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The Courts Government News Your Rights Online

Appeals Court Sets Guidelines for Penetrating Anonymity Online 82

Posted by michael from the breakin-the-law-breakin-the-law dept.
stuccoguy writes: "The New Jersey Appeals Court issued an opinion protecting the anonymity of an Internet poster. In a victory for privacy online, the court established a four step series of guidelines for courts and ISPs faced with requests to compromise the identity of anonymous posters." The lawyers Newsbytes contacted seem to think it likely that this procedure will be taken up by other courts.
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Appeals Court Sets Guidelines for Penetrating Anonymity Online More

Appeals Court Sets Guidelines for Penetrating Anonymity Online

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  • Re:"Right" to anonymity? (Score:1)

    by Anonymous Coward
    I think that you misunderstand the Constitution. The foundation of Government for the US is that ALL rights and powers belong to the people. The Constitution enumerates SOME rights and powers that the people place in the hands of the Government. Some dissenters to the Bill of Rights actually predicted that people would make the same mistake that you have - that only the rights specifically mentioned in the BoR are what the people have. That is not true. Congress can only make laws as permitted to it by the Constituion - and to help ensure that people remember that all of their rights are protected the BoR included admendments 9 and 10. Oh and even with #9 and #10, the first admendment protects anonymous speech because Congress can make NO law abridging the freedom of speech. I don't see an exception being made for anonymous speech.

  • Re:Real source of Dendrite's annoyance (Score:1)

    by Anonymous Coward
    I think you're the one that's confused. Did he claim that the constitution protected anonymity? No, he clearly said that the C. protects speech, including anonymous speech from government action.

    If you think anything in the Bill of Rights applies to anything other than restricting government action, you need to go back to grade school. The issue here wasn't that a private company was figuring out identities all by themself, they were using the government to do it for them.

  • Re:Take that Scientologists (Score:2)

    by Anonymous Coward
    OT III:

    You're all possessed by the spirits of clams, who are actually space aliens. Those aliens make you unhappy. If you concentrate long enough on a tree, you can make the tree move. If you concentrate long enough on your inner clam, you can make it leave you body, which makes you immortal.

    If you concentrate long enough on the clams inside the body of a sick girl whom you have locked in a hotel room in Florida, you can force them out of her without medical attention, even though she's laying there begging you to take her to a hospital, right up to the point where she dies.

    You owe me $45,000.

    --
    L5 Scientologist AC
  • Its probably because they thing that there is some chance that they are doing to to pepetrate a fraud. If your anon post on a bbs causes a stock to move up or down it may be wire fraud. They kind of take that stuff seriously.

  • OK, so there are two types of free speech:

    • anonymous
    • nonymous
    . If you require nonymous speech, you abridge anonymous speech, and as the 1st ammendment points out, "Congress shall make no law ... abridging the freedom of speech." So you can't prevent anonymous speech. Yes, the Supreme Court can be wrong.
  • I wonder just how many poeple remember it.
  • At some point, don't anonymous posts amount to little more than electronic graphiti? Should W be able to go after whoever is plastering those charicture (sp?) posters of him? Just because these posts are electronic does not make them any more tracable to the author than something written on a bathroom stall. Could this ever be more than an exercise in futility?
  • You DO NOT have the right to go out and PURPOSEFULLY utter untruths with the intent of hurting someone else. As long as you are uttering things that can be reasonably assumed to be truth and you are not intentionally trying to hurt someone you have A LOT OF LEEWAY. In Great Britain the exact opposite is true and it is up to you to PROVE you DID NOT HURT the individual.

  • Real source of Dendrite's annoyance (Score:5)

    by Todd Knarr ( 15451 ) on Thursday July 12, 2001 @09:34AM (#89468) Homepage

    I think the real reason Dendrite and other companies don't like this ruling is that it turns on defamation. The judge basically said that they've got to show the statements were defamatory before they can use defamation as grounds to discover a defendant's identity. Since the companies aren't interested in proving defamation, just shutting someone up, they don't like this requirement. Tough for them in my book.

    As for the ones saying the Constitution doesn't protect anonymous speech, all I can say is "Wrong!". Nowhere in the First Amendment does it require anyone to prove their true identity before they speak. If you want to add that requirement, you know the procedure for amending the Constitution. If you can show the statements made were defamatory or otherwise illegal then the First Amendment no longer applies and you can require proof of identity, but there's this other little provision in the Constitution that says you can't presume someone's guilty until proven otherwise.

  • Since when does the first amendment give the right to anonymous speech?

    One could just as easily argue that the first amendment gives the right to 'speech', and that it's status as anonymous or non-anonymous is irrelevent. If you are going to require that the 1st amendment specify "anonymous", then you are at odds with other amendments, like the 9th:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Of course, our (US, that is) legal system does distinguish between different types of speech, but there is no a priori reason as to why anonymity need be one of those considerations. All this court is saying, is that if you want to sue someone, for say, libel, you must first establish that you have a case (prima facie) before you can find out their identity. This protects anonymous posters from harrasment, since if the potential plantiff doesn't have a case, he/she has no legitimate reason to determine the poster's identity.

