by Mike Masnick
Tue, Jul 15th 2014 10:04am
Thu, Jul 10th 2014 8:36pm
from the the-debate-is-on dept
Was Blog for Arizona out of line for outing John Huppenthal as an anonymous commenter, as Mr. Geigner suggests in his recent post?
In this specific case, absolutely not. Among other things, Huppenthal invited us to publish his comments; he was so careless that his identity could be ascertained from the comments themselves, with no reference to the IP addresses we had, and he was posting from a government agency, which would be required to divulge the sites he visited if asked.
Let's put all that aside and approach the more fundamental question: How secure should a John Huppenthal be in his anonymity? He cited the Founding Fathers, several of who wrote anonymously when penning the Federalist Papers.
But the issue here is not the right to anonymous speech. Nobody disputes that right. The issue is whether there is a right to anonymous speech with zero risk of being exposed, even if the speaker is a public figure.
In our judicial system, very few rights are absolute. Why? Because there are competing interests.
For example, public figures do not receive the same level of protection from defamatory statements as ordinary citizens do. If I publish an unfavorable statement against Joe Sixpack, Joe only need show the statement was false in a suit for defamation. But if I make the same statement about an elected official, he has to show not only that the statement was false, but that I made it with reckless disregard for the truth. Why the difference? Because of the competing interest. As a society we don't want people with information about public figures to be overly fearful of coming forward.
If we were to attempt absolute protection of the anonymity of public figures in their online comments, we necessarily would have to encroach upon the freedom of the press and the associated protection of confidentiality of sources. Suppose Blog for Arizona did not expose Huppenthal directly, but instead had one of our writers speak off the record to a reporter, who then called Huppenthal out based on a confidential source and asked Huppenthal to request that Blog for Arizona publicize all its information. Huppenthal would have no practical choice but to comply, or just fess up. So, unless we're willing to encroach upon the freedom of the press, the protection of anonymous commenters could not be complete to the degree Mr. Geigner desires.
Now, consider the issue from the perspective of the blogger. I have knowledge that an elected official who is up for re-election, John Huppenthal, is a racist who believes the Holocaust was more the work of Darwin than of Hitler. Should I have no ability to let the public know what Huppenthal is all about? Perhaps, but only if Blog for Arizona and I had guaranteed Mr. Huppenthal that his anonymity would be protected. Otherwise, imposing some sort of legal gag order on bloggers does not seem the way to go.
The bottom line: We don't need to make it any easier for creeps like John Huppenthal to go undetected. A risk of detection is inherent in anonymous speech. Whatever chilling effect arises from the outing of a Huppenthal, a chilling effect that I submit is minor or non-existent, is outweighed by the value to the public of the outing.
by Mike Masnick
Tue, Jun 24th 2014 12:16pm
from the that's-not-the-story dept
Yes, stupid, pointless and juvenile comments will happen. That's part of the internet. But to focus only on those comments is to ignore two much more important things: (1) the sheer number of folks expressing concern about the big broadband companies messing up the internet and (2) the very large number of thoughtful, intelligent and insightful comments that have been submitted as well. As of right now, the FCC shows somewhere around 125,000 comments, but that hasn't been updated in a while, and we've heard that they may have double that (or more) waiting to be posted. And, yes, when you have ~300,000 comments on a contentious issue, some of them are going to be silly, but that outpouring of opinion suggests that this is a topic that the public is very interested in, even if not everyone is able to express their thoughts in the most professional of ways.
by Tim Cushing
Mon, Jun 23rd 2014 10:05am
Delaware Attorney General Throws Subpoeana At Reddit Over Comment On Photo Of Two People Having Sex Behind A Dumpster
from the your-tax-dollars:-workin'-it dept
Not necessarily a sign of widespread social media surveillance, but you still have to wonder how the state of Delaware's Attorney General's office managed to come across a comment referring to some St. Patrick's Day-related NSFWing, much less pursue one unlucky commenter who made a joke about one of the participants being his "sister."
