
> anonymity and pseudonymity, and I do not think much speech is
> being
> suppressed.  I would not be able to support a law like the
> Violence
> Against Women's Act provision that makes it illegal to "annoy"
> anonymously, or even worse a law that simply made illegal
> anonymous or
> pseudonymous communications.  While I haven't read about it aside
> from
> aside from the link below, NJ's law which requires ISPs to record
> user's
> ids and disclose them in any claim of defamation concerns me
> (http://www.eff.org/news/archives/2006 03.php#004478).  If this
> means
> that one's identity is constantly being logged by the ISP, for
> fear that
> defamation may arise, I believe too much speech will be
> suppressed.
> While it is beneficial to be able to know the source once
> defamation
> occurs, I do not believe the sacrifice is worth it.  What is your
> view here?
>
> I am particularly concerned that the absence of anonymity and
> pseudonymity would make it impossible to separate your private
> and
> public worlds, to separate your communications with your friends
> from
> those with your co-workers.  Additionally, it would make it
> impossible
> to recreate your identity by moving to a different place, or to
> rid
> yourself from the stigma of a formerly-held belief.  We already
> have
> discussed the repercussions students who use facebook.com can
> face when
> searching for jobs, and this is an example of voluntary
> identity-disclosure in a world where anonymity/pseudonymity is
> still
> possible.  Forced identity disclosure (which it appears you might
> not
> advocate, but which might held by at least some people having an
> anti-anonymity position) would on exacerbate this problem.
>
> Josh Kolsky wrote:
> > The Danger of Absolute Internet Anonymity
> > by Josh Kolsky
> >
> >      There is no doubt that the Internet will radically
> transform
> > political discussion and effective freedom of speech in this
> > country.  Numerous possibilities for change exist, but the most
> > important is certainly the reduction of barriers to entry that
> > previously limited the voice of ordinary speakers.  Central
> among
> > the relevant questions to consider regarding the Internet and
> > freedom of speech is the effect of anonymity on free speech
> values,
> > keeping in mind the distinction between absolute anonymity
> (which
> > would prevent an Internet user from ever being tracked) and
> > relative anonymity (which allows users to be identified through
> > their IP address).  Although absolute anonymity offers the
> > possibility of promoting some free speech values, overall I
> believe
> > the balance weighs against such anonymity as a promoter of free
> > speech values.
> >       Numerous free speech values have been identified
> throughout
> > history: self-expression,[1]  the “development of
> faculties,”[2]
> > the promotion of self-governance,[3] and the protection against
> > overreaching government.[4]   Often considered the most basic
> free
> > speech value, however, is the development of truth.[5]   While
> > absolute Internet anonymity would promote the relatively
> inferior
> > free speech values, such as self-expression, it would likely
> > disturb society’s search for truth.
> > 	Anonymity encourages speech generally, but it encourages false
> > speech to an inordinate extent.  Anyone who wishes to malign a
> > political opponent, defame a public official, or inject doubt
> into
> > political debate using falsehood can do so under a regime of
> > absolute Internet anonymity.  As the public turns more to the
> > Internet for news and political discussion, the honesty and
> > accuracy of information on the web becomes more important, and
> the
> > ability to track and identify unscrupulous users becomes
> critical.
> > The history of American politics strongly suggests that a
> > sophisticated mud-slinging tool such as an anonymous Internet
> would
> > be embraced and used effectively to win political power.  I
> consider
> > it unwise to introduce to society the technological ability to
> lie
> > with impunity.
> > 	Of course, anonymity does promote free speech values in
> certain
> > ways.  Perhaps, it might be argued, anonymity even promotes the
> > attainment of truth.  By encouraging more people to enter the
> > debate, and encouraging a more candid debate, a broader range
> of
> > views could develop from which the truth might more easily be
> > perceived.  However, the mix of truth and falsehood might just
> as
> > easily dissuade honest people from entering the debate – who
> wants
> > to converse when there are no ground rules to ensure sincerity?
> > Some may argue that the presence of falsehood might promote the
> > search for truth by forcing people to become skeptics.  Perhaps
> > people, too willing to believe everything they read today, will
> > develop skills to distinguish between true and false claims,
> and
> > will more readily consult different sources to check facts.
