Monday, March 03, 2008

The AK47 Motion and Anonymous Internet Speech

Jill at Feministe has made a post about the motion to quash a subpoena directed at AT&T filed by pseudonymous defendant "AK47" in the AutoAdmit litigation (the motion is available here).

Jill makes a good point about the identification issue. I don't find AK47's "I was just talking generally about Jills... not that Jill" to be very persuasive.

What I do find persuasive is the argument that the claims themselves -- at least with regard to AK47 -- lack any legal foundation.

I have no sympathy for AK47. If I take off my "uphold and defend the constitution" hat, I too want to see him outed and roughed up. But I can't remove that hat. Therefore, while I want to see him outed, I don't want to see it happen this way.

Outing an anonymous speaker should be subject to a reasonable standard. The case law so far seems to be developing along just such a standard: Show that you have a real cause of action with some likelihood of success before unmasking someone, no matter how disgusting their speech may be.

In fact, this very issue reared its head on the Feministe blog in the past.

Naturally, Zuzu's speech is hardly to be compared to AK47's speech. The first is intelligent and informative, yet her reasons for wishing to remain anonymous are similar to AK47's.

She wishes to avoid harassment for her views, which are not quite mainstream. I think that she should be proud of what she's wirtten, but that is legally irrelevant.

The latter (AK47) is just a little boy who thought that he could wear a klan hood and that would keep his identity secret.

Nevertheless, when it comes to free speech, we have to turn off our taste buds. Yes, that is quite difficult when we are looking at speech that turns our stomachs. Of course, I see evidence that Jill agrees:

I do have sympathy of the argument that people shouldn’t be outed for making anonymous comments on the internet. And of course I believe that free speech rights apply anonymously online as strongly as they apply in “real” life. Identifying anonymous internet commenters can have a real chilling effect, and I don’t think that people deserve to be outed simply for saying things that others don’t like — even if those things are sexist or racist or offensive.

But back to the main point -- is the underlying suit meritorious enough to validate a request to unmask an anonymous speaker? With regard to AK47's speech, I think not. That doesn't mean that the plaintiffs don't have a right to gripe -- I just see zero legal support for their claims. There are lots of nasty, mean, and brutish things that people do to each other, which have no legal remedy. This is one of them.

If the court disagrees, so be it. Then AK47 should be legally unmasked. But based on both parties' filings, I'm just not persuaded that the claims have any legal validity.

So what should be done?

Should AK47 "get away with it?" No, I'm not advocating that. I say "go get him!"

A smarter way to handle this would be through private action. A few weeks ago, a lawyer offered a $15,000 bounty for the identity of the author of the Patent Troll Tracker blog. I saw no legal basis for that unmasking, but if someone wanted to rat him out for $15k, I saw nothing wrong with that either. FYI -- it worked.

Why doesn't Feministe offer a reward for the identities of some of the worst posters? The Feministe blog seems to have lots of fans, most of whom agree that at least some of these trolls should be outed. Pass the hat, create a reward fund, and watch AK47's friends turn on him. Then you can splash his name from one end of the Internet to the other, and let society (and future employers) judge him for his speech.

That method would
  1. not create bad precedent that could cause unintended consequences,
  2. preserve the First Amendment, and
  3. be a lot more fun.
Wouldn't opponents of this sort of speech rather see a character like AK47 betrayed by a friend than pried from under his rock by a court? Even if one is not motivated by constitutional concerns, isn't that method just so much more poetically satisfying?

Should Jill take my suggestion, I pledge $100 to start the fund.

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