Free as in Speech: The First Amendment, Anonymity, and the Internet

Rikki Kite

ROSE Blog: Rikki's Open Source Exchange

Jan 28, 2008 GMT
Rikki Kite

Groklaw's Pamela Jones is all too familiar with the concept of free speech and anonymity online. Jones enjoyed a brief period of anonymity when she started Groklaw, writing as “PJ” on the site, but soon her identity became a topic of speculation and controversy within the open source community. In this article, Jones answers questions about anonymity, free speech, and the Internet.

“Originally, I wanted to [write anonymously] because I'm a private person, and I suppose because I was writing about tech stuff and women have a hard time, being badly treated sometimes or not taken seriously if they are writing in that area,” Jones says. “I wasn't thinking about danger at all or about the First Amendment. I just wanted to be private, and I was not really expecting Groklaw to be read much by anyone. Also, when I first started, I wasn't writing about SCO, and even when I started to cover it, I had no idea what I was getting into.”

Jones explains,“SCO and their supporters started a very long campaign to discredit Groklaw and me, and since they had nothing of any substance to use, they focused on that, despite the fact that by then I was not anonymous, merely semi-anonymous. Nobody else cared. It eventually fizzled out. But they wanted to get Groklaw silenced by the court.”

Jones wrote about this effort to silence Groklaw in April 2007, saying, “This is a sorry tale for those of you who think the First Amendment to the US Constitution and freedom of the press actually mean something important. It's a story that I've just learned about myself. But it's a true story. SCO tried to gag Groklaw back in 2004.”

When asked whether she feels that her First Amendment rights have been violated, Jones explains, “The First Amendment has to do with government restricting speech. It has no relevance to SCO except that they tried to deprive me of my First Amendment right to anonymity, or in my case semi-anonymity. I feel that they libeled me, too, but that is another issue.”

In February 2007, SCO tried to subpoena Jones as a witness in their case, but efforts to find her failed.

Jones says, “Where there is a dovetail, it's that they certainly tried to make me 'pay' for having the nerve to write about them. I think that is unfortunate. It did take a measure of courage to persist. And it shouldn't be that way, not in America. I shouldn't have to read a semi-veiled threat to harm my mother, for example, on the Internet because I am covering the SCO litigation, but it happened.” Jones adds, “In a decision in a case in Delaware, John Doe No. 1 v. Cahill, the court did write about a First Amendment right to be anonymous, although pointing out it was not absolute. But the bar is set pretty high, and the court in that case wouldn't allow the anonymity of cybercritics to be removed.”

Jones wrote an in-depth article about the First Amendment and the John Doe No. 1 v. Cahill case on Groklaw, saying, “So I decided to transcribe the ruling and also to explain a little about the fundamental legal principles on which the US was founded. Yes, anonymous speech is built into the US Constitution. This is a history lesson, not talking about any current events or delving into politics at all. It's about the First Amendment and how it might protect you too one day.”

Another free speech case that Jones finds particularly interesting is the Apple v. Does case. According to the Electronic Frontier Foundation, “In December 2004, Apple filed a lawsuit in Santa Clara county against unnamed individuals who allegedly leaked information about new Apple products to several online news sites, including AppleInsider and PowerPage.” The EFF opposed Apple's discovery and explained, “Because today's online journalists frequently depend on confidential sources to gather material, their ability to promise confidentiality is essential to maintaining the strength of independent media. Furthermore, the protections required by the First Amendment are necessary regardless of whether the journalist uses a third party for communications.”

Jones says that she wouldn't have done what the Does did but that the way Apple was framing the case threatened journalistic freedoms. “Apple was framing the case as a kind of anti-bloggers position, alleging bloggers were not journalists, so I was very glad that the judge recognized that journalism is something that one does, an activity, not a credential someone gives you,” Jones says. “It's an important distinction. The court ruled, 'If their activities and social function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle, and constitutionally immaterial.'" Jones also discussed anonymity and the free speech implications of the Apple v. Does case on Groklaw.

When asked what concerns her most about free speech and anonymity online, Jones replied, “I am concerned that many young people today don't seem to realize the important connection between free speech and anonymity, and what an honorable role anonymous pamphleteers played in US history. I believe anonymous speech is a protected right under the US Constitution, by the way. I don't happen to be anonymous; but I admire the US Constitution. The Federalist Papers were written by anonymous pamphleteers, and Benjamin Franklin wrote anonymously too. The Founding Fathers wrote anonymously because it was somewhat dangerous to write what they meant while the British were hanging around and in charge. So they knew the value of that protection. And by putting protections into the Constitution, they were trying to preserve healthy interchange of ideas, without fear of reprisal.”

