The United States of Anonymous
2022-03-28 · Guest: Jeff Kosseff (Professor at US Naval Academy) · 52:30
History and legal status of anonymity in America
Bob Zadek and Professor Jeff Kosseff discuss the history and legal status of anonymity in America, exploring how the right to remain unnamed has shaped the country from the Founding Era to the digital age. They examine the transition from the pseudonymous writings of the Federalist Papers to modern challenges like Section 230, facial recognition technology, and the tension between privacy and free speech.
Topics: Anonymity, First Amendment, Section 230, Privacy Law, Facial Recognition, Federalist Papers, NAACP v. Alabama, Campaign Finance, Data Privacy
Speakers: Bob Zadek, Jeff Kosseff
Introduction and Guest Background [00:17]
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. We are this morning, and always, the show of ideas, never once the show of attitude. Thank you so much for joining us this Sunday morning.
USA: United States of America? Well, for sure, but not this morning. USA for the next hour will refer to our country, but we’re going to borrow and shorten the title of the book of this morning’s guest. Jeff Kosseff is an associate professor of cybersecurity law at the US Naval Academy in Annapolis, Maryland. He is the author of Cybersecurity Law, which is a law text used in both law schools and as his textbook in teaching cybersecurity law at the Naval Academy.
This is Jeff’s first actual appearance on the show, although he was here through his book about two months ago. You may recall we spent an hour discussing the issue of censorship, the interplay between governmental censorship and private business censorship such as Facebook, and we discussed on that show a wonderful book, The 26 Words That Created the Internet. Well, Jeff was the author of that book before he wrote this morning’s topic, which is The United States of Anonymous. Jeff has written an entire book discussing something that either we take for granted as just part of our DNA—that we are entitled to be anonymous if we choose to do so—and we both take it for granted and we seem to tolerate the attack by government and private actors on that very anonymity we value so much.
What is the role—I bet you haven’t thought of this—what is the role of the right to be anonymous on the functioning of civic and private life in this country? Do we have a right to be totally private and not disclose who we are in our publications, in our interactions? Does the society benefit from more anonymity, from the protecting of anonymity, or is that a threat? After all, in many instances, you are not allowed to be anonymous, both in the public sector and in the private sector. I bet you haven’t thought about that all that much. Well, you will be after this morning’s show. So Jeff, the topic is anonymity and its role in life, public and private life in America.
The Constitutional Right to Anonymity [01:59]
Bob Zadek: So first of all, and most importantly, welcome to the show this morning and thank you so much for your book, The United States of Anonymous. Now, anonymity—the right to be private, the right to offer publications without disclosing who the writer actually is, the right to online postings (if you have such a right, we will learn that during the show), the right to have op-ed pieces, letters to the editor, blogs posted without disclosing who you are—so that is a private right, the right which individuals have. We will see the extent of that right. And also, the public has a right not to know. The public is benefited, as you explain in your book—we’ll get into that—there is a public benefit as well to promoting anonymity, or permitting it at least, because it presumably, if you are right in your theses, it allows people to be more candid without fear and therefore allows the rest of us to have exposure to a broader point of view. So Jeff, we are discussing anonymity. Now, first of all, do we have as citizens in this country a right to be anonymous in the general sense? We’ll drill down and we’ll get into specifics during the hour, but is there a right to be anonymous, and if there is that right, where is it found?
