Computers, Freedom, and Privacy

I just wanted to announce that the preliminary program for the 2008 Computers, Freedom, and Privacy Conference (in New Haven, CT) has been announced. The theme this year is "Technology Policy '08," and it includes several topical panels for the election year:

Presidential Technology Policy: Priorities for the Next Executive
States as Incubators of Change
Activism and Education Using Social Networks
Network Neutrality: Beyond the Slogans

Discounted early bird registration closes this Friday, but general registration is open until 5/23. The conference is also looking for bloggers!

Posted by Frank Pasquale at 05:54 PM | Comments (0) | TrackBack

Are Bounties Better Than Lawsuits To Unmask Bad Speech?

Talking about the Autoadmit lawsuit, Anthony Ciolli argues:

"[Rather than the litigation,] a smarter way to handle this would be through private action. A few weeks ago, a lawyer offered a $15,000 bounty for the identity of the author of the Patent Troll Tracker blog. I saw no legal basis for that unmasking, but if someone wanted to rat him out for $15k, I saw nothing wrong with that either. FYI -- it worked."

The big (asserted) advantages are: (1) less collateral first-amendment damage and officially sanctioned chilling of speech; and (2) a more "poetically satisfying" form of social sanction.

I'm pretty dubious about the empirics of the first half of the claim. Bounties to unmask anonymous internet speech seem to me to be likely to create exactly the same kinds of pressure not to speak as lawsuits - more, perhaps, because bounties are cheaper and thus the likelihood of enforcement is higher. (This is all wrapped up in Solove's book, of course). As to whether it is more poetically satisfactory to be betrayed or to lose on the merits, I this the issue is a close one. What do you think?

Posted by Dave Hoffman at 01:12 PM | Comments (4) | TrackBack

On Standing Up to the RIAA and the First Amendment

The Recording Industry Association of America (RIAA) has been on a litigation rampage, attempting to identify people it believes are sharing music online, slapping them with a frightening lawsuit, and extracting steep settlements out of them. Universities are frequently being subpoenaed by the RIAA to provide information about students. Whether this strategy of acting like a lunch money bully is working remains to be seen, but finally a university is fighting back. According to Adam Liptak's essay in the New York Times:

The record industry got a surprise when it subpoenaed the University of Oregon in September, asking it to identify 17 students who had made available songs from Journey, the Cars, Dire Straits, Sting and Madonna on a file-sharing network.

The surprise was not that 20-year-olds listen to Sting. It was that the university fought back.

Represented by the state’s attorney general, Hardy Myers, the university filed a blistering motion to quash the subpoena, accusing the industry of misleading the judge, violating student privacy laws and engaging in questionable investigative practices. . . .

“Certainly it is appropriate for victims of copyright infringement to lawfully pursue statutory remedies,” Mr. Myers wrote last month. “However, that pursuit must be tempered by basic notions of privacy and due process.”

“The larger issue,” Mr. Myers said, “is whether plaintiffs’ investigative and litigation strategies are appropriate.”

Mr. Myers questioned the tactics of MediaSentry, an investigative company hired by the recording industry. He said the company seemed to use data mining techniques to obtain “private, confidential information unrelated to copyright infringement.” He added that it may have violated an Oregon criminal law requiring investigators to be licensed.

I am pleased that the university is fighting back. Liptak seems skeptical about whether the university will be successful in its challenge to the subpoena, but at least it is defending its students rights rather than quickly giving in. Universities should not be so quick to accede to RIAA subpoenas.

One issue involves students' First Amendment rights. Although the Supreme Court has held that copyright infringement isn't protected under the First Amendment, Harper & Row, Publs. Inc. v. Nation Enters., 471 U.S. 539 (1985), protected speech may be involved in some cases. According to the Court, copyright has "built-in First Amendment accommodations" via the fair use doctrine. Eldred v. Ashcroft, 537 U.S. 186 (2003). Copyright protection is thus compatible with the First Amendment because of the existence of fair use. What this means is that it is possible that in any given case, some of the uses of the music may be fair use, and that is protected by the First Amendment. Moreover, a person may have made statements online along with engaging in piracy. So, for example, an anonymous person might maintain a website where he posts music files for trading along with the statement that "the RIAA is a big bad bully." That statement is protected speech, and identifying an anonymous speaker triggers heightened First Amendment standards for the subpoena.

The RIAA might argue something like this: "But the people whose identities we're seeking are engaging in illegal piracy. They're trading music files. There's not a strong argument that any protected speech is involved." Even if they're right about this, it still doesn't extinguish the First Amendment interests of the individuals suspected of piracy. Suppose, for example, a person anonymously posted a comment about another person that looked clearly defamatory. The fact that it might look like a slam-dunk case still doesn't obviate the need to establish the heightened First Amendment standards for subpoenas. Copyright should be no different.

Courts are still working on shaping the heightened standard for revealing the identity of an anonymous speaker, but several courts have recently been requiring that the person or entity seeking the information satisfy the summary judgment standard. See Doe v. Cahill, 884 A.2d 451 (Del.2005) (see here for my post about Cahill) and In re Does 1-10, -- S.W.3d --, 2007 WL 4328204 (Tex. Ct. App., Dec. 12, 2007) (see here for my post about In re Does).

So the RIAA shouldn't be given an easy time when seeking people's identities via subpoenas. It should be forced to make its case and meet the summary judgment standard. Maybe it will succeed in doing this in most cases, but it should at least be challenged to demonstrate its case.

Posted by Daniel J. Solove at 12:45 AM | Comments (15) | TrackBack

Who Is Frank Pasquale?

You know him as Frank Pasquale, as he blogs here occasionally regularly frequently like a madman on steroids, but who is he really?

You might not know that Frank Pasquale recently won a victory in a court case in Texas, In re Does 1-10, -- S.W.3d --, 2007 WL 4328204 (Tex. Ct. App., Dec. 12, 2007):

Essent PRMC, L.P. (Hospital) filed suit against ten John Does alleging they had defamed the Hospital and violated other laws by posting comments on an Internet site. The trial court ordered that anonymous contributer John Doe number one be identified by his Internet service provider (ISP). Anonymous John Doe number one (identified in his blog as fac-p and Frank Pasquale) has filed a petition for writ of mandamus asking this Court to order the district court to withdraw its order directing a third party ISP to reveal his identity to the Hospital.

As Frank mentioned earlier, this other Frank Pasquale is his "purloined persona." Several others commented on the fake Frank and the lawsuit in question. For example, Professor Bill McGeveran wrote:

A Blogger page called “The Paris Site” (cute pun) is a detailed gripe site about the local hospital in Paris, Texas and its parent company, Essent Healthcare. According to this news story in the local Paris paper, Essent has sued the anonymous bloggers behind the site for defamation, alleging that the site suggests the hospital is culpable for Medicare fraud and other wrongdoing. The blogger(s) use various pseudonyms, including, at one point, “Frank Pasquale.” The state court judge in the case has ordered a local ISP to provide the real name and address of the site’s proprietor.

