The latest attack on anonymous online speech comes from Kentucky State Rep. Tim Couch (R), who proposed legislation last week to ban posting anonymous messages online. Couch's bill requires users to register their true name and address before contributing to any discussion forum, with the stated goal of cutting down on “online bullying.”
The right to speak anonymously is protected by the First Amendment, and the Kentucky proposal raises serious Constitutional questions. In Talley v. California, the U.S. Supreme Court overturned a Los Angeles ban on the distribution of anonymous handbills on First Amendment grounds. However, the Court has yet to directly address the question of anonymous speech on the Internet, as few existing laws target online anonymity.
The Kentucky bill comes on the heels of controversy over the growing popularity of JuicyCampus.com, a “Web 2.0 website focusing on gossip” where college students post lurid — and often fabricated — tales of fellow students' sexual encounters. The website bills itself as a home for “anonymous free speech on college campuses,” and uses anonymous IP cloaking techniques to shield users' identities. Backlash against the site has emerged, with Pepperdine University's student government recently voting to ban the site on campus.
Under current law, websites like Juicy Campus cannot be sued for user-posted messages. As Adam Thierer mentions in a recent post, Daniel J. Solove of George Washington Law School has offered some insightful analysis on anonymity in the digital age. Solove points out that under the Safe Harbor provision found in Section 230 of the Communications Decency Act, providers are immunized from liability if they unknowingly distribute libelous messages so long as they remove libelous postings upon receiving a take-down request. This issue was further clarified in 2006 in Barrett v. Rosenthal, in which the Court found that website operators are immune from liability when distributing defamatory communications.
Normally, finding the perpetrator of libel on a website can be accomplished through subpoenaing the site's owner. The website then turns over the IP address of the user who posted the offending content, and the ISP to which that IP address is assigned reveals the identity of the offending subscriber. Subsequently, the victim of defamation can file a lawsuit.
But with sites like JuicyCampus that help users shield their true identity, finding a libel perpetrator can be very challenging. If a poster spreads hurtful lies about you on JuicyCampus, you can have the offending material removed — but you may be left with no recourse against the guilty party. Subpoenaing sites that don't maintain IP logs is unlikely to yield the offender's actual IP address, so there is little to deter people from going online and defaming their enemies, hidden behind the veil of anonymity.
Despite the appeal of combating defamation by banning online anonymity, lawmakers should be wary about restricting anonymous speech in the name of fighting libel. The same laws designed to deter defamation can also be used to target political dissent or silence whistleblowers for whom the option of remaining anonymous is critical. While Mark Klein and Babak Pasdar elected to reveal their identities, they remind us that whistleblowers are crucial safeguards against government excesses. And as Chinese dissidents know all too well, governments around the world have a long history of suppressing political opinions that undermine state legitimacy.
Perhaps politicians can manage to craft a law that fights defamation without threatening legitimate anonymous speech. Still, living with the occasional bout of slander and libel seems like a worthy sacrifice if it means protecting individuals' right to anonymous speech.