(Thanks for the great comments! I’ll be speaking in Las Vegas this afternoon 3:45 pm today at the EduComm conference at the Mirage, Ballroom D.)
Anonymous and pseudonymous speech dates back at least to the early days of the printing press. Anonymous online speech has been a powerful force for change in situations ranging from simple campus disputes to political protests in Iran. And the technology of the Internet makes it unlikely that any attempt to eliminate anonymous speech could succeed.
That said, the fact that there always will be anonymous online communication does not tell us whether it deserves subsidy. Yesterday, I explained why the Internet is a new frontier. Today, I challenge that Section 230 the Communications Decency Act of 1996 provides a subsidy to anonymous online speech, and ask whether that subsidy is sustainable in the closed frontier era of the Internet.
To be clear: I am in favor of anonymous online speech, and sometimes I’m also a user of it. I disagree strongly with Eric Schmidt’s opinion of privacy and anonymity. My goal this week is not to destroy anonymous online speech, but instead to figure out how to best preserve its value while curbing abuses, especially in light of the growing regulatory pressure that arises at the close of a frontier.
Offline Speech Combines Practical Anonymity with Legal Accountability
Offline, speech has never been absolute. In the offline world, the right to speak comes also comes with the responsibility of the familiar speech torts. If someone publishes false statements about you, you can sue them for libel. If someone publishes “peeping tom” photos of you or other true-but-private information, you may sue them for invasion of privacy (and they may also be criminally prosecuted). And so on.
What makes this legal regime possible is the fact that offline anonymity is imperfect: we leave traces of our identity in every interaction. You may seem anonymous when you pay cash to buy a pack of gum at a grocery store, but the transaction is anonymous only so long as it is inconsequential; if you passed a counterfeit $100 bill, you would quickly discover that you could be tracked by your fingerprints, your DNA, and by your image on store cameras. Conscious attempts to preserve anonymity offline are tolerated only so long as no laws are broken; and even then there are limits on social toleration of anonymity (compare wearing masks at a political rally with wearing masks at a bank).
In the offline world, the result is a reasonably well-balanced system: it is possible to speak anonymously for political or personal reasons, but the worst abuses are deterred.
The Online World Provides Near-Perfect Anonymity, Less Accountability
Online, things aren’t so simple.
Unlike in the offline world, anonymity is the default online, and near-perfect anonymity is easily achieved. Unless you choose to identify yourself, there are very few clues to who you are when posting online. And some of these clues (such as IP address logs) are intentionally swept away by websites; there is no requirement that websites store IP logs or any other pseudo-identifying information, and some sites advertise that they provide perfectly anonymous services.
Practically, if you are defamed online, you are at least several steps away from finding your attacker–at a minimum, it requires getting a lawyer, filing a lawsuit, and issuing a subpoena to the web host and another to an ISP (more on this tomorrow). Neither is required to keep any records, and many choose not to. The same is true if your privacy is violated by a peeping tom and the photos posted online, if your child is threatened, and so forth. In all too many cases, the trail has gone cold before redress can be sought. These aren’t cases of political protest or uprising; they are shocking cases where defamation liability is certain if the defendant can be found.
What’s even more peculiar is that online, the U.S. legal system allows site owners to continue profit from hosting content they know to be illegal, even after they have been notified of its illegality—and, in fact, even after a (rare) underlying libel lawsuit has been completed.
This surprising result occurs because of Section 230 of the Communications Decency Act. Congress set out to regulate online indecency, but the majority of the Act was struck down on First Amendment grounds in 1997. Section 230 survived. It limits the liability of “interactive computer service providers” for “information provided by another information content provider,” with a statutory exception for intellectual property and child pornography. This vague language has been widely interpreted as giving almost-complete immunity to blogs and forums for the actions of their users, no matter how vile that content may be.
This immunity for hosts is a sharp distinction from the offline world. In the offline world, “hosts” are often held liable for content provided by others: book publishers are liable for illegal content provided by authors, newspapers can be liable for content provided by advertisers, and even swap meets can be liable for infringing content sold by vendors.
Against this default of host liability, CDA 230 was expressly designed as a subsidy to encourage growth of the fledgling Internet of 1996. It was thought necessary to allow some level of frontier anarchy, some level of protection from the lawyers. By subsidizing online speech, it was hoped that the Internet would blossom into the communications medium it has become. In that light, CDA 230 was probably a good law for 1996.