This sort of thing occurs fairly frequently online. On political blogs you often see commenters signing the name of elected officials, usually to parody them by making sarcastic or ridiculous remarks in their name. You also see it all the time on sites like AutoAdmit/XOXOHTH, where part of the style of so-called joke is to use other people’s names (or screen names) and turn them into sock puppets. If obvious enough as humor, those may or may not be misleading, but I have little doubt that this sort of impersonation also happens in many contexts that are outright deceptive.

See also this post by Ruchira Paul.

In the lawsuit, John Doe aka "Frank Pasquale" prevailed, with the court declaring the importance of protecting the First Amendment rights of anonymous speakers. The court adopted the approach in Doe v. Cahill,, 884 A.2d 451 (Del.2005), an approach that I believe is the best. I blogged about Cahill here. According to the court:

The cases that have decided this issue range from placing an extremely light burden (indeed, virtually no burden at all) on the plaintiff, to requiring the plaintiff to tender proof of its allegations that would survive a summary judgment, or even more stringent requirements. At least one case has essentially concluded that the mere allegation of libel is sufficient. Other cases have articulated requirements that are so weak as to essentially require no more than allegations made in good faith (or not in bad faith), with some evidence to support the allegations.

We cannot agree that either of these formulations is sufficient to survive any form of constitutional balancing. Thus, the question becomes the degree of actual proof that must be provided before the balance tips in favor of piercing the constitutional shield and disclosing the identity of the anonymous blogger.

We find ourselves more in alignment with the formulations set out in Cahill, 884 A.2d at 458-61. . . . The court in Cahill described the test as: “[B]efore a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion.” Cahill, 884 A.2d at 460. This standard does not require a plaintiff to prove its case as a matter of undisputed fact, but instead to produce evidence sufficient to create issues that would preclude summary judgment.

The court remanded the case to the trial court to determine if the hospital could meet this standard. I am pleased that the court followed Cahill, and I'm doubly pleased because the court cited me in its opinion -- my article A Tale of Two Bloggers: Free Speech and Privacy in the Blogosphere, 84 Wash. U. L. Rev. 1195 (2006).

The only downside in all this is that the mystery remains: Who is Frank Pasquale? For now, we'll have to continue to wait and wonder.

Posted by Daniel J. Solove at 12:05 AM | Comments (2) | TrackBack

Anonymity and Cyber-Bullies

Over at Wired's Threat Level blog, Kim Zetter discusses a story of cyber-bullying that led to a suicide and a newspaper's decision to not reveal the identities of the responsible parties:

On Tuesday the St. Charles Journal in Missouri published a sad story about cyberbullying that drove a 13-year-old girl named Megan Meier to commit suicide last year. Meier had been harangued by one of her MySpace friends named "Josh Evans" who sent her a barrage of hateful comments that sent her over the edge.

It turns out that Evans was a pseudonym created by two adults -- one of whom knew the Meier family very well. The St. Charles Journal decided to protect the privacy of the two adults and declined to name them in the story. That didn't sit well with incensed readers, who tracked down what they say is the identity of one of the adults and posted it online. Now the paper is being criticized for giving the adults anonymity.

Zetter continues:

The St. Charles Journal wrote in the story that it decided not to name the woman and the other adult involved in the incident out of concern for the woman's own teenage daughter. The two adults haven't been charged with any crime.

But readers of various blogs that posted the story were furious with the paper's decision. By matching certain details in the article with property records, they found the name and address of a woman who they believe created the Josh Evans persona, and published her details online.

The story in the St. Charles Journal is here.

Hat tip: Susan Cartier Liebel

Posted by Daniel J. Solove at 11:34 AM | Comments (2) | TrackBack

Scammer Yammer-Jammers to Slammer?

Cell phone yakkers, beware: a new device threatens to level the logorrhea:

[An architect] sat down next to a 20-something woman who he said was “blabbing away” into her phone. “She was using the word ‘like’ all the time. She sounded like a Valley Girl,” said the architect, Andrew, who declined to give his last name because what he did next was illegal.

Andrew reached into his shirt pocket and pushed a button on a black device the size of a cigarette pack. It sent out a powerful radio signal that cut off the chatterer’s cellphone transmission — and any others in a 30-foot radius.

This reminded me a bit of the airplane "seat blocker," which prevents the seat in front of you from reclining. As far as I recall, the FAA did little to prevent their sale, but the FCC is taking no chances with the yammer-jammer:

The Federal Communication Commission says people who use cellphone jammers could be fined up to $11,000 for a first offense. Its enforcement bureau has prosecuted a handful of American companies for distributing the gadgets — and it also pursues their users.

Investigators from the F.C.C. and Verizon Wireless visited an upscale restaurant in Maryland over the last year, the restaurant owner said. The owner, who declined to be named, said he bought a powerful jammer for $1,000 because he was tired of his employees focusing on their phones rather than customers.

If the restaurant owner were to give notice of the jamming to customers, I would find this a difficult property rights issue. Loud cell phone conversations remind me of the proverbial "sparks from a train" that had to either be prevented by railroads or avoided by owners of flammable material. Who should get the initial entitlement: the yellular or the silence-seeking?

Photo Credit: Jovike.

Posted by Frank Pasquale at 11:57 AM | Comments (7) | TrackBack

What's Going on With the AutoAdmit Lawsuit?

What the heck is going on in the Autoadmit lawsuit? Last week, Judge Christopher Droney granted plaintiffs' third extension of time to serve their complaint, giving them an extra thirty days to effect service. He explained that the plaintiffs are investigating some "recently revealed" information concerning one of the parties. To date, none of the defendants has been served, and the defendants (including the headliner, Anthony Ciolli, Penn Law '07) have of course not moved against the complaint. It's been over four months since the case was filed, and the litigation is stuck at go.

I have contacted several sources to try to figure out what is going on. As best as I can ascertain, Mark Lemley and David Rosen have been negotiating with non-party Jarret Cohen over the summer, seeking a settlement that would:

• delete past and prospective threads on Autoadmit about the plaintiffs;
• de-index the plaintiffs from Google and other search engines;
• require Autoadmit to log IP addresses;
• require Autoadmit to create a term of service agreement and a complaint response system.

In return, plaintiffs would dismiss Ciolli, and (I take it) proceed against the pseudonymous defendants alone. But this settlement, which would seem to come close to giving plaintiffs all that they were seeking in the case apart from revealing the pseudonymous posters' names, has stalled. Why?