Here's a link to the photo which kicked off the unlikely chain of events. It depicts two green-clad people, presumably of consenting age, expressing their love in a physical manner. Needless to say, probably, very definitely NSFW.
Redditor un1cornbl00d received notice from Reddit that the Delaware DOJ had served a subpoena demanding the platform turn over his personal information, along with "all posts, responses and their content" related to the original submission. (Found here, with comments now deleted).
*DO NOT NOTIFY CUSTOMER*Well, if you seriously believe an investigation might be "impeded" or "obstructed," you might want to put with more legal weight than a caps lock key behind it. Most court orders don't say "please," and most court orders point out the legal reasons for the demand. This subpoena tries to demand compliance with shouty typing.
PLEASE DO NOT DISCLOSE OR NOTIFY THE USER OF THE ISSUANCE OF THIS SUBPOENA.
DISCLOSURE TO THE USER COULD IMPEDE AN INVESTIGATION OR OBSTRUCT JUSTICE.
Apparently, this is the way things are done at Joe Biden Jr.'s office. Another subpoena sent late last year demanding that Facebook turn over information on the "owner" of a small (~300 likes at the time subpoena was issued) page with an anti-government slant contained similar all-caps demands for keeping everything a secret… which was also ignored.
*SUBSCRIBER IS NOT TO BE NOTIFIED OR MADE AWARE OF THIS INVESTIGATION*Seeing as the subpoena was posted by the page being investigated, Facebook also has little respect for slightly larger letters with no legal weight behind them.
So, why would a "special investigator" at the state DA's office be interested in a tossed-off comment on a photo of two people having sex out in the open? Well, as far as anyone can theorize, whoever's monitoring social media for the Delaware DOJ (or the entities that feed into it) must have thought unic0rnbl00d was the rarest of creatures on the internet: someone who only tells the truth, and if so, was hoping to bust his "sister" (and possibly Joe Random Stranger as well). Quotes from police "investigating" the sex that two (probably inebriated) people momentarily enjoyed confirm that the force was indeed looking to slap these two with some sort of charge. (Link contains photo -- NSFW)
[T]he police are investigating the pair on suspicion of lewd conduct. A Newark Police spokesman said the couple was "engaging in sexual intercourse in public in plain view of numerous passersby."Why the hell the state is so interested in punishing people for consensual acts performed in the past is beyond me, other than that pervasive belief that the word "justice" means no one getting away with anything ever. I would think whatever nearly-nonexistent tarnishing of state pride would pale in comparison to the state now being viewed as overreaching busybodies after sending subpoenas to track down an internet commenter and targeting people engaged in First Amendment activities. The latter subpoena is vastly more concerning, as it shows the state attempting to sniff out people with anti-government sentiments. Sure, the page may contain the word "riot," but the full title of the group is "Peaceful Rioters For Wilmington, Delaware."
Again, these may not be signs of active social media monitoring, but this sort of behavior certainly doesn't reflect well on those in the Delaware law enforcement community. I can only assume the state has run out of real crime or other pressing issues and is now just creating busywork for its special investigators.
by Mike Masnick
Tue, Jun 17th 2014 12:08pm
from the which-we-will-not-follow dept
But, of course, it was only a matter of time until people started trying to stretch the ruling further and further impacting other sites -- including ours. We've already noted how former NSA top lawyer Stewart Baker has asked Google to "forget" all Techdirt posts about him, though he was doing it to highlight the absurdity of the "right to be forgotten" concept (though, I imagine he wouldn't mind if all such posts disappeared).
However, over the weekend, we received our first request to remove comments from Techdirt, with the request referencing Europe's new ruling on the right to be forgotten. Over the years, we've received many, many legal threats in attempts to get us to remove comments, but (to date!) no actual lawsuits, because nearly all the threats are bogus (usually they ignore the protections Section 230 of the CDA provide to Techdirt, but they also tend to have extreme -- and extremely incorrect -- definitions of what kind of content is "illegal"). This particular situation appears to be a bit more complicated, but we're still not removing the comments.
