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Unmasking Blog Commenters Not a Huge Threat To Freedom

Soulskill posted more than 5 years ago | from the hiding-behind-the-internet dept.

The Courts 105

Frequent Slashdot contributor Bennett Haselton writes with his take on a recent court decision about the rights of online commenters. "Although a court has ruled that the police can subpoena the identities of users who posted comments in a newspaper's blog, I think this is not as big of a threat to journalistic integrity as it might seem. And in any case when the judge ruled against the privacy rights of 'bloggers,' he didn't actually mean 'bloggers." Read on for the rest of Bennett's thoughts.

After writing that a Virginia court made an error in saying that spoofing an IP address in e-mail headers was analogous to using a "pseudonym," and that an Ontario court was wrong in saying that an IP address could be subpoenaed by a court because it was no more secret than personal information like a "home address," I think that the latest court ruling against online anonymity — an Illinois judge ordering a newspaper to reveal the identities of people who posted comments on its blog — is not as big of a threat to online privacy, and is not apparently based on any misconceptions about how the Internet works. However, the ruling has the potential to frighten bloggers more than necessary (as well as possibly set a bad precedent for future courts if they don't read the decision closely enough) because the ruling uses the word "bloggers" repeatedly to refer to what everyone else calls "blog commenters."

Police had asked the Alton Telegraph to reveal the identities of five people who had posted comments in the newspaper's blog which indicated they might have knowledge relevant to an ongoing murder investigation. The newspaper sued to avoid being forced to hand over the commenters' identities, saying that they were "news sources" protected under Illinois's newspaper shield law. Judge Richard Tognarelli ruled that blog commenters did not count as "sources" under the shield law, and allowed the police to go forward in obtaining the identity of two of the commenters, but denied the request to unmask three others, on the grounds that those commenters did not appear to have information relevant to the case.

To consider the relevant questions separately:

Is this legally correct?

Every time I raise a question like this, it provokes the ire of law students and lawyers who say that judges are the real experts on what is legally correct, and it's not appropriate for lay people to comment. As I never tire of saying, if judges are really "experts" in a sense that lay people are not, then it should be possible to put 10 judges in separate rooms, present them with the same facts of the same case, and have most of them independently come to the same conclusion about the correct answer, with a higher degree of accuracy than lay people would be able to reach the same conclusion. If this is not the case, then the judges are not playing the role of "experts" so much as "designated decision-makers," and it's perfectly fair for lay people to analyze whether the judges' reasoning appears correct.

In this case, the judge simply said that blog commenters are not news "sources" in the sense described by the law. The text of the shield law (735 ILCS 5/8-901) defines a "source" as "the person or means from or through which the news or information was obtained." Now, if you were to parse this super-literally, then the blog commenters could be considered "sources" because they are posting "information" which can be "obtained" by the reporters who later go back and read through the blog comments. But if you were to be that literal about it, then anybody who publishes "information" anywhere at all, including someone who posts a timetable of train departure times on their Web page, could be considered a "source" for information used by a reporter. Clearly the legislature did not intend for the term "source" to include all people who publish information anywhere under the sun (just because that information is technically available to reporters just like it's available to everyone else), or they would have said so. So it seems reasonable to assume that when the law refers to sources from whom reporters "obtain information," it refers to the way in which reporters normally obtain information in their role as reporters obtaining information from sources — that is, the source privately communicating with a reporter with some expectation of anonymity, hoping the reporter can use the information provided for research on a future story. Blog commenters do not fit that definition since (a) they are posting publicly, and (b) they are responding to a story that has already been written.

The judge also noted that the shield law is not absolute, and even for individuals who are considered "sources" under the law, their interest in maintaining anonymity has to be weighed against the importance of the information being sought. Judge Tognarelli wrote, "The Telegraph has an interest in protecting its online blogger's identities while the State has an interest in prosecuting someone who has allegedly murdered a child." That sounded to me like sarcasm on first reading, but actually I think he's just being logically rigorous.

So in this case, I think that you really could probably put 10 different judges in separate rooms and present them with the same facts and arguments, and have most of them (although probably not an overwhelming majority) come to the same conclusion. On the other hand, I would bet that you could ask 10 reasonably smart lay people to analyze the case, and about the same proportion of them would come to the same conclusion as well.

Is this logically correct?

By that I mean, could the arguments made in this ruling be extended to a conclusion that is clearly absurd?

Sometimes a ruling can be apparently in line with the law, but would have implications that would be absurd if carried only one step further. For example, in one of my spam cases in Small Claims court where I brought a case on behalf of Peacefire as a Washington corporation that I owned, a judge ruled that I couldn't represent Peacefire because the corporation was a separate legal entity. This would seem to be in line with the legal principle that only lawyers who are licensed to practice law are allowed to represent entities other than themselves; non-lawyers can only represent themselves. But carried one step further, the same principle leads to a conclusion that makes no sense: If corporations cannot be represented in Small Claims court by their owners, then since lawyers are not allowed in Small Claims court either, the logical conclusion would be that corporations cannot be represented by anybody in Small Claims court. By that logic, I (as an individual) could sue a corporation for any reason, and since nobody would be allowed to defend the case, I would have to win by default! Since that conclusion is obviously absurd, at least one of those two rules (the rule against lawyers in Small Claims, or the rule against people in Small Claims representing entities other than themselves) would have to be relaxed, and in the interests of keeping costs down, it makes more sense to let individuals represent corporations that they own. This is probably why every other judge so far has made the opposite ruling, that I am allowed to represent a corporation in Small Claims court if I'm the owner.

