Internet and Society 1999
The Technologies and Politics of Control
Scribes Notes -- Lecture 5: Harmful Speech
AOL Zeran Case
Shoshana Lopatin (cold-called) about Zeran, who loses
to AOL after “going through hell.” Shoshana agrees with the decision
because AOL is just the ISP and not the producer of the speech.
230: can’t blame the pipe for carrying tainted water.
precedent has attached liability to those parties that exert editorial
control. Attaching responsibility creates a good incentive.
AOL a distributor (like a bookstore) or publisher (like a editor or
newspaper, who is responsible for defamatory statements made by people
just writing into the paper, if published)?
Maybe it depends on how much the material is filtered.
Decency Act (which was supposed to get porn away from kids) now makes
this issues much more clear for ISPs. Why is this the case? AOL lobbied
to get it in there. It has a provision for “good faith blocking of material.” AOL essentially said “I’m happy to help keep
porn away from kids, but I don’t want to end up more like an editor
of a newspaper and become liable.”
Congress took this deal. Most of the Act was struck down, but
this part stood. With respect to state actions, AOL (ISPs) are off the
hook by anything sent by people other than you.
Drudge vs. Blumenthal.
Drudge called Blumenthal a wifebeater and was sued
Drudge got sued, and so did AOL, because AOL promoted
Drudge and benefited from it. However, under the law, AOL was not liable.
(the radio station that provoked more offensive phone calls was sued
as well; they don’t fall within the protections of CDA. Is there a strong
legal distinction between a regular radio station and an internet radio
Michelle Haas, what do you think? She thinks it is
good. Tough luck to Zeran. He can’t sue AOL. He has a right without
a remedy. He can’t find out who posted the message originally! Thus
he has no one to sue.
The drudge report is repackaged and promoted by AOL
(and paid for by AOL), but they can’t be held liable for these actions.
Michael Siegel: AOL or Zeran? Free speech is
a presumed benefit to the internet (and the reduced cost of doing so),
however this does not necessarily mean that AOL should provide anonymity.
Anonymity is not a necessary prerequisite to obtain the benefits of
free speech on the internet. Should ISPs be forced to say who the author
is and be legally responsible if they can or will not? (i.e. amend the
With Hotmail and mindspring, you can gain internet
anonymity. Once you go to a commercial setting, however, your information
must be correct. If we amended the CDA, would all this have to be changed?
Matt: we don’t need such strong privacy/anonymity concerns. You should
be forced to provide some information about yourself that will be revealed
if and only if some threshold of importance (i.e. a legal proceeding)
is met. I.e. should it be like a drivers license and license plate?
What would the world be like without such methods of enforcement on
the highways? People obey laws because they can be held accountable,
and anonymity contravenes this.
Jessica: afraid of anarchy on the intenet. We’re held
responsible in the real world, so why not cyberspace? Why are people
at MIT rolling over in their sleep? Zittrain: the idea of having a license
to get on the internet would prevent sleep for them. Chris: Also, there
are some legitimate uses for anonymity—i.e. to throw the spammers of
your trail or engage in harmless practical jokes. Zeran is just an unfortunate
and rare casualty of these freedoms. His case should not require identification.
Is the idea to make it impossible to libel? Or to make
it more expensive? I.e. if you had to go to great lengths to forge a
message (i.e. in Zeran’s case), the pranksters might not do it.
1) if you lie about your identity, you go to
2) the flip side of encryption—authentication.
You could get the government to “vouch for” you. Identity would then
be very reliable on the internet.
anarchy on the internet so bad? Why not go wild? Because guys like Chris
will make anonymous jokes in class.