The request references three comments on this story from 2011, which was about a (very bad) ruling by a California state appeals court, that found two advertising firms could be held liable for spamming actions done by their affiliates (and sub-affiliates). We found this problematic for a variety of reasons, but mainly because it totally ignored Section 230, and put the blame on one party for actions done by another. In the comments, someone named "Bill Silverstein" popped up to defend the ruling. In what appears to be something of an aside, he mentions in passing that he, himself, is engaged in some sort of similar litigation against two individuals, David Szpak and Emmanuel Gurtler. To be honest, the details of Silverstein's lawsuit are not at all clear from the comment, but he clearly thinks that this ruling helps his case.
I responded to his comment suggesting that the ruling was still problematic and that the focus should be on going after the people actually responsible for the spamming. Silverstein then responded, disagreeing with me and ranting about spammers -- again mentioning Szpak and Gurtler.
Over the weekend, we received an email from Emmanuel Gurtler demanding that all three comments be deleted, based on what we believe is his own misreading of both the claimed settlement between Gurtler and Silverstein and the new right to be forgotten ruling. Here is the main part of the email we received (leaving all typos in place):
I am contacting you in regards to the comments in the above URL by Bill Silverstein (#6, #31) and Mike Masnick's quote (#26). The comments refer to a lawsuit which has been settled with Mr Silverstein. Part of the settlement offer, the Platiniff (Bill Silverstein) is supposed to remove all information about the lawsuit. Having the fault infromation and false claims listed on your site is causing great deal of reputational problFirst off, we have no way of confirming if the settlement happened or if that's in the settlement if it did. He provides no further information, case name, or anything. As far as I can tell, there is this lawsuit, which the defendants removed from California state courts to the federal court, but which was quickly sent back to the state courts, where it's much trickier to track down the records. And, either way, it shouldn't matter.
"8. Silverstein to Remove Materials from Websites and Refrain from Future Publication. Within ten (10) calendar days of the confirmation that all payments have been completed, Silverstein shall remove from the Websites and all other media under his control and/or ownership, any reference to the Lawsuit, the Dev8 Defendants and/or Affiliated Entities, including but not limited to any personally identifying information regarding the Dev8 Defendants and/or Affiliated Entities. As of the Effective Date, Silverstein agrees not to publish or cause to be published, in any form of media heretofore known and/or subsequently invented, devised, or discovered any reference to the Lawsuit, the Dev8 Defendants and/or Affiliated Entities, including but not limited to any personally identifying information regarding the Dev8 Defendants and/or Affiliated Entities. Silverstein acknowledges that should he violate this Section it shall constitute a material breach of this Agreement. He further acknowledges and agrees that it will be difficult to determine the resulting damages to the Dev8 Defendants and/or Affiliated Entities, and, in addition to any other remedies the Dev8 Defendants and/or Affiliated Entities may have, they shall be entitled to temporary injunctive relief without being required to post a bond and to permanent injunctive relief without the necessity of proving actual damage. The Dev8 Defendants’ and/or Affiliated Entities’ failure to seek any or all remedies with respect to any given breach of this Section does not restrict them from seeking any remedies with respect to any other breach, and shall not constitute a waiver of rights."
Furthermore, as a resident of the European Union and per the above Settlement order, I am asking in reference to "European Data Protection Directive (Directive 95/46EC)" aka Right to be Forgotten, to have the aforementioned comments and/or quoted replies removed from your site.
