Last month I provided an overview of what has been termed cyberharassment. The post traced cyberharassment across three broad categories and discussed several instances where “cyberbullies” utilized social media to threaten, intimidate or disparage their victims. As these accounts made clear, one of the defining characteristics of cyberharassment is that it is often committed anonymously.
From the AutoAdmit scandal to Megan Meier’s suicide, the ease with which one can communicate anonymously (including the use of a fake identity) on the Internet undoubtedly contributed to the virulence of these attacks. From a First Amendment standpoint, anonymity can further the values behind the idea of free speech by promoting an open exchange of ideas. But, as Justice Scalia’s dissent in McIntyre v. Ohio Election Commission noted, anonymous speech may “facilitat[e] wrong by eliminating accountability, which is ordinarily the very purpose of the anonymity."
Some commentators, such as Professor Kim in a forthcoming law review article entitled “Web Site Proprietorship and Online Harassment,” discuss how anonymous speech can be both an enabling force, as well as one that disables speech. Professor Kim notes that:
At the same time, however, anonymity sometimes results in what has been coined cyber-disinhibition, where literally being connected to the rest of the world with little oversight or regulation means that those utilizing social media anonymously, from blogs to fake Facebook profiles, are more likely to say what they want without the prospect of ever being confronted by their victims in real life. This, coupled with the speed at which social media allows information to be disseminated and shared, has resulted in particularly severe forms of harassment.
But the issue of when a speaker’s veil of anonymity online should be pierced remains a highly contentious subject. In McIntyre v. Ohio Elections Commission, the Supreme Court ruled that the First Amendment protects anonymous speech. The case, however, dealt with anonymous “political expression.” McIntyre involved an individual who distributed leaflets at a public meeting criticizing a proposed school tax levy. Because she signed the leaflets "Concerned Parents and Tax Payers," she was fined under an Ohio law that prohibited distribution of anonymous campaign literature. In striking down the statute, the Court reasoned that:
Under this conceptualization of free speech, anonymity serves a very important function and the best way of countering false or misleading speech is with more speech. Yet, in some extreme cases, anonymity can be used to undermine the “marketplace of ideas” by silencing certain brands of speech.
As Professor Citron illustrates in “Cyber Civil Rights,” “mobs” of online “trolls” have effectively silenced several minority voices by targeting bloggers and other users of social media on the basis of their race, gender, sexual orientation or religion. This is undoubtedly an instance where anonymity stifles free speech and subverts the values underlying the First Amendment. Rather than promoting political discussion, these are instances where anonymity is being used to terrorize others both on-and-offline.
Yet, when the instance of harassment is less severe — such as in the case of a schoolyard dispute carrying over to MySpace — where should we draw the line between anonymity and disclosure, free expression and regulation? Is thicker skin the answer? Or should law and policymakers craft solutions that specifically address cyberharassment?
From the AutoAdmit scandal to Megan Meier’s suicide, the ease with which one can communicate anonymously (including the use of a fake identity) on the Internet undoubtedly contributed to the virulence of these attacks. From a First Amendment standpoint, anonymity can further the values behind the idea of free speech by promoting an open exchange of ideas. But, as Justice Scalia’s dissent in McIntyre v. Ohio Election Commission noted, anonymous speech may “facilitat[e] wrong by eliminating accountability, which is ordinarily the very purpose of the anonymity."
Some commentators, such as Professor Kim in a forthcoming law review article entitled “Web Site Proprietorship and Online Harassment,” discuss how anonymous speech can be both an enabling force, as well as one that disables speech. Professor Kim notes that:
Members of subcultures or minority social, racial, religious, and/or political groups may fear repercussions for posting unpopular views or for expressing beliefs, desires, or thoughts that do not conform to mainstream values or norms. An atheist may post remarks that question God’s existence. A teenage boy may seek support regarding his sexuality. A girl may ask for advice regarding an abortion. Anonymity enables all of them to share and receive important information… One of the most important is that it enables those afraid to speak to seek advice, support, and information from others without fear of repercussion.
At the same time, however, anonymity sometimes results in what has been coined cyber-disinhibition, where literally being connected to the rest of the world with little oversight or regulation means that those utilizing social media anonymously, from blogs to fake Facebook profiles, are more likely to say what they want without the prospect of ever being confronted by their victims in real life. This, coupled with the speed at which social media allows information to be disseminated and shared, has resulted in particularly severe forms of harassment.
But the issue of when a speaker’s veil of anonymity online should be pierced remains a highly contentious subject. In McIntyre v. Ohio Elections Commission, the Supreme Court ruled that the First Amendment protects anonymous speech. The case, however, dealt with anonymous “political expression.” McIntyre involved an individual who distributed leaflets at a public meeting criticizing a proposed school tax levy. Because she signed the leaflets "Concerned Parents and Tax Payers," she was fined under an Ohio law that prohibited distribution of anonymous campaign literature. In striking down the statute, the Court reasoned that:
Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation -- and their ideas from suppression -- at the hand of an intolerant society.
Under this conceptualization of free speech, anonymity serves a very important function and the best way of countering false or misleading speech is with more speech. Yet, in some extreme cases, anonymity can be used to undermine the “marketplace of ideas” by silencing certain brands of speech.
As Professor Citron illustrates in “Cyber Civil Rights,” “mobs” of online “trolls” have effectively silenced several minority voices by targeting bloggers and other users of social media on the basis of their race, gender, sexual orientation or religion. This is undoubtedly an instance where anonymity stifles free speech and subverts the values underlying the First Amendment. Rather than promoting political discussion, these are instances where anonymity is being used to terrorize others both on-and-offline.
Yet, when the instance of harassment is less severe — such as in the case of a schoolyard dispute carrying over to MySpace — where should we draw the line between anonymity and disclosure, free expression and regulation? Is thicker skin the answer? Or should law and policymakers craft solutions that specifically address cyberharassment?
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1 comments:
Great insights, Alan. Clearly, anonymous communication on the Internet raises a host of tough normative questions. However, even if these normative questions could be resolved, let's say against allowing such communication, how could such a result be operationalized in law? In other words, even if we were to conclude that anonymous communication should be prohibited (in certain circumstances), it seems that technologists would always find ways to make it happen. For example, law enforcement could look up IP addresses for fake email accounts, but harassers could use proxy servers to mask their locations. This may result in an arms race for more powerful identity hiding/revealing technologies. (There may be an analogy here to the arms race between encrypters and decrypters.)
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