Just Because Some People Are Jerks Online, It Doesn't Mean You Need To Repeal Safe Harbors For ISPs

Free Speech

from the thinking-logically dept

The NY Times recently had an odd review of a new book about anonymity online. The book, called The Offensive Internet, is a collection of essays from various legal scholars, apparently taking a look at the fact that (gasp!) some people are just nasty online. The review, by Stanley Fish, makes some claims that don’t make much sense, either logically or legally. If his summaries of the book accurately reflect what was written, then it suggests that the professors might not really have a firm grasp on what they’re talking about. For example, Fish notes that multiple authors in the book seem willing to toss out Section 230’s safe harbors for third party service providers, because some anonymous commenters might be mean:

An unconstrained marketplace of ideas is often said to facilitate informed decision-making by providing all the information, even erroneous information, that is out there. But how, asks Brian Leiter in a powerful essay, is the process of deliberation helped by the anonymous poster who reports falsely ?that Jane Doe has herpes? and announces ?that he would like to sodomize her?? The Internet and the real world, Leiter concludes, ?would both be better places? if Internet providers were held accountable for the scurrilous and harmful material they disseminate.

Later, Fish quotes others, with similar arguments:

Saul Levmore (Nussbaum?s co-editor) suggests that immunity might be conditioned on the willingness of a provider either to take down a message after notice of its falsity or defamatory character has been given, or ?to enforce non-anonymity? and thus open the way for an injured party to seek redress. The law, writes Anupam Chander, ?should allow the individual to find information to lead her to the person who committed the privacy invasion.? As it is now, with an expansive reading of Section 230, ?the law no longer puts any obstacles in the way of the Sociopath? who, traveling on the Internet, can go anywhere and spray venom that lasts forever. (Leiter)

Except, as Paul Levy points out in great detail in a response to Fish’s column, if Fish accurately reported what these law professors wrote, then those law professors don’t actually know the law.

They appear to be confusing anonymity with safe harbors for service providers. But there’s nothing at all in Section 230 that forbids or prevents a person who has been wronged — say via defamation — from going to court and getting a service provider to identify an anonymous commenter. All the safe harbor does is prevent the service provider from being liable for the user’s speech. But it does nothing to protect their anonymity. Arguing otherwise is simply wrong. As Levy notes:

Under current law, if actionable expression is communicated online, the victim of the statutory, tort or contract violation can sue the author for that expression, but can no more sue the host of the web site, or the provider of the email service, than he could sue the postal service for carrying a defamatory book or newspaper, or sue a library for lending such a book out. Moreover, even if the name of the author is not provided with the expression, generally speaking the host of a web site that contains offending content (or an email provider) maintains at least for a period of time the data that is needed to identify the author.

That information can be subpoenaed from the host. And such a subpoena can be enforced by anybody who has a substantial claim of defamation or other actionable content. That is, they will succeed in the subpoena proceeding so long as they can identify the allegedly defamatory words about them, the words are actionable statements of facts and not just opinions, they have evidence of falsity and of damage, and there is no other reason to withhold identification, such as a real risk of extra-judicial retaliation.

In other words, the attack on Section 230 (if Fish is to be believed, mainly by law professor Brian Leiter) is woefully misplaced. He seems to be blaming safe harbors for third parties for the fact that some anonymous commenters can be jackasses. But the two things are unrelated.

Furthermore, I’ve noted in the past how misguided attacks on anonymity are. We’ve been running Techdirt for well over a dozen years and have always allowed anonymous comments. On the whole, we probably have just as many smart anonymous comments as we do smart “named” comments — and the same is true of the annoying or abusive comments. To suggest that anonymity alone automatically leads to worse comments is a myth. It’s something that some people want to believe, but there is little evidence to support it.

As I’ve said, we prefer that people identify themselves, because we like it, but we try to do that by offering positive reasons for people to identify themselves (if you’re registered users there are various perks and such), but if people want to remain anonymous, that’s fine too. But, the thing is, when someone does decide to comment anonymously, they are signaling something to the world, and part of that signal is often “this might not be as credible, so you might want to double check.” So when the essays in this book complain about people making speech online anonymously, what they appear to be ignoring is the fact that such anonymous speech is already handicapped, in that it’s a lot less believable on its face. For some reason, too often people seem to think that if someone says something, everyone automatically believes it. And that seems to be driving much of the conversation here, but it seems reasonable to go back and question that assumption.

In the end, there are lots of important benefits to anonymous speech. Yes, some people abuse it. But that’s no reason to automatically throw out all the benefits of anonymous speech.

Filed Under: anonymity, free speech, jerks, section 230