    -Wintermute
  • As for the ones saying the Constitution doesn't protect anonymous speech, all I can say is "Wrong!". Nowhere in the First Amendment does it require anyone to prove their true identity before they speak.

    You are somewhat confused. The Constitution does protect anonymous speech and, of course, revealing one's true identity before speaking is not required. But that's not the point. The Constitution protects speech, even anonymous, but it does not protect anonymity of the speaker.

    What it means is that anyone can try to discover the identity of the speaker, and if they succeed by legal means, the speaker cannot do anything about it -- he cannot go to court and claim that his [non-existent] right to anonymity was violated.

    Kaa
  • Its called defamation, which is illigal. If you don't like it go somewhere else :)

    And your daddy has a prothedic penis.
    See now thats defamation. Though I doupt I harmed you any. But if I told he world that Bill Gates has sex with small children and meant it and convenced other people of this. Then its defamation *assuming of course I was lying, which I may have not been*

  • Not in all cases!! (Score:4)

    by Masker ( 25119 ) on Thursday July 12, 2001 @09:32AM (#89472)
    This doesn't protect anonymity in all cases. If the court decides that there is harm done by the anonymous post including: "breach of employment or confidentiality agreements; breach of a fiduciary duty; misappropriation of trade secrets; interference with a prospective business advantage; defamation; and other causes of action", they may grant the motion that reveals the anonymous posters identity.

    They go on to give guidelines for when that motion should be granted:
    We hold that when such an application is made, the trial court should first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application. These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP's pertinent message board.


    The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.

    The complaint and all information provided to the court should be carefully reviewed to determine whether plaintiff has set forth a prima facie cause of action against the fictitiously-named anonymous defendants.


    So it appears that a company cannot simply request your identity for any old reason, but if they can show that your post has harmed them materially, your identity can probably be gotten. This doesn't seem to afford a defendant as much protection as being an anonymous source for a newspaper article or other media source. It seems to me that this doesn't go far enough at all, but is more like a decent first step.

  • Re:No, no. (Score:3)

    by alkali ( 28338 ) on Thursday July 12, 2001 @11:16AM (#89473)
    It's true that some precedents are binding and others non-binding. Binding precedents are those rendered by a higher court; for example, all U.S. District Courts have to follow U.S. Supreme Court opinions. But any case can be a non-binding precedent: if you were a Michigan judge ruling on an issue new to Michigan courts but which had been ruled on identically by Ohio, Wisconsin and Illinois courts, you'd very likely rule in accordance with those other courts, even though those opinions aren't binding. There is "trickling sideways" in this sense.

    (Note that it is a quirk of the American federal system that state supreme courts are final authority on state law, not federal courts. Suppose the U.S. Supreme Court decides a case on the basis of some issue of New York law never before decided by a New York state court. That precedent wouldn't be binding on a small claims court judge in New York who confronted some later case raising the same issue! For this and other reasons, the U.S. Supreme Court rarely takes appeals that have any chance of being decided under state law.)

  • If there is no clear rulling from the current state or statutes to look at then other states are considered. This is how English Common Law works. Basicly the whole area could be considered a vacuum for all the states. Onces one state decides something, it can give guidence and precidence to another state's judge to do the same thing. They'll still have to basis it on the State's law, but it can lead them towards a correct, consistant direction.
  • Amen. Thanks for mentioning the Ninth, more people should think about it IMO. I almost feel like putting out a Ninth Amendment t-shirt, but I can't think of anything quite clever enough to go with just the text of an amendment which so neatly fits in the Bill of Rights that even those opposed to reading it with its plain meaning are also vehemently opposed to discussing repeal...
    JMR

    speaking for myself, as always.

  • Re:Hmmmm (Score:2)

    by rjh ( 40933 )
    Horse hockey.

    Sometime, take a look at Revolutionary War pamphlets and newsletters published by the Revolutionaries. The majority of them were published anonymously, out of fear the government would come after the authors and their families.

    Anonymous free speech has a long and distinguished history in the United States, predating even the Constitution itself. Every Federal judge in the country knows this, and I doubt that a single one of them would want to remove the right to anonymous free speech, given its important role in our history.
  • See McIntyre v. Ohio Elections Commission:
    http://supct.law.cornell.edu/supct/html/93-986.Z O. html

  • I agree, but just because anonymity assists free speech, it isn't a fundamental right, and is certainly not in the first amendment. You have the right to shout out whatever you want in the street, but you also must face the consequences of your speech. Anonymity removes the consequesces of speech, but isn't connected to the actual right of speech.

  • "Right" to anonymity? (Score:3)

    by jyuter ( 48936 ) <jyuter&gmail,com> on Thursday July 12, 2001 @09:26AM (#89479) Homepage Journal
    ...the well-established First Amendment right to speak anonymously...

    Since when does the first amendment give the right to anonymous speech?

    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

    Nothing about anonymity here.
  • The anonymous poster might claim to be an employee. Or they might reveal information which only an employee would be likely to know.

  • Unsigned vs Unaccountable Speech (Score:5)

    by Speare ( 84249 ) on Thursday July 12, 2001 @09:46AM (#89481) Homepage Journal

    There have been several postings already that point out that the First Amendment does not in fact protect anonymous speech.