Jeff Kosseff: Sure. Well, first, thanks so much for having me. I have to just give a quick disclaimer that I’m only speaking on my own behalf and not on behalf of the Defense Department, which will probably become obvious pretty soon. And yeah, in terms of whether there is a right to be anonymous, there is a right to speak anonymously that is not absolute. It is stronger than similar rights in most other countries, including many other Western democracies. And anonymity does not appear anywhere in the Constitution. The right is basically found through Supreme Court opinions and lower court opinions that interpret the First Amendment going back to the 1950s. And those rights really are derived from the long-standing history and tradition of anonymous speech that go back to the founding of our country and the colonial calls for independence, which were mostly written under pseudonyms for a variety of very good reasons. So we have a very long tradition that has been found by the courts to sort of be imputed into our rights to free speech and press and association. But again, it’s not absolute. And also, I’d like to remind folks that the First Amendment restricts government action. So to the extent that there are purely private companies that are making private decisions to compromise your anonymity, that’s not going to be protected by the First Amendment. That we would need privacy laws, and that’s an area where we are sorely lacking these days in the United States.
The Federalist Papers and Speech Motivation [04:15]
Bob Zadek: And we will be discussing that dichotomy between the—and we had discussed this on a prior show, more than one prior show in our conversation about Facebook et al. So there is an—I invite our audience or encourage our audience to remember that the Constitution, to the extent that it protects privacy broadly and anonymity specifically, it only affects what government actors can and cannot do. It doesn’t directly affect—the Constitution does not, other statutes might—but the Constitution doesn’t directly affect what private actors may do.
Now, you made reference to our founding generation and our founders. Most of our listeners this morning will remember that an important series of documents during the founding era was the Federalist Papers. That was a series of 80-odd basically op-ed pieces published in New York to encourage New York’s ratification of the just-drafted Constitution. Without ratification, we would not have had a country. And Hamilton, Jay, and Madison wrote a series of essays in strong and passionate support of the Constitution, but they didn’t write it under their own names. Even though most people, if they ventured a guess about who was doing the authoring, they would get it right.
So Jeff, Madison and Hamilton and Jay were not afraid of public retribution for what they were writing. They were basically writing pretty much—although there were people who were anti-federalists who opposed the Constitution, and frankly, in my view, they had the better argument, but that’s for another show—but the Federalists who supported the Constitution, there were lots of them in New York. So since Madison, Hamilton, and Jay were not really afraid of losing their job or being shunned by their friends, why—and this is a question not about those three individuals, but about the role of anonymity in the larger sense—why did they feel it convenient or necessary to write under assumed names and not under their real names? Wouldn’t their real names have added even more weight to what they were writing?
Jeff Kosseff: Yeah, so I wouldn’t want to even dare speak for any of the three of them. And they’ve only written a limited amount about their decision or their efforts to be anonymous, which I will just add was very extensive. They disclosed their identities to a few close associates, but they would, for example, write in cipher back then to prevent their identities from being known. My best guess is that their reasons for being anonymous are what I would call sort of speech motivation. That it wasn’t—there were other writers who had very legitimate safety concerns or legal concerns, they thought they might be arrested. That wasn’t going to happen at this time period with Hamilton, Madison, and Jay. They weren’t going to face any danger for their speech. But the speech motivation really looks at what is the impact of the argument if it is either associated with their three names versus being associated with Publius. And Hamilton and Madison and Jay all had their own history and identity and enemies and alliances that could all sort of taint the purity of the argument that they’re trying to make. And the best that we could see from some of the writings that they had offered is that they wanted their arguments to be judged on the merits that they’re making and not based on what people thought about these three individuals. And you see this come up time and again. It’s not the only justification for anonymous speech, but at least for them and for others, it really—they want to focus on the argument rather than on the identity of the person who’s making it.
Anonymity and the Founding Generation [07:51]
Bob Zadek: I should also mention in passing that anonymity was not restricted, obviously, to Hamilton, Madison, and Jay. But as you mention in your book, John Dickinson, who was a revolutionary in Philadelphia, wrote a series of essays that he published—I think it was Letters from a Farmer in Pennsylvania or something like that. And also, most famously at all is Common Sense written by Tom Paine. I did a show on Tom Paine about six or seven weeks ago. An interesting new book came out about Tom Paine, an interesting fellow. And Common Sense, which was the most widely read book at the time, had enormous success. He wrote it and only later—he didn’t aggressively disguise it, but he didn’t sign his name to the book. So it was quite common in the revolutionary era for there to be anonymity.