One suggestion is to allow anonymity, but should one break the law,
one’s identity can be found. But under what conditions should one be
able to get this information? Should the information only be available
to law enforcement authorities? Criticism: it would prevent a completely
free internet. Also, it would be the ISP that would have to defend in
the legal proceedings? Otherwise, you would have to shed your anonymity
to defend yourself in court. It is also a higher burden on the ISP to
force them to keep records of everyone’s ISP (hotmail especially would
be more expensive).
we are in a traditional phase. In this environment, it is tougher to
tell what is and what is not a legitimate message.
is it more defamatory that the National Enquirer calls you an alien
than when the NYT does.
would award more $$ against NYT, because it is more credible so the
harm of the speech is increased. The less credible the speech, the less
harm caused. People are used to reading credible stuff, since it went
through intermediaries. Today on the internet, much of what you read
does not go through intermediaries, so it is inherently less credible—we
have to get used to that. So instead of making speech more reliable,
maybe we should make people less gullible?
perhaps anonymity increases credibility (tobacco whistle-blowers and
people inside the Clinton campaign?)
to stop Hotmail or other providers of anonymity from leaving the U.S.
and conducting their activities elsewhere? If so, what’s the point of
trying to legislate against defamation (i.e requiring pseudonymity),
because people will just leave. Are we trying to hijack the internet
and make it conform with U.S. law? Maybe, but everyone else is trying
as well, and U.S. law isn’t that bad.
this an argument for imposing liability on ISPs, because they are under
U.S. jurisdiction? This would work for an AOL message board, but what
about hotmail going overseas that sends defamatory statements to an
aol account? Then you can’t hold the ISP liable. You must hold the originator
of the e-mail liable.
are the benefits of anonymity on the internet? Is it simply that
people like it because they don’t want to be held accountable? What
are the benefits aside from lack of anonymity? What principles are advanced
anonymity can be useful for support groups, where people cannot be effectively
helped if they are forced to identify themselves. Amy’s example: threaded
discussion in Torts class—if you are anonymous, you cannot be prejudged
based on their identity--gender, race, etc. (her torts class settled
on pseudonymity—send to professor and he will post under his name, so
only the professor knew the identity of the author). Requiring identity
for everyone is overbroad—isn’t it like convicting everyone beforehand.
Is this analogous to driving a car? Not really, a car is more dangerous
and it isn’t speech.
the same time, if your comments turn out to be defamatory/libelous,
then shouldn’t there be a way to find your identity (after due process
is met, etc.)? So the veil of secrecy would only pierced for a really,
really good reason. This is an argument for forcing ISPs to keep better
records. Perhaps anonymity is more dangerous than driving a car—i.e.
the increased chance of terrorism if you allow people to fly anonymously.
we overregulate the internet, won’t this be to the competitive advantage
of other countries? This is
another concern that cannot be ignored when discussing policy.
comment: is there such a thing as anonymity? We couldn’t find the person
who screwed Zeran, but we can find the author of the Melissa virus.
I.e. if the threat were to the President rather than Zeran, couldn’t
some smart techies find the guy? Perhaps, but there are also some smart
techie guys/girls who could successfully launch a cyberthreat anonymously.
Technology will probably make it easier to be anonymous in the future,
given developing technology (commercially available by the end of the
the internet essentially grew by happenstance, and protocols could have
favored a lot more identifiability, and it can easily be changed by
passing a law (i.e. at Harvard, we agree not to misrepresent ourselves
on the Harvard network). This might run up against Constitutional constrains—i.e.
1st amendment (a local ordinance in cyberspace, but still
incredibly influential given the size of the US and the efficacy of
having one standard). The US would have to deviate quite strongly from
where the international community wants to be before they would lose
their leadership position. If the market wanted to change its mind,
there would be an increased cost (next weeks topic).
are more subtle paths of influence and control (with winks and nudges,
rather than classic regulation). Who will decide the outcome? Companies/technology/markets
or regulators? How do we decide it collectively in the international
accountability the only way to balance against anonymity? Why not
provide space for people to respond to defamatory/libelous speech? The harm if libel is the fact that it is believed,
not that it is said, and if you give a right to response (cheap in cyberspace),
you don’t need a court case and the harm is ameliorated. Sometimes,
however, being able to reply is not sufficient (it doesn’t stop the
harm or isn’t believed)
Scheme: You an say something on the net by saying it anonymously,
or by saying “I voluntarily attach my name so I am willing to defend
what I am saying in the court of law, or to submit to an arbiter of
truth.” Thus, stuff that is anonymous loses credibility, and stuff that
is “signed” is more credible. This is a purely voluntary scheme. Criticism:
what about the harm has nothing to do with the truth of what is said,
but what is said (i.e the snuff “story”).
case: should the charges have been brought? Dropped? Was he an imminent
threat? Did what he publish communicate an intent to commit the acts?