    There is a confusion about what 'anonymity' means. Courts have ruled specifically about two aspects of anonymity, and have ruled that one form is protected, and one form is not protected. To lump them both under 'anonymity' is to ensure further confusion.

    There is a First Amendment right to 'unsigned' expression. You can CHOOSE not to put your name on something you write, because you have the right to express yourself how you wish to express yourself, and to COMPELL an author or artist or whistleblower or witness to SIGN their own expressions is a blow against freedom of self-expression, and has a chilling effect on expression.

    However, there is no right of 'unaccountability'. That is, if a third party is able to prove that you were the responsible author/artist/whistleblower/witness, then this fact is admissible, and you are able to be prosecuted if your expression is libelous, slanderous, or in some other way breaks existing laws. You are always accountable for your actions, including expression.

    The Internet makes it easy to elude obvious signatures, but most ISPs keep enough logs to ensure some modicum of accountability. It is because of this linkage, and because of the confusion over the use of 'anonymity' that the courts are beginning to form guidelines.

    The guidelines describe what standards must be followed to force ISPs to divulge private records to turn 'unsigned' expressions into 'accountable' expressions. In short, the courts seem to say that the specific expressions must be shown specifically to have a strong case for illegal forms of expression: again, libel, slander, or other legally disallowed forms of expression. This hurdle must be met BEFORE the ISPs are required to divulge private information.

  • My server logs are rotated daily and analysed within an hour of being rotated.

    I think I'd better go delete them. They go back to November 2000 and take over a hundred MB at the moment (even with gzipping).

  • Right. As another poster said, this is the difference between "unsigned" speech and "unaccountable" speech.

    Sometimes, it's important and even necessary to speak anonymously to protect yourself from possible illegal retribution by your enemies. In this case, it's good that you can speak anonymously. However, if your intent in speaking anonymously is to avoid legal repercussions, then you should still have to face the consequences.

    While it is important to protect those who have legitimate need for anonymity, we also need to ensure accountability for those abusing it. Doing both is hard.


    I have zero tolerance for zero-tolerance policies.

  • Hmmmm (Score:3)

    by Sc00ter ( 99550 ) on Thursday July 12, 2001 @09:26AM (#89484) Homepage
    From the article:
    "If the plaintiff can present evidence showing a likely case against the defendant, the court still must "balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed," wrote the Appellate Panel."

    But:
    The constitution doesnt guarantee anonymous speech. In Talley v California (1960) [cpsr.org], three of the justices said "I stand second to none in supporting Talley's right of free speech -- but not his freedom of anonymity. The Constitution says nothing about freedom of anonymous speech."
    --

  • Think of Poor Richard's Almanac (Score:3)

    by John Murdoch ( 102085 ) on Thursday July 12, 2001 @05:54PM (#89485) Homepage Journal
    Since when does the first amendment give the right to anonymous speech?

    One need look no further than the framers of the Constitution to realize that the forms of expression protected by the First Amendment specifically included anonymous speech. "Pamphlets"--short tracts akin to today's Op-Ed essays--were a widely read form of communication in 18th century England and America. And those pamphlets were, in the main, written anonymously or pseudonomously. Samuel Adams was a prolific and sometimes vitriolic pamphleteer--it was his rabble-rousing pamphlets that helped foment the Boston Tea Party. Thomas Jefferson was another well-known pamphleteer; Ben Franklin wrote (and printed) many pamphlets, as well as producing an anonymous periodical known as "Poor Richard's Almanac." In a similar manner, anonymous pamphlets were a common form of political expression in England. The Hanover kings did not tolerate dissent--they had firm sedition laws, and people were jailed (or transported to America and later Australia) for publicly criticizing the government or the King.

    Did you ever wonder why the Declaration of Independence is such a significant document? It isn't because it is particularly eloquent (though it is); or that it specifies the reasons for declaring independence (though it does). Think about it: the Declaration of Independence is revered in the U.S. (and around the world) as a cornerstone of democracy and freedom. But--the Declaration of Independence has no force of law in the United States. To the contrary: the U.S. Constitution specifically rejects the notion that "each man is endowed by his Creator with certain inalienable rights, among these life, liberty, and the pursuit of happiness." The Constitution, instead, reserves that to white men--"negro" slaves had no rights, and were only counted as worth 60% of a white man for purposes of the census. So what made the Declaration of Independence a big deal?

    What made it a big deal was that it specifically maligned the King in explicit sedition--and it was signed. The revolutionary sentiments of nameless, anonymous "patriots" were inflammatory--the public statement of the criminal acts of the King (the "charges against the King" is the section of the Declaration of Independence that you typically don't read in high school), signed by the leading men of the colonies, meant an open break with England. That the Declaration was not anonymous is precisely why it is significant.

    Still don't believe me? Note the Federalist Papers--most of them were unsigned.

  • Re:Hmmmm (Score:4)

    by cybermage ( 112274 ) on Thursday July 12, 2001 @09:53AM (#89486) Homepage Journal
    The constitution doesnt guarantee anonymous speech. In Talley v California (1960), three of the justices said "I stand second to none in supporting Talley's right of free speech -- but not his freedom of anonymity. The Constitution says nothing about freedom of anonymous speech."