Second, and more importantly, even if everything about the settlement is entirely accurate, it pretty clearly says that Silverstein needs to remove statements about the case "from the websites and all other media under his control and/or ownership." Last I checked (and, hey, I just checked), Silverstein has no "control and/or ownership" of Techdirt. So that settlement term is entirely meaningless to use. Chances are it was directed more at pages like this one, which Silverstein created, tracking the docket of his own cases. Separately, any settlement between Silverstein and Gurtler is between those two parties. Techdirt and myself were clearly not parties to the lawsuit and are clearly not bound by any settlement terms in the lawsuit. So, uh, no, we have no reason to remove.
Third, moving on to the "right to be forgotten" claim. The recent ruling is quite clear that it applies to "the operator of a search engine" and even distinguishes search engine results from information on web pages that those search engines link to, pointing out that even if the original publication may be legal, it's the search engine (not necessarily the site) that would need to remove the links. Thus, there's nothing in the latest ruling that directly applies to us anyway. Furthermore, the EU directive in question is about "data controllers" for which Techdirt almost certainly does not qualify. Data controllers are organizations that collect data on people and then store it. Here, Silverstein just posted a couple of comments. Quite different. The latest ruling and the directive have nothing to do with us.
Fourth, as an American company based in the US, incorporated and headquartered in California, and with all of our servers within the US, we are not subject to European laws on this issue. This is just an attempt by someone in the EU to try to censor statements made in the US.
Either way, the entire situation is bizarre and silly -- but highlights the kinds of things that plenty of companies are probably now forced to deal with thanks to the ridiculous EU Court of Justice ruling. What's worse is that many smaller websites and companies that probably don't follow or understand these issues carefully are probably scared into taking down content based on similar threats. And, frankly, sending the email makes almost no sense at all for Emmanuel Gurtler. This was on a story from more than three years ago, getting basically no traffic at all. The only comments that reference his name are from Silverstein, and, in our opinion, don't necessarily reflect well on Silverstein, because myself and others argue that his interpretation of the law is suspect and troubling. It's difficult to see how any of that reflects poorly on Gurtler or hurts his reputation.
However, sending a bogus threat in an attempt to silence other people from mentioning his name? That doesn't seem to reflect particularly well on Gurtler.
by Mike Masnick
Tue, Jun 3rd 2014 3:34am
from the coincidence-or-not... dept
We’ve been experiencing technical difficulties with our comment system due to heavy traffic. We’re working to resolve these issues quickly.— The FCC (@FCC) June 2, 2014
We’re still experiencing technical difficulties with our comment system. Thanks for your patience as we work to resolve the issues.— The FCC (@FCC) June 2, 2014
Either way, the irony of the FCC having trouble under heavy loads concerning net neutrality was not lost on many people, who didn't miss the opportunity to tweet some replies mocking the whole net neutrality proposal.
.@FCC can I haz priority access?— Falk Steiner (@flueke) June 2, 2014
@FCC Don't worry. If you pay $8M more to Comcast you might get a better connection. They might even throw in a $4M/m server lease agreement.— Richard Risner (@Kowder) June 2, 2014
@FCC Maybe because you servers are running on the "slow lane" internet? Since when do you read comments that dont include cash bribes?— Mark Rodgers ツ (@KC8GRQ) June 2, 2014
by Mike Masnick
Wed, May 28th 2014 7:39am
from the don't-mess-it-up dept
Somehow, with so much focus on the importance of secondary liability, we happened to miss an absolutely insane ruling that came out of the European Court of Human Rights last fall, in the case of Delfi AS v. Estonia, which basically said that any website that allows comments can be liable for those comments. In fact, it found that even when sites took down comments (automatically!) following complaints, they can still be liable, because they should have blocked those comments from going up in the first place. Bizarrely, the court basically says the site should have known that the article in question might lead to negative reactions, and therefor should have blocked comments:
In addressing this question, the Court first examined the context of the comments. Although the Court acknowledged that the news article itself was balanced and addressed a matter of public interest, it considered that Delfi “could have realised that it might cause negative reactions against the shipping company and its managers”. It also considered that there was “a higher-than-average risk that the negative comments could go beyond the boundaries of acceptable criticism and reach the level of gratuitous insult or hate speech.” Accordingly, the Court concluded that Delfi should have exercised particular caution in order to avoid liability.Even more troubling for those of us who believe in the importance and value of unregistered and anonymous commenting, the court found those features to be particularly problematic:
Next, the Court examined the steps taken by Delfi to deal with readers’ comments. In particular, the Court noted that Delfi had put in place a notice-and-takedown system and an automatic filter based on certain ‘vulgar’ words. The Court concluded that the filter, in particular, was “insufficient for preventing harm being cause to third parties’. Although the notice-and-takedown system was easy to use - it did not require anything more than clicking on a reporting button – and the comments had been removed immediately notice had been received, the comments had been accessible to the public for six weeks.
