Jul 072015

The following is cross-posted from Popehat.

There is no question that the right of free speech necessarily includes the right to speak anonymously. This is partly because sometimes the only way for certain speech to be possible at all is with the protection of anonymity.

And that’s why so much outrage is warranted when bullies try to strip speakers of their anonymity simply because they don’t like what these people have to say, and why it’s even more outrageous when these bullies are able to. If anonymity is so fragile that speakers can be so easily unmasked, fewer people will be willing to say the important things that need to be said, and we all will suffer for the silence.

We’ve seen on these blog pages examples of both government and private bullies make specious attacks on the free speech rights of their critics, often by using subpoenas, both civil and criminal, to try to unmask them. But we’ve also seen another kind of attempt to identify Internet speakers, and it’s one we’ll see a lot more of if the proposal ICANN is currently considering is put into place.

In short, remember Charles Carreon?

He spent some time a few years ago antagonizing The Oatmeal with bumptious legal threats and unfounded litigation. Then he doubled-down by threatening at least one of his critics with the same. And how did he manage to do that? By first threatening the intermediary the critic depended on to enable his heretofore anonymous online speech.

In that case the critic had selected a domain incorporating Carreon’s name in order to best get his point about Carreon’s thuggery across, which the First Amendment and federal trademark law allowed him to do. When he registered the domain name he also paid extra to avail himself of the registrar’s proxy WHOIS service in order to maintain his anonymity by keeping his identifying details hidden – a service that up to now domain registrars have been permitted to offer. Unfortunately, the registrar immediately caved to Carreon’s pressure and disclosed the critic’s identifying information, thereby eviscerating the privacy protection the critic expected to have, and depended on, for his commentary.

It was a denial of anonymity that never should have happened, but under the new ICANN proposal this sort of exposure of speakers’ identifying information will only happen more often as ICANN seeks to make the privacy protections of the WHOIS proxy service less available and more flimsy, particularly in cases where IP owners dislike the speech taking place at that domain.

It is a proposal that is extraordinarily glib about its consequences for any Internet speaker preferring not to be dependent on another domain host for their online speech. First, it naively pre-supposes that the identifying information of a domain name holder would only ever be used for litigation purposes, when we sadly already know that this presumption is misplaced. As this letter to ICANN points out (linked to from the independently expressive domain name “icann.wtf”), people objecting to others’ speech often use identifying information about Internet speakers to enable campaigns of harassment against them, sometimes even with the threat of life and limb (for example, by “swatting”).

Secondly, it pre-supposes that even if this identifying information were to be used solely for litigation purposes that a lawsuit is a negligible thing for a speaker to find itself on the receiving end of, when of course it is not. In the case of Carreon’s critic he was fortunate to be able to secure pro bono counsel, but not everyone can, and having to pay for representation can often be ruinously expensive.

Thirdly it pre-supposes that there is somehow an IP-related exemption to the First Amendment, when there most certainly is not. Speech is speech and it is all protected by the First Amendment. Attempts to carve out exemptions from its protections for speech that somehow implicates IP should not be tolerated, particularly when the consequences to discourse are just as damaging to speech chilled by IP owners as they are by anyone else seeking to suppress what people may say.

It is important to hold fast on this all-speech-is-protectable principle especially because, fourthly, just because an IP owner may object to certain speech does not magically make that objection valid. Remember, Carreon’s critic was ultimately vindicated, but only after he had lost his anonymity, which Carreon was way too easily able to destroy. In fact, Carreon’s example shows how, in light of this potential for abuse, we should actually be strengthening the ability of intermediaries to resist demands to unmask their users, not making them more vulnerable to this pressure, as ICANN currently proposes.

So what can you do to stop this? Per the EFF post, you can send comments by email to [email protected]. They are due July 7. You can also support a petition that a coalition of companies and concerned individuals have established at savedomainprivacy.org, or use the phone and email tool of another coalition at respectourprivacy.com.

Also, continue to watch how this issue develops and be prepared to let appropriate U.S. government representatives know that they need to ensure that all of the First Amendment protections online discourse depends on, including the right to speak anonymously, remain protected, particularly in instances like this one when they are under such direct threat. Sadly this is not the only example of how online free speech is under fire, but that’s a subject for other blog posts another day . . . .

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