    One small but significant point here. You're quoting the decenting opinion. Here's a quote from the judgement:

    ... This ordinance simply bars all handbills under all circumstances anywhere that do not have the names and addresses printed on them in the place the ordinance requires.

    There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression. ...
    My emphasis added. Anonymous speech is an essential defense of liberty. Thomas Paine's Common Sense, a lightning rod for popular support of the American revolution, was an anonymous publication.
  • This is one of the cases where using a small ISP is a problem. They don't have a team of lawyers to work these issues out. They really don't have any choice other than to roll over on the user.

    John Doe 3 ass was saved because he posted on Yahoo. If he'd posted at a smaller site, or even a larger dot.com site that doesn't have money to burn at the moment, then s/he'd be tossed out like a redheaded stepchild.
  • Exactly. And here's a point: What the hell is Corporate America? Is it a separate division of America of which I am not aware? Another: are they somehow entitled to rights not shared by the rest of us? Another: corporations are fictitious persons granted charter to exist as such by the American people for the sole purpose of enriching our everyday lives. They are not powers per se; they were bloody never intended to be.

    Well, I do hope this slows down the Church of Scientology in their discovery efforts of Usenet posters, but I doubt it. (They were first on the scene to try this nonsense on the Internet). The "prima facie" evidence of harm to the plaintiff necessary to request identity of a poster from an ISP depends on the amiability of a judge to the plaintiff, and that is a little too open for interpretation.

  • Regulation of investment advice (Score:4)

    by Animats ( 122034 ) on Thursday July 12, 2001 @10:23AM (#89489) Homepage
    I don't think it should be illegal or against SEC regulations to "talk a stock down" as long as it's not defamatory or a blatant lie. People on CNBC, etc, are ALWAYS talking stocks up,

    It's not, in general. There's the Investment Advisor Act [sec.gov], but that regulates people who charge fees and have clients. There are laws against insider trading, but you have to be an insider and you have to trade in the stock of the company of which you are an insider to violate them. There are laws against stock manipulation, but you have to have a financial interest in the outcome. And truth is an absolute defense to libel in the US.

    I run Downside [downside.com], and I get occasional threats from companies. But they've never actually done anything. I'm not anonymous, I'm not an employee of any of the companies mentioned, and I don't trade in those companies. (I'm into "value investing", companies with, like, profits.) Companies hate it when you point out that their business model is totally bogus, or that their CEO put in a golden parachute scheme just when the company was tanking. But somebody has to do it.

  • Your comment isn't quite right, either. It is true that the presumption of innocence is purely a legal concern; private citizens are allowed to believe whatever they please. But at some level the presumption of innocence applies in both civil and criminal cases. In both cases, the accuser (either prosecution or plaintiff) must present evidence that the accused has actually done something wrong before the case is allowed to proceed. It's true that after that point the burden of proof is lower in civil cases, but the plaintiff must still make a prima facie case before any real action can take place. That's a big part of what this ruling is about; the court is saying that the prima facie case must be made before the plaintiff can get court help in unmasking the identity of the anonymous speaker(s).

  • I particularily like this quote from the article:

    "It strikes a blow against corporate America," Braun continued. "It might tip the balance too far towards First Amendment rights. Defamation is not protected by the First Amendment."

    Now that's a change from the typical slashdot "corporations are taking over everything" news.

  • balancing competing rights (Score:3)

    by fetta ( 141344 ) on Thursday July 12, 2001 @10:25AM (#89492)
    It looks to me like the court made a serious attempt to balance two competing but legitimate interests.

    We should always keep in mind that what we generally call the "right of free speech" is really the right to be free from prior restraint, not the right to be free of the consequences of what we say. It should be possible, but not easy, to breach the "veil of anonymity" and hold people accountable under some circumstances.

    Remember - words matter. They do have an effect. If they didn't, then we wouldn't need to worry about free speach.
  • I remember anon.penet.fi

    Didn't the Church of Scientology have them shut down???

  • Re:No kidding. Some unsettling rulings here... (Score:4)

    by No One ( 142157 ) on Thursday July 12, 2001 @12:07PM (#89494)
    I noticed the same thing. Last I grep'ed through the good ole constitution (sorry to you Non-US peoples out there), I don't recall seeing anything about anonymous speech. This whole thing seems out of line, somehow.

    The thing is, restricting anonymity will restrict speech. Whistleblowers, people with unpopular opinions, political dissidents, and so on will be much less likely to speak without anonymity. And, in case you've forgotten, *those are the people the First Amendment was written for*. If Congress passes a law restricting the anonymity of anonymous speech, Congress is violating the First Amendment.

    In addition, look up the Ninth and Tenth Amendments sometime. Just because it isn't listed doesn't mean it isn't a right we have. The courts have, in fact, consistently ruled that we have a right to anonymous speech.

    When are companies going to learn that public opinion can't be litigated? Seems to be a reflection of the American view that if something happens we don't like or personaly agree with: take 'em to court.

    Actually, it's called a "slap suit". Sue the bastard into oblivion, so the next guy will just shut up and be a polite little consumer/employee. It's not a matter of greed, or throwing a temper tantrum. It's "well, since this stupid First Amendment is in place, we can't get our Congress to outlaw speech we don't like. So, we'll have to frighten those inconvenient outspoken people into shutting up and never saying anything we don't like."

