That the Supreme Court of Delaware affirmed the right of anonymous free speech shouldn’t be news. That they affirmed the precedent that there is a tradeoff between anonymity and credibility– this should be news to people quick to celebrate this decision.
Here is an interesting excerpt from John Doe 1 v. Patrick Cahill and Julia Cahill; emphasis mine:
Blogs and chat rooms tend to be vehicles for the expression of opinions; by their very nature, they are not a source of facts or data upon which a reasonable person would rely. At least three courts have recently made this observation. Addressing the issue as it related to statements made in a chat room about the performance of a specific publicly-traded company, the Court in Rocker Mgmt., LLC v. John Does 1 through 20, 61 noted that the messages tended to be “replete with grammar and spelling errors; most posters do not even use capital letters. Many of the messages are vulgar and offensive, and are filled with hyperbole.” The court continued, “in this context, readers are unlikely to view messages posted anonymously as assertions of fact.”
The medium is very much the message, apparently.
Here is the 33-page ruling. The facts of the case: the plaintiffs, Mr. And Mrs. Patrick Cahill of Smyrna, Del., were called names and other indignities on a public message board by anonymous posters. Patrick Cahill, a member of the city council, felt that he was the victim of defamation and asked a court to have an ISP release the identities of the Internet host. A lower court had ordered the ISP to do so; John Doe 1 appealed the ruling. The Supreme Court found that there was no case at all for a defamation claim: the plaintiffs did not demonstrate that the statements were factually based. Thus there was no need to pursue the action of discovery to learn the identity of the anonymous poster.
What is intriguing was the logic that led them to make that determination. The boldface text above should be enough to give pause for concern to anyone who’s an advocate of “blogs and chat rooms” for civic purposes.
Let’s take those statements at face value first.
ANONYMITY AND CREDIBILITY
One can also find examples of well-known individuals who are not very credible, especially on cable television and talk radio. One can find examples of anonymous speakers who turn out to be very credible– the Wikipedia project, by virtue of having a high volume of contributors, has been managed to forge credibility credible for thousands of popular topics. (Co-founder Larry Sanger, in a pointed letter last year lamented that its credibility is inconsistent and that “it is not perceived as adequately reliable by many librarians, teachers, and academics.” ) Those observations are still compatible with the notion of a tradeoff. If you are a stakeholder in an information service, and you want to increase the credibility of it– that is, its utility in civil society– reducing anonymity is one way of achieving that aim.
I will admit a certain bias. I have never been a fan of anonymity in online forums– for the simple reason that it makes trust harder to achieve and longer to build. One of the popular myths about the Internet and campaigning was that the Howard Dean campaign’s Internet components were laudatory. I poked into the campaign online in late December 2003. I didn’t stay long– as I noted, 13 of the top 14 contributors used pseudonyms. Anonymity lowers self-inhibitions, and lowered inhibitions on the part of very few people can disrupt the entire group. (Which ended up happening). I can cite any one of several scientific papers that Google returns, but I’ll go with chapter 6 of Howard Rheingold’s popular 1994 book The Virtual Community, which introduced the promises and pitfalls of computer-mediated communication to me and many others.
This court ruling to my attention via Andy Carvin, who to my best research was likely the first person to recognize the damning logic of the court. By coincidence, Andy and I first met as observers sitting around the “outer ring” at the invitation-only “Blogging, Journalism, and Credibility” conference at the Berkman Center last January. The question of anonymity was raised once, very briefly over the two days (by David Sifry, on page 19 of the report). My summary of the conference was that it was a missed opportunity, but fortunately, there are always more conferences. Some of the Berkman fellows were invited to a conference on Democracy and Terrorism sponsored the Club of Madrid (the organization comprised of former heads of state and government) on March 11th. They worked with other Internet governance activists to put together a document on the Infrastructure of Democracy, addressing how the Internet should or should not be used to promote democracy and confront terrorism. To encourage input from the non-conference going world, they put it on a Wiki-style website which could allow anybody to change the document.
And anybody did edit it. Nestled in the section on anonymity and transparency is this statement: “Transparency is a two-way mirror, which works for everybody except those who choose to remain anonymous.” It has completely out of spirit of the manifesto. It was anonymously contributed some ago, as it doesn’t appear in the original version. There may have been other edits, but all of the histories were obscured by a massive spam attack. After that attack, the Berkman Center hosts fixed the version, and changed their wiki settings so that registrations were required.
