Ross Mayfield, who I read on the corporate-as-in-many blog, Many 2 Many has some things to say about anonymity and the press to regulate it, either in a market commodity sense or a civil ordinance sense, or both, stemming from someone being irked over entries made in Wikipedia about them, which they contend are libelous.
Several things in there, it seems… first, there is an assertion that anonymity is a right, or very nearly a right (meaning it belongs to the people, a priori to the State’s claims to power or control); second, there is an contrary assertion that it is not a right, and it is, in fact, something which may be regulated – either a commodity (a substantive thing which has capital worth) or a privilege created by the State and extended to the people a posteriori to the formation of the sovereignty; third there is an attempt to craft a correlation between libel and anonymity. Let’s take each of them in turn.
The question of the a priori right to anonymity, while compelling as philosophical argument being seated in the deepest treatments of identity itself, the possession of a name, and the differentiation between continuums, particular multiples, and singular entities. Likewise it is clearly claimed in political speech by Americans prior to the formation of the United States by pamphleteers of all veins, none less than the work of Publius, the pseudonym used by the Federalists in advocating for the adoption of the Constitution. However, as a matter of law, the case of Hiibel v. Sixth Judicial District Court of the state of Nevada in which the U. S. Supreme Court decided in favor of the Nevada Court in 2004 blessing a Nevada law that permits an agent of the state to compel a person to identify themselves, and confine them until they provide that identification, seems to have the current say on the issue. The right of the authorities to, by coercion, elicit the identity of an individual is a severe strike against any claim to a priori anonymity.
On the other hand, the claim to commoditization of identity is well advanced based on the current practice of gathering customer data and using it as a competitive advantage, listing it among the assets of an enterprise, and selling customer data in an information commodity market. In the eyes of the competitive marketplace, the issues of identity, anonymity, and privacy are no different than the issues of other intangible assets which, when kept scarce have value and when held in common are limited in their use as capital.
Likewise, the permissiveness of oversight concerning the collection, retention, and disposition of information and intelligence on human beings, citizens of the United States or not, by domestic facing agencies of the Federal Executive has substantially remolded identity into a thing created by the assignment of identity (in the form of a Social Security number, driver’s license number, voter registration number, or passport number) to a human being who, in the eyes of the State, did not exist prior to the assignment only strengthens the contention that the State as created anonymity, as the consciously unidentified domain of a human being’s activities, concurrently with the creation of identity wholly a posteriori to the establishment of the Federal Sovereign.
In both cases, the lack of affirmative action to preserve the a priori right has ceded relevance of the argument to the de facto standards in practice by the State and Market. As is the case with all intangible informational entities, the way in which information is regarded is largely responsible for the degree to which it is esteemed. Some information, such anonymity, is valuable only because of its lack of currency, while other information, such as evacuation orders, is only valuable when widely disseminated. Whatever the case, information never has worth apart from its mobility – it does not have value intrinsic to itself the way that Locke’s shiny sea shell has intrinsic worth to someone even if it is esteemed only by that particular individual.
Finally, the relationship between libel and anonymity is one that I am most unfamiliar with. My initial investigation into the issue is that it is more a three-body problem than a person to person contention. The reason for this is that when someone feels offended by the anonymous speech of a person made on the Internet, they can discover with little difficulty the Internet Protocol address (IP Address) of the person who has made the offending speech. That IP Address is then traced to a block of addresses assigned to an Internet Service Provider (ISP) who, ostensibly, knows which particular customer was assigned that address at that particular time. The ISPs have, with the backing of Congress, resisted being placed in the position of liability for the actions of their customers and have acted in whatever way best suites their counsel’s interpretation of least-liability in the given case – generally resisting to offer up the identity associated with the IP Address.
(As an aside, I has been my experience that answering the question, “Who was assigned this IP address three weeks ago Thursday at 10 PM Eastern time?” is actually pretty difficult to answer if you have not intentionally set up some sort of system to track assignments in that fashion. If I were the CTO or a network engineer for an ISP trying to maintain the status of non-liability for customer actions, I wouldn’t be directing money or personnel to the creation of such a tracking system unless I believed that I would be fired for not proactively creating it.)
Interestingly, Online Membership Services (OMSs), such as Yahoo!, that host forums and message boards do not act as they believe they have the same liability protection that ISPs enjoy, and their tendency has been to turn over membership information associated with usernames to complainants claiming libel, or simply unfavorable characterizations originating from online speech.The same generalizations about ISPs and OMSs seem to apply to the disclosure trade secrets, the distribution of copyrighted material, and their actions in response to the negligent disclosure of personal identity information.
