From: mkj@world.std.com (Mahatma Kane-Jeeves)
Subject: Re: legal question re anonymity online
Organization: The World Public Access UNIX, Brookline, MA
Date: Sun, 10 Jan 1993 01:43:06 GMT

Barry Shein writes:

>And what about the potential harm to other users *from* an anonymous
>user? Is that not a quandary? Does that not, by a similar stretch of
>the imagination, seem to hold the BBS somehow liable to the harmed
>party?

Everyone always brings up this supposed risk of harm from anonymous 
users.  I don't get it.  Imagine a BBS whereon everyone uses a 
pseudonym; how can anyone harm anyone?  Oh sure, they can talk nasty 
to one another, but real harm only becomes possible when real names 
are used, right?  This seems to me like the ideal picture, and I've 
never understood why anyone would object to it as a general model, 
let alone why the objections are so universal.

Now if someone were to use their real name *despite* a BBS's general 
policy, then they have created their own risk, or at least their 
consent to that risk is far clearer.

>Besides, the whole thing is more hypothetical than you might imagine.

Not for me; my feelings about this are based largely on personal 
experience.  I've been involved in electronic conferencing of var-
ious sorts for about 15 years now.  Early on, I observed several 
unfortunate incidents involving friends who used their real names on 
the air, or on BBSs; more than once, I experienced bad results 
myself.  These early experiences are the foundation of my current 
thinking in the matter.

This is probably one of the most central issues in the discussion.  
People tend to think of real-name policies as being pretty innocu-
ous.  If I felt the same way, I would also probably feel that li-
ability for such a policy was ridiculous.  But the more I've looked 
into it, the more important the issue has seemed to me, for a whole 
host of reasons.  I won't go into it all here; I co-wrote a good-
sized article on the subject for Fidonews about a year ago, and if 
anybody wants to read it, e-mail me (mkj@world.std.com) and I'd be 
glad to send you a copy.  I'd have more to add if I wrote it today.

But back to the question of risks to safety.  I don't know what the 
statistics might be in regard to the risks of real-name exposure in 
mass media, and in fact I can't conceive of any way to collect such 
statistics.  But it's interesting to note that computer conferencing 
systems are now virtually alone among major media in refusing to 
protect the identities of amateur participants, and that probably 
says something.  (I've often thought that talk radio, with its 
policy of using only the first names of callers on the air, would be 
a good model for network conferencing.)

>There is nothing novel about BBS's in this regard. I can probably go
>to your town hall or motor vehicle bureau or the IRS or a credit
>agency (if I am a merchant, not a terribly exclusive club) and find
>out a lot about you. If I do something untoward with that information
>*I* am responsible, not the institution that provided that information
>(in general, and so long as that harm did not arise out of incorrect
>or malicious information which is generally the claim against credit
>bureaus, not merely giving it out, your complaint is that the
>information was correct!)

You are quite right that this question can be construed to have 
broad applications throughout our society.  In fact, I suspect a 
right to anonymity online may be crucial to preserving the slightest 
shred of privacy in our not-too-distant future.  See my article.

In a previous message you brought up the phone company ("should they 
be liable for publishing the phone book?"), and now you raise the 
issue of credit bureaus.  Of course, each such example has its own 
particulars, and I don't want to get too sidetracked into examining 
each one.  But it is interesting to note that both of your examples 
are classic 600-pound gorillas, who have had the clout to shield 
themselves from this kind of frequent liability.  For example, if 
you examine the Fair Credit Reporting Act, you will find a section 
which specifically exempts commercial information bureaus from 
normal liabilities for defamation when they circulate false informa-
tion about people.  They lobbied for it, they got it.

My grandfather once told me that there was a lot of vocal opposition 
to the publication of phone directories, too, before people got used 
to it.  I wouldn't be surprised if it was resolved in the same way.

It's funny how, once we get used to being abused, we start defending 
everyone else's right to abuse us in the same ways.  What we seem to 
have here is a classic "slippery slope", with a dash of conditioned 
submissiveness-to-authority thrown in.  Kind of scary if you ask me.

And while you are certainly right in saying that anyone who misuses 
available information is responsible for their actions, it does not 
necessarily follow that no one else can have any liability.

>For example, if a child gets a hold of a subscription card for a
>sexually explicit magazine, fills it out (we don't have to assume a
>small child, a 12 year old is sufficient) and even signs that s/he is
>over 18 yrs of age and encloses the money properly would you expect
>the magazine to be held liable?
>
>It's really quite similar in many ways (now watch, the answer will be
>"yes"...)

Yes (I couldn't resist :).  Well, actually I don't know, but isn't 
it true in general that a merchant who sells sexually explicit 
material, or any other prohibited material (such as cigarettes), to 
a minor is liable, even if the minor misrepresents him/herself?  I 
remember that back in my youth, I had arguments with a number of 
liquor store owners who thought my ID was false (it wasn't, I just 
looked young, which made me a little testy).  They were universally 
convinced that if I was underage, and they sold me liquor, they 
would be in trouble.  Based largely on those experiences, I've 
always been under the impression that the burden is on the merchant 
to be certain that a sale is legal, period.  I could be wrong 
(liquor store owners are not generally recognized as reliable legal 
authorities), but I might be right.

It's frustrating that neither of us has the time or resources to 
discover concrete facts to back up our opinions.  But it is inter-
esting to see how widely our instincts and impressions diverge.

                                   ---  mkj


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