Certainly, there’s a lot of information that can be tallied to give an indication as to the credibility of the document– the institutions of Harvard, of the Club of Madrid, the names of the individuals associated with it, the language used. But it turns out that very few people actually can testify as to the provenance of the document, unlike in the way that people can about a printed book. Certain assumptions are made by nature of it being “on the Internet” or “on a Wiki” but these may be quite wrong.
WHAT ABOUT BLOGS?
The ruling in the Delaware case particularly referred to this medium as being a blog– the Smyrna/Clayton Issues Blog (SCIB). But this can be confusing. The host of that site, Independent Newspapers, Inc., which serves communities in Delaware, Eastern Maryland, Arizona, and Florida, has since changed it to a web-based forum. This forum is meant to complement the news site, and requires user registration (still it allows pseudonyms). You’d have to use the Internet archive to see how it looked last year. It wasn’t a weblog by any convention, other than having a reverse-chronological order; but in that sense, it was more like a “guestbook.” There was no daily post from a blogger; just articles from the paper on the left, and a column of comments on the right. At the bottom was a form like at the top, asking users to supply a name/nickname and post.
Looking to confirm this, I poked around various Delaware websites and found a blog called Stupid and Wrong. This is run by Jeff Wallace, a chemist who had lived in Smyrna for the year of the controversy (he moved back to Texas last month). He set up the blog to weigh in on a local election controversy, after finding the SCIB to be insufficient for his online participation. He emailed me back and confirmed what I had seen in the archive, adding, “I doubt anyone except me considered themselves a ‘blogger’ or really understood the term. Most people viewed it as a community bulletin board until the Cahill/Schaeffer feud took off in September of 2004.”
The perception was that it was a blog, so that was sufficient for enough commentators. The Electronic Frontier Foundation, who had filed an amicus brief on the case, happily declared after the decision that “this is the first state supreme court to rule on a ‘John Doe’ subpoena or to address bloggers’ rights.” That’s a fairly impressive statement to make, considering that the ruling doesn’t even contain the word “blogger.” I’ve written in the past about the stretch of the term blog and of bloggers, and I’ve been forming some theories as to why the confusion persists.
Just What is a Blog, anyway? asked an article in USC’s Online Journalism Review just the week before. Michael Coniff, the author, started off with a long quote from Jeff Jarvis, who concluded: “Blogs are whatever they want to be. Blogs are whatever we make them. Defining ‘blog’ is a fool’s errand.” Coniff dismissed Jarvis’s comment, explaining that this was important to define lest anything fall into the category, yet he never assembled a worthy definition. (Jarvis has been appointed to being the first director of the New Media Program at the City University of New York next year).
Never mind. Bob Cauthorn, a San Francisco media executive wrote a column in the web publication Corante, championing the ruling with pomp and circumstance (“Download it. Frame it. Savor it.”) and proclaiming: “This ruling will be cited in trials across America and it will prove to be very influential.”
Let’s make sure we read that ruling very carefully first.
FALSE PRECEDENT: CREDIBILITY
I am not a lawyer, but it seemed a good week to take a crash course on Constitutional Law. My primary guide is Larry Lessig’s book Code which illustrates the parallels between legal code and software code. So perhaps I may think of these as “bugs” in the case law, the result of faulty construction, which have no immediate effect but may not have consequences down the road.
The court has stated, and has cited previous rulings that “Blogs and chat rooms tend to be vehicles for the expression of opinions; by their very nature, they are not a source of facts or data upon which a reasonable person would rely” and “readers are unlikely to view messages posted anonymously as assertions of fact.” Bloggers may protest, as Andy Carvin does, but credibility and seriousness are constantly undermined by recognized leaders of the medium. See my summary of the posts of the President of the Media Bloggers Association over the course of sixteen days following their first conference this past May. At the aforementioned conference on Blogging, Journalism, and Credibility, blog evangelist David Weinberger gave an impassioned speech about what he felt was the essence of blogging– fast, sloppy, writing that didn’t have time to have its facts checked. It was universally praised by the audience, but I ended up titling his perspective on The Unbearable Lightness of Blogging.