But after nearly 15 years of CDA 230, many think that it has run its course. The Internet has matured and no longer needs a special exemption from offline law. Any law consistent with the First Amendment will preserve vibrant online discussion. And, through nearly 15 years of experience, we’ve seen the good and the bad sides of CDA 230: sites like Volokh.com seek to inform and support positive discussions, but also CDA 230 has also empowered cesspools that profit from encouraging commenters to libel and defame outsiders. These sites often advertise their consequence-free policies, and profit from the resulting tabloid attention they receive.
Why Does the Frontier Metaphor Matter?
I talked about the frontier yesterday because CDA Section 230 is fundamentally a law made for the open frontier. It is a law that subsidizes the growth of the frontier and the experimentation with new models of communication, at the direct expense of enforcement of existing laws. The problem for CDA 230 is that the frontier days are coming to an end: sex, drugs, and gambling have all been shut down, will CDA 230 be next?
Just like at the end of the Old West, online today there is a culture clash between the early and late arrivers. Those who have been using the Internet for years like the current system (call it “it might be anarchy, but it’s our anarchy”). The newcomers want the Internet to be more like the rest of society; safe, stable, and predictable. The concept of self-defense online is foreign to them, and they wonder why law enforcement hasn’t done more to protect them.
People who didn’t grow up with the Internet will inevitably want to curb the abuses (which do undoubtedly exist, more on that tomorrow). Proposals by Internet outsiders to regulate online abuses have ranged from an “internet ID card” requirement (China and UAE), to calls to ban some forms of online speech based on their “hate speech” content (United States), to a plan to license journalists and bloggers (Michigan), to rejiggering the Internet Protocol to end anonymity (United Nations), to an online aggregator tax (United States — call it a Stamp Tax for the Reddit Generation).
There’s plenty to dislike about all of the above proposals; it’s hard to come up with a less libertarian set of policy ideas. But the increasing frequency of these proposals suggests there is a strong push for reform.
Perhaps the best way to preserve the core value of free speech is to limit the special subsidy given by CDA 230? Thursday, I’ll present some ideas on how to protect the right to anonymous speech while addressing the abuses that CDA 230 has encouraged.
Tomorrow: Why Google changed everything, and why Section 230 matters so much
David Thompson is co-author of the leading Internet policy book of 2010, Wild West 2.0 (Amazon) and general counsel of ReputationDefender, Inc.. The standard disclaimer applies: the views represented here are his alone and not those of any current or former employer.
Kamal says:
David,
How familiar are you with network technologies? There is no way the government could restrict or police the internet. People can pass all the laws they want but programs like TOR make censorship 100% ineffective.
June 8, 2010, 12:31 pmKen Arromdee says:
The book publisher cases ic considered a First Amendment travesty, and did not go to the Supreme Court as far as I can tell. In any case, that court decision assumed that the book company knew and intended that killers would use the book, which makes the case not analogous to a service provider who normally can’t even know everything that’s posted.
The newspaper example requires that the newspaper have specific knowledge that the ad is deceptive. Again, this makes it non-analogous.
The swap meet case also stipulated that the swap meet owners were aware of the counterfeit recordings.
I wonder if you even read the links you quoted as support.
And you might ask yourself if in the offline world book stores are liable for illegal content provided by authors in the books they sell. Or if the phone company is liable for illegal content transmitted over the phone lines.
June 8, 2010, 1:01 pmEMB says:
The key difference is that publishers have editors who read every word of the authors’ content and are in a somewhat reasonable position to figure out what might be defamatory. (Likewise, most newspapers do vet their ads, and swap meets have people there who shouldn’t be “turning a blind eye” to infringing content.
By contrast, a blogger may not even read all the comments on their blog and is unlikely to be in a very good position to know which comments are libel, even if told that there are some libelous comments on their blog. For companies that host blogs, it’s even less reasonable to expect them to have any idea what libel/indecency/copyright infringement/etc. they may be hosting.
If anything, the section 230 safe-harbors need strengthening: right now, it can be dangerous for bloggers to edit the comments very much out of fear that they might fail to edit out everything defamatory and lose their safe-harbor for what’s left.
Assigning liability to third parties just doesn’t make sense when they take no active role in promoting defamatory content. (And simply saying that they’ll respect your anonymity unless ordered by a court is not promoting defamation.) If third parties are deleting their logs too quickly, then make new data retention laws.