Should there be a tort? I.e infliction of emotional distress? Was it
intentional or negligent? Gavin-savaged by Fenno-will defend Baker:
who is his target audience? If they are a bunch of psychos used to reading
such stuff, then there was probably no intent to inflict emotional distress.
Is there emotional harm to the woman simply because she is involved
in a story that is published at all (even if it is just to a sicko newsgroup)?
Does it matter if the victim reads it? Knows about it? Is the offense
to dignity or to physical security? Should one be liable for harm caused
when one never intended the victim to read the material? (header your
e-mail so it cannot be forwarded). If one fantasized about killing the
president, wouldn’t it be different? It would be deemed enough to go
after the source of the material. So isn’t it good that they publish
their fantasies, so we can prevent the harm? Is this consistent with
the desire to protect anonymity? Isn’t this punishing thoughts and not
Like Gilligan’s Island, this is always somewhere, you
just have to look hard.
fine awarded to Planned Parenthood and a few other groups harmed. Roughly
half the class agreed.
web site now promises a live web cam to show people coming and going
to get an abortion.
for penalizing the web site: Bruce Richman: the site incites imminent
violence, it violates the statute that prohibits intimidation by threats
of harm. Are 1st amendment rights are curtailed in ways to
prevent violence, and this is a perfect example. It goads and facilitates
those who wish to stop abortions through murder. If the site did not
cross out names, would it still be worthy of an injunction or damages?
Wouldn’t this be like posting a list of companies or congressmen who
support policies that the web-site owner hates? Perhaps the act of crossing
out names is what pushes the site out of the scope of constitutional
protections. The intent is clearly not to persuade people to retire
from the business of providing abortions, but instead to encourage their
murder. What about a disclaimer that says “this is not meant to advocate
violence”? Must we look at the totality of circumstances and decide
that the true intent is not to preserve information for a future human
rights trial, but instead to promote murder? Is there a difference between
inciting general violence and imminent violence? (NAACP vs. Claybourne:
explains what is constitutionally protected speech and what is an incitement
of imminent violence, although the context is different). Do the people
who now show the cite as an educational tool still violate the statute
(Privacy of… Act)? Should this be a new internet tort that has no analogy
to prior precedent or doctrine, and should be developed to reflect the
changing technological realities? Gavin: the information published on
the cite is not all that private—it would take his wife 10 minutes to
get the info (of course, she’s a professional private investigator).
Also, the doctors on this cite cannot choose to take their personal
information off the cite. There is some property or privacy interest
in your personal information? That would take all the fun out of news
reporting. But what possible purpose could putting the name of the children
and their school location on the web be? It must be to deter them from
whatever they are doing—in this case, performing abortions. How can
you legislate this though? At
what point does political debate end and emotional distress begin? Is
this the price we pay for free speech and allowing the marketplace of
ideas? Does as much speech as possible best promote the purposes of
the 1st amendment? But if it isn’t unreasonable to impose
restrictions on T.V. and the radio, why not do the same on the internet?
How about Megan’s Law? Is the problem the publication
of the names or the fact they are struck through after they have been
killed? What about the fact that abortion doctors have broken no laws
and those whose identities would be revealed by Megan’s Law have broken
how the Nuremberg Site is a recruiting tool. It brings together people
who may be geographically diverse but who have similar views. Will they
engage in an illegal conspiracy?
Nuremberg and Zale issues will increase in the next few years, and we
have to develop the correct forum to deliberate and decide the issues.
vs. Closed Code
is an infrastructure question, not a doctrinal one.
questions (it can be anonymous, and you can say whether you would like
it to be shared or not)
1) What is your
2) What is your
biggest question? What are you wondering about the most?
3) Anything you
want to say to Zittrain directly.