The erosion of anonymous Internet speech

By Eric J. Sinrod

Story last modified Wed Jan 25 04:00:00 PST 2006

The First Amendment to the U.S. Constitution safeguards freedom of speech.
The right to speak freely generally includes the right to speak anonymously.
And developing case law holds that the right to speak freely embraces the
liberty to speak anonymously on the Internet.

All well and good, right? Wrong.

A law designed to thwart telephone harassment has been updated and signed
into effect by President Bush. But this is troublesome. The newly updated
law in part prohibits annoying Web postings or e-mails that do not disclose
the true identities of the authors of this speech.

Let's drill down a bit.

While the U.S. constitution places an extremely high value on and provides
protection for free speech, such speech is not completely unbridled. That is
why our nation has a developed body of law pertaining to defamation. In a
nutshell, if someone says something false about someone else that causes
harm to that person, liability and monetary damages may be awarded.

In the context of the Internet, it is not uncommon for people to communicate
using pseudonyms. That allows them to speak freely and openly, without
revealing who they really are. Once in a while, other persons or companies
want to find out the identities of anonymous people who have communicated on
the Internet. This is especially so if they feel that they have been
So much for freedom of speech, as well as for appropriate Internet

To find out the identities of these anonymous Internet speakers, they at
times must go to the Internet service providers that are the conduits of the
speech at issue. To do that, a "John Doe" lawsuit usually is filed against
the anonymous speaker at the heart of the matter. From that case, a subpoena
is served on the ISP seeking the identity of the speaker. The anonymous
speaker then has an opportunity to file what is called a "motion to quash,"
which seeks to bar revelation of his or her identity.

The court then is called upon to rule whether the anonymous speaker's
identity should be disclosed. Because of First Amendment guarantees of
freedom of speech, which the cases hold includes the right to speak
anonymously on the Internet, the court normally will err on the side of
protecting the identity of the speaker. That's unless the party seeking
disclosure can make a "prima facie" showing upfront in the case that the
speech at issue truly creates liability and that true harm and damage has

Against this backdrop of protection of anonymous Internet speech comes the
newly updated law.

The Communications Act has prohibited the making of telephone calls or the
utilization of telecommunications devices "without disclosing (one's)
identity to annoy, abuse, threaten or harass any person at the called number
or who receives the communications." The same law also has been clear that
the term "telecommunications device...does not include an interactive
computer service."

This means this law has not been aimed at Internet communications. Now comes
the huge qualifier.

A small but important provision buried deep in last year's Violence Against
Women and Department of Justice Reauthorization Act, which was just signed
into law, now brings the reach of the above-quoted text home to the
Internet. The provision in question applies to "any device or software that
can be used to originate telecommunications or other types of communications
that are transmitted, in whole or in part, by the Internet."

What does this mean? The Communications Act provides for fines and
imprisonment of up to two years for violations. But taken to a logical, if
extreme, conclusion, it is possible that a person who makes a Web posting or
who sends an e-mail intended simply to annoy someone else while not
disclosing his or her true identity could be subject to fines and jail time.

So much for freedom of speech as well as for appropriate Internet anonymity.
There is no requirement of harm to trigger the impact of this new law, and
the annoyance standard raises a number of concerns.

For example, certain speech could be true but still annoying. Should such
speech be stifled? Some "annoying speech" can lead to very positive
change--whether the speech is directed at government, companies or
individuals. Plus, an annoyance standard is quite amorphous and subject to a
multitude of interpretations.

While cyberstalking certainly should be prevented, we should be careful not
to erode our constitutionally protected rights.

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