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EFF Looks To Thwart Anti-Free Speech Bill
March 14, 2006
Thomas Mennecke
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There are two proposed bills in the State of New Jersey, A1327 and A2623. The first bill is sponsored by Assemlymen Peter J. Biondi, while the second is sponsored by Wilfredo Caraballo and Upendra J. Chivukula. Although sponsored by different Assemblymen, the two bills share much in common.

The Internet has helped to enable and encourage the constitutionally protected right to free speech. Because of its largely anonymous nature, those hesitant to express their opinion use the Internet to speak without hindrance. Those utilizing the largely anonymous nature of the Internet to protect their identity run the spectrum, from those avoiding political persecution, to paranoid forum users to criminals.

A familiar subject with many file-sharers, true online anonymity is something of a parable. Attempts to make one's identity more secluded exist, via such networks as Tor and Mute. Yet even these attempts don't ensure or guarantee online anonymity. As the MPAA and RIAA have proven in their copyright enforcement, it's a simple matter of filing a so-called "John Doe" lawsuit against an IP address. At that point, the ISP is under pressure from the DMCA (Digital Millennium Copyright Act) to divulge the identity of the alleged infringer.

That said, we have laws to protect copyrights online - or at least try to. Yet due to the relative anonymous nature of the Internet, trying to protect individuals against "defamatory" statements is difficult at best. An individual could quite easily begin a defaming campaign against someone with little fear of reprisal. The two above mentioned bills look to remedy this predicament.

Bill A1327 and A2623 are virtually identical. Both aim to force "operators" of any interactive service, such as online communities, blogs, forums, etc, to maintain a database of the legal identification of its userbase.

From A1327, the website operator shall "establish, maintain and enforce a policy concerning material originating from an information content provider considered to be defamatory by another user of that service. The operator or provider shall remove any material promptly when notified by a user that material originating from an information content provider is defamatory and offensive."

Similarly worded, A2623 dictates a website operator shall, "establish, maintain and enforce a policy to require any information content provider who posts written messages on a public forum website either to be identified by a legal name and address, or to register a legal name and address with the operator of the interactive computer service or the Internet service provider through which the information content provider gains access to the interactive computer service or Internet, as appropriate."

Both bills force website administrators to provide a "reasonable" avenue for complainants to submit identification requests. Neither bill however, dictates what legal authority a complainant has to demand such information. A similar situation came to a head in December of 2003, when a court ruled the RIAA couldn't simply demand an ISP hand over an alleged infringer's identity.

Although similarly worded, A1327's language is a bit harsher. If the website administrator fails to comply with the complainant’s request, "the bill makes any operator or Internet service provider liable for compensatory and punitive damages as well as costs of a law suit filed by a person damaged by the posting of such messages if the operator or Internet service provider fails to establish, maintain and enforce the policy required by section 2 of the bill."

In other words, if this bill were to pass, part of the registration process of an online community would require proof of legal identification. The website owner would have to maintain a database of this information, with the ability for a complainant to request such information. If the website administration denies such a request, they may find themselves fighting it out in a court of law.

Seem ridiculous? Consider for a moment the nature of online communities, and the sometimes vicious flame wars that often erupt between members, sites, and groups of sites. Granted such a law would only pertain to website administrators’ hosted in New Jersey, however considering widespread adaptation may prove disastrous. Each word posted would have to be carefully engineered to avoid a potential confrontation with other online members - if for nothing else to avoid identification. The EFF (Electric Frontier Foundation) argues these circumstances are tantamount to stifling free speech.

In response to these proposed bills, the EFF has published an open letter addressed to the legislation’s sponsors. The letters argue the bills would inhibit free speech while going to dangerous lengths in the name of protecting against defamation. The open letter also argues both bills will ultimately fail in court, free speech issues aside, considering they do not have any legal authority, “…both bills suggest that user identities must be revealed without even so much as a subpoena.”

"Protecting anonymity is vital to maintaining the diversity of viewpoints on the Internet," said EFF Staff Attorney Kurt Opsahl. "Keeping online debates robust enables democracy, even if it allows name-calling and strongly worded opinions about political figures."

The EFF also states the proposed bills rectify a problem that does not exist. Avenues are already in place, the EFF contends, that allow those defamed in an online environment to legally pursue recourse.

Chances are neither of these bills becomes New Jersey State law. While they have the well intended idea to reduce defaming statements or unsubstantiated claims against individuals without evidence, the ultimate result will be online anarchy. Without even the need for a subpoena, thousands of complaints could hinder the daily operations of website administrators; not only hindering free speech but the value of running an online community.

This story is filed in these Slyck News categories
Technology News :: Organizations/Initiatives
File-Sharing/P2P Related :: Copyright Issues

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