    In this case, they probably know they don't have a real case against them. So as soon as they've got the identities of the John Does, they drop the case. Since the John Does are employees, they then procede to quietly make their lives a living hell until they can come up with some kind of trumped-up excuse to fire them. And you better believe their names will get around to other potential employers.

    --
  • If the court decides that there is harm done by the anonymous post including: "breach of employment or confidentiality agreements; breach of a fiduciary duty; misappropriation of trade secrets; interference with a prospective business advantage; defamation; and other causes of action", they may grant the motion that reveals the anonymous posters identity.

    How do they know the anonymous poster is an employee or has signed anything? If they get to this point, they may have already lost.


    --

  • Woohoo! (Score:5)

    by don_carnage ( 145494 ) on Thursday July 12, 2001 @09:35AM (#89496) Homepage
    I can finally say Slashdot sucks! Oh wait...did I post that AC?

    --
  • To quote Merriam-Webster:
    Main Entry: 1kvetch

    Pronunciation: 'kvech, 'kfech
    Function: intransitive verb
    Etymology: Yiddish kvetshn, literally, to squeeze, pinch, from Middle High German quetschen Date: circa 1952
    : to complain habitually : GRIPE
    So, it is an English word (in the linguo-imperialist sense that English blob-like absorbs many other languages).
  • Blockquoth the poster:
    I noticed the same thing. Last I grep'ed through the good ole constitution (sorry to you Non-US peoples out there), I don't recall seeing anything about anonymous speech. This whole thing seems out of line, somehow.
    Of course, it doesn't say anything about thermal imaging, either. But luckily, even the current Supreme Court saw that that violated the 4th Amendment prohibition against unwarranted search-and-seizure.

    The point is, the document was written 200+ years ago. Society evolves and so the interpretation of the document changes. It always has, thank goodness, and it always will. In the case of anonymous (or "unsigned") speech there is a large body of casework protecting such.

  • My identity is MINE. There is no RIGHT for a corporation to know it. The appelate court recognized this, and put limits on corporations. Otherwise, merely threatening a law suit would cause sites like Yahoo and slashdot to be subjected to all sorts of Discovery processes. If you look at those four requirements, any legitimate law suit should be able to make the hurdles the court set, but mere conjecture and fishing expeditions won't do it. Bravo to the court...
  • Braun was concerned, however, that it might give too much power to anonymous speakers.

    "It is a remarkable opinion," said Braun. "I never expected a court to go this far. The court is saying that before a company can even file suit, it must give proper notice."

    Braun said the last thing a company wants to do is to notify an anonymous poster of such a process because the person might electronically "disappear."

    "Many times these companies are seeking emergency relief trying to find the identity of the Internet user. The notice provision might give more of an opportunity for people to get away with defamatory speech," he said.

    I don't understand his fear that the notice requirement would allow someone to "electronically disappear". How can someone electronically disappear? The bulletin board, the posts, the account and the log files still exist. Giving notice on the bulletin board does not erase anything needed to reveal the identity of the speaker should a court find it necessary. There is the potential for the speaker to crack into the bulletin board and erase all traces of themselves. But that potential existed prior to the notice requirement. In addition, an intelligent company would request that the host of the bulletin board create backup copies of the offending material and related files prior to giving notice.

  • In Dendrite's case, there was no proof of stock manipulation. In fact, the stock went up on 5 of the 8 days in which the allegedly defamatory posts were made. Dendrite was on a fishing expedition. They were hoping to discover whether employees were actively disparaging the company online, and to intimidate them into silence.

    Secondly, anyone who invests real money based on anonymous rumors on Internet message boards is a fool and we know what happens to fools and their money.

  • but there's this other little provision in the Constitution that says you can't presume someone's guilty until proven otherwise.

    This is a common misperception. That only applies to criminal law. Private citizens and companies can assume your guilty all day long, and burden of proof is much looser in civil cases (which is how they got OJ, although it's a crime that he still walks the streets).


    --

  • Um, last time I checked, three dissenting votes out of nine is called a minority opinion. Or, in clear English, kvetching because they lost.

    Clear English? This would be some sort of irony or one of those clever things, wouldn't it?

    What the hell is "kvetching" anyway? Is it even English?!

  • they are logging your IP address even when you post AC.

    How we know they're logging something: you can't moderate a discussion you've posted AC in. So Slash knows you've posted AC from your account, at least for a period of time. Probably not for very long (days?), though.

    On Plastic, by comparison, you can moderate your own AC posts. Maybe they took that "feature" out to preserve anonymity?!

  • I wonder what the real effect of this is on ACs. On /. and other sites, ACs can't be contacted in advance as required by the ruling, since no (or at least not sufficient) information is saved about them. If this court demanded that an AC be identified in a defamation suit, wouldn't /. just say "sorry, we can't?"
  • See my more extensive post on this topic, up in the thread. I suspect that on Slashdot, they actually DO know who the AC's are, it's just that it shows "AC" instead of "yourname".

