Ryan Radia

Kentucky Bill Targets Online Anonymity

The latest attack on anonymous online speech comes from Kentucky Representative Tim Couch, who proposed legislation last week that would ban posting anonymous messages online. The bill requires users to register their true name and address before contributing to any discussion forum, with the stated goal of cutting down on “online bullying.”

The right to speak anonymously is protected by the First Amendment, and the Kentucky proposal raises serious Constitutional questions. In Talley v. California, the U.S. Supreme Court overturned a Los Angeles ban on the distribution of anonymous handbills on First Amendment grounds. However, the Court has yet to directly address the question of anonymous speech on the Internet, as few existing laws target online anonymity.

The Kentucky bill comes on the heels of controversy over the growing popularity of JuicyCampus.com, a “Web 2.0 website focusing on gossip” where college students post lurid—and often fabricated—tales of fellow students’ sexual encounters. The website bills itself as a home for “anonymous free speech on college campuses,” and uses anonymous IP cloaking techniques to shield users’ identities. Backlash against the site has emerged, with Pepperdine’s student government recently voting to ban the site on campus.

Under current law, websites like Juicy Campus cannot be sued for user-posted messages. As Adam Thierer mentions in a recent post, Daniel J. Solove of George Washington Law School has offered some insightful analysis on anonymity in the digital age. Solove points out that under the Safe Harbor provision found in Section 230 of the Communications Decency Act, providers are immunized from liability if they unknowingly distribute libelous messages so long as they remove libelous postings upon receiving a takedown request. This issue was further clarified in 2006 in Barrett v. Rosenthal, in which the Court found that website operators are immune from liability when distributing defamatory communications.


Normally, finding the perpetrator of libel on a website can be accomplished through subpoenaing the site’s owner. The website then turns over the IP address of the user who posted the offending content, and the ISP to which that IP is assigned reveals the identity of the offending subscriber. Subsequently, the victim of defamation can file a lawsuit.

But with sites like Juicy Campus that help users shield their true identity, finding the perpetrator of libel can be very challenging. If a poster spreads hurtful lies about you on JuicyCampus, you can have the offending material removed—but you may be left with no recourse against the guilty party. Subpoenaing sites that don’t maintain IP logs is unlikely to yield the offender’s actual IP address, so there is little to deter people from going online and defaming their enemies, hidden behind the veil of anonymity.

Despite the appeal of combating defamation by banning online anonymity, lawmakers should be wary about restricting anonymous speech in the name of fighting libel. The same laws designed to deter defamation can also be used to target political dissent or silence whistleblowers for whom the option of remaining anonymous is critical. While Mark Klein and Babak Pasdar elected to reveal their identities, they remind us that whistleblowers are crucial safeguards against government excesses. And as Chinese dissidents know all too well, governments around the world have a long history of suppressing political opinions that undermine state legitimacy.

Perhaps politicians can manage to craft a law that fights defamation without threatening legitimate anonymous speech. Still, living with the occasional bout of slander and libel seems like a worthy sacrifice if it means protecting individuals’ right to anonymous speech.

March 10, 2008 | Comments |

Viewing 4 Comments

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    Great post, Ryan. I wasn't aware of that Kentucky bill, so thanks for pointing it out. I am trying to do a better job of keeping tabs of rising threats to online anonymity, especially on the social networking front. So perhaps we can keep working together to highlight these threats here while also making a concerted effort to discuss the many benefits of online anonymity. Politicians only tend to look at the downsides. To be sure, as Solove's book illustrates, there are some. But the benefits of anonymous speech far outweigh the cost. We need to do a better job of making that case to head off dangerous mandates like the Kentucky bill.
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    Update: Eugene Volokh has a good discussion about the legality of the Kentucky measure over on his excellent blog, The Volokh Conspiracy. He notes that it is:

    Pretty clearly unconstitutional, see McIntyre v. Ohio Elec. Comm'n (1995) and the cases on which it relies. Plus of course any such state law would likely violate the dormant Commerce Clause, because it would end up affecting speech throughout the whole nation (given that even national ISPs would have to implement such policies for all their users, because national ISPs "do[] business" in Kentucky).


    Also, make sure to check out the comments over at Slashdot about all this. Some are quite entertaining.
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    Sorry to keep adding comments, but I found another good piece on the subject here by my friend Leslie Harris of CDT. She argues:

    It would be easy to dismiss this bill as simply the uninformed effort of a not very Internet savvy legislator, but to do so misses the point. Anonymity on the Internet is under attack. Whether it was the provocative comment by Donald Kerr, the Principal Deputy Director of National Intelligence who famously declared last fall that “Protecting anonymity isn’t a fight that can be won,” or the zeal with which the nation’s state attorneys general have pursued age verification for social networking sites, the view that anonymous speech is dangerous speech has plainly taken hold.

    There are of course times even on the Internet where establishment of identity maybe important, but we seem to have forgotten the value of anonymous speech to our constitutional democracy. As the Supreme Court has made clear, “Anonymity is a shield from the tyranny of the majority.” McIntyre v. Ohio Elections Commission (1995). Anonymity is what protects people from expressing an unpopular political view in a community where the majority holds vastly different political views and allows people to safely provide information about government misconduct. And for those living in repressive societies, anonymous speech is an enabler of human rights and political reform. If it was good enough for Publius, it should be good enough for the Internet.


    Amen.
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    Leslie Harris correctly states that anonymity is under siege on many fronts, and calls will intensify for new restrictions on anonymity as online speech takes center stage.


    As Leslie notes, there are many compelling reasons why anonymous speech merits legal protection. Defending anonymous speech will be a challenge in the online age, as the media constantly bombards us with examples of anonymity’s ugly side.


    I mentioned the Talley case deals with anonymous speech. Eugene Volokh identifies another bedrock decision on anonymous speech, McIntyre v Ohio. This ruling overturned a ban on anonymous distribution of campaign literature. Fortunately for free speech, the court concluded in McIntyre that the importance of protecting anonymity outweighs the potential for defamation. So it's unlikely that blanket bans on anonymous speech like the Couch bill will pass Constitutional muster.

    I'm worried the real threat to online anonymity will come from federal data retention laws like the SAFETY Act , which mandates ISPs and web operators retain IP logs for an extended time period. These laws create honeypots of sensitive data ripe for hackers or government agents, and are in essence a backdoor method of effectively abolishing anonymous speech on the Internet.


    If you can't communicate online without multiple firms recording your identity, there can hardly be genuinely anonymous speech, despite whatever safeguards may exist. The virtue of the market is that it creates sanctuaries for anonymous speech, for better or worse. This can't happen if government mandates the aggregation of otherwise private data.

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