Now, it is obvious from your book, and Jeff, we’re going to drill down to this, but obviously in your view, even though some individuals might act or write anonymously for fear of prosecution—well, that means that what they’re doing is against the law. And if it’s against the law, don’t we law-abiding citizens—wouldn’t we want to cause people to be arrested for breaking the law? And if by writing something they’re breaking the law, maybe the law itself is in question. But obviously, your book and you and myself and many, many other people, perhaps most people, would in general aggressively support anything which encourages free speech, exposes us to more ideas. But what about the issue of anonymity allowing people to, if you will, get away with acts that are against the law? Is there a societal benefit even there?
Jeff Kosseff: Well, so fear of prosecution does not necessarily mean that someone has done something wrong. I mean, our country has a very sad history going back to its founding of people who are prosecuted but did not break the law. So I think there—those are two different issues. I do think anonymity should not be and never has been found to be an absolute right. I think maybe one Supreme Court justice in US history has taken that view, and that was Hugo Black, who is not alive anymore, so I don’t think that is ever going to catch on. The idea is that we have a very strong right and there have to be very powerful circumstances to pierce that right. So if someone—and I outline a very horrific cyberstalking case that happened where someone was operating anonymously—and I don’t think that there’s any real argument that he should have been able to continue operating anonymously. I mean, the challenge there was that he was using technology that at least temporarily prevented law enforcement from identifying him, but there should not have been any legal barriers. He was turning people’s lives upside down. But the bar has to be high, and the presumption should not be to disclose people’s identity.
And frankly, in some countries, especially some more authoritarian countries, the presumption is that if you want to post online, you either have to register with the government or post only under your real name. Having a lack of anonymity as a starting point is what I believe is dangerous because you then, even if it’s a small group of people who are doing bad things, you’re going to sweep in so many more people who have very good reasons to be able to speak online anonymously.
The Limits of Anonymity and Illegal Acts [13:09]
Bob Zadek: The United States, I think that this is generally true, is the most protective both of the right of privacy broadly and even more broadly, free speech in general. We are the most protective of free speech probably of any country in the world. Now Jeff, yet you have written a book, The United States of Anonymous, where you spend the book discussing where we are with anonymous speech in this country and where we are going, and maybe I’ll add—but you can qualify it or correct me—where you fear we are going or where you fear we may go. So first, comment if you will on anonymous speech and anonymity broadly in the United States. Where are we as of now? Are you content that if time were to stop this year, we have a relationship with anonymous speech that you are comfortable with? That’s the first question, and if you would help us understand how you got to your answer. And also where you fear we might be going, and then we will drill down as to what are the elements of proof as to where you fear we are going. But first, where are we? Are we in general—do we have, in your view, a comfortable and if you will, a correct relationship from the standpoint of the government and also private actors? Are we basically where you would like us to be, and where is the trend going?
Jeff Kosseff: Right now, we’re doing a pretty good job under the First Amendment of striking the right balance between having a strong right to anonymity as well as recognizing the extraordinary cases where we might need government assistance in unmasking people. So this most commonly has come up over the past two decades on the internet when someone posts something online anonymously and then they get sued. It’s often, most often, it’s been by a company that has been criticized by an anonymous person on an online bulletin board, and the company usually thinks it’s an employee who has the gall to say something bad about their executives who can do no wrong. And the company files usually a pretty weak lawsuit for defamation or breaching a confidentiality agreement. And fortunately, the courts have developed standards over the years. Thanks to groups like Public Citizen and the Electronic Frontier Foundation, the courts have developed pretty rigorous standards to say, “You know, we’re not going to say that none of these subpoenas can proceed, but you have to have a very strong case. And you can’t just be filing this lawsuit because you’re a company and you want to unmask and fire and maybe ruin the life of an employee who criticized you. You have to actually show some evidence of defamation. You have to persuade us.”
