CCR Symposium: What is To Be Done?
(Some of what follows probably repeats, perhaps with different emphasis, comments by David Fagundes and James Grimmelmann, Paul Ohm, and others.) I suspect that in the main existing civil and criminal law (perhaps including civil rights law) provides about the right level of civil and criminal liability for people who post vile things about others online. That belief is shaped by two more fundamental convictions:
A. It’s important not to over-deter speech as it is to deter libel and other tortious or possibly illegal speech, and the costs of getting this wrong can be very high.
B. The rules governing online conduct in general ought to be the same as those regulating the same activity offline whenever possible – and in the case of speech in particular, that (in the absence of the scarcity rationale underpinning some broadcast regulation) the First Amendment should not distinguish between technologies, be it a printing press or a network.
On the other hand, I also think anyone who asserts this – and thus asserts that the recommendations in Cyber Civil-Rights ought to give us pause – should face the strongest case for the other side, which I take to rest primarily on three complementary assertions:
1. The Internet (today) really is different, because (a) it empowers anyone, including random crazies far away, to reach out and do greater harm to a larger number of (likely disparately impacted) people and (b) given the diffusion, permanence, searchability and possible prominence of false statements, the Internet allows those statements to cause greater and more lasting harm that most or all other media.
2. Internet architecture, and especially anonymous access, makes enforcement of existing rules more difficult than in analogous non-Internet cases because it’s so hard to catch people.
3. Some people experience the ability to write about others from a distance as disinhibiting – so much so that the existence of the opportunity to spew on the Internet can be said to promote false and malicious acts.
Those of us who argue that enabling a Draconian regime of monitoring (and, I’d argue, ultimately profiling) on all users of new communications technology is worse than the evils it is being invoked to prevent would do well to ask what we can offer those genuinely being victimized. Sure, we can say that the best cure for bad speech is more speech, but in a world in which ‘a lie will go round the world while truth is pulling its boots on’ is there really anything that private initiatives can do which is likely to have any meaningful effect?
One response is that all of us have relevant (moral) responsibilities: to speak the truth, to point out lies, to shun the liars, and to encourage others to do the same. This is not a complete answer, but nor is it trivial. The law students exposed as associated with Autoadmit have suffered real and deserved harm to their professional prospects. Not only is this retributive, but it is an object lesson for others. Detection and enforcement need not be perfect to deter. Private shunning reinforces norms as well as punishing.
Another part of the puzzle is that we need new (private) institutions. The Internet has a surprisingly good rumor-control mechanism: if I read something that sounds a bit off, I check it out on Snopes.com. And when people send me stuff I know is false, Snopes is a great authority to point them to. Perhaps what we need is an analogue to Snopes for people, a genuine reputation defender service? Admittedly, getting the straight story will be harder in the case of private disputes and allegations than figuring out whether or not the government is offering seven-year Tax Holidays for Immigrants or Barack Obama is a natural-born citizen, but perhaps something based on the PGP reputation web of trust might work, in which people would build up good reputations for truth-telling (or users coming to the site would identify who they trusted), and have their opinions weighted more as a result. It would also make a great laboratory for studies of transitive trust, a bedeviling subject.)
It’s good to front-burner genuine problems that need creative solutions, and that’s certainly a great virtue of Cyber Civil Rights and of this event. But I still don’t think eviscerating anonymous speech – an important safety valve for political (and sometimes social) freedom – is the answer.