Keeping a list of who you are and what you say...

My apologies, in advance, for bringing up a subject some might find unrelated to this blog. I think it’s relevant because, I believe, this bill applies to both of us. According to this bill, I would be considered a "Information content provider" because I am responsible for the creation or development of information provided through the Internet. It applies to you because I prefer to allow you the right to say what you think, without having to identify yourself by name and address before you speak.

This bill is publishing it in its entirety below. In short, this New Jersey bill would “require an operator” (such as myself,) “to establish, maintain and enforce a policy requiring an information content provider” (that’s you, if you post anything) “who posts messages on a public forum website” (such as a blog) “either to be identified by legal name and address or to register a legal name and address with the operator or provider prior to posting messages on a public forum website.” Now, this applies to everyone, no matter who you are, or what you post. Why? Because you might post something that someone else believes is false or libelous:

“An operator of an interactive computer service or an Internet service provider” (me again) “shall establish and maintain reasonable procedures to enable any person [emphasis added] to request and obtain disclosure of the legal name and address of an information content provider (you) who posts false or defamatory information about the person on a public forum website.

I have many problems with a law like this, and I don’t think this will be an isolated bill in the USA:

First, (paraphrased by Giorgio Bovenzi ) by according to the Communications Assistance for Law Enforcement Act of 1994 (CALEA)⁶⁸ a subpoena can NOW be used to obtain the name, address, telephone toll billing records and length of service of a subscriber or customer, and the types of services the subscriber or customer utilized when the court finds, based on law enforcement's showing of facts, that there are specific and articulable grounds to believe that the records are relevant and material to an ongoing criminal investigation.

I would argue that anyone claiming defamation or libel first demonstrate a crime has been committed, before we violate someone’s First Amendment rights. In fact, CALEA expands privacy and security protection for telecommunications carriers, and explicitly recognizes the right of subscribers and customers to use encryption. What’s the point of encryption if anyone can get your name just for the asking?

This proposed law goes further. It argues that the legal responsibility of website owners, etc. to make sure they secure the names of people wanting to post on their sites BEFORE they post (and I assume, keep track of who said what.)

If this bill is enacted, Alexander Hamilton, James Madison and John Jay, (who would likely be publishing the Federalist Papers online today) would not be able to use the pseudonym "Publius” unless they first identified themselves, in case what they say could be possibly construed as false or libelous. How likely to you think they’d be to publish that document, under these conditions?

There is a very good reason why our constitution has a love affair with anonymity. According to Giorgio Bovenzi:

“Anonymity is an important element of the right of privacy and the related constitutional right to peaceably assemble.³⁶ Anonymous authorship can sometimes achieve more constructive purposes than attributed publication.”

Also, what is considered “libelous” is often in the ‘eyes of the beholder,’ and the possibility of law suits themselves can have a dampening effect on free speech.

Bovenzi continues by comparing the Supreme Court’s protection of anonymous pamphlets with webpages:

“In Talley v. California,³⁷ the Supreme Court held void on its face a city ordinance restricting distribution of "any hand-bill, in any place under any circumstances, which does not have printed on the cover . . . the name and address of the . . . person who printed, wrote, compiled or manufactured the same . . . [or] caused the same to be distributed."³⁸ Justice Black wrote for the Court that "identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance."³⁹ Recently, in McIntyre v. Ohio Elections Commission,⁴⁰ the Supreme Court struck down a similar ban as conflicting with the "honorable tradition" of anonymous pamphleteering in U.S. history and the need to prevent retaliation against people who want to disseminate controversial views.⁴¹ Thus, it can be said that the protection of anonymity is rooted in both freedom of speech and the right to privacy.

In NAACP v. State of Alabama,⁴² the Court commented on the issue of the privacy of a group's records, noting that "[i]nviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs."⁴³”

I would go so far as to argue that the very democratic nature of the internet allows for the “accused” who has been wronged by libel to respond with the truth quickly and inexpensively. I support the worst paranoid ramblings of a public listserv. Like advertising, any educated web user has to take “with a grain of salt” much of what is written about another person, and would be well advised to read both the pros and cons of any allegations against another.

You don’t live in New Jersey, you say? Nowhere does this bill limit its scope to authors who live or publish in New Jersey. I suppose it is possible for someone in California to be sued by a “proposed” libel of someone who, unbeknownst to them, lived in New Jersey. If this bill passes, we may all need to be reminded to “Say anything you want about anyone but the residents of New Jersey.”

However, I want to point out some issues that it deals with.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in this act:

"Information content provider" means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

"Interactive computer service" means any information system, service, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides service to the Internet.

"Internet" means the international computer network of both federal and non-federal interoperable packet switched data networks.

"Internet service provider" or "provider" means any person, business or organization qualified to do business in this State that provides individuals, corporations, or other entities with the ability to connect to the Internet through equipment that is located in this State.

"Operator" means any person, business or organization qualified to do business in this State that operates an interactive computer service.

2. The operator of any interactive computer service or an Internet service provider shall establish, maintain and enforce a policy to require any information content provider who posts written messages on a public forum website either to be identified by a legal name and address, or to register a legal name and address with the operator of the interactive computer service or the Internet service provider through which the information content provider gains access to the interactive computer service or Internet, as appropriate.

3. An operator of an interactive computer service or an Internet service provider shall establish and maintain reasonable procedures to enable any person to request and obtain disclosure of the legal name and address of an information content provider who posts false or defamatory information about the person on a public forum website.

4. Any person who is damaged by false or defamatory written messages that originate from an information content provider who posts such messages on a public forum website may file suit in Superior Court against an operator or provider that fails to establish, maintain and enforce the policy required pursuant to section 2 of P.L. , c. (C.) (pending before the Legislature as this bill), and may recover compensatory and punitive damages and the cost of the suit, including a reasonable attorney's fee, cost of investigation and litigation from such operator or provider.

5. This act shall take effect on the 90th day following enactment.

STATEMENT

This bill would require an operator of any interactive computer service or an Internet service provider to establish, maintain and enforce a policy requiring an information content provider who posts messages on a public forum website either to be identified by legal name and address or to register a legal name and address with the operator or provider prior to posting messages on a public forum website.

The bill requires an operator of an interactive computer service or an Internet service provider to establish and maintain reasonable procedures to enable any person to request and obtain disclosure of the legal name and address of an information content provider who posts false or defamatory information about the person on a public forum website.

In addition, the bill makes any operator or Internet service provider liable for compensatory and punitive damages as well as costs of a law suit filed by a person damaged by the posting of such messages if the operator or Internet service provider fails to establish, maintain and enforce the policy required by section 2 of the bill.

For Corresponding footnotes see: http://www.law.berkeley.edu/journals/btlj/articles/vol11/Bovenzi/html/note.html#N315