And I think that’s—the way the courts have balanced this varies by jurisdiction, but overall it’s pretty good. There are some areas where I think it’s not that great. Copyright, because there’s this issue about First Amendment and copyright, and so the courts basically, when an anonymous file sharer is sued and the companies try to unmask them, the courts have set a lower standard saying, “You know, there’s less First Amendment value in this type of expression,” which I understand the arguments for. The problem that we’ve had is that over the past decade, we’ve had a lot of companies that own the copyrights to pornography that have basically filed these lawsuits against people and really tried to get their identities to be able to get a very large settlement out of them for—out of fear, and I mean they often fear being unmasked for good reason. So that concerns me.
I’m also concerned in the criminal context. As I said again, I think that people who are—where there’s strong evidence they’re committing crimes should be unmasked. But the problem is that many of these subpoenas come in the form of grand jury subpoenas, and there’s often not an attempt to even test the First Amendment strength of these. And in the few opinions which we’ve seen regarding grand jury subpoenas, it’s been a pretty low standard. But overall, I would say the courts recognize the value of anonymity. And more importantly, I think that even any attempt at imposing anything like what we see in China, where people have to register under their real names to post on social media, I think those sorts of laws would never pass constitutional muster in the United States. And that’s a good thing. So that’s where we are now.
Modern Legal Standards and Subpoenas [18:36]
Jeff Kosseff: You’re asking about where we’re going in the future, and that’s where I’m a little concerned. And it’s not as much about the First Amendment. I mean, I think that barring really a huge shift in the Supreme Court—and I think we’ve actually seen support for the right to anonymity not just by the liberal justices, but from, I’d say, Justice Thomas is actually the most supportive of a very strong right to anonymous speech of all the current justices. So I think that’s pretty good for the First Amendment. But a lot of our real threats to anonymous speech are not coming from the government or court subpoenas or new laws. It’s coming from private companies having more and more control over both our personal data and our speech.
So two examples: one can’t be controlled, one can be controlled. The one that can’t really be controlled is company online platforms like Facebook that make a voluntary decision that they want to require people to post under their real names. That’s something they can do. They are free to do that. They have every right to set policies like that, and they have justifications for safety, for basically—they believe people might behave better when they operate under their real names. I disagree with that, just having been on Facebook long enough and seen how people behave, but that is at least their justification. And it’s fine to do that because then you have other platforms like Reddit and Twitter which actually very actively market services that don’t require your real name. So they don’t allow people to impersonate other people, but they do also not require people to post under their real names. So I think that’s fine as long as we continue to have outlets where people can post pseudonymously because what we’ve seen is that many of the people who really rely on being pseudonymous or anonymous online are people who don’t have the luxury of speaking under their real names. And so people who might be speaking out about an employer who’s doing something corrupt, people who might be in a political minority group within their community where they feel like they could have retaliation if they voice their political opinions under their real names. And so we want to have avenues for that.
Threats from Private Actors and Data Brokers [22:13]
Jeff Kosseff: But that’s really up to the marketplace. The area where I think we do need more laws is just that we have so much identifying information that really is fully in the hands of private companies. So the First Amendment’s not going to help you there. Things like facial recognition, geolocation points that basically data brokers can sell to anyone in the public. And this is all data that can trace people back to their online speech or their offline speech. If you take—I would highly recommend Kashmir Hill’s great reporting in the New York Times on Clearview AI, which is a technology that the local police—I think it was more than 600 police departments use—it’s produced by this company that basically scrapes social media pictures and is able to be used to automatically identify someone based on facial recognition. That sort of thing, I think, poses the greatest challenge. And that’s something where we’re going to really need privacy laws that grapple in a meaningful way with the challenges that all of this private data poses to the ability to continue to be anonymous.