The Court considered that the applicant company “was in a position to know about an article to be published, to predict the nature of the possible comments prompted by it and, above all, to take technical or manual measures to prevent defamatory statements from being made public”.
By allowing comments to be made by non-registered users, Delfi had assumed a certain responsibility for them. The Court further noted that “the spread of the Internet and the possibility – or for some purposes the danger – that information once made public will remain public and circulate forever, calls for caution”. In the Court’s view, it was a daunting task at the best of times – including for the applicant - to identify and remove defamatory comments. It would be even more onerous for a potentially injured person, “who would be less likely to possess resources for continual monitoring of the Internet”.The reason that we're bringing this up now is because plenty of folks, quite rightly, freaked out about this ruling, and asked the European Court of Human Rights to reconsider. And that's now going to happen in early July. The Financial Times has a long and quite interesting look at the case and related issues, including a discussion at the beginning about the nature of online comments. For many years we've talked up the value of anonymous comments and how wonderful they've been for our community here. We've always taken an exceptionally light touch to moderation, allowing anyone to comment, and just trying to weed out the spam. And it's worked well for us. A ruling like the one above doesn't directly impact us, seeing as we're an American company with all our servers here, but it's immensely troubling in general and could create widespread chilling effects on any site that relies on user generated content. But it goes beyond that:
For Eric Barendt, Goodman Professor of Media Law at University College London from 1990 until 2010, the ruling doesn’t adequately balance freedom of speech against an individual’s right to protect his or her reputation. “I wouldn’t stick my neck out to say the ECtHR’s judgment was ridiculous,” he tells me, “but I know many people who would. How bizarre that this case could be the straw that breaks the camel’s back.”On July 9th, the Court will reconsider its original ruling, and for the sake of free speech online, we hope it reverses its earlier ruling. Between this and the recent right to be forgotten ruling in the EU Court of Justice, Europe is quickly becoming a dangerous free speech nightmare. While these rulings may have the best of intentions, the wider impact of both can do an astounding job in stifling public participation and comment.
The judgment will not only affect whistleblowers, says Aidan Eardley, a London-based barrister specialising in data protection and media-related human rights law. “It’s also bad news for people who want to comment about sensitive personal issues such as domestic abuse, sexual identity, religious persecution, etc.”
As Sarah Laitner, the FT’s communities editor, says: “It’s important to remove any hurdles a reader may face to participation. Some people feel that they are able to comment more freely if they can use a pseudonym.”
by Glyn Moody
Tue, Apr 1st 2014 4:08pm
from the who-are-you-calling-names? dept
One of the defining characteristics of online journalism is the possibility for readers to respond immediately, and to debate with each other in the comments -- something that was much harder and slower in pre-digital days. Generally, that has been regarded as welcome, since it means that authors can engage more easily with their readers, and the latter become active participants rather than simply passive recipients.
However, some research in the field of science journalism suggests that there might be a serious downside to this ability of the readers to express their views freely:
about 2,000 people were asked to read a balanced news report about nanotechnology followed by a group of invented comments. All saw the same report but some read a group of comments that were uncivil, including name-calling. Others saw more civil comments.