    Now, the question is whether Slashdot keeps logs that could identify AC's by their IP addresses. Then, the ISP would also have to have logs showing who had what IP address at what time. (in order to identify an AC)

  • Sorry to reply twice to the same post, but I had another thought: Since Slashdot has the capability to ban IP addresses from posting (regardless of the login name), they most certainly ARE logging IP addresses.

    In other words, they can ban you even if you post AC, right? Therefore, they are logging your IP address even when you post AC.

    If they're logging your IP address, and it's associated with each post you make, that means Slashdot COULD be forced to identify anonymous cowards! Something to keep in mind next time you want to post about Rob visiting goatse.cx or make some slanderous remark about the president of a large company.

  • No - even if you post 'anonymous coward', Slashdot still logs your IP address and other information. If your post was determined to be slanderous, defamatory, whatever, Slashdot COULD be served with a warrant and be forced to turn over your identity.

  • good news (Score:3)

    by jchristopher ( 198929 ) on Thursday July 12, 2001 @09:33AM (#89509)
    Something I've offered wondered is: unmasking an online "John Doe" will always require the cooperation of two internet providers, right? In this case, Yahoo sees that the visitor came from an IP address assigned to XYZ ISP on some day, some time. The XYZ ISP then looks at their logs and figures out who had that IP address at that time, and turns over their billing address and phone number.

    Couldn't both the content provider and the ISP better protect themselves by only keeping the log files for a few days, or 24 hours? Then if asked, threatened, or served with a warrant, they could honestly say they didn't know which user did what. Is there a LAW that requires ISPs to keep logs and know who their users are?

  • Has anybody heard what made John Does 1 & 2 different (I assume that Dendrite was able to show damage in their cases), and what success they've had in ID'ing them?
  • The correct cite is under the link. When I typed the subject of that article I made a fingerslip--I must have been thinking of Brown vs. Board of Education, another important civil rights case. Sorry for the error.

  • Supreme Court on anonymous speech (Score:4)

    by phr1 ( 211689 ) on Thursday July 12, 2001 @11:24PM (#89512)
    The Supreme Court has been quite clear that anonymous speech is protected. It's an important civil right that goes far beyond the nerdy confines of the Internet.

    From McIntyre vs. Board of Education [epic.org]:

    an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.

    ... In Talley, the Court held that the First Amendment protects the distribution of unsigned handbills urging readers to boycott certain Los Angeles merchants who were allegedly engaging in discriminatory employment practices. 362 U. S. 60. Writing for the Court, Justice Black noted that -[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.- Id., at 64. Justice Black recalled England's abusive press licensing laws and seditious libel prosecutions, and he reminded us that even the arguments favoring the ratification of the Constitution advanced in the Federalist Papers were published under fictitious names....

    The specific holding in Talley related to advocacy of an economic boycott, but the Court's reasoning embraced a respected tradition of anonymity in the advocacy of political causes. This tradition is perhaps best exemplified by the secret ballot, the hard-won right to vote one's conscience without fear of retaliation.

  • Great news! Now hurry up, AC and paste the contents of OT III here ;-)
  • Since when does the first amendment give the right to anonymous speech?

    Sigh. Cornell's Supreme Court Collection [cornell.edu] doesn't seem to want to talk to me so I can't give the exact case but the Court has found that freedom of speech also means that you cannot be compelled to speak. To do so breaks the fundamental spirit of what the amendment tries to protect. As such if you care to express yourself (in a legal manner) without providing your identity you have the freedom to do so.

    -CZ

  • Appeals Court Sets Guidelines for Penetrating Anonymity Online

    Methinks this story was just an excuse for the editors to post a "Guidelines for Penetrating" headline...
  • So you shouldn't really care what they say, unless you live in New Jersey. Constitutional arguments could also refer to the New Jersey constitution, which may(I'm not from Jersey) protect anonymous speech.

  • I don't think it should be illegal or againsty SEC regulations to "talk a stock down" as long as it's not defamatory or a blatant lie. People on CNBC, etc, are ALWAYS talking stocks up, usually right after their company bought a bunch of it for their inventory to sell to clients through their brokers or something like that. Sometimes they do the opposite too (trying to bring a stock down). It's a big dishonest mess and I always wonder why it's any different when someone does it on a Yahoo board.

    An another note, doesn't this quote from a lawyer interviewed in the article make you bristle a little:

    It might tip the balance too far towards First Amendment rights.

    Eh, too much First Amendment rights?

  • Re:"Right" to anonymity? (Score:5)

    by Dr. Awktagon ( 233360 ) on Thursday July 12, 2001 @09:44AM (#89518) Homepage

    Since when does the first amendment give the right to anonymous speech?

    The courts have often written about "prior restraint" when it comes to free speech. Is there something that will prevent otherwise legal and protected speech from being said? For instance, if a new DMCA-like law comes into affect saying that whenever an ISP receives notice of defamation, it must immediately turn over names and addresses, that will keep MANY people from speaking (posting), even if what they are saying is not defamatory.

    The best way to do things, and the way this New Jersey court is writing their guidelines, is that you have to show defamation, or infringement, or whatever, FIRST, and then you can try and get the names of the anonymous posters. That way, innocent people can post without fear of prior restraint.

    That's how I see it, anyway.

