From: mkj@world.std.com (Mahatma Kane-Jeeves)
Subject: Re: legal question re anonymity online
Organization: The World Public Access UNIX, Brookline, MA
Date: Mon, 11 Jan 1993 18:34:14 GMT

Mike Godwin writes:

>Look, if you want to create a new law regarding invitees, fine. But let's
>not pretend there's any history to support this law, okay? You can't have
>it both ways--either you're deriving law from precedent, or you're making
>new law altogether. If you think it would be a good idea for such new law
>to exist, fine, but the doctrine of duties to invitees derives from
>precedents, and the precedents involve physical premises.

Our communication seems to be getting a bit confused.  I never said, 
nor did I intend to imply, that there is any historical precedent 
for applying the doctrine of inviter/invitee in an online context.  
In fact, cyberspace being as new as it is, I would be very startled 
to find any historical precedents at all!  What little guidance we 
have in this new context seems to me to be derived from making 
analogies with old contexts, and old precedents.

And there is plenty of precedent, in general, for applying old laws 
and principles to new contexts and technologies.  Freedoms of speech 
and press have certainly found broad application beyond the realms 
of ink, paper and tongues for which they were designed.  Cubby v. 
Compuserve was all about finding an appropriate model; strict li-
ability was argued, but Judge Leisure wisely ruled that the princi-
ples governing bookstores were more appropriate.  And even the EFF, 
if memory serves me, has risen to the defense of freedoms of press, 
association and assembly in online contexts.

So it did not seem to me altogether outlandish to speculate on the 
application of inviter/invitee in this context as well.  If you say 
that it is not transferable, I'll take your word for it; you're 
certainly better qualified to know than I am.

What you seem to be implying is that any doctrine deriving from 
precedent must be applied only within the contexts of the precedents 
themselves; and by extension, that only principles deriving from 
statute or Constitutional law may be transferred by analogy to a new 
context.  That being so, we would need new legislation, or a Consti-
tutional amendment, in order to transfer any principles deriving 
from precedent into the context of cyberspace.  Have I got it right?  

Is this what Prof. Tribe's proposed amendment was all about?  Wasn't 
there some disagreement as to whether this amendment was necessary?  
Is there disagreement about the "transferability" of doctrines 
deriving from precedent?  Am I asking too damn many questions?

>>  I am also curious as to why you say the doctrine is
>>limited to "physical hazards"; do you mean it doesn't apply to non-
>>physical injuries suffered on physical premises?  How odd.
>
>"Non-physical injuries?" Such as what?

You know, extreme emotional trauma, pain and suffering, that sort of 
thing.  I can't think of a perfect example, but the electric kool-
aid acid test comes to mind.  Or maybe some of the stories we've 
heard about commercial airplanes diving or rolling in mid-flight, 
leaving no physical injuries but leading to nervous conditions and 
persistent psychological disabilities in some of the passengers.  
Perhaps very traumatic psychological harassment could lead to an 
injury in this category.

>Your hypothetical case was quite specific: A service denies anonymity,
>then "somehow" manages to disclose address data about a user. The user is
>stalked *physically* as the result of this disclosed data.

To be perfectly accurate, I did not say that the system disclosed 
the address data.  Once you know someone's name, it is often quite 
easy to discover their address from public sources of information.  
(And once you've obtained that much, with a little creative effort, 
there's virtually nothing you can't find out about them.)

But I am certainly willing to concede that my hypothetical case may 
not have been perfectly constructed to suit the purposes for which I 
intended it.  I think subsequent discussion has clarified my intent.

>>Take for example the words of Cliff Figallo in this conference
>>regarding his real-name policies on The WELL.  In a message of Thu,
>>17 Dec 1992 20:32:33 GMT, he wrote:
>>
>>> Since the WELL makes it clear that users are responsible for what
>>> they post on the WELL, we thought it important that they be
>>> identifiable.
>>> ... by having a real name associated with every account, there is
>>> less tendency for users to be abusive of other users.
>>
>>If this isn't a euphemistic way of saying that they suppressed
>>unpopular speech by creating a pervasive threat of retaliations
>>among users, I don't know what it is.
>
>Apparently, then, you don't know what is. No one on the WELL worries about
>retaliation. Nonanonymity simply means that if you act nastily or
>foolishly, your nasty or foolish statements will be remembered, and that
>this will tend to cause shame in the present and lack of credibility in
>the future.
>
>Now, Mahatma, perhaps you come from a place where the only thing that
>makes people nice is the threat of physical violence, but the WELL is a
>little bit more civilized than that.

First of all, Mike, I doubt either one of us can say with authority 
what everyone on the WELL does or doesn't worry about.  If the 
WELL's membership is large, I would be willing to bet that there's 
somebody on there who worries about it.  But of course, those of us
most likely to worry about it are unlikely to become WELL members.

Secondly, the question of whether anyone worries about or not it is 
irrelevant to the question of whether they should.  When the subject 
of the WELL's anonymity policies first came up in this conference, 
you kept saying that "nobody on the WELL has complained about it", 
as if that were relevant.  I couldn't help but think, that's the 
same crap I get from every clueless store clerk when I refuse to 
give them my social security number: "Gee, none of the other custom-
ers ever complain...".  That doesn't make it OK!

Third, the purported "civilized" consequences of non-anonymity as
you describe them above are realized equally well if consistent
pseudonyms are used.  So this is NOT a plausible characterization of
the purposes of real-name policies, on the WELL or anywhere else.
It just doesn't wash.

Fourth, I never said that retaliation is necessarily synonymous with 
violence.  There are many forms of retaliation, and with real name 
policies, you open the door to all of them indiscriminately.

Fifth and finally, I come from Earth, where a lot of people are
nice, and a lot of people aren't.  Is the WELL open to the public?
Does the WELL do background checks on all its members?  Do WELL
users participate in a network with an estimated 10 million users
worldwide?  Are you seriously asking me to believe that in all those
millions, there is no one who might be dangerous?  Get real.

>>The thought I had in my mind was of a phrase which I believe comes
>>from old English common law: "No wrong without a remedy".
>
>This explains your mistake. The phrase is "No right without a remedy."
>That is, if there's no remedy, then there's no enforceable right.

Wow.  I guess I couldn't have been more wrong.  I never would have
imagined a principle such as you describe.  No rights, nor any
freedom to protect ourselves, except as granted by specific
enumeration in the law?  Sounds like a serious bummer.

Despite the humiliation and disappointment, I thank you for setting
me straight on this point.


                                        ---  mkj


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