I think if a good technical solution were found to allow people to comment anonymously (but with their real identity available by court order), then search engines like Google would vastly lower the rankings of truly anonymous comments (i.e. those not using the system).
June 8, 2010, 1:12 pmAdam B. says:
I think you’re really missing the role of credibility here — that tying one’s speech to a real-world identity (or consistent pseudonym) enhances its value, as does a site owner’s desire to clean his site of false speech and remain reliable for readers. Both types of credibility mitigate the amount of defamatory speech which can occur. Cesspools like AutoAdmit are rare, and there has been significant harm inflicted on the hosts of such sites through the reputational harms they’ve suffered.
You also err, grievously, in relying solely on the courts to redress defamation in the online world. The victim of defamation can respond, either on that site or her own, in ways unthinkable and unavailable in the print/on-air world.
June 8, 2010, 1:24 pmPerseus says:
I have my doubts about that.
June 8, 2010, 1:24 pmNickS says:
Those who wish to speak freely will always find a way. The internet is large, nebulous, and ever expanding. There will always be an untamed frontier, and there will always be people who find ways of getting there.
June 8, 2010, 1:36 pmMonty says:
Sounds like your heading there, but I think what makes anonymity so important online is persistence of the speech. If I sign a post with my full name today, it could still be out there in 20 years, as easy to find as typing my name into Google… Unless it was a major publication, or sparked major controversy at the time, who is going to remember you wrote a particular letter to the editor that was published 20 years ago?
June 8, 2010, 2:59 pmSbard says:
From time to time they have been: http://cbldf.org/about-us/case-files/castillo/
June 8, 2010, 3:11 pmTruffle says:
You indicate that you will have more to say about “abuses.” Here are a few questions to consider:
1) By “abuse,” do you mean conduct that ought to be illegal? For example, should the use of “sock-puppets” to criticize a museum exhibit be considered a “fraudulent scheme to influence a debate”? Was it an “abuse” for the famous poet Fernando Pessoa to use over 70 pseudonyms, staging conversations between them in newspapers and leading scholars around the world to believe that they were real people?
2) Should it be illegal to parody someone in an email? E.g., if someone opens a hotmail account in the name of “Joe.Ratzinger” and sends out an ironical confession of misconduct signed “Pope Benedict,” do you believe he can be prosecuted for identity theft or criminal impersonation on the grounds that he engaged in a scheme to influence a debate about the Pope’s responsibility in the child abuse scandal?
3) Alternatively, do you think this kind of online behavior is best dealt with by rebuttals or civil lawsuits (defamation, etc.)?
These questions seem important, because the New York County District Attorney is prosecuting a case on precisely those grounds. For a couple of online statements on this prosecution, see this one by Professor Tzvee Zahavy, and this one by a British blogger who does not seem to admire this exercise of American justice.
June 8, 2010, 3:51 pmJimbob says:
(1) Protections from liability are not subsidies.
(2) Any system requiring removal of content based on “notice of illegality” is deeply problematic. It’s abused all the time in the context of copyright holders who issue takedown notices. The difference is that David sells services to the sorts of people who want to issue something like libel takedown notices. Of course, it takes lawyers and money and time and luck to actually be able do anything about it.
June 8, 2010, 9:49 pmTGGP says:
I don’t grudgingly say “it might be anarchy”, but “hooray for anarchy!” I don’t consider any of those uses to be “abuses”. If you don’t approve of what someone has to say, it’s up to you to outcompete them in the marketplace of ideas, not use force to prevent them from speaking. You don’t have a right to your reputation either, for you don’t possess it in the first place! It’s just a word we use to describe all the opinions others have of you (if they have any at all), and thus belongs to those opinion-holders. If those people choose to trust purveyors of shoddy, biased or even hateful information that’s up to them.
June 9, 2010, 1:22 amChris Travers says:
Let’s look carefully at the proposals you mention:
Let’s start with the question of the proposals by the US.
1) Banning speech based on “hate speech” content is pretty much Unconstitutional online or offline. That one should be ruled out as inconsistent with the First Amendment.
2) Aggregator taxes strike me as quite dangerous because they engangle government too much with the press, as the editorial you linked to points out. I would hope it would be a non-starter.
I would also be very sceptical of proposals coming from the UAE and from China. Those are hardly bastions of democracy or free speech generally (though the UAE is fairly good compared to, say, Saudi Arabia….).