Perhaps the issue is better understood if the technological issues are removed. In the case of an ISP, imagine that someone was able to send letters to a large number of people using the U. S. Postal service and those letters contained inflammatory or libelous speech but were signed with a pseudonym and had no return address. The postmark would reveal the post office that processed the letters (assuming they all came from the same place) and perhaps the particular letter carrier that picked them up and delivered them to the post office for processing. Now, the offended individual might demand that the postal service direct that letter carrier to reveal the particular mail box that those letters came from. Assuming the letter carrier actually knows where they originated, there are two possibilities – they were received from a residential mailbox, or they were received from a public drop box. The first issue is whether the postal service may and ought to compel the letter carrier to disclose this information. The second issue is whether that information is authoritative enough to secure a warrant or subpoena to continue to pursue the claims of the offended party.
I would argue in the first that the postal service has no obligation or duty to the offended party whatsoever as long as the public trust and safety are not breached. It is one thing to make marginally true or untrue statements with obscure attributions through the mail, it is another thing all together to use the mail as a mechanism to engage in violence or incite fear, which is why the postal service acts in concert with investigations into the Unabomber or the Anthrax Letters but takes no action against those advocating in favor particular candidates or issues during elections.
In the second, I would argue that anything the letter carrier says is more authoritative than the offending speech itself – that is, it is not necessarily hearsay and that consequently it may be used to further a case for damages; and it is this weight of knowledge that provides the impetus for the release from liability for the actions of their customers. Knowledge that is requisite to the operation of the network cannot be used as a lever to compel the network operator to assume civil liability for the greater consequence of that knowledge outside the context of the operation of the network without creating a corresponding market liability that would, in many cases, preclude the existence of the network operator, and possibly the network itself.
Contrast this to the case of an OMS such as Yahoo! In this case, we will imagine a situation where the same sentiments contained in the letter from the example above are transmitted via a low power radio station, or a series of such stations, that use vacant radio spectrum to broadcast the recorded message to anyone who might be in range of the signal. Accept, for the sake of this arguments, that this radio broadcast will be within the applicable regulations for the operation of a low-power radio station, and that it will be advertised via word of mouth and through the creative use of graffiti and handbills. Here, there is no network at all and consequently no network operator – the content exists without a comprehensive conduit as little more than amplified vocalization. The conduit for the radio is the electromagnetic spectrum and, I would argue, the conduit for an OMS is the virtual agora manifest by the presence of the members. Whatever framework provided by the service is incidental to the content, which is provided by the members themselves. Without readers and commentators, a forum is quiet, and any information contained therein is at equilibrium, that is, not in motion.
If a network owner, whether their network is a postal system, a highway system, or a portion of the Internet, cannot act on their principle responsibility – that of providing the network itself – while concurrently finding relief from responsibility for the conduct of those initiating the activity on the network that falls within the operating principles of the network – cars drive in a given direction, letters are of a given shape and size, packets are properly formatted – they cannot succeed in providing the network conduit, nor can the succeed in governing the behavior within the content of the network. The behavior of children within a given car, the content of a given letter, or the payload of a given packet is not the concern of the network owner. When, in the case of ad-hoc radio broadcasts, the World Wide Web, and P2P systems, there is no network owner, and consequently no one to be responsible for the conduit. This fundamental duality in network systems – the differentiation between conduit and content – is essential to understanding the regulation of behavior on networks.
For this reason, I am skeptical of claims that Internet anonymity must be constrained to safeguard against libelous or inflammatory Internet speech in cases where the anonymity is established in the network conduit rather than the network content.
In the end, the tragedy of the question concerning the disposition of anonymity and privacy in the context of the State-Market-Church model, and consequently that of identity as a constructed artifice and not a philosophical concept, is that perhaps the die is already cast. The acceptance of the de facto standards created for the benefit of the State’s Sovereign or the Market’s Corporation is, by virtue of the irreversible consequence of the loss of privacy or anonymity, exclusive to any solution crafted in hindsight to benefit the individual _qua_ individual. The loss is already occurring, continues to occur, and the recompense to those already suffering will be marginal at best. As John Seigenthaler, Sr., the subject of Mr. Mayfield’s original comments writes in USAToday:
“When I was a child, my mother lectured me on the evils of “gossip.” She held a feather pillow and said, ‘If I tear this open, the feathers will fly to the four winds, and I could never get them back in the pillow. That’s how it is when you spread mean things about people.’”
Mr. Seigenthaler says “that pillow is a metaphor for Wikipedia” but perhaps he would have been more accurate in the long run, to set his metaphorical sights higher than his own personal slight at the hand of an anonymous Wikipedia author and instead rest his gaze on the greater issue to liberty represented by the clamor for control of information fermenting in the space between industrial capitalism and network capitalism.