Posted by: Hillary Owen
April 20, 2015
Anonymous speakers are at the heart of the first amendment’s free speech protection. Requiring identification to make speech protectable could chill the speech itself, so as long as what’s being said isn’t defamatory or knowingly false, the speaker can remain in the shadows. While the routes of communication are changing, that doesn’t mean that their protections should change. The internet is an immense platform where anyone can communicate locally and globally as long as they have sufficient access. The internet has also changed the way anonymity works.
In the age of pen and paper, it was easy for someone to write something without crediting themselves, so that once it was distributed no one would know who wrote it. With cyberspace, there is always a trail of bread crumbs to follow back to the author. In order to post anything, a user must create some form of identification at least between themselves and the ISP, although they can cloak their real identity with aliases. The ISP has the down low on a typical user who just removes their name from an article, so unlike the anonymous pencil pusher, they are traceable. ISPs have a commercial interest in keeping user’s personal info private, however, so even if someone comes a knocking looking to umask a speaker, the ISP won’t acquiesce. But in a world with so many outlets, should the law try to protect speakers and those being spoken about?
The Virginia Supreme Court recently reviewed a case about internet anonymity. In it, a store owner, Joe Hadeed, was trying to get the names of three anonymous posters from the review site Yelp. The yelpers posted critical statements about Habeeb’s carpet cleaning business, statements he says are false and defamatory, made by fake customers. He applied for a subpoena to force Yelp to release the names, which was originally granted and then upheld on appeal. The issue went up to the Supreme Court and the public waited for the first amendment debate to ensue. However, the court decided that the courts had no jurisdiction over Yelp, a California-based company, because there weren’t sufficient contacts in Virginia, and did not touch the free speech hot-button topic.
Hadeed would usually be able to sue the posters for their comments and prove, in the courtroom, whether they were actual customers, if their statements were false, and whether it caused damages if he could identify them. Presumably, such postings would seriously dissuade others from using his services, and if the posters knowingly made false comments to cause this harm, then the first amendment could not protect them. Should Hadeed have to make those claims before trying to find the names? He claims to have inferred that the yelpers are not customers, but should he have to prove that what they say is false, too? By looking through the Yelp comments on their business page, it looks like other, identified customers are just as dissatisfied with the service as the unidentified ones. Should the court be able to look at those facts alone to deny uncloaking the speakers?
Since ISPs are often the gatekeepers to customer credentials, suits often hinge on whether a plaintiff can establish jurisdiction over them. The court analyzed the minimum contacts between Yelp and Virginia and found that there weren’t enough to sustain a subpoena for information on a server in San Francisco from a company in California. Hadeed could attempt to litigate in California, to bring his proofs of defamation, but the costs and logistics would make it nearly impossible. In order to protect invaluable free speech, we are willing to sacrifice a small, family-owned business. Ultimately it is not about protecting the speaker and his subject, but the integrity of speech itself, and the free society that depends on it. Some sacrifices are worth making. We will have to see if Hadeed can relaunch his attack, or maybe his time and money would be better served improving his business strategy rather than silencing disgruntled customers.