Update: A significant edit was made to the original piece on which this commentary is based. See * for additional information.
In a recent Washington Timeseditorial titled “Internet trolls, Anonymity and the First Amendment,” Gayle Falkenthal declared that “the time has come to limit the ability of people to remain anonymous” online.* She argued that any benefit to online pseudonyms has long since dissipated and anonymous commenters have polluted the Internet “with false accusations and name-calling attacks.” Newspapers, she wrote, should ban them entirely.
This argument is not only inaccurate, it's also dangerous: online anonymity, while allowing trolls to act with impunity, also protects a range of people, from Syrian dissidents to small-town LGBT activists and plenty of others in between.
Unfortunately, many newspapers have already banned anonymous comments, and while not all have offered an explicit reasoning for their policies, "civility" is often cited as justification in discussions on online anonymity.
Of course, online civil discourse is something to strive for. Anyone who’s spent time reading YouTube comment threads is aware of the vitriolic bile spewing from the keyboards of largely anonymous masses. And it is a truism that when people speak using their true identity, they are more likely to think about the consequences of their speech.
But while identification brings about a greater sense of safety for some, for others, it presents a great risk. Think, for example, of victims of domestic abuse, whose online safety is predicated on not revealing their identity or location. Or the small-town schoolteacher who fears revealing her political views to her local community but seeks solidarity online. Or the gay teenager who wants to explore communities online but isn’t quite ready to come out. Or the myriad other examples compiled by the Geek Feminism blog.
Contrary to Ms. Falkenthal’s assertion that “The First Amendment guarantees freedom of speech, but not anonymity,” the Supreme Court has made these same arguments about safety and anonymity for decades. In 1960, the Court explicitly upheld a speaker’s right to remain anonymous,
In Talley v. California, Justice Black wrote “Anonymous pamphlets, leaflets, brochures, and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”
And in 1995, the Court upheld online speakers’ First Amendment right to remain anonymous, emphasizing, “protections for anonymous speech are vital to democratic discourse.” The court went on to say anonymous speech “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation…at the hand of an intolerant society.”
These principles are, of course, nothing new and date back to our country’s birth. Yet Ms. Falkenthal says, “When our nation was being formed, Thomas Paine and Benjamin Franklin stood behind their incendiary, treasonous views in public even at the risk of being hanged for what they said,” implying that the Founding Fathers would be against online anonymity if they were alive today.
However, Ms. Falkenthal herself later admits that Paine actually wrote his most influential work Common Sense anonymously, just as Franklin got his start writing under a name that was not his own, the pseudonym “Mrs. Silence Dogood.”
But no example illustrates the importance of anonymity more than The Federalist Papers. The series of essays, published in the nation’s most popular newspapers in 1778 under the pseudonym “Publius,” were instrumental in the ratification of the Constitution. Yet it was not until after Alexander Hamilton’s death in 1804 that the public discovered the essays had been written by Hamilton, along with James Madison and John Jay.
Lest readers believe that the age of the pseudonym is dead, more recently, the right to anonymity was vital for protesters in the Arab Spring: Wael Ghonim, the Google executive who was detained for more than a week in the height of Egypt’s uprising, had anonymously created the Facebook page “We are all Khaled Saeed,” widely credited as the driving force behind the successful revolution.
Bloggers in Syria are now faced with the same risks as Ghonim amidst a brutal crackdown on anti-government protests.
The complex questions currently faced by newspapers have been addressed before. One event in the earlier, pre-social media days of blogging brought to the forefront a discussion around online civil discourse. Back in 1997, following anonymous death threats made to prominent blogger and game developer Kathy Sierra, publishing magnate Tim O’Reilly proposed a Blogger’s Code of Conduct to improve discourse in the blogosphere. Though the code would have prohibited anonymity, requiring users to sign up with an e-mail address, it allowed one to display publicly a handle or username in lieu of a "real" name.
Sierra recently weighed in on the debate, stating “I am for preserving pseudonymity, and believe that eliminating it will never stop the worst of the trolls, griefers, haters, and stalkers. There are far better ways to help reduce the worst of anonymity-fueled behavior online including plain old moderation.”
Indeed, comment moderation is a simple and low-resource method by which newspapers can ensure comments remain civil. Most newspapers with large online readership, from the New York Times, to the UK’s Guardian, implement comment moderation in some form.
There will always be those for whom a name is not a barrier toward acting abusively; for those with little to lose, there’s no reason to hide. Inversely, those who stand to lose a lot by identifying online are those who need pseudonyms the most, to speak their mind freely, without fear of retribution.
