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October 10, 2005
The Blog Impersonators
Harriet Miers, as my co-blogger Kaimi pointed out, is the first Supreme Court Justice nominee to have her own blog – Harriet Miers’s Blog!!! Her first entry:
OMG I CAN'T BELIEVE I'M THE NOMINEE!!! This is BIGGEST DAY OF MY LIFE!!! EVER!!!!OMG OMG OMG
Needless to say, it’s a fake. And so is a blog called Luttig’s Lair purportedly written by Judge J. Michael Luttig.
Anyone can sign up on a free blogger platform, such as Blogger, and create a blog. In anybody’s name. In your name. You might have a blog and not even know about it.
The Miers and Luttig blogs are quite funny because everybody knows they’re phony. But it is easy to imagine a case where reality and parody are not so readily discernable. What’s to stop me from creating a blog by you? (Don’t even think of vice-versa!)
The law provides at least two potential remedies. One is the tort of libel, which provides for damages when a person publishes falsehoods that damage the reputation of another. This wouldn’t apply to Miers because the blog is an obvious parody – no reasonable person would think it were true.
The second is the tort of appropriation of name or likeness, which makes another person liable if she appropriates for her own benefit the name or likeness of another. Typically, however, appropriation applies to the use of a person’s name or likeness in connection with a commercial endorsement (though not always).
There’s a difficulty, however, with any legal remedy – anonymity. To the extent people can create blogs in ways that their identity cannot be linked back to them, how can victims sue for redress?
This issue is a difficult one. On the one hand, we want to protect anonymous blogging, since people can suffer severe consequences from their blogging such as being fired from their jobs. Indeed, I just blogged about the importance of protecting anonymous posting to blogs.
On the other hand, true anonymity (non-traceable) can practically immunize the anonymous blogger from being sued for committing these torts. How should this tension be resolved?
Posted by Daniel J. Solove at October 10, 2005 12:07 AM
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Comments
There's almost no such thing as true anonymity anywhere on the internet. In all likelihood, whoever's committing those torts is doing it regularly from the same place, in which case it's not that hard to track down said place. It's just tedious and well-worded privacy policies can make sure the blog hosting site and ISP (and possibly other steps in the chain) don't go giving away the information to anyone without a court order.
Posted by: John Armstrong at October 10, 2005 12:16 PM
John,
Thanks for your answer. I'm not an expert on the technical side of things, so this is a question that really interests me. I agree with you that being truly anonymous on the Internet is very hard to do. But it is relatively easy to set up a Blogger account, and one could do so from a computer in a cybercafe or library terminal or elsewhere.
One can also post comments to blogs anonymously too. Can people who comment here anonymously really be tracked down if they post from somewhere other than their homes or work?
EFF has two manuals that discuss how to blog anonymously -- here and here. It is true that most folks will not take these steps, however.
Do you know of a good resource that discusses the various levels to which people can be anonymous on the Internet and the ease/difficulty of finding out their identities for each of these these techniques?
Dan
Posted by: Daniel J. Solove at October 10, 2005 01:07 PM
True anonymity would be a lot easier if ISPs purged their logs within a very short period of time (in my experience, the big ones keep records for 30 days or more), or even worse, failed to keep any logs at all. I was at a conference this weekend where someone proposed exactly that -- or at least opposed my proposal that a minimum log-keeping time period be established. (I'll let him identify himself in case I'm mis-remembering the conversation.) I believe the result of true anonymity would be increased number of crimes and unredressable torts. I think the Del. Sup. Ct. standard addresses, in at least the defamation area, the potential for abuse of the complaint process as a mere identification tool.
Posted by: Bruce at October 10, 2005 01:55 PM
This is hardly a new issue. See, e.g., this fake blog "by" Laurence Tribe: http://thetribeblog.blogspot.com.
That blog seemed and seems like an obvious parody (specifically, of blogs or websites by Posner and Kozinski to which the blog links) -- "no reasonable persons would think it were true," to use your test -- yet at least one law professor actually thought it was true! See: http://volokh.com/archives/archive_2004_11_28-2004_12_04.shtml#1101999555.
See also: http://patterico.com/2004/12/02/2397/tribe-blog-fake-but-accurate.
Maybe it IS a blog by Tribe . . . . Who knows. As you point out, with the ease of anonymity, it's hard to tell. The Internet can be a confusing place. But assuming it is indeed a fake blog, I can't see Tribe or any naively confused reader has any legal remedy, even if the anonymity involved could be stripped away.
Posted by: Anonymous at October 11, 2005 12:45 AM
