WHY ANONYMOUS INTERNET SPEAKERS CAN'T COUNT ON ISPS TO PROTECT THEM

By JULIE HILDEN


julhil@aol.com
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Monday, Jan. 01, 2001

As The Industry Standard recently reported, this year has seen a spate of divergent judicial rulings addressing, with differing results, the question of whether the identity of an anonymous Internet speaker should be disclosed to the plaintiff who brings a libel lawsuit against the speaker. These rulings have, in turn, sparked controversy over whether further legal protections for anonymous Internet speech are necessary.

In my view, some further legal protections for anonymous Internet speakers are warranted. As I will explain, those speakers — shielded only by Internet Service Providers who have limited incentives to protect them — enjoy significantly less protection from disclosure than, for example, newspapers' confidential sources. That disparity should be remedied.

The Boom in Anonymous Speech, and in Lawsuits Targeting It

Before the Internet, most of us probably thought of anonymous speech as a creature of bathroom walls and prank calls. But now the Internet has rendered mainstream the very type of speech that used to occupy the fringe.

For example, every AOL user can create five different screen names, and interestingly, not one of these names must be the user's own. Chat rooms, too, typically prompt the user not for a name but for a "nick." And Net forums for anonymous speech abound — from the humblest chat room to Slate's reader response arena, "The Fray," where readers may choose to identify themselves or not, as they please, and where their remarks may be selected to appear (still anonymously) below the article on which they comment.

Given these new technological and cultural realities, it's not surprising that anonymous speech — now much more powerful and common — is increasingly giving rise to lawsuits. The motivation for some of these lawsuits is quite traditional: A libel lawsuit is brought to try to remedy perceived harm to reputation; an invasion of privacy lawsuit is brought out of outrage that facts considered intimate have been publicly revealed.

Why the ISP Is Likely to Disclose an Anonymous Speaker's Identity

To begin, it is important to stress that Internet Service Providers (ISPs) should not be, and generally have not been, treated by the law in the same way that, say, newspaper publishers are: as a co-publisher of the speech at issue.

Instead, the chat rooms ISPs create have usually been analogized to open forums such as public squares. Just as your town generally cannot be held liable for what you say via loudspeaker on the town green, even if it licensed the event you are holding there, so ISPs cannot generally be held liable for your Internet speech.

Nevertheless, if the target of anonymous, damaging Internet speech wants to seek out the speaker, the ISP is still the entity to which he must direct his subpoena. After all, he can't serve a subpoena on a person he can't even identify.

Thus, often the first step in a legal action against a "John Doe" Internet speaker is to serve a subpoena not to the speaker himself, but to the ISP. The ISP will have a decision to make once it receives the subpoena: Should it reveal the identity of the anonymous speaker?

The ISP may wonder: Why not? After all, the ISP did not select or edit, or place its imprimatur upon, the anonymous speech. To the contrary, it was not even aware, in some sense, that it had hosted this particular speech. It may think the message that was posted is loathsome, false or useless. In short, the ISP has little reason to feel proud or protective of the speech, or to feel that its reputation is on the line vis-à-vis the speech's accuracy, or the speaker's veracity.

Granted, if the ISP fails to protect its customers' anonymous speech, they may go elsewhere with their business. But protecting anonymous speech is not crucial to the very life of the ISP itself — in the way protecting confidential sources is crucial to the very life (and pride, and self-conception) of a newspaper.

Indeed, the type of anonymous Internet speaker who triggers a libel or invasion-of-privacy lawsuit — often a person who makes inflammatory remarks with little back-up — is more likely to be perceived by the ISP as a nuisance than as a vital source of information. Furthermore, the ISP might feel confident that disclosing the identity of a "crackpot" speaker (say, a neo-Nazi or a particularly hateful misogynist) will reassure, rather than alienate, most of its customers.

Yet if we care about free speech, we ought to worry if the "crackpot" speaker is usually revealed by a willing ISP, while the mainstream speaker usually enjoys the benefit of anonymity. After all, the "crackpot" speaker is the one who needs anonymity most. (Unfortunately, however, the "crackpot" Internet speaker is also often the one who can do the most damage from behind a nickname's mask.)

To see how little incentive ISPs really have to protect their customers, suppose, instead, that you are seeking from a major newspaper such as The Washington Post or The New York Times the identity of a confidential source who provided information for a damaging story about you.

The fight over the source's identity would begin when the plaintiff served a discovery request on the newspaper — who will usually be a co-defendant in the litigation. (Thus, a third-party subpoena would not be necessary.) Indeed, in a sense the newspaper is often the primary defendant, for it may be its "deep pockets" that are the lawsuit's real target; often the source is not even sued at all.

The reason the newspaper will usually be a co-defendant — or even, sometimes, the only defendant — is that, unlike ISPs, newspapers generally are liable for anonymous speech that they publish in the context of an article. Because they select, edit, and to some extent endorse the sources' speech, they are seen as co-publishers of that speech, not merely forums for it.

Being a defendant or co-defendant, of course, gives the newspaper a strong incentive to protect its source. Moreover, the newspaper has a reputation to protect. It has presented the speech as the truth, and placed its imprimatur strongly behind it. And on major stories, the fact that a lawsuit is brought may be as much a testament to the power and journalistic force of the story, as it is a possible warning sign about its reliability. (Thus, some prominent targets sue simply for the public relations benefit of suing, then later quietly drop the suit).

Finally, and perhaps most importantly, publications from the National Enquirer to Newsweek depend on the ability, over time, to make credible promises of confidentiality to sources on important stories. As a result, such publications will defend to the death the identity of their confidential sources.

Accordingly, the newspaper has a large investment in protecting the speaker and defending the lawsuit — an investment that an ISP generally lacks.

Does the Internet Speaker's Vulnerability Mean More Legal Protection Is Called For?

Partially as a result of the factors I've outlined above, complaints that ISPs disclose anonymous speakers' identities too easily and quickly have recently been made by the ACLU, as well as by the Electronic Privacy Information Center and others.

Just as legal principles and institutional realities would predict, it seems that empirically, ISPs are not offering the type of zealous protection to anonymous speakers that newspapers usually extend (by objecting to discovery requests, by raising legal defenses and, often, by paying legal costs too).

If you don't have a college roommate at the New York Times — perhaps because you never went to college — you can still get your story out there on numerous Internet venues. Presuming that your speech is worthless because you couldn't get the Times' attention might be folly.

All of these points militate in favor of offering more legal protection to Internet speakers — whose vulnerability seems to correlate unfortunately with their lack of access to traditional media. One way such protection might be guaranteed would be to require ISPs to defend their customers against subpoena enforcement actions (with customers able, of course, to opt out if they would like to defend themselves instead). Another possibility may be technological, rather than legal — with speakers' identities unknown even to the ISP, but that option carries its own costs, in that it might render impossible meritorious libel and privacy lawsuits.

Whatever the method of protection, though, it is clear that some increased protection for anonymous Internet speakers is necessary if we seek to equalize their position with those of newspapers' confidential sources.


FindLaw columnist Julie Hilden is a freelance writer. A graduate of Yale Law School, she practiced First Amendment law at the D.C. firm of Williams & Connolly from 1996-99. Her earlier article for FindLaw's Writ on the legal protections for confidential sources may be found in the archive of her articles on the site.

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