Legal Analysis and Commentary from Justia

How to Better Fight Cyberbullying: Finding Fixes for the Internet Protection Act

New York Magazine reported that the New York Assembly and Senate are considering legislation to end Internet anonymity, entitled the Internet Protection Act.  This legislation has produced a torrent of criticism, none of it exactly beneficial.  While this proposal does have potential legal problems, it addresses a serious situation, as the legislators who are offering it made clear.

“While the Internet is a wonderful resource for social networking, sadly it can also be used to anonymously bring harm to others,” Assemblyman Dean Murray explained.  Sen. Thomas O’Mara added that the proposal would not only provide a means with which to address anonymous cyberbullies, but it could also help small businesses such as restaurants, where competitors use various Internet forums to post disparaging if not outright false anonymous comments about others’ businesses.

The legislation seeks to provide a remedy for those who are unfairly, and often harmfully, attacked anonymously on the Internet.  While the criticisms that have been lodged against the bills are not baseless, they have been uniformly unconstructive.  The critics are all but aiding and abetting the anonymous cowards who abuse the Internet in a fashion that they would not employ if they could easily be held accountable for their actions.

The critics should have paused to take a closer look at what these thoughtful legislators are trying to accomplish.  The issue should not be how to kill this legislation because of legal infirmities, but rather how to fix it so it that it can accomplish its aim in a way that does not violate the Constitution.

The Proposed New York State Internet Protection Act

New York’s proposed Internet Protection Act is explained and justified, on the OPEN website of the New York Senate, as a means to deal with Internet bullies who “post damaging comments about a person on a website, while remaining anonymous and difficult to trace.”  The website adds, “While cyber bullying is often committed by or against children, it is by no means confined to children.”

The description of the identical New York Assembly and Senate bills further explains: “Anonymous postings on the internet not only can harm the persons or businesses being directly victimized, but they also hurt the public in general. When anonymous posters hide behind the internet to facilitate a crime (such as Harassment) or as a vehicle for defamation, innocent men, women and children are openly victimized, and the public is intentionally mislead. [sic]” The bills therefore offer a remedy: “This legislation simply provides a means for the victim of an anonymous posting on a website to request that such post be removed, unless the anonymous poster is willing to attach his or her name to it.”

More specifically, the key provision of the legislation states: “A website administrator upon request shall remove any comments posted on his or her web site by an anonymous poster 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.”

The First Amendment Problems Critics of the Law Have Raised

Not surprisingly, those who might come under the bill’s broad definition of a “website administrator” are unhappy with the proposed law, for it would reach: “Any person or entity [in New York] that is responsible for maintaining a website or managing the content or development of information provided on a website including social networks, blogs, forums, message-boards or any other discussion site where people can hold conversations in the form of posted messages, accessible via a network such as the internet or a private local area network.”

It appears that the critics, in essence, want the legislation killed. They claim that it is unconstitutional under the First Amendment. The Huffington Post nicely summarized the problems, based on the work of the Electronic Frontier Foundation on this issue, while citing two leading rulings of the U.S. Supreme Court in this area of law: Talley v. California (1960), which struck down a city ordinance that had prohibited the distribution of anonymous handbills; and McIntyre v. Ohio Elections Comm’n (1995), which struck down a statute prohibiting anonymous campaign or other political literature. While the High Court has said that government cannot prohibit anonymity as a condition for public speech, that does not mean that there is a right to be anonymous.  Indeed, there is nothing prohibiting any website or social media operator from requiring users to identify themselves—and many social websites and networks do so.  (See, for example, this report that Facebook’s Randi Zuckerberg believes that anonymity online “Has To Go Away.”) The First Amendment is a prohibition only against the government imposing such a requirement.

Most of the critics of the proposed New York Internet Protection Act have pointed out that it is not impossible to uncover the anonymous bully, and even those who are merely online pests, by hiring a cyber-investigator, or hiring a lawyer to file a civil action and thereby obtain subpoena power.

A bit of browsing reveals, moreover, that legitimate cyber-investigators have legal “hacking” tactics that they use to uncover anonymous troublemakers.  If a lawsuit is justified, and presumably no member of the bar will file a suit unless to do so is appropriate, then in that action the courts will enable the bullying victim to enforce his or her subpoenas and will uncover the miscreant.  In fact, many social networks, website operators, and Internet Service Providers willingly cooperate with law enforcement.