Although the research was about science articles, it would be reasonable to assume a similar effect occurs for most kinds of online journalism, with "uncivil" comments leading to skewed perceptions of the matter being discussed. Good thing Techdirt readers never resort to name calling...
"Disturbingly, readers' interpretations of potential risks associated with the technology described in the news article differed significantly depending only on the tone of the manipulated reader comments posted with the story," wrote authors Dominique Brossard and Dietram A. Scheufele.
"In other words, just the tone of the comments . . . can significantly alter how audiences think about the technology itself."
by Karl Bode
Mon, Mar 10th 2014 2:19pm
from the censorship-and-venom-will-surely-fix-everything dept
You might recall that a few years back the Escapist website launched a rather misguided attack on ad blocking technology, banning users in the website's forums for simply mentioning Adblock. The since-deleted thread in question involved a user complaining about a specific ad that seemed to be slowing down his machine's performance, to which responders suggested that he might want to try AdBlock. Those users, who didn't even state that they used Adblock themselves, found themselves completely banned from the forums. After some Internet-wide hysteria over the ham-fisted nature of that decision, Escapist backed off the policy, unbanned the users, and then just tried to shame all of them into feeling guilty.
Fast forward a few years, and it's not particularly clear that the website has learned much of anything from the experience. In a video rant by The Escapist's reviews editor Jim Sterling, Sterling acknowledges that he doesn't think using Adblock is technically stealing, and he blames bad advertisers and bad advertising for a lot of the problem. Still, he apparently believes that using Adbblock is very, very naughty, you should feel horrible, and if you want to get back on the right side of morality you should send him toys (he provides a handy link to his Amazon wishlist). But it's the Escapist forums where things continue to be, well, weird.
Users still seem to get banned if they so much as mention the word Adblock outside of threads specifically designed to discuss Adblock. Even in the thread specifically designed to discuss Adblock and Sterling's video about Adblock, the thread is pockmarked by moderation where users are given repeated slaps on the wrist for simply discussing the website's ad choices. Unsurprisingly, users then get confused about what the hell they can and can't talk about:
"Can mods give clarification on how we're to discuss this? Normally adblock threads are instantly closed with participants warned and if there's to even be a comments section for this video they'll have to be some sort of exception."On page six, Escapist staff member "Kross" tries to explain the website's thinking on banning the very mention of an incredibly common Internet tool:
"...in order to save our very overworked moderators from having to deal with constant sophistry on what does or does not constitute discussion, we've added the line that says don't talk about it at all. Very little of use was lost (people on a non-advertising forum that isn't read by anyone who makes such decisions can no longer talk about a topic that only causes more work for moderators), but threads like this can open the discussion in a more controlled manner."I've moderated a significantly larger Internet forum (DSLReports.com) driven almost solely by ads for almost fifteen years now. I can't even imagine the epic shitstorm we would face if I started blaming our users for failures in our business model, then started banning everyone who talked about a common technology I just happened to dislike. I do know such a position would be an utterly ingenious way to drive our userbase away. Kross proceeds to explain to users that life as an Internet website is hard, effectively admitting that massive annoying ads tend to show up more on the website because they pay so much:
"AS FAR AS OBNOXIOUS ADS are concerned, they come from two directions. One is from an advertiser saying "hey we know this is obnoxious, but we'll pay you SEVERAL TIMES MORE per view for this because it is so obnoxious. The other is from "filler ads" that bring in a whole network. When we can't run targeted ads (due to nobody wanting to buy that space or not being selected for the ad lottery that month and getting no real ads) we run filler ads, which are a network that we tell "give us X categories of ads". These networks allow us to retro-actively block certain ads, but we mostly rely on them to block "bad" ads from getting through."Obviously it's the Escapist's forum and it's certainly their prerogative to do anything they see fit, including banning the discussion of waffles, aardvarks, acrylic painting and recombination gene technology. Still, I don't see the logic in being this adversarial with your userbase, then expecting it to help drive up site revenues when you're the one fracturing and annoying the community with horrible ad choices and bans (hyperbole + blame + censorship surely = profit!). If it's your obnoxious ad choices that are driving users to Adblock in the first place, then fix your obnoxious ad choices. That's not on users, it's on you. Don't beat your users about the head and face with censorship and public shaming because you can't adapt to a new market reality you just happen to dislike.