But now what of the UN proposal to try to end anonymity on the network level? There’s certainly some use for this in many ways because there are many times when you want to be sure that the person you are talking to is who they say they are (for example, this is one feature of SSL when you go to buy something online), but if it’s a ubiquitous, required system, then it strikes me as a bit of a problem.
On to the question of repealing CDA 230. I would be in favor of limiting this clause to areas outside of current moderator control and focus. In other words, if you approve of content, I don’t see why a web site should be different from a newspaper in this regard. But there are plenty of cases where I think CDA 230 should remain in effect.
For example, under the current system, if someone were to make a defamatory statement on an email list I help moderate, there is no way I’d be able to stop the email from going out before it does so, and that email would become a part of the archives. My general response to doing this would be to ban the user, reply to the email pointing out that it was defamatory and the basis for the ban, and then I would leave both the original email and its reply in the archives as an example of what not to do. The record would reveal who (in general terms) sent the email, and that it was not acceptable conduct. I trust that reading the reply would be enough to convince many people that we were not endorsing the message, and rather leaving it in place simply as an example of unacceptable behavior that would result in being banned. If I knew of a libel suit involving the email, I’d document that as well on the same thread.
If CDA 230 were to go away, then I’d have to be much more heavy-handed here. I think it’s a good thing to allow these sorts of things to be teaching moments rather than to have to fear lawyers’ views of acceptable conduct.
If you want to limit that grant of immunity, do so with a an exception to the grant that third party content affirmatively approved by a web site will not be sufficient to grant such immunity. In other words, change from a “you post it, you are responsible” to “you post it or affirmatively approve it, you are responsible.” I might furthermore be OK with a view that business models solely designed to facilitate torts might involve liability regardless of CDA 230.
Secondly I’m somewhat sceptical of the ability of someone carrying out a campaign of defamation to remain perfectly anonymous. I suspect we will see a specialization arise that mostly involves helping track this sort of thing down (using a combination of online and offline methods). Perfect anonymity is surprisingly difficult to keep up for a period of time online (probably harder than it is in the offline world). Clues can include when a given piece of information was posted, and over time, even with anonymizing software, enough information can leak to put together a pretty good starting point for a complaint. I’m not saying it’s impossible, especially if a group is involved. However, it’s difficult and theoretically a single slip-up can blow the cover. For Antitrust (the movie) fans, “It’s not in the band, it’s in the box.”
If it’s a single incident of defamation, sure, it can be hard to track down. However, if it’s an online lynch mob, I don’t think it would be hard at all.
Finally, I’d be concerned about repealing CDA 230 for a very different reason. Currently a place of business can be held liable in at least some US jurisdictions if it fails to do anything about, say, patrons using racial slurs. If we apply this to the internet, where the sole purpose of the web is communication, then I think we’re opening up a moretum of free-speech chilling civil doctrines that will cause a great deal of chill. But then it’s chill that some folks want (advocates of censoring hate speech and the likes).
June 9, 2010, 1:40 amChris Travers says:
Well, it’s more complex than that. Usually it’s a matter of conduct-by-expression rather than freedom of speech. For example if I write a book on how to commit tax fraud, that’s a practical as opposed to expressive act and not strongly protected under the First Amendment. I think this is legally correct even though I think it’s horrible policy simply because I can’t find a principled reason to distinguish between personal advice on how to cheat on taxes and a public book. Policy-wise, any crime-facilitating speech with sufficient distribution should have a safe harbor simply because the value in preventing the crimes described will be greater than the value in carrying them out. I just don’t think the courts should make that call.
This is already well established on the internet too (see Universal v. 2600).
June 9, 2010, 1:50 amAnonGeek says:
David Thompson, why do you hate free speech?
OK, that’s unfair. So let me stick to some serious analysis.
Overall, this blog post seems rather naive. My sense is that attempts to control “abusive” speech on the Internet, no matter how well-intentioned, are inevitably going to be incredibly harmful: you’re not going to be able to stop the bad speech you don’t like, but any measures you try to take to clamp down are going to do a lot of damage on other desirable speech in the process.
Fundamentally, I wonder if you understand how the Internet works. How, exactly, are you proposing to prevent unwanted messages on the Internet? That’s not easy, given the international nature of the ‘net. The only way to do it is to be incredibly heavy-handed, and then you end up with enormous over-censorship.
If you think that overturning the CDA is going to eliminate the “cesspool” and somehow turn the Internet into an unfailingly polite, well-mannered-to-a-fault forum, well, I think you’re dreaming.