*Authors' Note: Since the Washington Times first published Ms. Falkenthal's article on September 26, she has since edited the meaning of this key sentence without noting the change in the body of the piece. In the comments section, she admits she added the words "on someone else's website" to the end of this sentence, claiming it was not her "intent in saying the First Amendment doesn't guarantee anonymity was NOT meant to be global." This change was prompted by commenters who noticed the error - many of whom, it should be pointed out, were completely anonymous.
The year was 1986. Top Gun was the top movie, Super Mario Bros. 2 was the hot videogame, practically no one had ever heard of email, and mobile phones were clunky and expensive novelties the size of a brick.
On October 21st of that year, the President signed into law the Electronic Communications Privacy Act or "ECPA", to better protect our electronic privacy against unwarranted government snooping.
ECPA was forward-looking when Congress passed it, considering that the World Wide Web hadn't even been invented yet and that if you were savvy enough to have email you probably dialed up to a BBS to get it. But now, eons later in Internet time, technology has passed the law by.
ECPA has become outdated and the privacy standards that it applies to new technologies are unclear and often too weak. For example, the law doesn’t specifically address cell phone location tracking at all, and it allows the government to seize most emails without ever having to go to a judge. Meanwhile, no one is perfectly sure how it applies to newer online services like social networks and search engines. This gap between the law and the technology ultimately leaves everyone's privacy at risk.
Now, in the 21st century, when we store years-worth of our private emails in the Internet “cloud” and are all carrying tracking devices in our pockets in the form of our cell phones, we need an electronic privacy law upgrade that sends a clear message to law enforcement:
We at EFF have come together with a broad coalition of major Internet companies like Google and Microsoft and privacy organizations like the Center for Democracy & Technology and ACLU as part of the Digital Due Process coalition. The DDP coalition’s overriding goal is to transmit one simple message to Congress: If the government wants to track our cell phones, or see what web sites we’ve visited, or rummage through our Hotmail, or read our private messages on Facebook, or otherwise invade our electronic privacy, it should have to go to a judge and get a search warrant based on probable cause.
You can help us get that critical message to Congress just in time for ECPA’s 25th anniversary on October 21st. Join EFF, ACLU, CDT, the Bill of Rights Defense Committee, Americans for Tax Reform, the Competitive Enterprise Institute and TechFreedom in the fight to upgrade ECPA for the 21st century and sign our joint petition today.
And if you've already signed the petition, please remember to share it with your friends and social networking sites.
Just last year, the Humble Indie Bundle blazed onto the gaming scene with what seemed like an impossible business model: allow customers to pay what they want for DRM-free games, and let them choose how to distribute their contribution between the developers, the organizers, and two worthy tech charities. People supported EFF for online rights protection and Child's Play, which supplies games, toys, books, and cash to children’s hospitals. The result has been nothing short of miraculous, and we are happy to announce that the digital goodness is back with The Humble Frozen Synapse Bundle!
This iteration features the innovative tactical strategy game Frozen Synapse plus the game soundtrack. To sweeten the pot, customers who choose to give more than the average amount will also receive the entire Humble Frozenbyte Bundle suite, including Trine, Shadowgrounds: Survivor, Shadowgrounds, Splot, and Jack Claw!
We at EFF would like to extend our sincere gratitude to the generous gamers and forward-thinking indie game developers who have proven that a business can have a conscience, satisfy its customers, and thrive.
In what is becoming a well-settledpattern, Righthaven again finds itself on the losing end of a motion, with its case thrown out and owing the defendant – here, Leland Wolf, proprietor of the It Makes Sense Blog – costs and attorneys' fees for bringing a baseless copyright case. The lawsuit, Righthaven v. Wolf, is also notable for being the leading case among more than 50 that were filed in Colorado. Pending a motion to dismiss, the Colorado court stayed the remaining cases. With this ruling, the court has hopefully rung the death knell for the other remaining live cases in that district (joining the Nevada cases that have also been dismissed.)
Some background: In March, Righthaven sued Mr. Wolf for alleging infringing a Denver Post photograph titled “TSA Agent performs enhanced pat-downs," by virtue of a parody of the photo posted on his blog. Mr. Wolf moved to dismiss the case for lack of subject matter jurisdiction; EFF filed an amicus brief supporting that motion, explaining that Righthaven lacks ownership of any exclusive right granted under Section 106 of the Copyright Act.