If blogs are, in my shorthand, “unbearably light,” that is, “not a source of facts upon which a reasonable person would rely” then it can follow that blogs and chat rooms don’t serve journalistic functions– and thus– no journalistic privileges shield law (which ends up guaranteeing anonymity of sources for different reasons). If there is a need for shield privileges for journalists, they can be found not here but in those citations covered EFF amicus curiae petition to Apple’s suit to unearth the identity of employees who leaked product details to fan websites. (Incidentally, this was another group of defendants that were labeled as “bloggers” by popular myth. The publisher of an Apple newsletter sent out an email last the previous January explaining Apple newsletter as to why the blogger appellation is mistaken and “website editor” would have been more appropriate).
Now, suppose the inverse. Suppose that you have an online publication that takes itself seriously. A good example is Corante, which describes itself as “a trusted, unbiased source on technology, science, and business that’s authored by highly respected thinkers, commentators, and journalists.” I would agree with that: most of the contributors– excepting hyperbolic one which celebrating this court ruling– avoid the “unbearable lightness” factor. For example, last April, David Weinberger reflected on the decision by Meetup to start charging, and this led to a healthy discussion. Twelve of the fifteen respondents had names that could be quickly traced to online identities (and only one of them was a nickname). The eighth post was from Meetup founder Scott Heiferman. The ninth was from me, responding to Scott. Post number ten was signed “Scott Heifermann” but was out-of-character and ignorant of the discussion. An obvious fake, the Corante editors responded when I contacted them. So, what if someone had done a better job posing as Scott Heiferman– and what if it wasn’t caught and corrected?
FALSE PRECEDENT: CORRECTABILITY
The court, as it turns out, has great faith in the ability of the plaintiff to respond via the Internet:
Besides the legal remedies available to a plaintiff wronged by internet defamation, the potential plaintiff has available a very powerful form of extra-judicial relief. The internet provides a means of communication where a person wronged by statements of an anonymous poster can respond instantly, can respond to the allegedly defamatory statements on the same site or blog, and thus, can, almost contemporaneously, respond to the same audience that initially read the allegedly defamatory statements. This unique feature of internet communications allows a potential plaintiff ready access to mitigate the harm, if any, he has suffered to his reputation as a result of an anonymous defendant’s allegedly defamatory statements made on an internet blog or in a chat room.
Here the court is misinformed and would do itself a service by reading Lessig’s Code. The Internet doesn’t do anything by itself. It is the architecture of the specific forum, as selected by the publisher/host of that forum, which may or may not allow a response. To the casual observer seems like all blogs and forums allow for additional, but some may not, and some may but may be closed after a period of time (this is what happened to Seth Finkelstein, my good correspondent). Or, even if it allows a response, the response may not reach an equal audience. Not everybody reads the comments: the default setting of blog software is to have the comments open in another window. Suppose a popular blog has thousands of readers, and by consequence, there are scores of responses to any given post. The reader would have to hunt through a long list of comments. Most blogs are published by one person, so there is no editorial collaboration to ensure that criticizing responses are brought to light; no guarantee of “self-correction” that is often ascribed to the “nature” of blogs. The reality of this imbalance and the myth of the flatness of the Internet as it is today is covered at length in the New Gatekeepers series.
The law has solved these problems in a theoretical sense. Anonymous speech can be useful; but in all practicality, it enables harm to be done. Furthermore, the mechanism for responding to the harm, while theoretically possible through the Internet, is not always present.
WHAT OF ANONYMITY?
Suppose the anonymous posters of the case “John Doe” were indeed the mayor or one of his allies. What civic purpose does it serve for this flame war to go on, with people hiding behind masks? It’s nice to have an environment where people can blow whistles, but if there are no whistles to blow they’ll just be blowing steam. The utility of the forum– and the willingness of active members of society to participate in it– would greatly be enhanced by encouraging the use of real names. I sought some local answers as to what the effects were in the community. A columnist for Delaware Online responded to me that he felt it had a “positive effect on the community by giving those involved an outlet for their frustrations.” Maybe it was easier to do, then, say, dumping manure on someone’s front yard. But the manure stink can only go so far out of town. Internet postings will carry around the world.
