Cyberlaw Update: NY legislature to ban anonymous Internet commenting?

May 30, 2012

Cyberlaw Theme Month

(Editor’s Note: Technology changes so quickly nowadays that it’s sometimes hard to keep up. To help with this, Westlaw Insider will be looking at recent developments and updates in social media law and cyberlaw throughout the month of May.)

For the first week’s post on a Facebook “Like” not being expressive, click here.

For the second week’s post on personal jurisdiction and Facebook, click here.

For the third week’s post on a lawyer taking secret upskirt videos of his employees, click here.

For the fourth week’s post on CISPA, click here.

The Internet: since it became popular almost 20 years ago, it has helped someone express his opinion without requiring the courage to attach his name or face to it.

Apparently, though, this staple of online communication irks some members of the New York legislature so much that they want to do something about it.

That “something” is the Internet Protection Act, which, if enacted, would ban all anonymous Internet commenting.

The bill was actually introduced in the legislative body this past fall, but has only received significant attention since it was “unveiled” earlier this month.

The bill has, naturally, received quite a bit of criticism from free speech advocates who claim that it violates the First Amendment.

In response to this backlash, Assemblyman Dean Murray, the Act’s sponsor in the New York Assembly, issued a statement saying that the bill had been “mischaracterized.”

Mischaracterized how?

According to Murray, “it could not be further from the truth” that “this legislation would ban all anonymous internet postings in New York.”

Let’s take a look at the bill’s current text and see, shall we?

A web site administrator upon request shall remove any comments posted on his or her web site by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate. All web site administrators shall have a contact number or e-mail address posted for such removal requests, clearly visible in any sections where comments are posted.

I don’t know about you, but I can’t interpret this text any other way than it banning all anonymous Internet postings.

However, Murray stated that “the intent of the bill is to focus on protecting those being targeted by malicious and false statements, but would only apply to factual concerns, not opinions.”

That is patently untrue of the Act as currently written, but Murray said in that same statement that the language of the bill is going to be “tighten[ed] up,” presumably to make this distinction.

Legally, this distinction is irrelevant; the Act would still be unconstitutional.

I’ll avoid getting into the underlying law too deeply by pointing out that the U.S. Supreme Court has explicitly held that anonymous speech is protected under the First Amendment (see Talley v. California and McIntyre v. Ohio Elections Commission).

If the language of the bill were “tightened up” sufficiently to only target “cyber-bullying” (preventing cyber-bullying is the impetus behind this bill, according to Murray and the rest of the Act’s proponents), would it still be unconstitutional?

Almost certainly and here’s why:

Although the aforementioned Supreme Court precedent protects anonymous speech, what’s not protected is defamatory speech – false factual allegations.

This speech is, supposedly, the only type to be affected by the bill (at least, in its final form).

So, if the final bill only targeted defamatory speech, why would it be unconstitutional?

Because whether speech is defamatory is a legal determination to be made in court.

Until such a determination is made, speech is not legally considered defamatory, and thus, it does not lose its First Amendment protections.

Moreover, one isn’t immune to defamation liability simply because he or she posts something online anonymously.

A court can order a website to disclose the IP addresses of any and all commentators that have posted content, and can order a network to disclose the identities of the individuals at those IP addresses.

Yes, there are ways to hide your online tracks, but only the most extensive methods are 100% effective (and only a very marginal number of individuals actually know how to employ them).

Why bring all this up?

To show that there are preexisting legal remedies to combat cyber-bullying, meaning that the Internet Protection Act serves no purpose but to chill free speech – an unconstitutional purpose in itself.

So if there are already legal remedies for cyber-bullying, why introduce this legislation in the first place?

These remedies aren’t effective against truthful factual allegations.

In addition, since elected officials have little right to civil protections against invasion of privacy, anonymous Internet users are free to air the dirty laundry of elected officials with virtually no legal liability.

Instead of keeping their own laundry clean, it seems that many of New York’s elected officials would like to just silence everyone else.

And it’s because of these people that we need the First Amendment.