> This
> > suggestion ignores the realities that most people do not
> possess
> > the time to conduct research projects on the Internet, and,
> more
> > importantly, are happy to believe what they want despite
> questions
> > of accuracy.
> > 	One can also imagine scenarios in which the organization of
> the
> > Internet mitigates the harm from anonymously produced
> falsehood.
> > If an absolutely anonymous Internet was permitted, websites
> could
> > decide on their own whether to require some sort of
> authentication
> > mechanism for users, thereby opting-in to an identity-based
> system.
> >  Internet users might then learn to trust information from the
> > non-anonymous sites and question information from the anonymous
> > ones.  However, the presence of false information on the
> anonymous
> > sites would still likely have corrupting influence on the
> general
> > political debate.
> > 	The current regime of relative Internet anonymity, in which
> users
> > remain anonymous unless they are tracked by their Internet
> Service
> > Provider or by the government, strikes a more proper balance
> > between promoting open discussion and preventing defamation.
> The
> > risk of identification is generally strong enough to prevent
> > defamation, and the high likelihood that one will remain
> anonymous
> > encourages open and candid debate.
> > 	Relative anonymity is not without its problems.  The ability
> to
> > speak to a large audience without being identified has
> encouraged
> > speech that is true yet still arguably inappropriate.
> Consider,
> > for example, the website DontDateHimGirl.com which allows users
> to
> > anonymously malign a man’s character by designating him a
> > “cheater.”  There is also WomanSavers.com, where users can
> > anonymously post information about a past boyfriend, including
> such
> > traits as hygiene, sexual performance, and infidelity.  Sites
> like
> > these invade the privacy of their targets, and exist only
> because
> > of anonymity.  In the physical world, the stigma associated
> with
> > lashing out at someone would prevent most people from publicly
> > divulging another's intimate secrets.  Also, the interested
> > audience is so small that it would not be worth identifying
> that
> > audience to speak to.  The Internet makes this process
> efficient –
> > the interested audience themselves can effortlessly seek out
> the
> > relevant information about a particular person, making
> anonymous
> > personal attacks worthwhile.
> > 	The abuses of relative anonymity, invading the privacy of
> > individuals without their consent, foreshadow the problems we
> would
> > face with an absolutely anonymous Internet.  The menace of
> relative
> > anonymity relates to the threat of true speech, in which the
> > private details of one’s life are broadcast like a modern day
> > Scarlet Letter.  These problems are arguably acceptable when
> > compared to the free speech benefits conferred by relative
> > anonymity.  In contrast, the problems associated with absolute
> > anonymity relate to the threat of false speech.  Here, the
> balance
> > of free speech values weighs against anonymity.
> >      The Internet’s primary contribution to free speech values
> is
> > its ability to amplify the voice of ordinary, unsophisticated
> > speakers.  While the prospect of absolute anonymity could bring
> > further speech benefits, the danger of such anonymity is real
> and
> > should not be ignored to accommodate one’s reflexive opposition
> to
> > Internet regulation.  Considering the sole topic of free speech
> > values, it seems clear that Internet users must remain
> ultimately
> > identifiable.
> >
> >
> >
> > [1]  See Perry, Freedom of Expression: An Essay on Theory and
> > Doctrine, 78 NW. U.L. REV. 1137, 1153-56 (1983).
> >
> > [2]  See Whitney v. California, 274 U.S. 357, 375 (Brandeis,
> J.,
> > concurring).
> >
> > [3]  See A. Meiklejohn, Free Speech and its Relation to
> > Self-Government (1948).
> >
> > [4]  See James Madison, 1799 Report on the Virginia
> Resolutions.
> >
> > [5]  See John Milton, Areopagitica, 1644 (“Truth indeed came
> once
> > into the world with her divine Master, and was a perfect shape
> . .
> > . but . . . a wicked race of deceivers . . . took the virgin
> Truth,
> > hewed her lovely form into a thousand pieces, and scattered
> them to
> > the four winds.  From that time ever since, the sad friends of
> > Truth . . . went up and down gathering up limb by limb, still
> as
> > they could find them. . . . Suffer not these licensing
> prohibitions
> > to stand at every place of opportunity, forbidding and
> disturbing
> > them that continue seeking, that continue to do our obsequies
> to
> > the torn body of our martyred saint.”)
> >
> >
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