  • Re:Hmmmm (Score:3)

    by WillSeattle ( 239206 ) on Thursday July 12, 2001 @09:40AM (#89519) Homepage
    But:
    The constitution doesnt guarantee anonymous speech. In Talley v California (1960), three of the justices said "I stand second to none in supporting Talley's right of free speech -- but not his freedom of anonymity. The Constitution says nothing about freedom of anonymous speech."

    Um, last time I checked, three dissenting votes out of nine is called a minority opinion. Or, in clear English, kvetching because they lost.

    So, it seems that we do in fact have a right to post anonymous handbills in the public square of discourse which the Net is for the 21st Century.

    What is more worrisome, I now have the right, according to our Attorney General, to march anonymously and fully armed, defending my first and second amendment rights. Maybe I'll do it wearing a hood ...

  • I don't think that the important issue here is corporate power. I suspect the intent of the anonymous posters was to deceive individual investors by inventing bad news about the company. Unscrupulous short sellers often try to depress the value of a stock in this way.

    I don't personally think it is a good thing when people are able to lie in order to take advantage of others. Unfortunately, unrestricted anonymous speech enables just this type of dishonesty. I think there is a place for anonymous speech but there are also times when accountability is preferable.

    The policy that I would prefer is for posts on yahoo, slashdot or where ever be either explicitly anonymous or have the identity of the author authenticated and published. Then I would blow off 95% of what anonymous posters say and 50% of the rest.

  • But they know the AC's IP address (unless they dump their logs) and can trace that back to their ISP who can then give out the owner's info.
  • Braun [said] "It might tip the balance too far towards First Amendment rights. Defamation is not protected by the First Amendment."

    When does a stock tip stop being rumor and start being defamation?
  • Finally the Oil and Petrochemical Refinery State gets something right.

    However anon.penet.fi is still sorely missed.

  • From battered women to political refugees, anonymity through the internet provides all users the ability to communicate freely and safely in cyberspace.

    Criminals using remailers are hard to capture. Prosecutors are not always able to find out users' real IDs. This is one of the reasons why law and order types clamour for an end to anonymity on the Net. On the other hand - the abuse of a thing is no argument against its use. International laws differ on this point however, making it impossible for the time being to come up with one unanimous regulation. Many anonymous remailers are located in the USA which guarantees freedom of speech as defined by the First Amendment. Hopefully, remailers will also continue to guarantee that users from Tibet, Indonesia and anywhere else in the world where they are not protected by free speech can still speak their minds.

    As long as the global network includes states whose laws do not allow free speech to be curbed in any way and as long as there are clever remailer systems and other masking possibilities for communication on the Internet, making up one's own mind without any form of censorship involved will be an everyday occurence for the Net community. If it is technically possible to route around censorship, then maybe people will actively deal with beliefs that aren't necessarily theirs instead of simply banning them, thus leading to contrary opinions and maybe better arguments. The most effective non-argumentative weapons in the fight against unwanted or criminal messages on the Internet do not begin with other users, but at home: delete keys and filtering programmes.
  • Yup, a user known as an144108 has posted to newsgroup secret (and copyrighted) materials about the high level beliefs of scientology (only available to those who have climbed the paramid to the top). The Hubbardites called in Interpol and Finnish authorities to strong arm Johan Helsingius (owner of the system) into revealing the identities of ALL anonymous users of anon.penet.fi. He revealed the one user to the Scientologists and one year later, in August, 1996 he announced the closing of the service. His closing statement was:

    "I will close the remailer for the time being because the legal issues concerning the Internet in Finland are yet undefined. The legal protection of the users needs to be clarified. At the moment the privacy of Internet messages is judicially unclear... I have also personally been a target because of the remailer. Unjustified accusations affect both my job and my private life."

    The British Sunday Paper, the Observer had accused him of being The Internet middleman who handles 90 percent of all child pornography." Finnish authorities found this accusation to be wrong and _technically impossible_ (impssible to ssend digital photographs through the service).
  • So this means I can flame as much and make up completely libellous material and post it on slashdot?

    Er, you guys all suck. And, er, I saw you all with a prostitute yesterday. Yep was definitely you - yep that one right there sitting in front of the monitor. Mod me up or I the wife knows everything

    HA! Now try and sue me!

  • Quote: "It strikes a blow against corporate America," Braun continued. "It might tip the balance too far towards First Amendment rights. Defamation is not protected by the First Amendment."

    As if corporate America doesn't violate [ucita.org] the rights [riaa.com] of American citizens [mpaa.org].
  • Back when I was the GM of a small ISP, we did just that. This was before the CDA had been overturned, at a time when there was a risk that we would be held liable for information passing over our network. Partially to avoid those situations and also to avoid the then unclear situation of what to do when someone wants the identity of the user of a given IP at a given time, we would cycle our radius logs every week. No backup, no electron trail.
    --

  • "abridging the freedom of speech, or of the press"

    If you can't abridge it, that means you can't shorten it, or make it smaller. That means you can't take away the right to free speech in the way the speaker chooses, anonymous, or whatever.

  • What if... (Score:3)

    by adam613 ( 449819 ) on Thursday July 12, 2001 @11:35AM (#89530)
    There is a huge question I haven't seen addressed yet:

    What happens if it is impossible to identify an anonymous user?

