New ruling mostly avoids issue of First Amendmentprotection for Internet anonymity

[David Farber <dave () farber net>]

------ Forwarded Message
From: Paul Levy <plevy () citizen org>
Date: Fri, 18 Mar 2005 22:37:46 -0500
To: <dave () farber net>, <bill.stewart () pobox com>
Cc: Paul Levy <PLEVY () citizen org>, <cindy () eff org>, <gtbear () gmail com>,
<declan () well com>
Subject: Re: New ruling mostly avoids issue of First Amendmentprotection for
Internet anonymity

Our argument of course was not that anonymity needed to be upheld in
this case, and not that the speech was not actionable, but that but only
that the important thing in the case was the standard  used to decide
whether to breach anonymity, and hence that the case should be sent back
to the trial judge to do that.  The fact that one may or may not think
that this particular email ought to be actionable is merely something
you decide in the course of that analysis.

The think that was odd about this case is that both the post itself, and
the suit over it, smacked of small town politics.  Suppose, for example,
that the email was sent as a practical joke, making fun of someone for
positions taken on a local issue.  Can the mere sending of a message
pretending to be from X never have political content?  Think of a parody
letter to the editor.  Think of Falwell v Hustler in which Jerry Falwell
is portrayed as musing about "his first time."

It seemed to us that this is the sort of problem with which the judge
ought to grapple.  In the lower court though, there was no discussion of
what was really going on here; plaintiff said, don't need to think about
that because Doe waived his privacy in his subscriber agreement and Doe
said, Cable Act absolutely
bars disclosure.   We called for a more nuanced analysys.

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation
> > > Bill Stewart <bill.stewart () pobox com> 03/18/05 21:17 PM >>>
> http://www.courts.state.me.us/opinions/2005%20documents/05me39fi.htm

Normally I'm all in favor of protecting anonymous speech,
but I don't view this as legitimately anonymous,
and I think the amici are wrong about the principles here.
(I'll leave discussions of cable privacy law to the professionals.)

If Alice posts a message saying
         "Bob is <generic insult>!  Nyahh nyahh!  You'll never catch me"
or      "Bob is <actionable slander>!  I'm Jane Doe, and I approve this
message"
or      "Bob said <something>!  Signed, Concerned Citizen"
or      "Bob <whatever>!  For more info, post a message to Sue.D.Nym"
those are anonymous speech, and should be protected as such.

If Alice posts a message saying
         "Bob <whatever>!  Signed Alice (please don't post my
email/phone)"
then Alice's contact information also deserves to be protected.

But if Alice posts a message saying
         "I'm Bob!  <bad stuff>!"
then that's not anonymous, or pseudonymous - it's forgery,
and if the <bad stuff> is actionable, I don't think Alice's
identity or contact information deserve protection.
Perhaps "I'm Bob, and I'm a <generic insult>" or
"I'm Bob, and <blatantly obviously not-from-Bob stuff>"
deserve some anonymity protection, but those aren't the case here.

For that matter, if Alice posts a message saying
         "I'm Bob!  <bad stuff>"
then it seems reasonable for the real Bob to be able to
give consent to reveal the contact information of the person
claiming to be him, and for the cable company to accept that consent.

 From a Cypherpunk perspective, of course, the First Amendment
and Fourth Amendment protections to privacy are good ideas, but
if you want to protect your privacy effectively you need to use tools
that depend on mathematics rather than character of judges
or the whims of Homeland Security.

                 Bill Stewart



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