Here are a few theories. First, perhaps Cohen (or his attorney) is concerned that if he agrees to these terms, it would create an avenue for a later claim for liability that Section 230 would otherwise have immunized, i.e., he will have created a monitoring and responsibility system where none previously existed. Second, plaintiffs' leverage is insecure. I've heard rumors that plaintiffs have acknowledged that they originally named Ciolli on the mistaken belief that he had written some of the libelous posts. But if Ciolli didn't write any of the unlawful posts, his liability is at best obscure. (Volokh agrees.) This puts plaintiffs in a bit of a bind. If they drop Ciolli now, they lose their best leverage against the board, and the opportunity to really change how it works and create a precedent for other like gossip sites. If they serve Ciolli, I think he'd have a strong motion to dismiss (accompanied by a nonfrivolous sanctions motion). All this would seem to reduce the incentive for Cohen to settle today. But the service clock is ticking - how many extensions of time will Judge Droney grant? (His chambers rules state that he'll extend deadlines until the result materially affects his scheduling order.) Third, what about the pseudonymous defendants? Nothing I've heard makes exposing the defamatory posters - the most culpable wrongdoers - more likely. (Leiter's hopes otherwise, but if XO didn't track IP addresses before, I don't know how likely it is that plaintiffs will be able to find them after the fact. It is small, and cold, comfort to think about such law students sweating it over the long summer if they ultimately will remain in the shadows.)

All of this suggests why lawsuits are such a bad fit for the reputational harms that sparked this mess. You can't sue the "real" wrongdoer; the host is basically immunized; and defendants you can find are (at best) tangentially involved. This makes sense: people willing to put their names in public are likely to be more careful and less culpable. On the other hand, the lawsuit itself seems to have had significant chilling effects on the Autoadmit board, as several posters have "retired." Whether this is a good thing or not probably depends on your perspective.

Solove, do you have a better way?

Posted by Dave Hoffman at 11:20 AM | Comments (13) | TrackBack

Intellectual Privacy

Late last week, I finally sent my latest article out to the law reviews. It's called "Intellectual Privacy," and it's about the ways that certain kinds of privacy protections advance, rather than inhibit, First Amendment values. I'm really excited about the project, which I believe has something useful to say about both a number of recent legal issues (involving the War on Terror and also the War on Pornography) as well as our understandings of First Amendment theory. I'm hoping to post it on SSRN shortly, but in the meantime, here's the abstract:

The use of information about intellectual activity has become central to a wide variety of modern legal problems. In this paper, I offer a theory of intellectual privacy, the critically-important interest lurking beneath the surface of these disputes. Intellectual privacy refers to the zone of protection necessary for free thought and cognition in which individuals can make up their minds about a wide variety of issues both important and trivial. Unlike many other notions of privacy, which are in tension with free speech, intellectual privacy safeguards critical First Amendment values. First, I show how intellectual privacy has been underappreciated in a number of contemporary disputes, including warrantless wiretapping and data mining by government, private-sector uses of personal information relating to intellectual activity, and the introduction of reading habits as evidence in criminal trials. Second, I present a theory of intellectual privacy having four elements – the freedom of thought and belief, spatial privacy, the right of intellectual exploration, and the confidentiality of communications. Third, I show how and why intellectual privacy should be an essential part of our First Amendment theory, and suggest some ways in which it could be better incorporated into both constitutional doctrine and the fabric of our legal culture more generally.

Posted by Neil Richards at 10:13 PM | Comments (0) | TrackBack

The Steven Hatfill Case, Law Enforcement Leaks, and Journalist Privilege

It seems to happen way too often. Despite policies and laws that forbid law enforcement officials from mentioning the names of suspects who are not yet formally accused or even arrested, leaks invariably seem to happen. The leaks can wreak havoc in the lives of those whose names are mentioned. Many of these people wind up never being charged with any crime, yet their reputations are destroyed by the leaks and resulting media attention.

One example of this is Andrew Speaker, the TB patient whose name was apparently leaked by a law enforcement official and a "medical official" (presumably a medical official of the government). These officials probably committed tortious conduct -- there is a good argument that the leaks might be violations of the breach of confidentiality tort. There is also a good argument that the leaks violated Speaker's constitutional right to information privacy (for a discussion of this right, see my post here) and the Privacy Act (if they were federal officials).

Another example is Steven Hatfill, the so-called "person of interest" that government officials identified as involved in the Anthrax attacks. Hatfill's reputation was annihilated when these leaks took place. He was never charged with any crime. Hatfill is now suing the federal government for the leaks. But one of the difficulties in suing is identifying the government officials who made the leaks. Hatfill is seeking the names of the officials from several journalists, who are claiming that the names are protected by journalist privilege. From the Washington Post:

Hatfill, a physician and bioterrorism expert, has not been charged in the attacks, in which five people were killed and 17 were sickened by anthrax bacteria mailed in envelopes. In a lawsuit, he accuses the Justice Department of violating the federal Privacy Act by giving the news media information about the FBI's investigation of him.

To help prove their case, in which Hatfill is seeking an unspecified monetary award, his attorneys want several reporters, including Allan Lengel of The Washington Post, to reveal the identities of law enforcement officials who were cited anonymously in stories about the investigation. The journalists contend that the First Amendment and a federal common-law privilege shield them from having to disclose the names. . . .

No one has been arrested in the attacks, which took place in the fall of 2001. Hatfill, who worked at the Army's infectious diseases laboratory at Fort Detrick in Frederick County from 1997 to 1999, was publicly identified as "a person of interest" in the investigation by then-Attorney General John D. Ashcroft.

Hatfill's lead attorney, Charles Thomas Kimmett Jr., said his client has met the requirements of "a two-pronged test," established in case law, under which the reporters should be compelled to disclose the identities of their sources.

He said Hatfill has shown that the names of the law enforcement officials are "at the heart of the matter" in his lawsuit -- that to prevail in the case, Hatfill needs to know who the sources were. Kimmett said Hatfill also has "exhausted all reasonable alternatives" for finding out the names and can learn them only from the reporters.

Hatfill's complaint against the government is available here. The complaint alleges violations of the Privacy Act, which provides that “[n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person ... except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains,” and that “prior to disseminating any record about an individual[,] ... [the agency must] make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes.” 5 U.S.C. § 552a(b), (e)(6).

I previously blogged about my own normative views about when the journalist privilege should and should not protect against disclosure here and here. Basically, I argued that the privilege should protect against disclosure when disclosure is in the public interest. In other words, there are leaks we want (government whisleblowing -- Pentagon Papers) and leaks we don't want (leaking Valerie Plame's name as a CIA agent).

Courts, however, often look to the plaintiff's need for the information, not the public interest. According to the law in the District of Columbia Circuit, a journalist has a qualified First Amendment privilege to withhold anonymous sources. But plaintiffs can overcome the privilege if (1) disclosure goes “to the heart of” the case and (2) plaintiffs have exhausted “every reasonable alternative source of information.” Zerilli v. Smith, 656 F.2d 705 (D.C.Cir.1981). In Lee v. DOJ, 401 F.Supp.2d 123 (D.D.C. 2005), a similar case involving Wen Ho Lee's Privacy Act suit against the government, the court held that reporters had to reveal the names of their sources.

