Defamation, Anonymity, & Free Speech

My Keloland Colleagues Cory Heidelberger, Pat Powers, and Professor David Newquist, have commented on the "leaked" text of a bill supposedly on its way to the South Dakota legislature. Cory and Pat are deeply opposed to the bill. David Newquist has a long and very informative comment.

I understand from Cory that the bill has not been filed yet, and I certainly have no information regarding the authenticity of the text that is being circulated. But that text is surely worthy of comment. Here is the most interesting passage:

Any person who allows internet posts shall keep a record of the internet-protocol logs adequate to provide identification and location of otherwise unknown, anonymous, or pseudonymous persons who leave or upload content. However, no person may be compelled to produce such information except in response to a court order.

This would certainly be a very bad piece of law making, for two reasons. First, it is an egregious intrusion into the business of anyone who hosts a site where others can comment. In effect it requires "any person who allows internet posts" to act as agents of the courts and police, gather information that might be needed in a case.

I am not at all sure that this is practical. There are many services that provide almost perfect anonymity and so the requirement could not be met even if every such person tried.

Second, there are good reasons for protecting the anonymity of internet interlocutors. It means that one can post his or her opinion freely without fearing reprisal from those who vehemently disagree or without having to explain oneself to one's family, or neighbors, or other members of a church. This is exactly the same reason we go to great lengths to protect the secret ballot.

At South Dakota Politics I have had a number of guests over the years who post frequently under a pseudonym. I have no idea who they are and I am obligated to respect their privacy. Abolishing anonymity, which is what the above language seems designed to do, would surely have a chilling effect on online dialogue. If you don't believe me, ask Iranians or Chinese bloggers who write critically about their own governments. You can find some of them in the slammer.

Professor Newquist is concerned about defamation and rightly so. If someone were posting false information damaging to his reputation or mine, I would certainly wish that we had some legal recourse. I just don't think that this is worth requiring every person who allows internet posts to spy on their guests for the government, or revealing the identity of anyone who wishes to post his opinion anonymously. I don't see any way to do the one without doing the other.

Professor Newquist has frequently complained about the conduct of bloggers and commenters, and he has stoutly defended the mainstream media as more professional and responsible. Though I have a more favorable opinion of the blogosphere in general than he does, I certainly agree on the latter point. The MSM, mostly, can afford fact checkers. Most bloggers cannot.

Protection against internet defamation probably has to rely on this distinction. Everyone has to know that whatever appears on a blog or privately hosted website should be taken with a grain of salt. What appears in the MSM ought also to be questioned, but the standards are rather higher. You start to really believe a story when it leaps from the blogs and the National Enquirer to the Washington Post.

Bloggers and their commenters have played a vital role in keeping the MSM and other institutions honest. If you don't believe me on this one, ask Dan Rather or the International Panel on Climate Change. Protecting the freedom of internet interlocutors to write freely is an imperative for free government in the modern world.

Comments

[caheidelberger]

They're in the hopper:

http://legis.state.sd.us/sessions/2010/Bill.aspx?Bill=1277

http://legis.state.sd.us/sessions/2010/Bill.aspx?Bill=1278

[Douglas Wiken]

Good heavens, Blanchard, you are making sense... I think.

I have collected links to a few of these issues at Dakota Today.

In all the fuss so far, I have not yet seen anything resembling documentation of a a real problem being solved by this legislation or even the existence of a serious problem.

I have mixed feelings on the issue of anonymous posters, but also am not thrilled by Big Brother and his littler Big Brothers thinking they need even more intrusive invasions to control free speech and press. My paranoid thought on this is that legislators and bureaucrats are thin-skinned and don't like criticism of their repeated failures.

[Stan Gibilisco]

The online book seller Amazon allows its authors to create blogs. I have one; it's at "Author Central." I have control over what I post, but no control (as far as I know) over the comments people put up. Amazon doubtless has the technology to track all commenters, because commenters must activate amazon accounts with identifying information to put anything up.

However! ...

The proposed BH 1278 says "any person who allows ..."

Do I implicitly "allow" comments by putting up a post on any blog in the first place? Does this law suggest that I must employ tracking software on my own computer, to identify people who put comments on someone amazon's servers? How in the world could I do that? Will they come for me and lock me up if I don't?

This law, if passed, would provide the world with an example of good intentions carried out badly, and would make our state into a target for satire among the "wired elite." This law, if passed, could cause me to consider moving out of South Dakota so I could continue to carry on my livelihood without fear of someone coming for me in the night. Such a law would prove impossible to enforce, unless South Dakota wants to take on the task of acting as an Internet "Grey Hat Squadron" for the whole world.

Legislators, public servants, fellow Americans, please start over here! Better yet, find something that more urgently needs done, such as balancing the budget without breaking the taxpayer.

[KB]

Cory: Thanks for the update.

Doug: even a broken clock is right twice a day. I agree with your shrewd comments. So far, I have not seen a single mention of a case where this law would be a remedy. I also agree that the means here involve an egregious intrusion into the business of us bloggers.

Stan: one of the nasty results of this legislation is that, if effective, it might require blog hosts to spy on our commenters. I would regard that as an affront to my liberty and yours.