Why a real name policy for online comments works best (except when it doesn’t)

The debate about anonymity on the internet has raged since the advent of the internet. The debate usually pits free speech advocates against proponents of civility and accountability with both sides approaching the issue with an all or nothing mentality.  The  past few years, however,  have witnessed a growing trend among website owners to require persons to use their real names in order to post or comment online.  Facebook, YouTube, the Huffington Post and  Quora are just a few of the more notable websites that have recently joined this trend. One commentator has even  advocated a mandatory internet-wide real names policy.  This post identifies the main arguments for and against a real name policy and sets out the authors view as to the proper policy that should be adopted.

  Promoting Civility & Insuring Accountability

Advocates for requiring a person to use their real name (or at least a recognized user name) primarily argue that such a policy raises the level of civility and quality of discourse on the internet, fosters accountability, discourages trolls and abusive posts and provides valuable contextual information for the reader to assess the post.  Persons who are defamed anonymously are often unable to seek judicial relief because the wrongdoers are anonymous.   And, there are numerous example of persons abusing their power and avoiding accountability for what they say by hiding behind the cloak of anonymity.   The poster child for this latter concern was the U.S. Attorney in New Orleans, who was a highly respected attorney and one of the longest serving U.S. Attorneys in the country, but resigned in December of 2012 when it was discovered that two of his top deputies were using the internet to anonymously attack persons their office was investigating.   Another example is the Cleveland, Ohio State Judge who made anonymous comments about several high profile cases that were pending before her and then sued the paper when she was outed.  Recently, the online review site Yelp was ordered by a court to reveal the identities of seven reviewers who posted negative reviews about a prominent local carpet cleaning business in Virginia. The business claims the reviews were false and were not from actual customers, but from competitors. http://www.washingtontimes.com/news/2014/jan/8/court-rules-yelp-website-must-identify-seven-negat/?page=all

Slate Senior Editor Emily Bazelonreflects the views of many when she argues that a free democracy is better off when everyone is forced to put their name to their words, noting that online anonymous users are poisoning civil discourse with their vile and defamatory comments, all under the excuse of “free speech.”

  Protecting Whistleblowers & Fostering Free Speech

Proponents of anonymity acknowledge that abuses may sometimes occur, but argue that anonymous speech has along and hallowed tradition in our country and, indeed, enjoys constitutional protection.  Absent anonymity, speech will be unnecessarily chilled, they argue.  How many abused women, whistleblowers and political dissidents will come forward if they must do so using their real names?  Anonymous Facebook and Twitter communications were essential during the Arab Spring protests and anonymity allows victims of domestic violence to rebuild their lives where abusers cannot follow.  In a recent post, David Maas of the Electronic Frontier Foundation identifies 16 different groups of persons who benefit from anonymity besides trolls and political dissidents. Maas argues that anonymity is important to anyone who doesn’t want every facet of their online life tied to a Google search of their name.  He focuses on the free speech promoting aspects of anonymity when he argues ” To suggest anonymity should be forbidden because of troll-noise is just as bad as suggesting a ban on protesting because the only demonstrators you have ever encountered are from the Westboro Baptist Church—the trolls of the picket world.

The website geekfeminism.org has created a Wiki which compiles a list ofpersons harmed by a real names policy. Some commentators argue that anonymity actually promotes truth and trustworthiness on the internet. http://irevolution.net/2013/10/22/trustworthiness-and-truth/.

Traditional media, who are struggling to adjust to the online world, have adopted various approaches.  Some newspapers allow anonymous comments, but editors moderate all posts by reserving the right to delete comments that violate the papers posted community guidelines, such as no racist, sexist or personal attacks.  KSL TV follows this approach in its Comments Policy.  This is labor intensive, however, and with the economic challenges traditional media, this approach has lost favor of late. The Salt Lake Tribune allows opaque user names, but you are required to have a real email address in order to open an account which is a prerequisite to posting comments.  Comments are not moderated by Tribune editors, but are subject to being deleted if they violate the Tribune’s terms of use.  Other newspapers permit readers to self police the comments by allowing readers to give a thumbs up or thumbs down on each comment.  If a particular comment receives a certain number of down votes it is removed.  With Facebook’s ubiquity and the ability to log onto a site via Facebook, many newspapers allow a commenter to check in with Facebook and have reported that such a policy has improved the quality of comments.