I have a number of thoughts and questions about the Hatfill case:

1. Since it is already known that Attorney General Ashcroft disclosed, does Hatfill really need to know the other sources? Such sources might be important, however, if the government is arguing that the information was already leaked when Ashcroft called Hatfill a "person of interest" or if the sources disclosed other information beyond the fact Hatfill was a person of interest. If either of the above is the case, then I think that Hatfill has a good case under the Zerilli test.

2. Is it a privacy violation or libel to reveal that a person is a suspect or a person of interest? This information can be terribly damaging to a person's reputation. Yet it is true -- the person is a suspect or "of interest" to the law enforcement officials. And is it revealing private facts about a person or merely revealing the opinions and beliefs of law enforcement officials?

3. The Privacy Act prohibits disclosures of information in record systems. Hatfill's name was almost certainly contained in a system of records, but does this mean that government officials can never reveal his name or information about their investigation of him? Suppose Hatfill was arrested and charged with a crime in connection with the Anthrax attacks. Could FBI officials then disclose his name? The Privacy Act has an exception allowing disclosure for a "routine use", which means any use "for a purpose which is compatible with the purpose for which [the information] was collected." Perhaps disclosure after arrest should be viewed as a routine use. Leaking information about mere persons of interest should not be a routine use, especially since such leaks generally contravene law enforcement agency policies.

4. An interesting facet about the Privacy Act is that its disclosure restriction doesn't require that the information be private for a disclosure to be improper. So suppose that it was widely known that Hatfill was a person of interest. FBI officials repeat this fact. Would this be a violation of the Privacy Act? Or suppose that the FBI has a file about you. In it, the FBI has newspaper clippings of your activities. The FBI discloses the newspaper clippings. Privacy Act violation?

5. I wonder why a violation of the constitutional right to information privacy wasn't among the causes of action in the complaint.

6. If we were to apply my proposed public interest test for the disclosure, how should it apply in this case? On the one hand, we don't want law enforcement officials leaking suspects' names. It can harm the suspects and impede investigations. That's why we have laws like the Privacy Act as well as internal policies of non-disclosure to prevent such leaks. But on the other hand, the information might enable the media to do some of their own investigating about the named suspects and alert people as to how an investigation is proceeding.

Posted by Daniel J. Solove at 01:43 AM | Comments (1) | TrackBack

Piercing the Veil of Anonymous Bloggers

I'm delighted to be guest-blogging at Concurring Opinions, and thanks to the crew here for the invitation! I regularly blog to a much smaller audience at Info/Law (and will cross-post most of these guest appearances over there), but it will be fun to discuss a somewhat wider variety of topics here. That said, it turns out my first entry is at the heart of information regulation.

Brian Leiter notes this news story about a South Korean law which has just taken effect, requiring large web sites to obtain real names and the equivalent of Social Security numbers from everyone who posts content. He compares this approach to that taken in the US where, he says, "there exist only private remedies against Internet sociopaths and misogynistic freaks who hide behind anonymity. I suppose time will tell which is the better approach."

Personally, I don't need to wait for the passage of time to criticize the South Korean initiative (which has been under discussion there for some four years). Obviously, this law arises in a cultural context very different from our own, which I believe explains a good deal of the difference in approach. And it may not even be as different as it first appears. But there are principled reasons, distinct from cultural ones, to oppose a "show me your papers" internet.

First and foremost, it should be no surprise that China reportedly is looking at a similar model -- as a technique to curb dissent, not just cyberbullying. (If you have seen the film The Lives of Others, pictured above -- and you really should see it -- you will remember how it portrayed East Germany registering typewriters.) The ability to remain anonymous protects unpopular speakers who might otherwise be unable to spread their ideas. In some countries, anonymous bloggers risk life and limb. Despite massive internet filtering by governments, blogging still provides dissidents a powerful tool. Even in more democratic countries, whistleblowers, political outsiders, and unhappy employees use anonymous blogging to avoid retribution. An outright ban on anonymity will curtail such often-useful speech.

Second, I am pretty confident a law like South Korea's would be unconstitutional here. There is a clear right to anonymous speech under McIntyre v. Ohio Elections Commission. An influential district court case from 1997 (the web's early days) relied on McIntyre to strike down as overbroad a Georgia law banning pseudonymous internet communications. (This is one of many cases the ACLU has brought in defense of internet anonymity.)

Finally, there are many technical methods to increase the chances of remaining anonymous online, such as using proxy servers or onion routing. (Ethan Zuckerman summarizes them in this guide aimed at dissidents and published by Reporters Without Borders). A demand for a real name and ID number makes these tactics somewhat harder to use, but certainly not impossible for a determined anonymity-seeker. The result: while most of us who follow the rules would lose the realistic capacity to stay anonymous online, the truly dedicated cyberbully, slanderer, harasser, or spammer can still remain in the shadows. Indeed, it's not clear to me that a legal requirement to offer a (phony) name and ID number adds any real teeth against those with the knowledge and incentive to remain anonymous.

Without question, many in the US abuse online anonymity. They can cause real harm. So, are we just stuck with these abuses as the price we pay for free speech? Not entirely. There are more modest remedies available, and they are pretty much in place already. For one thing, individual sites are free to allow more or less anonymity as they see fit. Many ban anonymous comments. Many others, if they allow screen names or pseudonyms, still require registration. Lots of sites also guard against the prevalence of "Internet sociopaths and misogynistic freaks" by moderating their comments.

More fundamentally, in situations where a site does not choose to do any of the above, there is the John Doe subpoena. A complaint that states a reasonable claim against John Doe defendants for unlawful online speech usually will result in a judicial order that a web site or ISP provide available information about the speaker. Generally that information will include at least an IP address, and often the full name and postal address. Such data has been plenty for the recording industry and the government to identify defendants and proceed against them. I predict a similar outcome in the AutoAdmit case. (Indeed, Concurring Opinions' own Frank Pasquale recently found his name in use as a pseudonym for a blogger running a gripe site critical of a health care company; in that case the court has allowed the plaintiff to "pierce the pseudonymous veil" and discover the blogger's identity.) We may need some better procedures for discerning when such "piercing" on the basis of a complaint is appropriate, but I believe this doctrine will develop, just as it did in "corporate veil" cases. In that sense, we are evolving toward a model that allows pseudonymity, but rarely true anonymity.

That may not be so different from South Korea's approach in most cases. As I understand the new law there, large web sites must collect the information, but need not turn it over unless the victims sue. Except for a somewhat stronger mandate for collecting information, that is pretty similar to the John Doe subpoena. And since such subpoenas appear to have proven adequate in the US to identify speakers in most cases, this may not be as important in the real world as it first appears. That said, to the extent there are differences, leaving some breathing room for anonymity is a better fit with our free speech traditions.

