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Thursday, February 11, 2010

Blog Control Act on SDPB: Analysis and Spitballs, Part 2

Here's part 2 of my analysis of SDPB's Dakota Midday conversation with Rep. Noel Hamiel, Senator Nancy Turbak Berry, Black Hills Pioneer publisher Stewart Huntington, Sioux Falls lawyer John Arneson, and ACLU-SD's Robert Doody about HB 1277 and HB 1278. Read Part 1 here.

Opening the Door to Unbounded Liability: Huntington says his real concern is the apparent unbounded liability bloggers and other website operators would face under HB 1277 and 1278. They would require site operators to keep a log of users... but what does that mean? How long would users have to keep that log? How deeply would they have to drill into that IP information? Would site operators have to confirm those IPs? The vague requirements of these bills open website operators to all sorts of potential liability that clever lawyers or the state could use against them.

The legislators offered no response to that concern in this interview. They appear to have no conception of the obligations their legislation imposes or the liability we face if we are tricked by commenters using proxies and we supply inaccurate information.

But We're Just Starting a Discussion: When asked about what specific information these bills require and what specific responsibilities they impose, Turbak Berry dodged: "Any question that starts with the word exactly needs to be answered in the same way. Hopefully the answer will come from the discussions about the bills." Hamiel took a similar tack, responding to concerns about specific problems with these bills by saying he's just starting a discussion. Both acknowledge the bills are far from ideal. But Turbak Berry says "not knowing exactly how they would work is not a reason not to introduce a bill." The process of legislating helps work those uncertainties out.

Wait a minute: is this really what legislators do? Do they really get a pot of half-baked noodles, throw it against the House wall, and see if anything sticks?

Then comes the cognitive dissonance: when we point out the glaring flaws in this legislation, Hamiel backpedals with the "just starting a discussion" line. Yet later in the same interview, he makes a long defense of his work, saying he's read existing case law and consulted with all sorts of lawyers to craft this legislation. He says earlier that the Legislative Research Council looks at the language of these bills to make sure it's kosher. When he and Turbak Berry speak of possible changes, they refer to "tweaks."

. That's not the language of someone looking to have a conversation. That's the language of someone saying, "This is the way it should be. We could use some polishing, but we've pretty much got it figured out."

You don't get to play it both ways, Rep. Hamiel. Either admit your bills are crap and start over, or defend them as good legislation submitted with intent to pass.

Huntington agrees with me that there are better ways to start a conversation than introducing imperfect legislation at the last minute (actually past the last minute, after the prime sponsor forgot the bills on his desk) during a short legislative session when lawmakers will hardly have time to take testimony. Huntington recommends the discussion should be much longer and "should overtly and explicitly include people in the field, not legislators who really have no experience here."

"Decency": Turbak Berry doesn't think much of Internet discourse. Not only does she not read it much herself (though her e-mail to me yesterday says she'll take a firsthand look at the blog posts I recommended to her after the SDPB show), but she also considers the Communications Decency Act "ironically" titled. Fellow bloggers, we have our work cut out for us to demonstrate the discourse we host really is decent and valuable to the Republic.

Tell It to the Judge: John Arneson says a legislative fix is unnecessary. He says the courts are better equipped to address defamation. Arneson suggests HB 1277 and 1278 violate the separation of powers by letting the Legislature intrude on the Court's authority to interpret the law and the Constitution.

When asked if folks wouldn't benefit from having added recourse against anonymous defamation, Arneson notes that folks already have recourse: they file John Doe lawsuits and try to drag the defamers out into the open. Turbak Berry, a lawyer herself, responds that the courts aren't easy to access for most people, but Arneson points out that these bills still presuppose legal action. These bills don't make it easier for an aggrieved party to take a case to court; they just make it easier for plaintiffs to drag more people into court.

Maybe HB 1277 Pays for Bloggers After All: Defending this Legislative intrusion on the judicial branch, Hamiel says his bills are just trying to elicit information from the Internet provider. He notes that HB 1277 puts the expense of that discovery process on the plaintiff.

And then it hits me: maybe I should like HB 1277. I've been griping that HB 1277 forced bloggers to be unpaid speech cops. But if I open up the comment section and archive my IP logs, then the moment someone posts a snark too far, boom! I get paid by the plaintiff for all the trouble I've gone through to maintain those records. Dang—the websites that profit most from a rule like that could be the websites with the freest, most no-hold-barred comment sections that will draw exactly the most vitriolic, hyperbolic comments Hamiel is trying to tackle. Oops.


  1. Maybe these legislators should find a way to balance the budget without breaking the taxpayer, before they try to figure out how to make every blog facilitator into an international police officer.

  2. I think the sponsors of this bill heard the can of worms this bill fostered start to explode, and then they all got together and said they only proposed it to "start a disusssion." I didn't hear the radio interview, but apparently both Hamiel and Turbak Berry said this as their reasoning, and when I asked Rep. Fargen about it at the crackerbarrel, that was his exact response to me too. At least they have their ducks in a row, albeit a wrongheaded row.

  3. Woops, above was me, Linda.

  4. Lawyers may know better, but actually trying to control posts may produce more liability if a blogger then fails in that effort.

    Phone systems and similar utilities are exempt from liability precisely because they do not control speech.

    Blogs and forums are a kind of utility.


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