Bob Zadek: What’s interesting—you mentioned—we’re going to come back to facial recognition because as I mentioned to you, Jeff, when we were speaking before the show, that made my head start to explode with all of the issues involving facial recognition. But you mentioned that we are developing technology which makes it harder for people to keep their identity private. Is that—and you want laws to protect against that. Taking facial recognition for the minute, isn’t facial recognition nothing other than a private actor seeing you in the street, watching you do something, and because that private actor happened to know who you are, that private actor otherwise you could have done that act anonymously, but one private actor who recognizes you tells somebody who might care, “I know who that guy was who struck you,” or whatever it was, “It was Jeff Kosseff, and here’s who he is.” So your privacy has been violated because another human being using their senses recognizes you. Isn’t facial recognition just that, obviously profoundly to understate, on steroids? So unless you—everybody walked around wearing a mask—is facial recognition different than simply if you’re very recognizable because you’re in the public domain, because you’re a personality or a celebrity or a politician? So everybody knows who you are. You have less privacy simply by dint of a lot of people knowing who you are. How is that different than facial recognition?
Facial Recognition and Privacy Legislation [25:57]
Jeff Kosseff: Yeah, so I mean, I think that it really depends on exactly how the data is gathered. I mean, sometimes it is merged with other private information that’s maintained about you. And I would agree from a Fourth Amendment perspective, although sort of post-Carpenter, I’m not willing to totally—we don’t totally know how that shakes out, but I think generally for saying, you know, data for information that’s in the public view, that there’s—it’s going to be hard to control to the extent that the government is using data that you’ve publicly posted, all of that. That’s not going to get you very far. What we could look at is—that’s why I think we need to look at the extent to which we could have privacy law. And I mean, California has it right now. It’s not great, but California has passed now two laws on this that basically give people the ability to say, “Okay, if you store private information about me, I want to be able to access what data you have and I also want to request the deletion of that data.” Now, I think that’s a positive step. I don’t think it’s going to be a panacea by any means, in part because, I mean, I work in this field and I don’t know every data broker that has information about me. So I wouldn’t even know who to make this request to, which is why I think that what we could have is, okay, we could say if you have facial recognition, these are the ways that it can and can’t be used. And not regulate—this is again why we need to do it through privacy law rather than relying on either the First Amendment or Fourth Amendment.
And it’s going to be challenging. But I think that we do need to look at: are there a set of values that we want to have in privacy law? The challenge that we have here—we had talked earlier about, you know, comparing the United States with other jurisdictions. And I would agree that the United States has possibly the strongest free speech protections as interpreted by the courts. That’s not the case for privacy. And I think part of that really looks at how the United States values privacy. So we—free expression has always been really our fundamental liberty value. Privacy, when you compare us to Europe, for example, where they really view privacy as a fundamental human right, we don’t. And there’s often tension between privacy and freedom of expression. You look at things like Europe’s “right to be forgotten,” which I don’t think we ever could have here. But part of the problem is that we have never had a meaningful national privacy law. And I think that has more to do with politics. I think there have been plenty that have been proposed, but then you get every interest group trying to weigh in on what they want to get carved out of it, and we still don’t have anything. And I think that we really need to, but I’m not—I mean, I meet with Hill staffers and members quite a bit to talk about various technology issues, and when I mention the need for a national privacy law, I kind of get the understanding that, yeah, it’s really important, but that’s really going to be difficult to actually pass. And I think that’s unfortunate, and I think these threats like facial recognition, geolocation, data brokers really drive home the need for these types of laws.