But all this can be expensive, not to mention emotionally exhausting, and the abuse may not call for such drastic action, when the likely remedy could be found in simply gaining access to the true identity of an online tormentor.  This revelation of the wrongdoer’s identity is the purpose of the Internet Protection Act.

Fixing the Internet Protection Act

There are ways to approach the problem of Internet bullying that would not violate the First Amendment, and would solve the problem of Internet incivility, which continues to grow largely because of the option of anonymity.  Rather than the government’s effectively banning Internet anonymity—which would fly in the face of the First Amendment—the New York Assembly could provide a remedy for Internet harassment that is similar to the process that many states have provided for dealing with in-person stalking and domestic harassment.

Most states have laws that make it relatively easy for any person to obtain a protective order if he or she is being stalked or harassed by another person.  Obtaining such an order does not require an attorney, and most states have websites that explain exactly how to obtain such a protective order in very non-legalistic terms.  While there is debate about the effectiveness of such protective orders, there is no question that the process of obtaining such orders has been made citizen-friendly in many states.  It is this process that provides an outline for an approach that might be used by the Internet Protection Act.  Under that approach, a person who is a victim of anonymous Internet harassment could obtain a court order enabling him or her to learn the identity of his or her tormentor, through a process that would be relatively easy, and involve only nominal expense.

Granted, not all anonymous Internet abuses of others rise to the level of a potentially harmful physical threat, defamation, or the infliction of sufficient emotional distress that law enforcement or legal action is appropriate. But that does not mean that no serious problem exists.  There are endless examples of cases where anonymity has been used to abuse others, psychologically or by falsely characterizing their businesses, and this abuse and deception calls out for a remedy.  Easy and inexpensive access to a subpoena that would uncover the person responsible for the misconduct would solve the problem of how to deal with most of these situations.  Indeed, the very fact that such a remedy was available would cause most of those who would otherwise be inclined to abuse Internet anonymity to avoid such conduct, lest their identities be exposed.

Of course, there are occasions and situations where anonymity is important, and even necessary, times where it encourages vital communications that can make the world a better place.  But using anonymous posts on the Internet to intimidate and harm another person or business is an inappropriate and unjustified use of anonymity.  In the name of civility, which is essential to civilization and particularly essential to a democracy, everyone should encourage the efforts in the New York Assembly and Senate.  Rather than explain why these well-intentioned legislators supposedly cannot constitutionally do what they seek to do, we should be looking for ways in which we can  help them accomplish their goal of restoring civility.

I have suggested one approach to the issue here.  Undoubtedly, there are many others.  Please think about approaches to the issue, and share your positive thoughts with The Internet Protection Act sponsors in the New York Assembly: Assemblyman Dean Murray and Senator Tom O’Mara.  In the Assembly, the bill has 27 co-sponsors. However, it had no co-sponsors in the Senate, as of when I last checked.

It is long past time to start finding solutions to anonymous cyberbullying and other abuses of the Internet.  Rational people everywhere should appreciate this legislative effort, thank the sponsors, and if possible, make suggestions that will aid the ultimate passage of the law they propose.

John DeanJohn W. Dean, a Justia columnist, is a former counsel to the president.
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  • http://www.facebook.com/people/Jimmy-Smith/100003730543371 Jimmy Smith

    This bill has nothing to do with Cyber-bullying and has everything to do with protecting Politicians from public criticism. Seriously, when was the last time you had ever seen a high school bully in a comment section on a news site tormenting his classmates? This bill was only raised because somebody posted comments about Assemblyman Dean Murray, accusing him of abusing his ex-wife. Instead of laughing it off as an offhand comment from an unreliable source, they now feel like they have to control what people post on the Internet. The Internet is a valuable resource when average people like ourselves can expose the truth about others in more powerful positions without fear of repercussion. I am sure that this standard will not be held by the pentagon when they overturn the Smith-Mundt  act, then what is considered a true statement will truly be selective at best.

  • stefitup

    I agree wholeheartedly and I love the bill.  While I do have a user name for Discus, I have no problem posting my name because if it came out of my mouth I will own up to it. Several friends of mine were brutally and I mean brutally attacked on a website called Topix. They played Topix came and did everything they could do and Topix still refused to remove content that was flat out lies. It finally got so bad with their damaged reputations (even though they weren’t Topix users so the “ignoring the website mentality didn’t apply) that they had to move from a town they have spent their life in. I personally have never seen a worse site and Topix DEFENDS it.. This type of bill is needed not only for New York but throughout the country.

 

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