    I attend a university which has a large number of public terminals that allow www use. I could go to one of these terminals, whether I attend the university or not, log on to yahoo, and post confidential or defamatory material about my evil employer (disclaimer: this is hypothetical. My employer is NOT evil) WITHOUT logging in to anything but Yahoo. This way, the IP address I leave says nothing about my identity. Who does the company sue then? Could the university be held responsible?

  • Unfortunately or fortunately, courts rely on mandatory discretion. A New Jersey state case will not be heard by a judge in any federal court because this, well, was a state case. And, no state, other than New Jersey will hear the case as support for a legal argument. Sorry, but that is the way the system works (your local jurisdiction > your local state > you federal area > U.S. Supreme Court --- there is a trickle down from the U.S. Supreme Court to the lower levels, but there is no trickling sideways).
  • for the clarification. Your message was helpful.
  • I wouldn't get too excited here. Keep in mind this is an opinion from the New Jersey Appellate Court and, as such, is not precedent for any other jurisdiction. If this was a federal circuit opinion, it would have some sway, but it is a local decision.

    Although an attorney stated this standard would likely be adopted by other states --- perhaps the attorney has only practiced in New Jersey? Will a California, Texas, Florida or judge from any other state care about state case law from New Jersey? Or even a federal judge in New Jersey? Fat chance.
  • My company only keeps records necessary to comply with the IRS and GAAP, as well as to reduce legal liability. Everything else is to be destroyed after 60 days. This includes unnecessary hard copies of documents and email. It is in the employee handbook and they have to sign saying they read it. Being the Information Security administrator I participate in destruction of classified data all the time. I keep some logs for one year, but much is destroyed. This also includes records of internal employees internet usage. They procdure for a manager to get access to a employees PC, voice mail, email, or Internet usage is that it must be approved by our General Cousel. Between needing him, me, and a company officer to sign off on it, we only approve around one a month, with 40,000 employees. Not bad for a fortune 500.
  • My absolute defense against bogus legislation would be to insert "Without Prejudice" in all my postings :P. Sig. Without Prejudice
  • The court also said that companies may not harass or intimidate persons from speaking freely if no proof of harm is present and that is up to the plaintiff to prove harm In this case, the plaintiff assumed harm with no facts (or erroneously stated facts) to back up their claim of harm against John Does.

    "moreover, John Doe No. 3 made nine postings, two on the same day. On three of the days that immediately followed a posting by John Doe No. 3, Dendrite's stock value decreased. However, on five of the days that immediately followed a posting by John Doe No. 3, Dendrite's stock value increased. The net change in Dendrite's stock value over those seven days was actually an increase of 3 and 5/8 points.

    Although the motion judge stated Dendrite was "entitled to every reasonable inference of fact in this analysis[,]" he [the judge] refused to "take the leap to linking messages posted on an internet message board regarding individual opinions, albeit incorrect opinions, to a decrease in stock prices without something more concrete." The record does not support the conclusion that John Doe's postings negatively affected the value of Dendrite's stock, nor does Dendrite offer evidence or information that these postings have actually inhibited its hiring practices, as it alleged they would.

    ... the motion judge appropriately concluded that Dendrite failed to establish a sufficient nexus between John Doe No. 3's statements and Dendrite's allegations of harm.

    It seems that lately large corporations are using their legal depts to intimidate individuals from expressing their opinions online or otherwise. The judge rightfully accorded this as a "frivolous" suit and rightfully rejected it. There seemed more ASS U ME (tion) on the part of the plaintiff than fact.

    This subject is not only about intimidation and harassement of individuals' right to express themselves fairly and freely, but also about intimidations directed at ISPs to disclose identifying information on their clients. This is a dangerous trend of late and I'm glad the judges recognized it as such.

  • For instance, the three-part test for excessive church-state entanglement established by Lemon v. Kurtzman became known as the Lemon Test; and similarly, the three-part test for obscenity established by Miller v. California became known as the Miller Test. Perhaps future court cases of this nature will cite the "Dendrite procedure" as a test for the legitimacy of this sort of discovery request.
    --
    #/usr/bin/perl
    require 6.0;

  • If people had complete freedom to speak as they please, the nation would be in chaos. When the right to free speech is considered boundless, defamation, sedition, incitement to crime, etc. would all be perfectly legal. Obviously there must be exceptions to the First Amendment, which the courts have created. However, I agree that in this case the First Amendment outweighs. Anonymous speech is speech, and the speaker should be protected until they cross the line and use their speech in an illegal manner. Just like it would be in any other free speech situation!
  • On the other hand is there any prohibtion against anonymous free speech. I would assume that the courts have found this to a liberty (A subject not to be prohibted under most circustances, but not entrenched in Law.) as opposed to an article of Law.
  • The abomniable RIP Bill in the UK does require ISPs to keep that kind of information for a relatively long period of time.
  • Before an entity can strongarm and ISP into revealing your identity, it has to make some effort to notify you and show a court that it has a reasonable case against you. The article seems to say the ruling goes a bit beyond this, but I think at least that much will stand up across the country. Overall, this is a good privacy-rights ruling. It also gives me hope that the backlash against privacy invasion is having some success.

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