by Tim Cushing
Mon, Mar 10th 2014 11:13am
from the not-all-that-'anonymous'-once-you-start-looking dept
Anonymous commenters are often held up as examples of the worst aspects of the internet. It's an enabler of abhorrent behavior, as the lack of identification allows people to make statements without suffering consequences. Of course, this isn't the only "benefit" of anonymity, but it's the one that gets the most press, so to speak.
A new website has just been ordered to turn over information on an anonymous commenter who's currently the target of a defamation lawsuit.
A Philadelphia judge has ordered the owners of Philly.com - who also own The Inquirer and the Philadelphia Daily News - to disclose the identity of a person who posted a comment online.Philly.com apparently has more than just an IP address on hand. (Or just did a minimum amount of research -- more on that below.) The report notes that Philly.com contacted the anonymous poster to make sure "he or she got notice of the lawsuit and hired a lawyer." The anonymous poster (screen name: "fbpdplt") has, so far, maintained his/her anonymity during the legal proceedings and is being represented by Philip L. Blackman, who claims the specified comment isn't "defamation per se."
The ruling came in a defamation suit filed by John J. Dougherty, the powerful head of Local 98 of the International Brotherhood of Electrical Workers.
In October 2012, Dougherty sued over a comment posted two months earlier on a Daily News blog that described a public feud involving Dougherty. The comment identified Dougherty by his well-known nickname, "Johnny Doc," and called him "the pedophile."
Dougherty sued the anonymous poster, and his lawyers subpoenaed Philadelphia Media Network, Philly.com's parent company, to supply the person's identity.
As you'll note, Philly.com made contact with the anonymous commenter, something the plaintiff should have done. A "good faith effort" by the party bringing the suit is supposedly required according to the Dendrite rules, (which Pennsylvania courts have adopted in modified form) but as I detail below, it looks as if little to no effort was made by Dougherty or his legal team to track down the person behind the screen name "fbpdplt." Dougherty did at least specify which comment ("the pedophile") was actionable and presumably presented some evidence to the contrary, but it appears the court made no real attempt to balance the commenter's First Amendment rights versus the plaintiff's complaint before deciding unmasking was the only way to handle this.
Philip Blackman has pointed this out, claiming the court's actions threaten his client's free speech. Defamation isn't protected by the First Amendment, but whether the comment actually is defamatory still hasn't been decided. On the other side of the legal fence, Joe Pedraza, attorney for John Dougherty, feels this is a forgone conclusion.
In the Dougherty case, the union leader's lawyers contended that he had a defamation claim likely to succeed at trial but no way of communicating with or identifying the person being sued.Right or wrong, Philly.com did at least put up a fight. It turned down Dougherty's subpoena, stating it would only reveal the commenter's information with a court order. The order itself is fairly expansive, not only asking for identifying info, but also for all comments posted by "fbpdplt" from August 2012 thru January 2014. (Apparently, only one comment is currently being referred to as defamatory.)
But you have to wonder why any of this is necessary. Did anyone on Dougherty's legal team even bother searching around for the person behind the "nonsense" screen name "fbpdplt?"
The screen name isn't just a nonsensical jumble of letters. The keys are too far apart to make it a simple "mash keyboard; get screen name" effort. Searching those characters brings up this profile over at conservative website The Blaze.