Of course, it is absolutely essential to support anonymous speech in societies with no guaranteed rights and/or no rule of law– it modern-day China, Iran, Iraq, or the pre-1791 United States. The storied example in American history was the founding fathers Alexander Hamilton, John Jay, and James Madison publishing under the pseudonym Publius to urging ratification of the Constitution– hence, before the Bill of Rights existed uniformly throughout the nation. I am at a loss to think of a similar covert national campaign which has happened since– if such a whisper campaign were driven today it would be exposed. Once civil society is established, the main avenue of democracy is open communications. For anyone who needs anonymity there always plenty of side streets to get to it.
It is one thing, and a marvelous effect at that, for a geographically-diverse community-of-practice to foster bonds between people who have never met in person, and whose names may well be aliases. It is another thing entirely for a community of people who know each other all ready to be given a tool that allows people to anonymously insult each other. I see it as akin to a cruel experiment akin because it doesn’t have to be that way.
That’s just my opinion. It is not for me to decide how the citizens of Smyrna how to communicate. As it happens, for the new web-based forum (covering the four states under Independent Newspapers, Inc.) 262 people have signed up, and only 5 have picked names that resemble real names. But this seems to be an arbitrary choice of the selection of software. If the citizens of Smyrna and/or the readership of the newspapers of Independent Newspapers, Inc. felt that the software should provide away, then they should make that decision a priori.
It may turn out that people, when given a real choice for civic interactions, will choose the system that affords the best balance between anonymity and civility.
The New York Times has written two articles so far on this; one covering the decision, and an analysis piece on titled Anonymous Mud-Slinging Wins a Round. Tom Zeller, Jr., writes:
It’s a fair assumption, of course, that fewer people would build digital soapboxes if they were forced to abandon “dogbyte12,” “naturalman1975” and “NeuroticBlonde” – three handles grabbed at random from the political blogs DailyKos and FreeRepublic – and use their real names.
I think the Times has it wrong here– 3 handles “grabbed at random” are not taken from typical Internet communities. FreeRepublic and DailyKos are like large refugee centers with sprawling populations of users. The larger community development is happening on blogs and more advanced community sites. My hypothesis of Constructive Media is that the direction of online civic societies is trending towards greater transparency and recognition. Even if people don’t publicize their full name, they have a portfolio of who they are, and a public address on the Internet where they can be found. Well-known personalities on the Internet fulfill visible roles in other domains– appearing at conferences, writing newspaper columns, signing friend-of-the-court briefs, testifying before Congress. As Oscar Wilde said, the only thing worse than being talked about is not being talked about.
One of the last anonymous holdouts among the well-known bloggers was “Atrios,” an economics professor who wrote the liberal blog Eschaton. Among his achievements last year, he raised the most money for John Kerry online in the month of April. Being the 2nd-place finisher in the campaign’s “March Madness” contest, I emailed my congratulations to him. And I asked him– what would the advocates of open campaign financing say to find out that $75,000 was raised by an anonymous person? (The Kerry campaign did their part for anonymity by publicizing the efforts the “grassroots” bundlers less than real ones). He responded that he wasn’t all that worried about it. No one ever asked, and it just so happened when he arrived in a friendly territory at the Democratic National Convention, he revealed that he answered to the name Duncan Black.
THE LAST WORD
Larry Lessig advances his argument in his recent book Free Culture to this sensible conclusion: avoid bringing in the legal system. They’re too expensive. Design systems that can function correctly. In all aspects of product engineering, from mechanical systems to transportation to health and pharmaceuticals, we build systems that do no harm. Let’s try to meet those standards in our social systems.
Update, Friday: Seth Finkelstein reminded me that we’re still stuck with the question of the shape-shifting definition of bloggers. So I have now added a formal definition of a blogger. Three of them, in fact.
Update, December 20th: I fixed a couple of grammatical errors ahead of sending this up the media food chain again. A public figure– a journalist, no less, John Seigenthaler Sr., was the target of some anonymous Wikipedia mischief, and this made the papers. The Committee for Concerned Journalists has put together a case study, which is fairly comprehensive; I am hereby telling them that the problem is potentially bigger.