From: karl@ddsw1.mcs.com (Karl Denninger)
Subject: Re: Legal question re pseudonymity online
Date: Sat, 9 Jan 1993 04:52:32 GMT
Organization: MCSNet, Chicago, IL

I'll poke at this one.

In article <C0ICx4.18F@world.std.com> mkj@world.std.com (Mahatma Kane-Jeeves) writes:
>Let me pose a hypothetical case.  On his way home from work one 
>evening, John Q. Publius stops at a newsstand and buys the latest 
>edition of his favorite quarterly journal, the Entire World 
>Redux.  Inside, he finds an unobtrusive but inviting ad for an 
>electronic conferencing system called The BELL.  
>
>When he arrives home, he powers up his home PC and applies for an 
>account on the BELL.  He informs the BELL's administrators that 
>he would prefer to use a pseudonym, and not reveal any personal 
>information about himself on-line.  But the administrators deny 
>his request, stating: 
>
>     "Since the BELL makes it clear that users are responsi-
>     ble  for  what they post on the BELL, we  think  it  is 
>     important that they be identifiable."
>
>With a sigh, John proceeds to become a regular BELL user and 
>contributor under his real name.

Note: 	John accepted the liability for using his real name, and in fact
	formed a contract with a service provider under specific terms and
	conditions, one of which was that he use his real name.

>Some time later, John participates in a debate on the BELL, 
>taking a clear stance on a very controversial issue.  A lurking 
>rabid fanatic with emotional problems takes silent exception to 
>John's comments, gets John's name from a message header, and 
>somehow finds John's address and phone number.  He makes phone 
>calls to John's answering machine, quoting from John's messages 
>on the BELL and threatening retaliation; later he drops by John's 
>house and lobs a molotov cocktail in through the window.  John's 
>house is badly damaged, and John is injured, suffers great pain, 
>loses income and requires expensive medical treatment.
>
>Infuriated and in desperate need of financial help, John sues the 
>BELL.  My question:  Does he have a case?

In my opinion, no, and here's why:

	John willingly entered into the contract for what he saw as a "good
	bargain" in good faith.  He knew at the time the conditions.
	Therefore, by his explicit actions and in fact payment, he accepted
	those terms.

	Second, he also willingly entered into a heated issue and
	discussion, knowing it was controversial.  

	Analogies:

	If you take a controversial position on a street corner handing out
	flyers, the city is not liable if you get shot in doing so.

	If you publish a book, and take a controversial stand, the book
	publisher AND bookstore is not liable if you are shot.

Ie:	The service provider provides a medium of expression with given
	terms and conditions.  You agreed to those terms and conditions,
	including the risks inherent in their use.  I assume "the BELL"
	would have such a clause in their contract (or they're fools).
	My service agreements certainly do.

>Suppose John can show that although the BELL management denied 
>pseudonymity to most users, they granted it to certain people 
>such as celebrities or others with special status.  Would this 
>strengthen John's case?  Could he argue that if the BELL takes 
>upon itself the authority to decide who may or may not protect 
>themselves with a pseudonym, they must also accept at least 
>partial responsibility for the consequences?

No.  The fact that I offer you a contract under specific terms and
you accept it does not mean that I must offer only those terms to others.
There are few restrictions on the reasons I may "discriminate" in my
business dealings.  Only those explicitly prohibited by law are off limits
(sex, race, creed, etc.)  I can certainly extend pseudonym status only to
those who I know personally, or only to some other select subset of
persons.  Perhaps it costs extra.  Perhaps it is simply unavailable except
by invitation.  Nonetheless, this is my choice as management.

>Suppose John can show that other BELL users have previously 
>suffered defamation, harassment or other problems as a result of 
>real-name exposure on the BELL, and that BELL management was 
>aware, or should have been aware, of at least some of these 
>problems.  Would this strengthen John's case?

Again no, as there is no reasonable method by which the management of BELL
could know >in advance< that John was about to undertake a risky venture
using their printing press.  In fact, if he had stated so in advance, they
might not have provided service at all.

>I realize that these questions may not have clear answers at this 
>time, but I am looking forward to informed speculation.

If I were on a jury hearing this case, you now know how I would vote.

--
Karl Denninger (karl@ddsw1.MCS.COM, <well-connected>!ddsw1!karl)
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