Judge John L. Kane agreed, holding that Righthaven assigned to the Denver Post’s parent “the bare right to sue for infringement – no more, no less.” As such, Righthaven was neither a “legal owner” nor a “beneficial owner” of the copyright, and consequently could not bring a suit under the Copyright Act.
To its credit, the court also recognized the enormous pressure the prospect of statutory damages (on top of the expense of litigation) can place on defendants, even those with meritorious defenses, and called out Righthaven’s business model for the settlement mill that it tried to be:
[A] party with a bare right to sue may file numerous infringement actions of questionable merit with the intention of extorting settlement agreements from innocent users. This possibility becomes even more likely when the financial viability of the entity filing suit depends upon the proceeds from settlement agreements and infringement suits. Even though copyright law expressly provides for an award of costs and reasonable attorney fees to a party prevailing in its defense of a meritless infringement action, the economic realities of securing counsel and paying in advance the costs of litigation turns this remedy into a Potemkin Village. Both fundamentally and practically, the reality is at odds with the constitutional prioritization of public access to copyrighted works.
The court’s opinion also highlighted the important balance that the copyright laws are intended to protect. Specifically,
[C]opyright law necessarily balances the derivative goals of rewarding the creative labor of authors of original works with the primary goal of promoting further creativity by allowing public access to copyrighted works.
We are pleased that the Court refused to allow Righthaven to proceed with a lawsuit based on a copyright that it never owned and never had any plans to exploit. Finding otherwise would frustrate the important balance the court highlighted, and “the public interest in access to copyrighted materials.” Well done, Judge Kane.
Books are books whether we read them in a library or on a Kindle or iPad, but California laws are lagging when it comes to protecting reader privacy in the digital age. That's why EFF is a supporter of the Reader Privacy Act, a bill that has passed the California legislature and is awaiting Governor Brown's signature to become law.
Who's looking over Californians' digital shoulder and why does it matter? You can take our quiz to find out what's at risk -- and how Californians can protect their private reading records. Then tell Governor Brown to sign the Reader Privacy Act to ensure Californians don’t have to compromise their privacy when downloading electronic books, using online book services or even buying books from their local bookstore.
EFF has long complained about export restrictions by the U.S. Departments of Treasury and Commerce that deny citizens access to vital communications tools. In the past, this has affected, among others, Zimbabwean activists trying to obtain hosting providers, Syrian businesspeople networking on LinkedIn, and ordinary Iranians trying to download web browsers.
The government has been responding, albeit in piecemeal fashion: in 2010, technology companies were granted a general license from the Department of Treasury’s Office of Foreign Assets Control (OFAC) to export communications tools that could “boost Internet-based communication” and the “free flow of information” Iranian, Sudanese, and Cuban citizens – but since then we’ve seen a wave of democracy activism reach Syria too, something EFF commented upon in July.
Now we've seen some movement on Syria, but not enough. On August 18, amidst increasing regime violence toward opposition forces, the White House issued an Executive Order blocking a new range of transactions, including (Section 2(b)) “the exportation, re-exportation, sale, or supply, directly or indirectly, from the United States, or by a United States person, wherever located, of any services to Syria,” in light of the Syrian government’s escalating violence against civilians. This seemed like very bad news for Syrians who want to use communications tools to help with the protests.
Fortunately, recognizing the importance of communications tools and social networks to Syrian activists, the Treasury Department's Office of Foreign Assets Control (OFAC) quickly issued a general license allowing the export of “certain services incident to Internet-based communications.” The license specifically notes that transactions that are not otherwise exempt from certain earlier prohibitions, and that are related to the exchange of personal communications over the Internet, are permitted. Examples specifically laid out in the license include instant messaging, chat and email, social networking, photo- and video-sharing, web browsing, and blogging. The license also lays out what is not authorized for exportation, and while the language is a little unclear, it appears to allow export of technologies and services for all purposes other than those for commercial endeavors – so democracy activists should be in the clear.
But the story doesn’t end there. Restrictions from the Department of Commerce’s Bureau of Industry and Security (BIS) still appear to prevent communications tools and services from being exported to Syrians without a license. We think that because of these restrictions, Syrians still cannot access Google products Chrome and Earth, cannot download Java, among various other tools, and cannot use hosting services like Rackspace, SuperGreenHosting and others.