This all assumes that it is desirable to limit anonymous speech, a premise that I don’t grant. Personally, I think that the ease of anonymous speech on the Internet is a net positive. You throw around words like “cesspool” “libel” and “defame”, but come on, if we’re talking about anonymous posts to some Internet forum, get some perspective. Those posts don’t have much credibility anyway. As for “safe” and “stable”, the whole point of freedom of speech is to enable expression of radical ideas even when — especially when — they threaten our sense of “stability”. Enabling more communication is a good thing. Attempts to control expression and communication are statist and authoritarian.
As for legal analysis, when were you planning to mention MacIntyre v. Ohio Elections Commission?
June 9, 2010, 3:56 amStephen Lathrop says:
So internet mockery and mobbing of a disabled student by fellow students, resulting in a refusal by the victim to go to school, or maybe suicide, would be okay with you?
June 9, 2010, 6:04 amMike Godwin says:
If you want to abolish blogs, and all user-generated editorial content, by all means repeal Section 230. We can go right back to the Web 1.0 world, in which content is generated and subsidized by highly capitalized media companies, and facilitated by centralized distribution mechanisms. Because that’s the only world in which defendants have enough money to defend against those who don’t like speech for some reason or another (defamation, sedition, etc.).
And, by the way, say goodbye to Wikipedia too. You probably weren’t using it anyway.
June 9, 2010, 10:14 amKen Arromdee says:
I would say that if it’s a parody, it should be okay. If it’s done under circumstances where someone might expect to hear from the real Pope and has to carefully read it in order to guess that the Pope might not have sent it, it’s not okay. And the latter shouldn’t be disguised by saying “it was a parody, nobody could really believe it” when that’s not true.
“It’s a parody” is a common excuse on the Internet for things which are not parodies but are just misleading or poorly thought out, and should be looked upon with almost as much skepticism as “it was a social experiment”.
June 9, 2010, 10:47 amChris Travers says:
I don’t think the web hosts whose sites are used to carry out the harassment should be held liable. That’s what David is talking about though– deputizing web masters into sort of thought police to ensure this doens’t happen.
June 9, 2010, 11:47 amChris Travers says:
So, suppose I want to write a pamphlet advocating fattening up the children of Irish Catholics and selling them as food to certain wealthy English people. Does satire have to be labelled as such? And if so, doesn’t that sort of defeat the point?
June 9, 2010, 11:49 amChris Travers says:
Obscenity is a special case. The question is more of whether a bookstore would be held liable for, say, carrying books on how to commit tax fraud.
June 9, 2010, 11:51 amgs says:
AnonGeek says: Overall, this blog post seems rather naive.
To his credit, David Thompson discloses his employer at the bottom of his posts. His advocacy in the two posts to date appears consistent with ReputationDefender’s business interests.
June 9, 2010, 12:18 pmTruffle says:
The question was not whether it is “okay” or whether it should be regarded without “skepticism,” but whether it should be illegal. Is lying “okay”? Some lies are illegal, but most are legal.
June 9, 2010, 4:17 pmKen Arromdee says:
If it’s a parody, then it shouldn’t be illegal. But it’s by no means established that the actual case you’re talking about involves a parody. “It was just a parody” is a common excuse for Internet trolls, along with “It was just a social experiment” and “It was just a joke”. Usually anyone who says that is lying.
June 10, 2010, 1:42 pmCopiatoare says:
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June 14, 2010, 2:43 pmDoes Section 230 Need Fixing? | Tech Geek says:
[...] content offline, has written up a series of blog posts for the Volokh Conspiracy site, arguing that section 230 of the CDA is flawed in large part because of Google and then goes on to propose a way to “fix” Section 230 [...]
June 15, 2010, 6:50 pmDoes Section 230 Need Fixing? | Techne.ws says:
[...] content offline, has written up a series of blog posts for the Volokh Conspiracy site, arguing that section 230 of the CDA is flawed in large part because of Google and then goes on to propose a way to "fix" Section 230 while still [...]
June 15, 2010, 7:36 pmDoes Section 230 Need Fixing? | Technology News and Information for Geeks says:
[...] content offline, has written up a series of blog posts for the Volokh Conspiracy site, arguing that section 230 of the CDA is flawed in large part because of Google and then goes on to propose a way to “fix” Section 230 [...]
June 15, 2010, 7:53 pm