Posted by William McGeveran at 04:42 PM | Comments (2) | TrackBack

RIAA's Turn to Be a Defendant

Matthew Sag has convincingly argued that RIAA's litigation war against downloaders is rational for the industry: it's basically self-financing, as just about every defendant is too terrified of massive statutory damages to put up a fight. But the record industry's declining fortunes may make its court victories Pyrrhic.

Moreover, a scorched earth litigation strategy against infringers is getting less viable as a few defendants fight back. For example, one litigant has found a creative way of subjecting RIAA's tactics to public scrutiny:

Former RIAA defendant Tanya Andersen is now suing the major record labels and the RIAA for negligent and illegal investigation and prosecution. In a thirteen count civil suit filed in Oregon District Court, she alleges that record labels didn’t use properly licensed investigators and violated her privacy.

I'm still waiting for someone to bring the antitrust lawsuit that was forestalled by Bertelsmann's purchase of Napster a few years ago. As Napster-slaying Judge Patel said of the RIAA's distribution strategy then, "These ventures look bad, smell bad and sound bad" from an antitrust perspective.

Of course, given the lassitude of federal authorities, the antitrust case will be hard to make. But I look forward to more privacy challenges. As Sonia Katyal has argued,

recent developments in copyright law. . . have invited intellectual property owners to create extrajudicial systems of monitoring and enforcement that detect, deter, and control acts of consumer infringement. As a result, . . . intellectual property rights have been fundamentally altered—from a defensive shield into an offensively oriented type of weapon that can be used by intellectual property creators to record the activities of their consumers, and also to enforce particular standards of use and expression. . . .

If agencies fail to police these tactics, perhaps only individuals can fight for themselves. But as Bruce Scheier asks, why doesn't the US have a privacy commissioner?

Hat Tip: BoingBoing.

Posted by Frank Pasquale at 10:59 PM | Comments (1) | TrackBack

Scentvertising, Bubbles, and the Battle for Mindshare

I serendipitously encountered two bellwethers of commercial culture today. The WaPo looks at retailers' increasing use of fragrances to enhance consumers' moods. Is this effort to get people in a buying mood a bit like subliminal advertising? Some unexpected nuisance issues arise:

The American Lung Association has received several complaints about scented stores, spokeswoman Janice Nolen said. The fragrances have triggered flare-ups for asthma sufferers and those sensitive to certain chemicals. "I don't want to sound like the Grinch," Nolen said, but "sometimes these fragrances can be a barrier to people." Evelyn Idelson . . . is one of them. She first noticed that her laundry detergent was scented. Then her dishwashing liquid. Now, she said, everything smells. "I can't stand it," she said. "I think it's an invasion of personal space."

The California Milk Processor Board has responded to such complaints, removing ads that smelled like cookies. "Taunting [the obese] with the smell of off-limits cookies was just cruel, they said." Given the parlous state of many Americans' finances, perhaps Debtors' Anonymous should launch a similar campaign for all luxury goods.

But then again, we'd never say the same thing about images of products, would we? Perhaps it turns out that scent is more visceral than sight:

"You smell a rose, and your brain doesn't go, R-O-S-E," said Charles S. Zuker, a researcher with the Howard Hughes Medical Institute. "Your brain recalls what a rose is like." Daniel Lieberman, an associate professor of psychiatry at George Washington University, called smell the most "primitive" of the senses. Odor receptors in the nose are actually brain cells, he said.

So I suppose scent is in a category of its own.

But for those frustrated with all-pervasive commercial culture, there is another alternative: self help. Harvard's Berkman center recently had a panel on "culture jamming," including many leaders in cyberactivism. I was intrigued by Ji Lee's bubble project, which encourages renegade "taggers" to scrawl commentary, in bubbles, on ads:

Our communal spaces are being overrun with ads. . . . Once considered "public," these spaces are increasingly being seized by corporations. . . . Armed with heavy budgets, their marketing tactics are becoming more and more aggressive and manipulative. The Bubble Project is the counterattack. . . . Once placed on ads, these stickers transfom the corporate monologue into an open dialogue.

I suppose many will deem the Bubble Project illegal art, or mere graffiti, and may even think Ji guilty of inducing copyright infringement. But I think it's worthwhile hearing his side of the story, and thinking about the ways in which ordinary citizens can try to avoid (or undermine) a barrage of commercial messages. As Hannibal Travis notes, there is a "battle for mindshare," whether we like it or not.

PS: This is a very interesting disclaimer from the FAQs of the Bubble Project:

Q: Is it legal to place bubbles on top of ads?
A: No, it's illegal. It's consider[ed] vandalism to deface any public or private message. If you are caught, you may be subject for fines and even get arrested. You figure it out on your own. I'm not responsible for your actions.

Art Credit: Aric Obrosey, The Symbolic Lotus of a Thousand Colonels [Sanders]

Posted by Frank Pasquale at 06:18 PM | Comments (0) | TrackBack

Xoxohth 1.2: The Whys and Wherefores

[This is Part I, Section 2, of the project I announced here. (Part 1.1 is here.) The goal of today's installment is to present a diversity of views on why people spend time on Xoxohth, drawing largely on the voices of posters themselves.]

I’ll start by acknowledging an uncomfortable fact. This project suggests, and perhaps even reinforces, that critique of academic life often bandied about by the popular press: I'm asking a minor question, focusing on the uninteresting choices of marginal members of society, and using a methodology of debatable validity.

I felt bad about this for a while. And then I realized that the next best use of my time is grading: a similar process, but with higher perceived stakes.

Forward. The issue for today is why people continue to spend substantial amounts of time on XO. The question arises from the obvious point that students and lawyers have many ways to spend their time. Most of those ways are unlikely to lead to professional embarrassment if publicized, and may even enable individuals to build reputations for probity and acuity. It is odd, then, that hundreds or thousands of students and lawyers devote significant chunks of their free time to talking anonymously on XO. What gives?

It seems to me that there are a few motivations in play: entertainment, a search for information, the need for community, and the pleasures of transgression. Before we begin, let’s get some reader input. What motivation do you think drives XO’s traffic?

Why Do People Spend Time on XO?
	The Community
	The Transgression!
	Information (Giving and Getting)
	Entertainment
	Other
Free polls from Pollhost.com

Now that we’re done with the scientific polling, let’s look at the qualitative data.

A Community

A sense of community is an important part of XO’s continued popularity. Jargon, repeated catch phrases, and familiar jokes, all add to the sense that the board is a gathering place of old friends. A poster writes:

[X]oxohth is a social forum. Students have gotten head starts making law school friends over the summer before law school starts. Others have collaborated on papers together. Some posters meet a boyfriend or girlfriend online. But most posters are simply content to engage in debates, share jokes, and discuss their lives anonymously.

Belonging probably alleviates some of the unhappiness that many feel in law school or in practice. Moreover, the board’s ideology is disfavored in many public discussions among lawyers.