Historical Government Challenges to Anonymity [35:55]
Bob Zadek: You had mentioned the “right to be forgotten.” Now, some in the audience might not be familiar with that concept. I’ll just summarize it just for a second, Jeff, just in case anybody out there hadn’t heard that phrase. The right to be forgotten: there is an—of course, theoretically, facts, documents, images which exist and which are available online theoretically are available forever. And the issue is very broadly and maybe a bit simplistically: if you published something when you were 11 years old and now you’re running for the Senate, should you be allowed—or if you were convicted of shoplifting when you were a teenager—should you be allowed to require certain information going back a long time, which is possibly can be used unfairly (I’ll use that phrase broadly) against you? Do you have a right to ask that it no longer be indexed by search engines so nobody else can find it? Do you have a right to erase from the public domain parts of your past that for whatever reason are no longer useful to the public? That is what Jeff meant by the right to be forgotten. We have no general law in this country. There is always conversation: do we need such a law? If so, what would be the rules? How do you balance what the public has a right to learn versus the harm in having that information available? So that’s what Jeff meant when I think, Jeff, if I described it accurately, just wanted the audience to understand the phrase in case they hadn’t heard it before.
Now, Jeff, in your book there are lots of examples, and I want to discuss a few of them just to put this subject in context of how government has sought to unmask you in ways that society has found through the courts and through legislation to be overreaching. And we can discuss briefly the California and other states’ experience with disclosing donors to political campaigns, donors to propositions. There was a brouhaha in California when there was a gay marriage proposition on the ballot, and private actors, private businesses had contributed to that proposition and they were unmasked. But also, give us just briefly a history of how government seeks to attack the right to be anonymous. Of course, I’m talking, Jeff, about of all things to say in one sentence, the KKK and the NAACP, which were hallmark bits of litigation and ultimately Supreme Court decisions. So give us examples of how government has sought to require unmasking and what are in general the rules that government is living under today in light of Supreme Court precedent.
Jeff Kosseff: Yeah, so the right to anonymous speech really began being recognized through the courts actually not in a speech case, but in a free association case. And this was really in the years right after Brown v. Board of Education. You had the NAACP really fighting hard in Alabama to get the state to desegregate its school systems, and the state officials were largely segregationist at the time and they were fighting back pretty hard. And they wanted to really stop the NAACP from being active in the state. So the State Attorney General at the time, he noticed that the NAACP had not filed the proper corporations filing application. And rather than just say, “You’ve got to fill out this form and pay a $10 fee,” the state sued the NAACP seeking to oust the group from the entire state of Alabama. And this goes to a courtroom of a judge named Walter Jones, who also was the state trial judge who presided over the New York Times v. Sullivan case a few years later, which set the actual malice standard for libel cases. But this is a case where they’re seeking to shut down the NAACP. Walter Jones is a white supremacist in that he has written columns for the local newspaper talking about how he believes the white race is superior. So he is clearly biased against the NAACP and also wants to shut them down.
He not only issues a temporary order to shut down the NAACP, but he issues a discovery order for the NAACP to provide its membership list of every member of the NAACP in the state of Alabama to the state officials. Now, there’s no real need for this list to adjudicate a corporations filing dispute, and you can understand what the pretext there is. But Jones grants it and then issues tremendously high fines for every day the NAACP does not provide the list. Now, the NAACP has a very good reason to fear retaliation for its members. They have evidence of retaliation. So the NAACP refuses, and the case goes all the way up to the Supreme Court, and the Supreme Court unanimously says that the NAACP does not have to provide this membership list. And they find that, you know, there is a real threat of retaliation and that disclosing their member names would violate the freedom of association, which is inherent in the First Amendment, by making them unmask people who would face retaliation. So that really set the standard for the Supreme Court.