 Anonymity, But With Potential Accountability

 While it certainly is well within the rights of any website to dictate its own terms of use, I place my thumb on the free speech side of the scale when it comes to anonymous speech.  We unavoidably stifle and restrict free expression when we rule out anonymous statements.  That does not mean that anonymous posters should be given free reign to libel and attack others with impunity; it just means that they have the right to speak anonymously and they must be willing to accept the consequences in the event their identity is discovered.  In today’s increasingly transparent world, it is becoming very difficult to be truly anonymous in the face of a persistent effort to learn someone’s identity.  Moreover, there are existing legal processes that allow a judicially compelled disclosure of identity when certain legal threshold showings are made.  In my view, this regime (allowing initial anonymity with judicially compelled disclosure under certain circumstances) strikes a reasonable balance between the competing interests.

Weekly News Digest for 29 August 2014

California Senate approves measure banning warrantless drone surveillance

27 August 2014
The California state Senate passed legislation this week that limits how law enforcement and other government agencies can use drones in the state. Law enforcement agencies will be required to get a warrant to conduct surveillance with a drone for criminal investigations. Other state agencies can only use drones for their “core mission” and not for criminal investigation. Finally, information collected with a drone can only be retained for one year. California joins a number of other states that have adopted similar measures.

ICREACH: How the NSA Built Its Own Secret Google

25 August 2014
The National Security Agency (NSA) has created a Google-like search interface that allows it and a dozen other government agencies to search communications metadata that the NSA has collected. In all, the search interface known as “ICREACH” provides access to roughly 850 billion records, which is more than the number of stars in our galaxy. While most of these records are believed to pertain to foreigners, perhaps millions of them could related to Americans’ whose information was “incidentally” collected and not properly “minimized,” raising concerns about the possibility of improper use of such information by law enforcement.

How Cops and Hackers Could Abuse California’s New Phone Kill-Switch Law

26 August 2014
California has implemented a law that requires all new cell phones to come with a “kill switch” that allows users to remotely render their phones useless in the event that the phone is lost or stolen. However, some civil liberties and technology groups are raising concerns that the feature could be misused, causing more privacy problems than it solves. For example, the law allows law enforcement to remotely kill someone’s phone under certain circumstances. Also, there is the concern that hackers and criminals could figure out how to access the feature and wipe peoples’ phones to prevent them from calling for help or as a form of extortion.

Comcast Data Breach Leaks Thousands of Unlisted Phone Numbers, Threatening Customers’ Privacy

25 August 2014
Tens of thousands of Comcast customers in California and elsewhere around the country had their unlisted phone numbers released publicly. These customers were paying Comcast a monthly fee to insure that their contact information would not be shared publicly. But many began to notice their information showing up online anyway. Now, the Public Utility Commission in California is conducting an investigation to see how and why this personal information was leaked. This is just one more in a long string of incidents where individuals’ personal information stored with a private company is breached and made available to criminals or the general public against their wishes or against the law.

The FTC’s Controversial Battle To Force Companies To Protect Your Data

21 August 2014
The Federal Trade Commission (FTC) is increasingly attempting to regulate the way companies store consumer data. Even though there have been a growing number of breaches of company databases in recent years resulting in the theft of personal information leading to fraud and identity theft, there is no one federal agency responsible for protecting consumer privacy. The FTC is attempting to become that agency. However, while some welcome this move, it is not entirely clear whether the FTC actually has the legal authority to take on this role.