The New York state legislature is reviewing two proposed laws that would seemingly make it mandatory for operators of blogs, websites, etc., to take down anonymous comments upon request “unless such anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name and home address are accurate”.
Also included is an obligation for any website “where people can hold conversations in the form of posted messages” must develop infrastructure and contact mechanisms for a.) allowing takedown requests to be submitted and b.) for contacting anonymous posters and seeking their John Hancock.
The legislation is potentially flaws in a number of ways. First, it implicitly forces websites to get rid of anonymous commenting (unless the site is willing to take down any and all comments upon request). This may conflict directly with the operation of many websites, the paradigmatic example being 4chan which, for all of its downsides has also been an engine for online innovation and expression. Were such sites deemed to be sufficiently connected to New York for such laws to apply, it would have to reconsider its entire operating structure.
Second, and perhaps somewhat more importantly, the law poses a serious threat to anonymous expression, which U.S. case law recognizes as protected speech in many cases. The law will essentially provide any disgruntled, annoyed, or even mildly bored individual the right to censor the comments of others. This veto emerges not only from the fact that anonymous posters are not provided with any means of defending their anonymous comments or the reason for their anonymity, but more directly from the bills treatment of any anonymous comment as ripe for takedown, regardless of whether it is defamatory, infringing of IP rights, or in any other way illegal. As the proposed law will apply to many online services, including social networks, online paper publications, etc., where political debates are often had, the chilling effect on expression could be very tangible. The law envisions no penalties for malicious or ill-intentioned takedown requests. Indeed, given its expansive scope (any comment deemed offensive by the c0mplainer is covered), even malicious or ill-intentioned takedown requests appear to fall within its vision of a legitimate takedown.
Also, the law appears in direct conflict with 47 U.S.C. 230, a provision in the federal Communications Decency Act which provides intermediaries such as blogs, social networking sites and online publications with immunity from any legal obligations regarding the comments of downstream users. Many have pointed to the correlation between the adoption of this exception and the tremendous innovative growth in user-generated content enabling platforms that characterizes the Internet as we know it today. It is not clear how this inconsistency would play out under U.S. federalism laws.
Finally, speaking more practically, the law ignores the long and growing list of disaster stories that have already emerged in other contexts where notice-takedown based liability has been put on Internet intermediaries. Such systems have evoked criticism for hampering online innovation, stifling legitimate criticism, restricting freedom of expression, and a host of other concerns.
Online harassment is without doubt a very serious matter that needs to be addressed. But it should be done in a reasonable and targeted manner. A good starting point would be to actually define what ‘online harassment’ means (the New York bills do not take the trouble to do so). Further, legal mechanisms already exist, in Canada and the United States, that allow for the identification of anonymous posters as long as the comments in question are illegal. Some of these mechanisms remain cumbersome, and there is room for expediting process, but let’s not throw out the baby with the bathwater.