Anonymity in Campaign Finance and Elections [41:10]
Jeff Kosseff: And they started to apply that to speech cases. There were a few cases starting in 1960 and then extending into the ’90s and early 2000s involving government restrictions that required the authors of pamphlets that were handed out to have their names on them. And the court repeatedly said that those sorts of authorship requirements violated the First Amendment. And starting in 1960, the court really traced back the historical right of anonymous speech to Thomas Paine, to the Federalist Papers, and said, “You know, this is really what we mean by anonymous speech.” Interestingly, I’d mentioned Justice Thomas, who is an originalist. And so in some of these anonymous speech cases, you see him concurring with the majority opinion written by one of the liberal justices. And Justice Thomas actually is saying that they should have gone further in protecting anonymous speech. But his reasoning is entirely different. His reasoning as an originalist is that if you look at what the press was like at the time that the Bill of Rights were adopted, that there’s no way to read freedom of press and freedom of speech other than seeing it as including anonymity and pseudonymity because so much of what was written was anonymous and pseudonymous. Interestingly, the late Justice Scalia, also an originalist, very strongly disagreed. And he said, “No, if it was meant to say anonymity, it would say it.” But so there was that dispute.
But it’s been a fairly strong protection. It’s protected also against requirements that people who collect petition signatures for ballot referendum have to have name badges. The Supreme Court has said you can’t require that. You can’t require Jehovah’s Witnesses to have to register with the mayor’s office before going door to door. But it’s not absolute. So as you had talked about, so there are some areas where the Supreme Court has said you don’t have a right to anonymous speech. And that’s primarily been in the campaign finance and elections context. So both in terms of disclosing the names of people who had spent money, either on campaigns or on political ads, and even the names of people who have signed ballot referenda, the Supreme Court—and often, at least in the past few decades, it’s been over the dissent of Justice Thomas, and usually only his dissent—the Supreme Court has said that there’s a strong public interest in informing the electorate, in making sure that they understand who’s funding campaigns. So even if we won’t restrict the ability to spend money on the ads, we will say that if you’re going to spend money on these ads, you’ll have to disclose who’s actually behind it.
Bob Zadek: Jeff, let me just interrupt. What you just said strikes me as indefensible hypocrisy. To me, without drilling down—this is not a con law course—but the thought that it’s okay to be anonymous in distributing a pamphlet expressing a political point of view, but not okay to anonymously support that part of the political process with money—it’s—I wouldn’t know where to start if I had to defend that distinction. It makes no difference whatsoever. So to some degree, it just strikes me—we don’t have to digress—but man, is it impossible to make a distinction from the standpoint of what’s good for the country. If we want to encourage participation, we encourage participation. If we’re afraid of money polluting or becoming toxic, the problem is with the politician who allows him or herself to be influenced by the money, not the giver of the money. But that’s perhaps for another show. But also, the issue of supporting ballot propositions, that also, as you mentioned, that also you cannot be anonymous in doing that. And how you can be anonymous in signing a petition or in drafting a pamphlet or an op-ed, but not be anonymous in signing your name to a proposition—that also is a distinction without a difference, at least to me. But that’s the political process for you. And those are all wonderful examples of how the government or the politicians will find it inconvenient to allow anonymous behavior in some aspects of the political process but not in others.
Section 230 and Online Reviews [46:09]
Bob Zadek: Now, in the area of private actors, you mention in your book something we all are familiar with and rely upon, and I’m going to use one example, but I’m speaking about it broadly. You mentioned Yelp, which means Yelp is going to be for this discussion a surrogate for all of the ways in which the public will offer comments anonymously if they wish about the service they have experienced in dealing with a private actor in commerce. And in so far as that is concerned, that is basically unregulated. And Jeff, am I correct? And is that where we should be, or are the businesses who perhaps unfairly get bad press because somebody is cranky or a bunch of people are cranky and are not honest and the business suffers—is there—where does the “should” fit in as to how government through the legislature should react about that huge classification of anonymous speech? Are we at the right place, the wrong place? Is the country better off where we are now? Should it be changed?
Jeff Kosseff: So we’re generally at the right place, but we can use a little tweaking. So for Yelp as the example, Section 230—a subject near and dear to my heart—that basically says that if a business believes that some review on Yelp is defamatory, it won’t be able to successfully sue Yelp for defamation. So Yelp can either keep it up or take it down, whatever it wants to do, but it’s not going to do that out of threat of being sued by the subject. And I think that’s—it’s controversial for a number of reasons we could talk about some other time, but I think generally that’s the right balance because what we see in other countries that don’t have something like 230 is that businesses are really often able to get taken down critical but not defamatory content because no rational platform wants to have to spend hundreds of thousands of dollars on litigation.
