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Sunday, February 14, 2010

Anonymity and Legal Liability: Under Blog Control Act, Only Lawyers Will Blog

Amidst the hullaballo about South Dakota's proposed Blog Control Acts, Cap Journal cool cat David Montgomery points us toward some civil discussion in the Chicago Tribune of anonymity and the Internet. The article views the tracing of identity online as easier than we all think; however, requiring every person who allows Internet posts to collect and archive such information creates an ugly tangle of legal liability.

Some significant quotes from the Tribune report:

If people … are afraid that some editor is going to look behind the administrative interface, then (they) won't come and talk on the site, and they certainly won't be as willing to talk about controversial topics," said David Ardia, director of Harvard Law School's Citizen Media Law Project [Georgia Garvey and William Lee, "Anonymity Is No Guarantee in Online Postings," Chicago Tribune, 2010.02.14].

In other words, chilling effect, the kind of thing that gets laws overturned on First Amendment grounds.

Flax says the Tribune has been subpoenaed more than once for information about anonymous posters, including civil cases where people felt they had been defamed and criminal cases where someone may have witnessed a crime.

"We would always try to give time to let the poster go (to court) and quash" the subpoena, Flax said. There may also be instances where the news organization determines the commenter was acting as a news source and the company could elect to fight to protect the person's privacy, she said [Garvey and Lee, 2010].

There's another legal complication for bloggers. Suppose someone leaves a nasty comment on my blog. An offended party drags me to court under HB 1277 to get the commenter's identity. Do I have a legal obligation to contact the commenter myself first to alert them to the court action and give the commenter a chance to quash the subpoena? There's another question I can't afford to pay a lawyer to figure out for me... and another liability that might make regular citizens decide blogging is more trouble than it's worth.

HB 1277 and HB 1278 are so vaguely written and leave so many questions about legal liability up in the air that, if I didn't know better, I'd think lawyers wrote them just so that no one but lawyers would dare to blog.

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