Skanks in New York, the First Amendment and Anonymous Posting on the Internet
posted by Elizabeth Nowicki
The recent “Skanks in New York” court case, which resulted in a New York state court ordering Google to provide identifying information about a blogger who posted offensive attacks on a model, has led to various privacy wonks, including our own Dan Solove, raising concerns about forcing Google to reveal the identity of an anonymous blogger. It appears that some people worry that there is a First Amendment issue raised when asking Google to reveal the identity of an anonymous blogger or some people worry that it is a violation of privacy for Google or internet service providers to reveal the identity of people who are anonymously blogging through there service.
This baffles me. Surely everyone who blogs using Google or who blogs through an internet service provider is or should be well aware that the provider of either the blog service or the internet service can figure out – and share – their identity. I cannot fathom the notion that anyone who anonymously blogs or uses the internet believes that their anonymity is guaranteed. Moreover, even if an anonymous poster does not realize that his/her identity is not guaranteed, how can there be a First Amendment issue or a privacy isuse if Google – a company, not a government entity, who has never promised to keep your identity a secret – reveals your identity?
If someone wants to say something with more anonymity than can be assured through the internet, write a letter and mail it in an unmarked envelope!
August 26, 2009 at 9:26 am
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Responses (8)
WB - August 26, 2009 at 9:59 am
“I cannot fathom the notion that anyone who anonymously blogs or uses the internet believes that their anonymity is guaranteed.”
Who said anything about a “guarantee”? That seems a lot like a straw man argument. The point is that anonymity is important because there are situations in which it has real value, and those uses of anonymity are worth protecting. Without taking a position on the correctness of the court’s decision on the facts of this case, I can still find the privacy concerns expressed by many to be understandable.
“Moreover, even if an anonymous poster does not realize that his/her identity is not guaranteed, how can there be a First Amendment issue or a privacy isuse if Google – a company, not a government entity, who has never promised to keep your identity a secret – reveals your identity?”
I agree re the First Amendment issue. But the privacy issue seems quite valid (again, as a general matter). And why do you say that Google didn’t promise to keep identities secret? Google has consistently and publicly taken the position that it will respect the privacy of its users and its Privacy Policy clearly seems to create expectations that personal infrmation will not be released without good reason.
Devin B - August 26, 2009 at 10:21 am
@WB
It may seem like a straw-man argument, but in this case, the crucial difference is between ‘guarantee’ and ‘do not guarantee’ no other levels of gray matter in this case. Either Google is under some restriction to *protect* your privacy, (guarantee) or they are merely bound to ‘not publicize’ your information (to advertisers, or the public, etc…)
Because there is no guarantee (Google would never take on that level of legal burden, nor should they) then any time the Crown asks for any information, Google is bound by law to turn it over, and bound by NOTHING to withhold it. If a Judge orders that they release the information, then they are going to release the information.
Similarly, things like IP address and connection information are automatically gathered by most servers for statistical purposes. If this information is subpoenaed it could be used to trace back to the location that was used to sign on, but you have no way to block Google from releasing this information because the information, although it *pertains* to you, is in no way OWNED by you. It is simply a log of the connections that were routed through their servers.
The First Amendment has always been bound by certain other laws: Hate Speech is restricted, Threats and Harrassment, or in this case, Defamation and Libel. The fact that you have free speech does not indicate that you can say *anything* and have it be acceptable.
Secondly, the First Amendment (as mentioned) does not have anything to say about anonymity. It is simply not a factor. Anonymity was brought into play in whistleblower laws and the like to protect those people from illegal repercussions. It does not, and should not, protect people who want to use their anonymity to break the law. Every internet blogger should be held to the same accountability as every newspaper columnist.
Daniel Solove - August 26, 2009 at 11:52 am
Suppose X is an employee of Big Corp. Big Corp. is [a tobacco company, insurance company, bank, or other big and evil institution]. X is critical of the company. The company wants to obtain X’s identity. Would you say the same thing? Tough luck, X should have just written a letter?
My sense is that opposition to anonymous speech in the Skanks in NYC case might be at least in part influenced by a distaste for what Port was saying in her blog. I think we need to figure out what the best rules are for protecting anonymous speech online are more abstractly.
Regarding anonymity, there’s a distinction between anonymity and traceability. People can be anonymous online but it is difficult (without technical know-how) to be untraceable. Just because it is technically possible to trace people doesn’t mean that they have no expectation that the company that maintains their personal information will not protect it as confidential.
The First Amendment issue comes into play when a party seeks a court order to obtain a blogger’s identity. The use of judicial power to force Google to reveal the blogger’s identity raises the First Amendment issue. Google isn’t bound by the First Amendment, but the court is, and the court must only issue its order to Google after doing the First Amendment balance.
BTW — Even sending something in an unmarked envelope is no guarantee of anonymity these days. One could do a DNA analysis on the envelope and possibly reveal who sent it.
Elizabeth Nowicki - August 26, 2009 at 1:25 pm
Three good comments, folks.
Two things:
Dan, I was going to say “wear plastic gloves” in my post, but I was worried that then people would wonder if there is a nefarious reason why I know about sending anonymous letters (there is not, FYI).
I still do not see the First Amendment issue, in that the court is not prohibiting or infringing on any protected speech. The fact that the order might have the ancillary effect of making bloggers think harder about calling someone else a skank does not make the issue a First Amendment issue.
C.T. - August 26, 2009 at 2:14 pm
I still do not see the First Amendment issue, in that the court is not prohibiting or infringing on any protected speech. The fact that the order might have the ancillary effect of making bloggers think harder about calling someone else a skank does not make the issue a First Amendment issue.