But what Section 230 doesn’t do and never has done is prevent the subject of the review from suing the person who posted it. Because there legitimately could be something in there that’s defamatory. Now, defamation is a very high bar in the United States, but there clearly are times when something is adjudicated defamatory and therefore it is not constitutionally protected speech once it’s met all of those bars. What we’ve had, and so we have that quite a bit, and for a lot of platforms, their general policy is that they typically—not always, but they typically—if there is a court order that adjudicates something defamatory, that they’ll voluntarily take it down. But what we have had, at least one court rule, is that if there is this adjudication on the merits, that the platform is not required to take down the content because of Section 230. And I think that goes a little too far. And actually, Chris Cox, who is the former congressman who’s one of the two co-authors of 230, actually has recently written sharing the same sentiment, saying he never intended Section 230 to say that a platform does not have to take down content that’s been adjudicated on the merits to either be defamatory or otherwise illegal. And I think that’s important. It’s a small change, but I think the people who have the worst experiences—and it’s a small handful, but the people who have the worst experiences with online anonymity—are the ones who basically just want to get the stuff taken down. That they might have been called the worst type of criminal on some site that has a policy of not taking down content, and the court says, “Yeah, that’s defamatory,” but then they can’t get it taken down. And I think that we need to figure out how to address that because there is some speech that—and I’m a very much a free speech proponent, but I do think that there is a narrow category, if it falls outside of constitutional protection, that we should not say, “Oh yeah, you can just keep that up forever.”
Self-Surveillance and the Future of Anonymity [51:00]
Bob Zadek: We haven’t got a lot of time left, but on the subject of facial recognition, which I mentioned I wanted to come back to, I have, as many people do, I have a Ring doorbell, which gives me a picture of who’s at the front door. Most people have it; it’s inexpensive, part of home protection. And we had mentioned earlier that the states are not or government is not permitted to require a name tag on political solicitations, people who go door-to-door soliciting your vote for a candidate or a proposition. It occurred to me—and I’ll just mention this, unfortunately I don’t think we can get into it—is that sooner or later, when facial recognition becomes more in the public domain and you speak out against that—you’re not a big fan of facial recognition and of the software that combs the internet—but I could imagine a day when somebody ringing my doorbell, my Ring system will tell me who that person is, where they live, and how they vote in about one second. So technology is right around the corner of challenging again all of this anonymity.
Now, Jeff, what is—we only have two minutes left—if you can in a minute, what is the one area that you want our listeners to be alert to as representing a serious threat to the anonymity which you find to be, and I agree, so essential for the effective functioning of our democracy?
Jeff Kosseff: So the one threat which actually we all can address is what Michael Froomkin, a privacy scholar, calls “self-surveillance.” And this is all of the stuff you put out on the internet about yourself voluntarily on social media. So many anonymity compromises, including some that I detail in the book, are due primarily to people putting enough information that they don’t intend to, but that does lead to their unmasking. So a lot of—I mean, I talk about legal changes, policy changes at companies, but a lot of it really comes down to us being more cautious and saying, “Do I need to post that Instagram photo, or might it compromise my anonymity online?” So I just hope that people think really hard about the information they’re putting out there voluntarily.
Bob Zadek: So my friends out there, sleep well tonight knowing Jeff and I know who you are. Enjoy the rest of the weekend, my friends. Jeff, thank you so much. I commend your book strongly. It’ll invite you to think about so many issues you have not thought about at all or taken for granted. Thank you so much, Jeff, for your scholarship and your book, for joining us this Sunday morning. Bob Zadek saying so long for now. Cheers, and I’ll be back again next Sunday. Thanks a lot and have a good balance of the weekend.