The Unmasking Option

This post is part of an eleven-part series entitled Cyber Civil Rights.  Click here for a PDF version of the entire Cyber Civil Rights series.  Click here for a PDF version of this post.

By James Grimmelmann†

I’d like to tell a story about online harassment and extract a surprising proposal from it.  I’m going to argue that we should consider selectively unmasking anonymous online speakers, not as an aid to litigation, but as a substitute for it.  Identifying harassers can be an effective way of holding them accountable, while causing less of a chilling effect on socially valuable speech than liability would.

In the end, I’ll conclude that this proposal is unworkable due to the danger of pretextual uses of an unmasking remedy by plaintiffs looking to engage in extra-legal retaliation.  Even this conclusion, though, has something valuable to teach us about the uses and abuses of online anonymity.  Decoupling anonymity from liability enables us to understand more clearly what’s at stake with each.

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Accountability for Online Hate Speech: What Are The Lessons From “Unmasking” Laws?

This post is part of an eleven-part series entitled Cyber Civil Rights.  Click here for a PDF version of the entire Cyber Civil Rights series.  Click here for a PDF version of this post.

By Christopher Wolf

Introduction

I am delighted to be part of this Symposium and honored to be included among such distinguished fellow presenters.

This topic ties together so many of my curricular and extracurricular interests, so I am especially grateful for the opportunity to speak with you.  In my “day job,” I am a partner at the law firm of Hogan & Hartson, focusing on privacy law. Almost thirty years ago, I started practicing law as a generalist litigator.  For many of those thirty years, I thought that for sure my tombstone would read “He died with his options open,” because my practice alternately covered a wide array of commercial litigation issues, from antitrust to zoning. Fortunately for me, I had the opportunity to handle some of the earliest Internet law cases starting in the early 1990’s, and that led to my concentration on privacy law since around 1998.  Related to that is my current role as co-chair of a think tank on contemporary privacy policy issues, the Future of Privacy Forum.

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Online Social Networks and Global Online Privacy

This post is part of an eleven-part series entitled Cyber Civil Rights.  Click here for a PDF version of the entire Cyber Civil Rights series.  Click here for a PDF version of this post.

By Jacqueline D. Lipton, Ph.D.†

Introduction

Web 2.0 technologies pose new challenges for the legal system, distinct from those that arose in the early days of the Internet.  Web 2.0 is characterized by participatory interactive technologies such as online social networks (such as Facebook and MySpace), massive online multiplayer games (such as Second Life and World of Warcraft) and wikis (such as Wikipedia and Wikinews).  The participatory nature of these platforms makes it more difficult to classify online participants as either information content providers or consumers—classifications that were fairly typical of earlier technologies.  Content providers were generally held liable if they infringed laws relating to copyrights, trademarks, occasionally patents, defamation, and privacy rights. Consumers generally avoided such liability.  However, as consumers increasingly became content providers themselves—on early file sharing platforms such as Napster, for example—the lines between production, distribution and consumption of online information became blurred.

This aggregation of online roles is readily apparent in the context of online social networks (OSNs) such as Facebook and MySpace.  While the OSN provider is the entity that makes available the platform for online interaction, the members take on the various roles of content creator, distributor, and consumer.  Members are also the subjects of much online content shared on OSNs: for example, a Facebook member (or even a non-member) may easily become the subject of gossip and pictures created and distributed by OSN members over the network.  Because of the wide scale sharing of information about private individuals on OSNs, commentators have begun to raise concerns about privacy in this context.[1]  Individual privacy rights, difficult to protect at the best of times, are easily reduced to almost nothing in the context of OSN interactions.

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Perspectives on Privacy and Online Harassment: A Comment on Lipton, Grimmelmann, and Wolf

This post is part of an eleven-part series entitled Cyber Civil Rights.  Click here for a PDF version of the entire Cyber Civil Rights series.  Click here for a PDF version of this post.

By John T. Soma†

Introduction

James Grimmelmann’s observations on the “Skank” incident in New York City highlight the developing computer and telecommunications technologies as they impact the traditional harassment legal area.  The Skank affair resulted in the victim persuading the court to unmask the alleged harasser/libeler.  As noted by Chris Wolf, the end result was the court followed the doctrines previously developed in Dendrite Int’l v. John Doe No. 3.[1]  The Dendrite decision is a classic balancing tests of between privacy, First Amendment anonymous speech rights, and rights of an alleged victim.  In the Skank affair, the court applied this classic balancing test in an entirely modern context.

This brief comment offers three perspectives on the current cyber civil rights debates between online harassment, privacy, First Amendment rights, and civil liability.  Although the cyber civil rights agenda might appear to present novel questions of law and policy, this comment suggests we have much to gain from three perspectives.  First, we can learn much by examining the historical tension between free speech and privacy. Second, we should look to other instances where courts were confronted with “new” technologies. And third, we can learn from other countries’ approach to privacy and harassment online.

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