Sunday, December 7, 2008

How Anonymous Are You?

Posted By on Sun, Dec 7, 2008 at 10:35 PM

There was some talk over at Heraldo's the other day about Internet anonymity and the law. (Can't find the link, sorry.) If I remember correctly, the nut of it was: Under what circumstances can a court force out the identity of an anonymous Internet blogger/commenter? Heraldo's answer was that anonymous blogging has been ruled to be free speech, protected by the First Amendment. (UPDATE: Here we are.)

That's true as far, as it goes. But it doesn't go far enough. The First Amendment prevents the government from muzzling your speech. It doesn't immunize you against the consequences of that speech. A civil lawsuit for libel or defamation could, in fact, move a court to demand identifying information from an ISP and/or a Web service like Wordpress. In practice, of course, such a suit would be costly and time-consuming. But it's not impossible.

Last January I was lucky enough to hear First Amendment attorney Thomas Burke, of the San Francisco firm Davis Wright Tremaine, address this issue at an industry convention. My big takeaway from Burke's talk was that due to a quirk in the law, newspaper Web sites are uniquely immune when it comes to libelous and/or defamatory user-generated content.

As the law currently stands, Web site owners cannot be held liable for content that someone else has posted to the site. That goes for Yahoo, Heraldo, the Journal -- everyone. But unlike Yahoo -- and, I believe, unlike pure new-media outlets such as blogs -- newspapers can use shield laws to fight subpoenas demanding identifying information about its site's users.

That immunity is being challenged all over -- with little success, so far -- according to a recent article Thomas Burke wrote for the Association of Alternative Newsweeklies, which the author and the association have given us permission to reprint here. The article is written for newspaper people, but just about anyone interested in these issues will find something to ponder therein.

And as a special bonus, Burke has offered to take questions. This is your chance to get some free guidance from a very smart attorney at the forefront of this area of law. Anonymously, no less!

Handling Subpoenas Seeking The Identity of Anonymous Bloggers

By Thomas R. Burke

A new breed of subpoenas is hitting newsrooms these days – subpoenas seeking the identity of anonymous bloggers who post comments on news websites. Though handling subpoenas is nothing new for most publishers, this particular subpoena trend raises unique legal issues and should prompt newsrooms to carefully consider the circumstances in which they will fight to protect information.

This summer in Oregon, Willamette Weekly and the Portland Mercury successfully fought subpoenas seeking to compel them to identify the authors of some anonymous web blog comments about a candidate for the mayor of Portland. An anonymous reader calling himself "Ronald" posted an allegedly defamatory comment about one of the candidates. The publishers argued that the information sought – the e-mail addresses and IP address of the blog comment posters – was protected by Oregon’s Media Shield Law. Analyzing the situation, a Clackamas County Circuit Court Judge observed that if the anonymous poster’s comments had been "totally unrelated to the blog post," then an argument could be made that the publishers did not receive the information "in the course of gathering, receiving, or possessing information" for public consumption. However, because Oregon’s shield law is broadly written and "is intended to protect a broad range of media activity, not simply news gathering" the Court denied access to the information.

This Fall, a county grand jury hearing evidence in a murder case in Illinois issued a subpoena to The Alton Telegraph, asking the newspaper to produce "any records leading to the full identity, including name, address and IP address" of bloggers who "left messages and comments" on the newspaper’s web site, identifying themselves as: john3418, purplebutterfly, mrssully, estyle and pnbcme." Moving to quash the subpoena using the Illinois shield law, the newspaper argued that in the "digital age a newspaper or reporter receiving information in this fashion is no different from anonymous tips provided to newspaper reporters telephonically or in written form" the newspaper argues. The Telegraph also insisted that law enforcement had not "exhausted all other potential avenues for the information" before issuing the subpoena arguing that subpoenas to the media should come only as a "last resort." (As of this writing, there has been no final ruling on this legal challenge.)

A criminal defense attorney recently issued subpoenas to The Fresno Bee and local television stations when he suspected that one or more members of the jury in a murder trial had been reading or watching news accounts while on jury and blogging about their experiences. The subpoenas sought to disclose the names of the people who had read the stories or submitted blog comments. The subpoenas were successfully quashed.

Earlier this year in California, in Krinsky v. Doe 6, the Sixth District Court of Appeal, recognized the "constitutional right to publish anonymously is a longstanding tradition" while quashing a subpoena brought by a Florida corporation that hoped to identity 10 posters who wrote "scathing verbal attacks" about the company on a Yahoo! financial message board. Applying the legal test that is emerging from other courts that have addressed this issue, the court held that the potential plaintiff in this situation must first establish a "prima facie" case of defamation in order to effectively balance the First Amendment right to speak anonymously against a plaintiff’s interest in learning who allegedly defamed them.

Collectively these situations highlight the reality that reader comments and postings to news websites are fertile sources of information and consequently, exponentially stronger magnets for subpoenas and litigation. Today, readers can still submit letters to the editor and reporters still cultivate confidential news sources, but these traditional methods of interacting with a newsroom have been supplemented by features that invite readers (who may or may not be regular readers or paid subscribers) to use multiple ways to interact with other readers, post comments, photographs, audio and video. Readers now leave their digital footprints – their IP addresses, email addresses, search queries – and other data that can be mined – and subpoenaed -- to learn valuable information about their interests and what they are reading and writing.

The fundamental question is what information should a publisher protect? Was the reader promised confidentiality or did they just assume this protection? What if a blogger makes specific violent threats -- do you protect their identity? By voluntarily turning over data to law enforcement will readers will be concerned about the newspaper turning over their information? While answers to these questions are being sorted out, many web sites protect themselves by including language in their terms of use that gives them license to decide such issues on a case by case basis: "Personal information may be disclosed to legal authorities if we believe in good faith that such action is necessary to comply with the law or to protect the personal safety or property of our users or the public."

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Hank Sims

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