“Without the board, I would think that I'm the only person in the world who thinks certain taboo things. A board like XOXO allows us to debate very sensitive issues without destroying our real life reputations.”

Importantly, community cuts both ways. I've received many emails from individuals who claim to have been harmed when their real names were posted on XO in embarrassing circumstances. Others report that XO has made them distrust the secret motives of fellow students, especially men:

When I do have to talk to law students, I seek out the female URMs [defined here]. From what I can gather, they're the ones who are least likely to have the Xoxo attitude lurking somewhere inside.

Putting aside these normative issues for the moment, it is also worth noting that the community itself may have changed since its Exodus from Princeton Review:

"XOXO retains its regulars very well--many have been posting upwards of three years, counting time spent on the old Princeton Review boards. The result is that XOXO is not really a pre-law discussion board anymore, but a law school and young lawyer board. Look at how many XOXOers took the most recent LSAT--maybe 10, 20. Compare that to LSD's 100s (yet another reason to doubt XOXO's traffic figures). Even at top schools, supposedly the homes of XOXO's main posting population, most students do not know about XOXO. "

Watching a Car Wreck From the Comfort of Your Desk

A dominant reference among emailers was to XO’s "addictive and entertaining" nature: "Certain posters are characters, and to see them get into fights and fiascos is better than what happens on many reality shows." (I have doubts.)

The site’s addictive nature, as one astute emailer points out, is largely dependant on its traffic stream:

“Catching up with a few hours' worth of posts takes time and so does being active in a few different threads. Without a steady stream of new posts people certainly wouldn't linger as long as they do. The fear that the traffic will slow is probably why, every once in a while, we get threads encouraging everyone to think of ways to recruit new members or, worse, proclaiming the end of xoxo.”

While this makes XO look somewhat like a Ponzi scheme, it’s a view of XO and the Law that is worth thinking about.

For many, the law – its study, its practice, its details – is terribly boring. Checking XO for the latest outrageous scatological picture, a comparison between the prestige of Superman and the Chief Justice, or a discussion of an anonymous poster’s intimate life, is, basically, a way to turn off your brain and slouch into a day-dream. In that fantasy, you don’t have an interrogatory to complete by Monday, or an exam to study for, or an application to complete. This escapist, comforting, fun seems to be a big part of the reason why people keep on visiting the board long after their lives have been set in the law’s path. It also suggests at least part of the reason for the increasingly exaggerated, self-referential, obscenity of the board. What was once titillating seems sort of mundane after a few months, and greater (and greater) nastiness is necessary to continue to get a response.

The Pleasures of Transgression

Rubbernecking doesn’t explain individuals’ willingness – eagerness – to post on their own. The sheer number of postings suggests something else: the joy of being transgressive in an overwhelmingly conservative, risk-averse, profession. This transgression may be deeply felt. That is, perhaps individuals are, indeed, racist, sexist, and anti-semitic, but lack courage to say so in public. This is the dominant view of XO among many law professors and law students I've spoken to about this project.

Emailers - who have obvious biases - suggest other motivations.

Some attribute the board's content to the age of posters:

[T]he generation that posts on the board grew up with South Park (which was once shocking, but doesn't seem so much anymore). The ironic shock-humor of Borat and Sarah Silverman is also undoubtedly popular. Doubtless, some of the speech on the board is authentically racist, sexist or anti-semitic while much of it is outsized schtick. The speech is unfortunate because it makes it difficult to be associated with xoxo. My addiction to the board is my dirty little secret.

Similarly, “It's the popularization of the Ann Coulter, porn generation, and MTV effect: extremism and hyperbole yields attention, and attention is good.”

Others focus attention on the idea of role playing:

""Flames" are posts designed to incite anger. "Schticks" are fake personas that are used to humorous effect or to flame. Many of the racist posts are made by schticks--the white woman-loving, Jew-hating poster aznaznaznaznazn, the white-bashing posters Africanus/Thaddeus/Strom Thurmond, the racist poster Rational Thought, and the Mormon-bashing poster rangerlaw are a few examples. In an environment where such shocking posts are common, and anonymity is nearly guaranteed, posters who otherwise don't have racist/sexist/classist inclinations may find humor in joking about them, sometimes even creating them under alternate identities. "

It's worth pointing out that listeners - and individuals named in posts without their consent - have little way to distinguish between schticks and intentionally offensive speech. (Intent surely matters to how much harm is felt, but it isn't dispositive.)

A Market for Information

For some students, especially those without large endowments of social capital, XO is said to act as a career services office, guidance counselor, and head-hunter rolled up in one free package:

"I come from a less-than-wealthy background. I am the first person in my family to go to, let alone graduate, college. I had to join the military to pay for undergrad. I’m one of only about 7-8 people of my 50 person high school class to have graduated college. I’m not your typical law student, and I don’t have any family or friends who are lawyers, so I was unable to draw upon the experiences of others the way some other students might be able to.

For people like me, xoxo is invaluable. At most any school, career counselor or future counselor-types in general are pretty worthless. By accessing candid information, even if it sometimes comes in the form of insults, I have been able to find a path that has worked well for me. For example, if I posted a GPA/LSAT combo and asked “where will I get in?” with a list of schools, the responses might be candid and offensive, but once that’s sorted through, ultimately accurate. With limited funds to apply, I was able to narrow down the list of schools to which I applied."

This advice may be quite specific indeed: "[p]osters also frequently exchange personal statements and proofread them for each other, both for grammar and for content.” (Although the frequency of such exchanges may be moderating as the board’s population ages).

Advice can be particularly valuable when students seek to apply outside of their school’s employment market. I heard many variants of the argument that law school career services offices were weak at this particular task, while XO was strong:

"Posters share job postings across different law schools, for example, a Georgetown student might send a Michigan student postings about jobs in Washington D.C. When posters have competing offers, the board can help provide information about which job to take. As with personal statements, posters have proofread and revised resumes and writing samples."

Finally, posters credit XO's informational value to anonymity:

Anyway, as school progressed, I appreciated the board as a place where one could be open about subjects people try not to talk about in school, like grades, for fear of being perceived as a jerk. The board gives a good outlet for the achievement-obsessed sides of many law students.

However, there is substantial uncertainty among posters as to whose advice to trust. Indeed, some might argue that XO serves as a dark meeting place for the blind to lead the blind. Poster reputation is of course quite important. But rumors still fly that some posters are better positioned than others to help:

"I have personally verified that there are posters who have clerked for prestigious Circuit court judges, lawyers at the top top firms in the country, and students from every major law school in the country. It has also been rumoured that some posters are law school admissions officers, professors, and big law firm partners (such as the mysterious zerosumgame "ZSG"), who appears to answer "responsible" questions every few months. "

According to a few emailers, this informational role keeps them coming back to XO:

" [A]s one of the "informative" posters on the board, I think it's important to note that if it were not for the frank and rather uninhibited discussion that the board allows, many of us would quickly lose interest and the board would turn into the graveyard that is Greedy Associates. "

Concluding Thoughts
It is hard to know what to make of these varied, positive, claims on why so many students and lawyers spend time on XO. I admit that I would have thought that the preponderance of racist and sexist talk would have greater adverse effects on traffic, and wouldn’t have anticipated the network effects of traffic flow that appear to continue to drive the board’s popularity. On the other hand, I realize that there exists a continuing strong demand for information about the legal employment market. Why that demand has been met by this type of forum, rather than a more orthodox and commercial entity, is an interesting problem.

