In the early days of the Internet, an editorial cartoon from The New Yorker depicted a dog in front of a computer monitor and keyboard with a caption that read "On the Internet, nobody knows you're a dog." The point was that people could behave however they liked online without others knowing their true identity.
But is that really true? Au contraire my canine friends.
Revealing Anonymous Speech
While it is true that there is a First Amendment right to free and anonymous Internet speech, that only goes so far. For example, if someone using a pseudonym makes false statements on the Internet that cause harm to others, that can give rise to a potential defamation lawsuit.
Injured parties can then initiate legal action against "John Doe" defendants (porn companies are already adept at this) and subpoena the Internet service provider(s) to reveal the true identity of any person(s) who made the allegedly defamatory Internet statements.
At that point, the ISP likely would provide notice so that person who engaged in the Internet speech at issue would have the opportunity to file a motion to quash the subpoena. In evaluating a motion to quash, the court would weigh the right to anonymous Internet speech against the need of a truly harmed party to recover damages for harmed caused. Likely, the court would require there to be a prima facie initial showing of tangible harm before actually unmasking the Internet speaker's true identity.
Anonymity Slipping
In addition to the foregoing, practically 60 percent of Internet users recently polled by the Pew Research Center (PRC) do not believe it possible to operate completely anonymously on the Internet, reports CNET. But PRC's report revealed 59 percent of those polled feel that they should be able to communicate anonymously on the Internet. And in excess of 85 percent of these Internet users have made efforts to conceal their identities secret on the Internet.
Users seeking anonymity not only avoid using their real names, but they also encrypt email, remove cookies, and attempt to hide their IP addresses. Modern Internet consumers are presumably taking matters into their own hands, and according to the PRC study, 66 percent believe existing privacy laws provide insufficient protections.
So, if you speak (or bark) on the Internet, others may truly know or find out that you are a dog.
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod's columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
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