So the Treasury Department’s OFAC is out of the way, but the Commerce Department’s BIS restrictions remain, meaning that companies are still blocking certain communications tools from getting to Syrians. And until the government makes the bigger step of stopping the piecemeal nature of their relaxation of restrictions, we’ll have the same problems we’ve long complained about. These sorts of export restrictions are overbroad and contain elements which have no effect on the Syrian regime, while preventing Syrian citizens from accessing a wealth of tools that are available to their activist counterparts in neighboring countries and around the world. Furthermore, the penalties that result in violations of the regulations can be severe, so amidst confusing regulations, companies appear to be implementing broad restrictions on their services rather than run any risk. This happened recently when the open-source platform SourceForge blocked the IP addresses of users in five sanctioned countries.
What Needs to Happen
Two things ought to be done here, as soon as possible. First, and most importantly, the government -- the whole government -- should remove the license requirements and restrictions for communications technologies used by democracy activists. In the short term this should happen for Syria, in light of the ongoing struggle there. In the longer term, it’s time for the U.S. to stop this piecemeal approach and affirmatively allow unlicensed distribution of communications tools and services to people in all countries of the world.
Second, companies hesitant about allowing Syrians to use communications tools and services should take the simple steps necessary to seek a BIS license. While we don't think that such licenses should be required, the process is in fact quite simple, and frankly, the Syrians cannot wait. A company that wishes to export to Syria can file an online application with the Commerce Department’s Bureau of Industry and Security (BIS) for a license, which then should be resolved within 90 days. While registration is required before applying, any company that has ever gotten an export license before is likely already registered. Alternatively, companies may also request “interpretative guidance” as to whether or not they require a license from BIS, which takes only 30 days.
EFF Wants to Help
Given the situation on the ground in Syria, we need to focus there first. We reiterate our call for the Obama administration to affirmatively make clear throughout its various agencies that providing digital communications and information tools to citizens around the world, especially those under repressive governments, is not only legal, but encouraged. And in the meantime, we challenge those companies who are concerned about the BIS restrictions to take the simple steps necessary to apply for a license. In fact, we think this is so important that EFF would be willing to help a company that wants to take these steps but doesn’t have the resources to do it. Companies should contact EFF's Legal Director, Cindy@eff.org, if you'd like our help.
EFF is thankful to Senators Franken and Grassley for introducing this important amendment, which we believe is a huge step in the right direction. But the legislation could be better still. As the bill is currently written, government employees who violate employment agreements remain vulnerable to contract-based prosecutions under the CFAA. We urge Congress to protect all computer users against such charges, no matter where they work.
Earlier this week, digital activists alerted us to a concerning situation in Austin, Texas: officers at the local police department had announced a plan to search out all of the individuals running open wifi connections in Austin and warn them about potential dangers of running an open network. Thankfully, quick mobilization by our friends at EFF Austin helped stall this plan before it could take effect.
The officers at the Austin Police Department reportedly planned to seek out open wifi networks and then "make contact with residents who have open wireless connections and teach them the importance of securing them." They listed concerns such as exceeding the number of connections permitted by your ISP or being vulnerable to having someone piggy-back on your Internet connection to engage in illegal activity. To us, the police officers' plan was basically wardriving coupled with unsolicited scare-tactics from law enforcement agents. We’re also skeptical about the police’s role in educating users about ISP terms of service, which we submit is hardly the best use of law enforcement’s limited resources.
We were particularly concerned and disappointed by the Austin Police Department’s bleak characterization of open wifi. While the APD officers were keen to educate users about the potential negative ramifications of running an open wifi network, they failed to let people know that there are numerous societal benefits to opening your network. Anyone who has been lost in a city wishing they could snag an Internet connection for a map can attest to the benefits of having an open network connection. And many others, like security expert Bruce Schneier, have called for open wifi because it’s just plain polite.
Missing from the cited analysis is any recognition of potential benefits to be gained from publicly sharing one’s wireless access point. Lately, the virtues of contributing to any shared commons tends to be overshadowed by fears of bad actors (both real and imagined).
As we’ve discussed before, the current state of closed wifi networkings is a tragedy of the commons. If people had mechanisms for opening their wireless connections without jeopardizing bandwidth or privacy, we could all enjoy a world where people in most urban or semi-urban places could easily access the Internet, and even rural areas could be dotted with open networks. That’s why EFF has called for an open wifi movement—advocating for a world in which people could share their wifi connections with others without excessive burdens on their bandwidth or increased security risks. Our movement needs both technical solutions and a shift in social expectations. We’re pleased that a coalition of interested groups and technologists has begun to form around this issue, and we’re looking forward to launching a joint effort in the coming months.
For now, we urge the Austin Police Department to keep in mind the myriad benefits of open and freely available Internet access to the people of Austin.