Anonymity, Disclosure and First Amendment Balancing in the Internet Era: Developments in Libel, Copyright, and Election Speech
Shepard, Jason M., Belmas, Genelle, Yale Journal of Law & Technology
TABLE OF CONTENTS INTRODUCTION I. BEFORE THE INTERNET: THE DEVELOPMENT OF THE ANONYMOUS SPEECH DOCTRINE--RATIONALES AND LIMITS II. UNMASKING ONLINE SPEAKERS IN LIBEL CASES: AN EMERGING CONSENSUS III. COPYRIGHT INFRINGEMENT: A BALANCING TES AND THE DMCA IV. ANONYMOUS POLITICAL SPEECH AND CAMPAIGN FINANCE LAWS V. IMPLICATIONS AND DISCUSSION CONCLUSION
While the right to speak and write anonymously has been a component of First Amendment theory since the Revolutionary era, digital and Internet communications have challenged both established legal rules and the basic premises of traditional anonymous speech doctrine. Anonymity as a positive speech right developed to encourage frank debate about public affairs in the earliest colonial newspapers, and anonymous pamphlets and newspapers were a common tool by which the Framers of the Constitution advocated for their political causes. (1) By the 1990s, the Supreme Court had squarely enshrined the right to speak anonymously in First Amendment jurisprudence. (2) With a few exceptions, anonymity generally did not raise legal concerns in the traditional media marketplace, in part because publishers of newspapers and books, for example, had established professional norms of transparency of their identities and were often liable for the content of materials they published; they therefore had a market-based incentive to protect against the harms of some anonymous speech. (3)
The nature of the Internet and the characteristics of online speech--such as mass dissemination, ease of publication, decentralization, and transnationalism--have sparked an avalanche of legal claims over the rights of speakers' anonymity. As a result of these new legal claims, lawyers, judges, and scholars have struggled to reconsider the rationales for and limits of anonymity in the Internet age. (4) Online anonymity touches on many areas of law, including election law, (5) libel, (6) copyright, (7) employment-related speech and trade secret disclosures, (8) and journalists' privilege to protect confidential sources. (9)
The legal claims over online anonymity in these areas of law have underscored the costs of anonymity. Anonymity online has contributed to harassment, invasion of privacy, infliction of emotional distress, and defamation, to name a few legal wrongs. Bloggers have been subpoenaed to unmask anonymous and confidential sources. Newspaper websites have been subpoenaed for the identity of pseudonymous comment posters. Internet Service Providers (ISPs) have been subpoenaed to identify users in libel and copyright-infringement cases. As Judge Jeffrey S. White said in a case involving the controversial WikiLeaks website, "We live in an age when people can do some good things and people can do some terrible things without accountability necessarily in a court of law." (10) Anonymity can shield individuals from being accountable for their speech; it can hinder the investigation and prosecution of crimes and civil wrongs; it has the potential to undermine government authority and security; and it can undermine business interests and e-commerce.
In many lawsuits, plaintiffs have first had to convince courts to become involved in the anonymity labyrinth before they could proceed with their cases, and judges are only now developing a consensus on the legal tests to determine when a plaintiff can unmask an anonymous or pseudonymous Internet speaker. Rising concerns about online anonymous cyberbullying have raised the stakes for legislatures as well. In 2012, for example, the New York legislature proposed the "Internet protection Act," which would mandate that online postings be signed or that the site administrator provide the identities of posters upon request. (11) Yet at least one study suggests that nearly three-quarters of online newspaper commenters feel that anonymity is important, even with increasing negativity and attacks. (12)
This Article assesses the emerging legal standards for anonymous speech in three distinct areas of law: libel, copyright, and campaign-finance law. …