If God had wanted me to be an attorney I'd have been born with a dorsal fin and razor sharp teeth. So the subtleties of the law sometimes elude me. But there have been a couple of recent court decisions that raise big questions about anonymity and privacy on the Internet, so I thought I'd open them up to all you out there in Cringeville.
The first involves the latest twist in the WikiLeaks saga. Last week the judge in question (who apparently does read the papers and maybe even surfs the Net) reversed his own order to shut down the WikiLeaks.org domain just to get rid of a few niggling bank documents. One reason: he really didn't have jurisdiction, or at least, he didn't think he had jurisdiction. Figuring out who WikiLeaks is or where it's located is like trying to send mail to a ghost. The site has no physical address and assumes no corporeal form. It's as close to perfectly anonymous as you can be.
And that makes perfect sense. WikiLeaks serves as a kind of megaphone/firewall for whistleblowers -- a way for people to anonymously post documents that would otherwise get them in trouble and/or dead. (As I've said elsewhere, WikiLeaks ain't saints. There's a sophomoric quality and a notable lack of judgement to some of what it posts -- and they really need a copy editor who speaks English as a first language.) The question I have is, does their anonymity make them unaccountable? Should they really be able to publish anything they please, and to hell with libel, slander, defamation, or privacy laws?
The second case: By a 4-3 vote, the Virginia Supreme Court in the US ruled that spammer Jeremy Jaynes was not protected by the First Amendment and thus entitled to spend the next 9 years in the pokey.
Personally, I think the world would be a better place if every spammer was in the slammer. In fact, they should build a special prison where, instead of making license plates, spammers would be forced to read and delete penis enlargement emails all day long.
But the ruling wasn't just about spam, it was about whether the state law prohibiting spam prevented other citizens from sending bulk email anonymously (in this case, messages with faked headers). In her dissent, Justice Elizabeth Lacy wrote that the law was "unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mail including those containing political, religious or other speech protected by the First Amendment to the United States Constitution."
In other words, if you ban anonymous bulk email for the bad guys, you're also banning it for the good guys.
A Net where no one can ever be anonymous is opening the door even wider for Big Brother. It's what the whole flap about Google and IP addresses is really all about. Anonymous speech is obviously necessary for serious reasons. The Net would also be a far less interesting place if we didn't have, say, that Tom Cruise video where he babbles about Scientology, proving once again just how chock full of nuts he really is. If the identity of the person who originally posted that video was known, he or she would be shark bait by now. But anonymity without accountability is an invitation to abuse.
It's an old debate, but a good one to have, especially right now.