As you can see, fbpdplt's profile uses a fireman's hat, something the screen name hints at. fbpdplt also left this comment reviewing the Philadelphia Fire Department, which seems to indicate he's an insider [the comment is only visible in the text-only archive]:
under a lot of strainThe same screen name shows up at Sailnet.com, a sailing community forum, which contains a profile listing fbpdplt's real name and address. Searching for that name brings up this profile at Boat Talent, which contains this useful bit of biographical information:
They have been doing more with less for years. Lip service from politicians and no support from IAFF or the so called union brotherhood…
Former Phila Fireboat PilotFire Boat [PhilaDelphia??] PiLoT = fbpdplt
This would appear to be the post where fbpdplt called John Dougherty a "pedophile." (The date on it is August 10,2012, matching up with Philly.com's narrative -- contacted in October 2012 about a post from "two months earlier".) There are currently no comments on the post. But there was at one time. Searching "fbpdplt johnny doc" brings up this post on the first page, meaning that at some point, the comment was there to be cataloged by Google. The Wayback Machine is no help, suggesting Philly.com has had it removed from there as well. Adjacent posts from the same month are archived, meaning there's no sitewide block on the Internet Archive's crawler.
Using site specific searches for "fbpdplt" only brings up a short list of comments on various Philly entities and services at Philly.com (and no hits at all at its other sites, Inquirer.com and phillydailynews.com), but no comments on news articles or blog posts. The only comments showing up in search results are hidden from readers, accessible only through archived, text-only versions.
So, it would appear that Philly.com scrubbed its site of fbpdplt's presence after being notified of his allegedly defamatory comment. Not exactly innocuous behavior. The question is why it would do this. It's not a named party in the lawsuit and Section 230 protects it from being held accountable for third-party content. It looks, sadly, like a panicked move to clean up its image in the wake of being served a subpoena.
Seeing an anonymous commenter go down for posting possibly defamatory comments usually prompts cheers from those who consider online anonymity to be only the tool of trolls and jackasses. But an attack on anonymity also threatens those who have good reason to withhold their identity -- or just feel more comfortable not making their personal info available for every commenting system that comes knocking. It also pushes site owners to move towards requiring Facebook or Twitter connections for all commenters.
Beyond all that, this appears to be a very sloppy case. The plaintiff's legal team apparently made only a minimum of effort made to uncover the anonymous (but not really) commenter before deciding to pursue subpoenas and court orders. Philly.com's comment scrubbing efforts were not only unnecessary, but give the appearance of covering up evidence. John Dougherty has now been provided a name, but it's up to his legal rep to prove the comment was defamatory. Proving damages will be even tougher, unless Dougherty's team is willing to advance the notion that an anonymous online commenter is capable of influencing the opinion of a great many Philly.com readers, which seems unlikely to say the least.
[Update: Paul Alan Levy of Public Citizen (which has appeared in these pages more than once, most recently for suing on behalf of KlearGear's victim, Jen Palmer) has put together a post at the Public Citizen blog detailing the questionable assertions made in this post. Levy was kind enough to ask for my reasoning behind some of the claims I made and took that into account when composing his response. (He was also kind enough to not name me in his post, but I'm outing myself.)
As I told him, some of my assertions were related to my misreading of a key aspect of the case. I thought the defendant hadn't been notified until the court ordered Philly.com to reveal the commenter's identity. In fact, the commenter had been notified nearly a year ago, when Philly.com was first hit with the subpoena. That misreading led to me questioning the court's application of the Dendrite rules and, of course, that misguided thought also bore its own weight on the remainder of the post.
Levy's post rightly asserts that it's very dangerous (and irresponsible) to draw too many conclusions from a dearth of information, as I did here. He also warns against automatically assuming the demand to strip anonymity is also an attack on free speech. Clearly defamatory comments/libel per se aren't protected by any stretch of the First Amendment and free speech defenders need to steer clear of presenting a "sky is falling" scenario when the facts available don't actually suggest that.
Levy's entire post is worth reading, whether you feel I'm a worthwhile contributor or not. Either way, you'll take something away from it. I know I did.]