Yours is a somewhat narrow interpretation of the state action requirement. I think it is reasonable to infer that the First Amendment is implicated by the court order in the same way the 14th Amendment is implicated by court ordered enforcement of racial covenants (Shelley v. Kraemer).
Daniel Solove - August 26, 2009 at 3:22 pm
Elizabeth — I can’t avoid a self-plug now, so here goes: Neil Richards and I are publishing an article this fall, Rethinking Free Speech and Civil Liability, 109 Columbia Law Review — (2009) in which we analyze when civil liability should trigger the First Amendment.
It is clear that judicial orders, even those at the instigation of a private party, constitute state action. See Cohen v. Cowles Media Co., U.S. 663, 668 (1991) (stating that “legal obligations [that] would be enforced through the official power of . . . courts . . . is enough to constitute ‘state action’ for purposes of the Fourteenth Amendment.”).
The difficult question is when they should trigger First Amendment scrutiny. The Court has generally held that tort lawsuits trigger First Amendment scrutiny but contract, promissory estoppel, and property do not. Neil and I argue that the current doctrine is incoherent and contradictory in many circumstances. We propose a new approach for addressing the question.
I won’t get into our approach, since it requires quite a bit of explication, but under both current doctrine and our approach, a court order to reveal the identity of an anonymous speaker issued in a defamation lawsuit would trigger the First Amendment. Nearly every court to consider the issue has held that the First Amendment protects an anonymous speaker’s right to be anonymous for online speech, even when such speech is defamatory. Court orders to reveal a speaker’s identity can only be issued based on a heightened standard. See Doe v. Cahill, 884 A.2d 451 (Del. 2005), Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), Doe v. 2TheMart.com, 140 F. Supp.2d 1088 (W.D. Wash. 2001), and many other cases.
The expression on the Skanks in NYC blog is still speech under the First Amendment. It might be low value speech and protected less stringently (defamation is still protected expression, NYT v. Sullivan), but it is not outside the First Amendment.
l.k. Richard - August 27, 2009 at 7:29 pm
It doesn’t make a whole lot of sense to me that online speech is protected by the First Amendment. And my approach is not quite the one taken here by Elizabeth. I think that it is not a valid argument to say that online users cannot or should not expect–and therefore ought not to get anonymity simply because their identity is technically traceable. That is wrong. It would make it difficult to protect anything technically traceable. The law should be in place to point out the limits to behavior. So illegal behavior might be hard to define but it is roughly that which comes close enough to a defined illegal behavior to be considered illegal.
Blogging anonymously is an anonymous action, not a disguised one. So its not necessary to assume that an anonymous blogger is doing so to hide their identity so much as to firstly blog something. That something is an opinion first, and anonymous second. The purpose is not only to hide the source of the opinion.
So I have a problem understanding why it is assumed that the source of an opinion is protected by the First Amendment. Last time I checked the amendment read “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This text does not protect the person at all but it protects specifically the speech that a person makes.
The anonymous condition of speech is simply a method of speech. It should not be assumed that it cannot be decided that some amount of free speech will not be abridged by the absence of legal protections for anonymity. Speech can take millions of forms. As Elizabeth says, people have the option of sending an unmarked letter while wearing gloves. A person who wishes to speak out, will, and they will make the choice of method that best complies with their understanding of how effective at conveying their message while taking into account their anonymity preferences as possible. Laws that attempt to make up for a medium of speech that is under or over-estimated in this sense are just ridiculous. Laws that change the way that people understand the effectiveness of a medium are simply confusing and counterproductive.
Speech is not abridged by not protecting anonymous speech on blogs. It might be abridged by protecting it because bloggers could miscalculate the protectedness of online speech versus another, better medium. But if anonymous speech is protected then it ruins the point of it being anonymous by concentrating on aspect two of the speech, ie., the source rather than the message.
Besides, whether anonymous speech is protected or not, by the time it gets to the point of becoming a problem for someone its not anonymous anymore. This case is a perfect example because the blogger was going to have to be found out sooner or later anyhow. Google or the court that ordered the identity to be revealed could be said to have done so earlier than necessary. But the limits to free speech are the exact same for anonymity as they are for non-anonymity, since Holmes wrote that “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
In no case is anonymity required to be protected. It is a condition that is assumed to be in place by the person expressing the free speech. If they are wrong, and their identity is discovered… well, there’s no law against losing at gambling either.
Michael Roberts. Internet Libel Victim's Advocate. - August 29, 2009 at 4:40 am
In many cases horrible problems have been avoided for the community as a result of anonymous blogging. This includes whistleblowing for white-collar criminals, community awareness when sexual predators move into the neighborhood, and many other alerts that are of great community benefit.
Benefits notwithstanding, you can’t make an omelette without breaking eggs and anonymous free speech on the Internet is one such omlette. There is no such thing as free speech, there is always a cost. Sometimes that cost is acceptable, moreover desirable, particularly in the case of positive community awareness. But often their many false and deceptive rumors, and libelous attacks are motivated only by hatred and vindictive antisocial promptings. More often than not, these serial cyber defamers have some type of antisocial personality disorder. They have nothing better to do than hurt other people, in fact they are actually fueled by other people’s pain. Normal people like 97% of the readers of my comment cannot begin to relate to how these people think. Stop for a moment and imagine not having a conscience….. is simply impossible.
A concerted, focused and malicious Internet smear campaign can be as devastating for a person that relies on his or her reputation for employment as a fire can be for a farmer who loses his fields, barns, and livestock.
Respectfully submitted by Michael Roberts. Internet Libel Victim’s Advocate.
http://www.Rexxfield.com
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