Notes and Sources:

1. Did you like this post? Hate it? Either way, vote for us in the Weblog awards. We're only 7 places out of first!

2. The project has been delayed by my continuing inability to get data of various sorts that would speak to the content of XO discussions. Further posts will be held indefinitely while I pursue the data. The next post in the project, should it happen, will be more quantitative than this one, looking at a random sample of posts to derive some conclusions about the board's content and population.

3. If you have any special insights about XO, you are free to send them to me via email. Unless you tell me otherwise, I will assume that I can quote and attribute any emails.

4. There have been several discussions of this project on the web. See William McGeveran's post on the project at Info/Law, and Jessica Silbey's "experiment" at LawCulture. I feel no reason to replicate here Bill and Jessica's experience with open comments, so I have closed them.

Posted by Dave Hoffman at 05:30 PM | TrackBack

Xoxohth, Civility, and Prestige: Part I

Xoxohth claims to be the "most prestigious law school admissions discussion board in the world." According to its marketing materials, it controls 70% of the online "market" for "higher education and career discussion", with around 6000 posts a day on various topics. One of its founders reports that the site receives 350,000 to 500,000 unique visitors every month, making it significantly more trafficked than any other law blog, with the exception of Volokh. (By comparison, we get 60-70K unique hits a month.)

But.

Among many legal scholars and administrators, there is a shared impression that discussion at XO is overrun by sexist, racist, anti-semitic, and just plain foolish talk. The well-known Leiter-XO engagement (see here) is just one example, but it isn't alone. Based on correspondence, I have learned that multiple law school deans and assistant deans have dealt with the Board when trying to mediate online disputes involving their school's students. XO has been threatened with legal action (at least twice) involving alleged defamation on the board, although the site is not, to my knowledge, involved in pending litigation. Some wish the entire XO discussion board was a hoax (although others think it may be providing a public service) and some, well, some are mad as hell:

If this is what other lawyers are going to be like, I want out. They make us all look like utter a[*******]. People should avoid law school because it sucks, not because of these jerks.

I've written a bit about the Board before, in the context of a US News citation dispute, and since then, I've been in contact with one of the Board's administrators, Anthony Ciolli, a 3L at Penn Law. I think the board is pretty fascinating, primarily because its anonymity enables, and its format records, discussions among rising lawyers that are frank and heterodox (in legal culture) with respect to race, gender relations, and professional development. It isn't the only forum for such discussions, but it may be the largest.

In subsequent posts, I will be exploring three basic questions about XO.

1. What is it? I will set out the history of the Board, arising from a disaffected group of folks talking at a Princeton Review website. I will then try to get a handle on the actual discussions on XO. As Prof. Leiter pointed out, many posts on XO contain frankly racist and sexist talk. What percentage of the whole? Is the remainder entirely about law school and law firm rankings, and, if not, what else is being discussed? Other questions: who makes up the XO community? what motivates folks to spend time and effort on the various discussions? how is the site governed? how are disputes resolved? how much money does it take in?

2. Is XO Representative of Law Students? I wonder if XO strips away the mask of civility and gives us a view on how rising lawyers think. Law self-imagines as a service profession, at least in part, but posters on XO are significantly more concerned with utilitarian ends (particularly, maximizing prestige). How unique is this community and this view within the general legal profession?

3. Why should we care? Here, I'll take on some of the bigger, normative, questions. In particular, one of the "strengths" of XO is that it isn't moderated, but, that lack of moderation may be correlated with very ugly speech. Does the combination of moderation and anonymity produce net social benefits? That question would seem to turn on alternative fora, and the basic question here is whether law schools are failing to enable frank talk about law firm life and the importance of rankings, if we think that these discussions belong in school. Should law school deans be in the business of trying to shut XO down? Should professors encourage Bar Admissions C&F committees to ask "are you now, or have you ever been . . . " questions?

I think the series of posts will be interesting. I'm gathering data and information from a variety of sources: if you have any special insights about XO, you are free to send them to me via email. (I'm closing comments on this post, on the theory that they are likely to be immoderate. Unless you tell me otherwise, I will assume that I can quote and attribute any emails.)

Look for more in the coming days and weeks.

[Update: Part I.1; Part I.2; and (3; 4) related posts].

Posted by Dave Hoffman at 02:33 PM | TrackBack

Anonymous Blogging: David Lat and Jonathan Adler

I'm at the panel on anonymous blogging at the Computers, Freedom, and Privacy Conference. Jonathan Adler (formerly Juan Non-Volokh) and David Lat (formerly Article III Groupie) told their stories about blogging under a pseudonym.

Adler explained that when he began blogging at the Volokh Conspiracy in 2002, he was unsure about how blogging would be received in the legal academy. It was Eugene Volokh that proposed the idea to Adler that he blog under a pseudonym. Adler said that his main reason for blogging under a pseudonym was not because of his political views but because he was uncertain about whether his colleagues would think his blogging would take away time and focus from his scholarship. Adler thought he'd be unmasked in about a year, and he was surprised that he managed to stay anonymous. Adler said that he probably wouldn't blog under a pseudonym if he were an untenured professor beginning to blog today since blogging is generally well-received in the academy.

David Lat created Article III Groupie ("A3G" for short, a nickname bestowed upon Lat by Judge Alex Kozinski) in a way to make a persona with very different characteristics than Lat. When he first began blogging, Lat wasn't very careful about blogging anonymously; he would email under his real name with the same IP address as he used in his blogging sessions and in his A3G email. Judge Kozinski once emailed A3G and asked: "Do you know about safe emailing?" Lat said no. Judge Kozinski then gave A3G a brief lesson in careful emailing. Afterwards, Lat took more care and began using anonymizing software.

Lat decided to come out because he wanted some recongition for his blogging. He really enjoyed blogging and was getting a lot of media attention for it. Some friends and others began figuring out A3G was Lat. He once received an email from someone who said: "Hey, wanna get coffee in Newark sometime?" (Lat worked as a federal prosecutor in Newark). Therefore, Lat began thinking of an exit strategy so he could go out on his own terms. The opportunity came when Jeff Toobin of The New Yorker wanted to interview A3G in person. Lat agreed to meet him for lunch. When Toobin saw Lat, his jaw dropped: "So you're a guy??" Toobin said.