Now that Jones is no longer anonymous, she has even more appreciation for the First Amendment right to anonymity. “By feeling less anonymous, I mean, since my real name is known, I try not to use my name in public places,” Jones says. “Sometimes it happens anyway, and people point me out at conferences or seminars. When that happens, I feel very awkward, as I don't know how to act at that point. When people know you are the PJ of Groklaw, they have their own ideas of what you are like and how you should act and be, and while it's always positive on their part, so far, and really kind and warm, it's hard to meet those expectations, when you are by nature as shy as I am. I feel in such situations like my blood isn't circulating fully and I am not breathing deeply, and when I escape out of the environment, I feel relief. It's a geek thing.”

Looking ahead, what First Amendment and anonymity issues does Jones see us encountering online? “I see a swelling tide of people who react, naturally enough, to the few who take advantage of anonymity to behave badly and who then call for a ban on anonymity,” Jones says. “And on the other side, I see those who have ideas that free speech means you can say anything you like without restriction. I think they are both extreme positions, and hence unrealistic, and they both cause harm. I think it's important for people to understand that there are laws against unlawful speech already, and there really is no such thing as total anonymity. It's a delicate balance. You already can't libel someone just because you are doing so anonymously. Over time, as case law catches up with the tech, I'm sure people will realize that there are lines beyond which decent people don't go and lawful folks can't go. But the Founding Fathers, given a choice, chose anonymous speech as a right to treasure. They did that for a reason. The laws on the books apply already everywhere, including online. But the outrage people feel at how some have misused free speech will result in more laws, I've no doubt. Those laws have to be carefully crafted to avoid broad-stroke collateral damage.”

Jones says that the appellate ruling on Apple v. Does does a good job of explaining the issue, and she points to the following excerpt:

Indeed, a lawsuit resembles less a mathematical problem with a single correct solution

than a chemical reaction, the result of which may depend on any number of slight variations in

the ingredients used and the conditions under which the reaction occurs. One may theorize

endlessly about the likely outcome of a given reaction, but the most reliable result must always

come from the test of real experience. Similarly, to yield true results, a lawsuit must present a

collision of concrete interests in a particularized factual context; the affected interests may then

be tested by a kind of practical logic against the potentially relevant legal principles to

ascertain which interests shall prevail. Depending on the nature of the conflict and the

principles, the factual details of the controversy may be critical.

A fundamental goal of legal education is to instill the instinctive recognition that a

particular solution to a legal problem, however obvious or indisputably correct as a generality,

may appear quite intolerable with the introduction of one or two additional factual details.

Justice in particular cases cannot be ensured by blind adherence to broad categorical rules,

because the application of rules to particular circumstances often reveals latent defects or

ambiguities within the rules themselves, or conflicts with other rules, or contradictions in the

common social values on which all legal principles must ultimately rest. Such conflicts must be

mediated by a deliberate and careful weighing of the effects a case may have on the values and

policies implicated in it. Due attention to the facts may thus produce an exception or

modification to a rule that, at a more abstract level, seemed perfectly suited to the dispute at

hand.

“I would hope folks would think carefully before they try to solve issues surrounding anonymity, so they don't create worse problems than what they intend to solve,” Jones adds.

She says that you should consider the content of a message rather than whether the source was anonymous. “Some of Groklaw's most valuable contributions were anonymous,” Jones explains. “If it's a comment that infringes someone's copyright, for example, or which libels someone, the law is clear.”

Jones also says that it's possible to set the tone for website contributions, “I ask folks not to be mean or rude. I know. Radical. But you know, it works. And a lot of people have told me that it's because I've set that more polite tone, they enjoy hanging out at Groklaw. If you let people know how you want your site to be, they voluntarily comply, for the most part. Some are afraid to set such a tone. I think the Universal Communication Systems v. Lycos case explains the situation well, that some moderation is acceptable without losing your Section 230 immunity.”

Jones is referring to the case in which Universal Communication Systems (UCS) sued Roberto Villasenor, Jr. for false and defamatory postings made anonymously on a message board operated by Lycos, Inc. UCS also sued other John Doe posters, Lycos, and parent company Terra Networks, S.A. The ruling points out that “In Section 230 of the Communications Decency Act (CDA), 47 U.S.C. 230, Congress has granted broad immunity to entities, such as Lycos, that facilitate the speech of others on the Internet.”

