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Internet and Society 1999
The Technologies and Politics of Control
Scribes Notes -- Lecture 5: Harmful Speech


I.          AOL Zeran Case

A.      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.

B.     CDA 230: can’t blame the pipe for carrying tainted water.

C.     Previous precedent has attached liability to those parties that exert editorial control. Attaching responsibility creates a good incentive.

D.     Is 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. 

E.     Communications 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.

F.      Drudge vs. Blumenthal.

1.      Drudge called Blumenthal a wifebeater and was sued for defamation

2.      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 station?

3.      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.

4.      The drudge report is repackaged and promoted by AOL (and paid for by AOL), but they can’t be held liable for these actions.

5.      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 CDA).

6.      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.

7.      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.

8.      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.

9.      Policy options:

   1) if you lie about your identity, you go to jail.

   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.

10.     Is anarchy on the internet so bad? Why not go wild? Because guys like Chris will make anonymous jokes in class.

11.     Pseudonymity: 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).

12.     Gavin: we are in a traditional phase. In this environment, it is tougher to tell what is and what is not a legitimate message.

13.     Zittrain: is it more defamatory that the National Enquirer calls you an alien than when the NYT does.

·     You 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?

·     Criticism: perhaps anonymity increases credibility (tobacco whistle-blowers and people inside the Clinton campaign?)

14.     What’s 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.

15.     Is 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.

16.     What 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 by anonymity?

·     Benefits: 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.

·     At 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.

·     If 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.

·     Technical 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 year—Ziranol Systems?).

·     Zittrain: 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).

·     There 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 context?

·     Is 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)

·     Zittrain’s 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”).

·     Baker 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 actions.



A.      Like Gilligan’s Island, this is always somewhere, you just have to look hard.

B.     $108 fine awarded to Planned Parenthood and a few other groups harmed. Roughly half the class agreed.

C.     The web site now promises a live web cam to show people coming and going to get an abortion.

D.     Argument 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?

1.      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 laws.

2.      Zittrain:

·     Note 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?

·     The 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.


Next week’s topic:

Open vs. Closed Code

This is an infrastructure question, not a doctrinal one.


Three questions (it can be anonymous, and you can say whether you would like it to be shared or not)

1)   What is your biggest thought?

2)   What is your biggest question? What are you wondering about the most?

3)   Anything you want to say to Zittrain directly.

Mckee Colsman

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