Hello everyone. I am flattered that a few of you have taken the time to read my article. However, I've noticed that the links to it are to the draft version that Mr. Brandt downloaded from SSRN. The updated, edited article is at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=916529.

As for the conspiracy theories from nobs, that made for some hilarious reading!

Regards,

Ken

Some of that stuff is pretty funny, I have to admit! Of course, that's assuming you're not seeing it day in, day out, for weeks on end...

So, welcome to the forum and all, Mr. Myers - and I mean that sincerely, of course - but what convinced you to join? I'd be worried that this might severely damage your standing within the Wikimedia community, whatever that may be. And if the foundation ever does look for an outside firm to defend them in a Section 230-related case, won't your having posted here make them more likely to look elsewhere?

Somey - thank you very much!

I do need to make clear that I am posting in an individual capacity, nothing else. It was that certain narcissistic impulse (which I think we all have) that compelled me to Google my name, and here I found conspiracy theories about me. After I got a good laugh, I decided to say hello. At the risk of dispelling my mystique, however, I will admit that (1) I don't have any standing within the Wikimedia community and (2) the likelihood of the Wikimedia Foundation hiring the firm at which I am currently employed is exceedingly small.

Further on the first point, I did not realize that, just by posting here, there'd be any implication of my personal views (which, by the way, are not necessarily reflected in my article). Is there?

Gotcha. Hopefully the Wikipedia folks will see it that way too, but they often do seem to have a slight problem with that concept.


Nothing like that - they're actually quite tolerant of differing or critical views on most issues, and their minds are mostly made up about the Section 230 thing anyway. What makes them hate us so much is our position on exposure of their real identities, and our non-removal of any identifying information that gets posted here. (Also, they can't ban people from here whom they've already banned there, and that really pisses 'em off!)

I/we have stated this before, but as far as personal info is concerned we only draw the line at home addresses and phone numbers, and also private e-mail addresses (unless they're Gmail accounts or blatantly obvious spambait). We generally would remove information about employers if those employers have little or nothing to do with the content the person tends to edit, and probably also sexual orientation if it really has nothing to do with the matter at hand, though there are many of us who believe that it does more often than not...

They, on the other hand, would have us draw the line at practically everything - not just names, but professions, ethnicities, even country-of-origin, unless already revealed on the person's WP user page. My own position is basically to say, "You're the Top Ten website, and you started it, so you first!"

But that's just me, obviously...

Anyhoo, there are people on WP who consider anyone who posts here to be (at least tacitly) supporting that level of personal exposure, and they get very, very upset! So we generally suggest that people not reveal their Wikipedia user names here, unless they don't care about getting banned or "wikistalked."

And please note, Mr KSM10 - you seem to be the first genuine user since 996, so we've topped 1,000!

Welcome Ken Myers! This board gets better and better because we have some intelligent people here. I hope you stick around. I have updated the PDF file on wikipedia-watch.org so that the printed version now comes up under the old filename I used. I read the new version, and I'm disappointed that what I consider to be the weakest link in your treatment of Section 230 is still not mentioned. You probably don't mention it because it is uncharted territory, and there may be zero precedents that are relevant. As if the structure of Wikipedia isn't difficult enough to analyze in light of 230, this new wrinkle raises the confusion factor by an order of magnitude!

We all know that the anonymity of most stewards, bureaucrats, arbitrators, and administrators is something that the Wikimedia Foundation protects furiously. They delete their logs of IP addresses every few weeks. If Brian Chase had spent 15 seconds creating a username before entering his vandalsim, no one would have ever found him several months later. But he didn't, and that's why I found him, and it's why you have a name behind that vandalism case to use in your article.

Will a court consider this system of anonymity to be an argument in favor of the plaintiff?

If you say "no," then we have Wild West anarchy. No one would be responsible unless the Foundation itself is responsible. I just don't see a court going down this road. If you say "yes," then you should have discussed this in your article as one factor that argues in favor of holding the Foundation responsible.

Maybe you would like to comment on this issue here.

Daniel,

Thank you (and the others) for the warm welcome. You are quite right that I did not consider anonymity in the article; you surmised correctly that there are no relevant cases - this is because anonymity is not relevant to the statutory analysis of 230. I think you do have a point that anonymity has a practical impact, as you have so copiously noted here and elsewhere, and this gives rise to a policy argument against 230 (namely, that it creates a "Wild West anarchy"). For better or worse, I kept myself quite distant from policy arguments: my goal was to summarize existing case law and apply it to the "facts" of Wikipedia. You are quite right, however, that a debate about whether 230 should continue to be enforced as it is currently interpreted should definitely consider this issue of anonymity.

I do not know if you recall a NJ state law that was proposed some time in 2005 or 2006 that would've piggy-backed on 230 and required that ISPs, etc., keep track of people posting on their respective services. I haven't followed up, but I imagine that this was never passed. My guess as to the reason is that the Supreme Court has connected the right to speak anonymously (in whatever medium) with the First Amendment right to free speech. (Obviously, there is no First Amendment right to defame anyone, but prophylactic rules are unconstitutional prior restraints on speech.)