There is another issue to consider regarding anonymity, speech, and the Internet. “Privacy is also in the mix, and it seems to have eroded to the point where we must all be subjected to information about what taco joint Britney Spears ate at that day,” Jones says. “People think it's just celebrities that are subjected to a loss of privacy, but the consistent loss of data by commercial entities and governmental agencies has made it nearly impossible to have any privacy at all.”

Although Jones is no longer anonymous and now writes under her real name, she still guards her privacy. “The only thing you don't have is my home address, and you don't need that, unless you wish to show up with flowers at my door, and I would rather you didn't, frankly. Seriously, what people don't realize unless they are blogging is that unlike a journalist at, say, the New York Times, a blogger has no protective layer. There
is no office. So if you have children, for example, you probably don't want the entire world knowing your address.”

“If you register a domain name, and you put your home address, then any net kook in the world can drop by any time they feel like it,” Jones adds. “It's really a dangerous situation. And if you write about controversial subject matter, it's worse. Corporate entities have been known to harass, spy on, and sue critics, so that is another factor one has to consider. Some choose to use anonymity protection offered by some domain name providers, as a result.”

Privacy was one reason to write anonymously when Jones started Groklaw, but she had another reason. Jones explains, “And mainly I was strongly influenced by Scott McCloud's book, Understanding Comics and the sequel to it, which point out that the less people know about you, the more they will identify with you. That's why the happy face is pretty much universal, and you don't look at it and say, that's only for Chinese people to use or only for US people. There's no hair, no blue or brown eyes, nothing to pinpoint what kind of person is happy. But add brown hair, and blondes don't identify as strongly any more, and vice versa. So I guess my hope was that it would be possible for the ideas to be presented without any baggage, to just let people think about the ideas themselves. So for the first two months, I was just PJ. Like a happy face, no gender, no race, no politics, no age, no hair color, nothing. Just the ideas. But then I got outed, and that was the end of that.”

Jones also considers the privacy of her Groklaw readers, saying, “Some of them rely on anonymity too, and so I've had to think carefully about technical decisions to maximize their protection, since Groklaw depends on anonymous tips, along with other input. I don't use Google ads, for example, or any other such outside-linked data-collecting application, despite the natural desire to make some money to cover costs.”

Anyone wanting to speak anonymously online should look at it from both a technical and legal standpoint, Jones says. She recommends the Electronic Frontier Foundation (EFF) and Reporters Without Borders as resources. The EFF offers a guide called “How to Blog Safely (About Work or Anything Else)”, and Reporters Without Borders provides the “How to blog anonymously” guide.

Jones is still surprised by some reactions she received for writing anonymously online. “I had never met folks willing to make up negative things or to deliberately twist things in a negative way,” she says. “I'm not political at all, so I had not real experience with it. It surprised me and to this day I wonder how it's possible to get human beings to agree to do it.”

References

[1] Groklaw: http://www.groklaw.net
[2] “SCO Registers UNIX¨ Copyrights and Offers UNIX License”: http://ir.sco.com/releasedetail.cfm?ReleaseID=114170
[3] “SCO Tried to Gag Groklaw in 2004”: http://www.groklaw.net/article.php?story=2007042819571717
[4] “SCO Can't Find Groklaw Blogger, Blames IBM.”: http://www.informationweek.com/showArticle.jhtml?articleID=197006171
[5] John Doe No. 1 v. Cahill transcripts (pdf):

w2.eff.org/legal/cases/Doe_v_Cahill/doe_v_cahill_decision.pdf
[6] “The First Amendment Right to Anonymous Speech - DE Ruling as Text.”:

http://www.groklaw.net/article.php?story=20051007151046741
Free as in Speech 10
[7] “Apple v. Does.”: http://www.eff.org/cases/apple-v-does
[8] “Apple v Does - Free Speech Wins/Bloggers are Journalists.”: http://www.groklaw.net/article.php?story=20060526160008282
[9] “UCS v. Lycos and free speech on the Internet.”: http://www.groklaw.net/article.php?story=20070228034357766
[10] Scott McCloud homepage: http://www.scottmccloud.com/
[11] EFF's “How to Blog Safely (About Work or Anything Else).”: http://w2.eff.org/Privacy/Anonymity/blog-anonymously.php
[12] “How to blog anonymously.”: http://www.rsf.org/article.php3?id_article=15012

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