Lat said that the week after he revealed his identity was a stressful one. The U.S. Attorney office wanted him to stop the blog, but they didn't threaten to fire him at all. But then the opportunity to blog at Wonkette, the popular political gossip blog, came along, and Lat left his job to blog full-time at Wonkette.

Posted by Daniel J. Solove at 12:07 PM | Comments (1) | TrackBack

Juan Non-Volokh Unmasked

One of the greatest mysteries of the legal academy has been solved. Jonathan Adler (law, Case Western) is Juan Non-Volokh, the pseudonymous blogger at the Volokh Conspiracy. He has unmasked himself here.

Adler explains why he blogged anonymously here. Adler's decision to be anonymous drew some strong criticism from Brian Leiter (law, Texas) here and here; Adler responds here.

Now that we know that Article III Groupie of Underneath Their Robes is David Lat and that Juan Non-Volokh is Jonathan Adler, are there any mysteries left in the law professor blogosphere?

A panel organized by Marcia Hofmann at the Computers Freedom and Privacy conference this week in Washington, DC will feature both Jonathan Adler and David Lat who will speak about their experiences blogging anonymously. The panel is on Thursday, May 4th, from 11:00 AM to 12:15 PM.

Related Posts:
1. Solove, How to Blog Anonymously and Get Rich (Jan. 2006)
2. Solove, NYT on A3G (Jan. 2006)
3. Solove, Is Anonymous Blogging Possible? (Nov. 2005)
4. Solove, The Mysterious Disappearance of Article III Groupie (Nov. 2005)
5. Solove, Article III Groupie Disrobed: Thoughts on Blogging and Anonymity (Nov. 2005)
6. Solove, Using Lawsuits to Unmask Anonymous Bloggers (Nov. 2005)
7. Solove, A Victory for Anonymous Blogging (Oct. 2005)

Posted by Daniel J. Solove at 12:38 PM | Comments (0) | TrackBack

Pseudonymity and Ethics

Last week, the Los Angeles Times suspended the blog of Michael Hiltzik, one of its columnists, when he admitted posting comments both on his blog (which was hosted by the paper) and on other blogs under pseudonyms. Apparently these efforts were a ham-handed attempt at creating an ego chamber by suggesting that there were other participants who agreed with Hiltzik’s views. The L.A. Times has posted a notice at Hiltzik’s blog, stating that Hiltzik’s actions were “a violation of The Times [sic] ethics guidelines, which requires editors and reporters to identify themselves when dealing with the public.”

Put to the side for the moment what Hiltzik actually did, which, if nothing else, was not a bright career move (and serves as yet another reminder to the public of the existence of IP addresses). What if Hiltzik had used a pseudonym to comment on another blog merely to engage in a discussion without revealing that he was a columnist for the L.A. Times? What if the resulting discussion then became interesting enough that Hiltzik or another reporter decided to write about the debate? Is there something improper or unethical about the fact that the hypothetical Hiltzik did not disclose his identity in the course of the discussion? Assume, even, that Hiltzik engaged in pseudonymous commentary precisely to spark a discussion on a given topic — which is, of course, what many blog authors do on a daily basis — to see if it would develop into any interesting column fodder. Would he have acted unethically? Given that the participants responding to such comments are engaging with a pseudonymous individual in an open forum in any event, does it matter whether that individual is the hypothetical Hiltzik or a CPA in Schenectady? Or whether the individual is a reporter for the L.A. Times rather than the author of AcmeBlog?

Presumably the L.A. Times does not enforce its policy to the extent of requiring its reporters to “identify themselves when dealing with the public” when they are, say, participating in an online dating service or ordering a burger at the local fast food joint. I would imagine that the point of the policy is to protect members of the public who would unwittingly say something in a conversation with a nonreporter that they would not say if they knew the comment could potentially be published in the paper. But when the hypothetical (i.e., nonlogrolling) Hiltzik comments pseudonymously on another’s blog and encourages comments that are intended for public consumption from the moment the "post" button is hit, is he “dealing with the public” in the way that the paper’s policy contemplates?

(To be clear: I am in no way defending Hiltzik's actions. But I am curious about where the line between proper and improper is in a medium in which pseudonymity is not only accepted but often encouraged.)

Posted by Laura Heymann at 03:25 AM | Comments (13) | TrackBack

How to Blog Anonymously and Get Rich

Andrew Raff has a funny post about how anonymous bloggers are striking it rich with their blogs. After discussing David Lat's (aka A3G) story as well as others, Raff writes:

Here's the short lesson:
Step 1. Write a funny anonymous blog.
Step 2. ???
Step 3. Profit.

Perhaps Juan Non-Volokh of the VC is working on a six-figure book deal as we speak.

Hat tip: How Appealing

Posted by Daniel J. Solove at 06:45 PM | Comments (3) | TrackBack

NYT Profiles A3G

In the New York Times today, there's an interesting profile of David Lat (aka A3G), the author of the blog Underneath Their Robes and soon-to-be author of the popular political gossip blog Wonkette. Some highlights include the reaction of the U.S. Attorney's office where Lat worked when he revealed he was A3G:

Calls from news media organizations came pouring into the United States attorney's office. The spokesman for the office, Michael Drewniak, was fuming. Mr. Lat was told by his superiors that it would be wise to take the site down, and he did. He was also told not to return calls from the news media, and he did not.

As the week progressed, Mr. Lat, a slight man with a habit of blinking hard when he is nervous, heard nothing from the boss, United States Attorney Christopher J. Christie. Some colleagues told Mr. Christie that what Mr. Lat did was wildly inappropriate, and that he should be fired. Others tried to convince him that this 30-year-old son of Filipino immigrants, a graduate of Harvard University and Yale Law School, was an otherwise model employee who had simply made a mistake and deserved another chance.

While this office intrigue played out, Mr. Lat placed a call to Mr. Christie's secretary.

"He's not ready to meet with you yet," she told him.

And so he waited. And worried. Finally, on Thursday, Mr. Christie summoned Mr. Lat to his well-appointed room with sweeping views of Newark Liberty Airport and the Manhattan skyline. Mr. Christie settled into a couch and fixed his gaze on the young lawyer.

"You put us in an awkward position," he said.

On Lat's endeavor to be an anonymous blogger:

This bizarre and satirical view of the judiciary was created, for the most part, in Mr. Lat's apartment on 53rd Street in Manhattan, although he often responded to readers' e-mail messages from his office in Newark. He would later learn that this was a terrible mistake; some tech-savvy readers, including Judge Kozinski, had already learned the true identity of Article III Groupie. . . .

And he concluded: "It's hard to lead this double life. It eats at you after a while. I wanted that tension to be resolved after a while. It's like you have this secret and it's gnawing at you."

On Lat's meeting with his boss Christopher Christie about his blogging:

Mr. Christie did most of the talking. He told his young assistant that he should have given the office a prope