Maybe it's time to split "Legal Issues" out into its own subforum...?


That's true, and a very good point, actually. That section of the law is almost completely non-specific when it comes to the source of the material it purports to indemnify service providers from. Of course, that's also the main argument for clarifying (i.e., changing) the law, right?

I actually think it's quite possible, even probable, given the state of technical knowledge among legislators and jurists at the time the law was passed, that they simply didn't realize that they were providing website operators allowing anonymous postings to "public" forums with a loophole that essentially extends free-speech protections, normally reserved for taxpaying US citizens, to anyone in the world - including sworn and deadly enemies of the US. In effect, this law means that we're paying ourselves to hose ourselves, to take a quote out of Dilbert.


I remember that - it was essentially unenforceable, wasn't it? (Discussion on Digg; the actual bill.) The idea was to require both website operators and ISP's to maintain "legal" names and addresses of people who posted to public forums in case it became necessary to identify them as libelers, sexual predators, or online so-called "encyclopedia" editors. I'm also fairly sure it didn't pass - the verification burden would have been impossible to deal with, and it would have essentially destroyed the New Jersey web-hosting industry, such as it is. No, I'm afraid the only realistic approach is to insist that content not ascribed to a specific person on such a forum be heavily moderated, and that sites that allow public editing respond positively to take-down and keep-down requests, no questions asked.

They have laws requiring fences around private swimming pools, after all!


I've stated this before, but it bears repeating, I think... There's a significant difference between the right to speak anonymously, which in the US is worthy of constitutional protections (at least as they apply to US citizens), and the privilege of being anonymous, which on the internet is provided by ISP's and website operators alone, and not guaranteed or protected by any law or legal precedent whatsoever - at least not that I know of. And once you realize that, you also realize that the only entity that can protect both your speech and your identity is the website operator. As for the law doing that, well... My personal take on that can be found here... It's a privilege that has to be protected not only from the governments who would take it away, but the people who would abuse it to the point where governments would have a legitimate justification to do so.

Mr. Myers, you almost certainly know more about the details than the rest of us - if I'm even slightly off base here, please tell me! But if anything, I'd say that current law tends to favor those who would expose, rather than those who would hide.

I will re-iterate this: the Supreme Court found in Talley v. California (1960), Golden v. Zwickler (1969), McIntire v. Ohio (1995) and several others that localities could not enact laws requiring (e.g.) leafleteers to identify themselves. However this involves "prior-restraint" laws and (mostly) associated fines. Nothing prevents someone -- anyone -- from figuring out who posted something anonymously, in real life or on the internet. The police routinely track down callers to "anonymous" tip lines when it serves their purposes, and comb through many innocent people's ISP records in pursuit of criminalty (real or imagined). Think about ISP logs, phone logs, security cameras, DNA, browser cookies, and a million other little things that get left behind.

So don't think you have a right to anonymity. It's much like your right to a "pursuit of happiness" -- you have a right to pursue anonymity in your speech, but you will succeed only if you are more clever than your pursuers or if your speech doesn't incite anyone to try to figure out who you are. You have a right to pursue happiness, not a right to catch it.




Though Somey has these terribly ethical views on deliberately impersonating people here in order to get them in trouble on Wikipedia (i.e. he's against it). Very disappointing to me :-)

Goddamn thats a sad but true statement if ever I saw one...
so much for constitutional gaurentees, we just legislate them away...

I just wanted to post a note here (in case Ken is still reading). I plan to read his Harvard Journal paper this weekend, and then I might be contacting him privately.

Essentially, I am curious how Section 230 would pan out when it is intended to protect the service provider, but an employee of the service provider is found to be exercising defamation within the provider's space. In other words, if an employee or trustee of Yahoo! could be shown to be using the Yahoo! message board space to libel another person or corporate entity, would Section 230 protect Yahoo!? (I imagine it would.) Would it protect the employee or trustee? (I imagine it would not. But, then, would Yahoo! pay for the legal defense of the employee or trustee, or would Yahoo! have to say, "sorry, employee, but you're on your own" in terms of defending themselves in court?)

I suppose one could replace the word "Yahoo!" with "Wikimedia Foundation", too, without changing the premise of the question, right?

Greg

I would think that in a case like that, there would be a big legal brouhaha over whether or not the employee was acting on his own, or acting as the agent of the service provider... am I wrong?

I'm pretty sure there are some laws on the books in the US, some of which are relatively new, indemnifying companies from the actions of their own employees - who after all might become disgruntled or just-plain-psychotic for some reason or other. But it would still probably have to be argued in the courts, since it's not likely to be a cut-and-dried problem, and the plaintiff is obviously going to want to go after the company, not the employee... pretty much every time!

We discussed something along those lines just recently in this topic, actually.


IANAL, but in that particular scenario, I would think so. The big issue with WP is how one defines "employee" and "agent" and so on, and whether it qualifies as a publisher - not whether the foundation is so dissimilar to other website operators that its paid employees should be treated differently under the law, should they be caught doing something naughty.