Does Judge Tognarelli's ruling lead to any absurd conclusions? I don't think so. In fact, the opposite conclusion could have led to an absurd result, if the judge had ruled that commenters posting on the newspaper's blog could seek protection as "news sources." If blog commenters were protected for comments they posted on the newspaper's blog, why shouldn't they be protected for comments they post on their own Web site somewhere else, since the two situations are logically equivalent? In both cases, you're speaking to the entire world, not providing information privately to a reporter. By extension, anybody who says anything, anywhere, at any time, would be protected as a "news source" if a reporter could later find a record of what that person said. While there are possibly merits to that idea — that all anonymous speakers should be protected from being unmasked — it's clearly not what the legislature meant, since they were legislating protection for "sources," not "everybody."

When the judge said "bloggers," did he mean "bloggers"?

No. This is the biggest flaw in what otherwise appears to be a logically and technically literate ruling: The court repeatedly used "bloggers" to refer to blog commenters:

"The subpoena seeks identifying information for bloggers who voluntarily left comments on the website..."

"Here, it is clear that the 'reporter' did not use any information from the bloggers..."

"The Telegraph has an interest in protecting its online blogger's identities..."

That's fine as long as everybody understands what the judge really meant. However, if an actual blogger — one who publishes quasi-news articles on a blog and could be considered a reporter in the traditional sense — ever has to use the court system to protect their identity from being unmasked, there is a danger that a court could cite the current case as precedent and say that "bloggers don't count as news sources." I would hope that a future court would read the current decision carefully enough to realize that it refers to blog commenters and not actual bloggers, but there's no guarantee.

Is this bad for civil liberties?

It depends. I think that all the court really said was that while bona fide news sources are protected under the shield law, the shield law does not apply to all people who post public information that might potentially be used for a news story someday. That was already the de facto legal situation that most of us were in — if you post something in a public forum that makes the police think you have information that could be relevant to the prosecution of a crime, they can probably get a court to unmask your identity with a subpoena.

It may be tempting to think that courts should interpret the shield law more broadly, but be careful what you wish for — if the shield law got diluted to the point where it applied to everybody, then that increases the chances that courts would carve out more exceptions to it or the legislature would rescind it, since neither the courts nor the legislature generally think that everybody deserves legally guaranteed anonymity all of the time.

If you do think that everybody — or, at least, you — deserves guaranteed anonymity for online postings, you can use tools like Tor to make your identity completely untraceable. I would guess that none of the blog commenters in this case went to that trouble.

In fact, one of the two commenters whose identity was ordered unmasked by the court, used the handle "mrssully." What if that turns out to be a woman whose last name is Sully, and who could have been trivially identified if the police had called the murder defendants' friends and acquaintances and asked, "Hey, who do you think 'Mrs. Sully' is?" The court ruling said that "the Sheriff's Office contacted 117 different individuals regarding the incident" and that "it would be a very expensive and a 'monumental task' to re-interview all of those witnesses." To re-interview all of them, yes. But it would not be a monumental task to have a junior member of the police force call up each of the 117 phone numbers for the witnesses and leave a message saying, "Hey, do you know a 'Mrs. Sully' who is connected to the defendant?" If someone calls back and says Yes, then maybe you've found who you're looking for; if not, then you've only wasted about two hours trying (at sixty seconds per phone number), so go ahead with the subpoena. If it turns out that "Mrs. Sully" is someone who could have been found in this way, then as a taxpayer and as someone who supports law enforcement at least insofar as they're conducting murder investigations, I might reasonably ask why the police didn't do that first.

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New section called editorial (5, Insightful)

vivaoporto (1064484) | more than 5 years ago | (#28025695)

It would be great if Slashdot had a new section called editorial, so the Staff and their frequent contributors could post op-ed pieces like this one. It would be better categorized, separating actual news from opinion, and give users the option to read or disregard it.

Re:New section called editorial (5, Funny)

Shakrai (717556) | more than 5 years ago | (#28025751)

separating actual news from opinion

Is such a thing possible on the internets?

Re:New section called editorial (3, Insightful)

Mister Whirly (964219) | more than 5 years ago | (#28027041)

Is such a thing possible anywhere?? Most of the time news=opinions and vice-versa. As long as humans are covering the news, there will always be a bias.

Re:New section called editorial (4, Funny)

hags2k (1152851) | more than 5 years ago | (#28027149)

Is such a thing possible anywhere?? Most of the time news=opinions and vice-versa. As long as humans are covering the news, there will always be a bias.

I'm sure we can establish a standard for unbiased news. We just need an objective definition of "objective".

Re:New section called editorial (1, Interesting)

PopeRatzo (965947) | more than 5 years ago | (#28027867)

As long as humans are covering the news, there will always be a bias.

As well there should be.

It's a joke to hear right-wing radio loudmouths with shows syndicated on 800 stations talk about how the "mainstream media" is "biased".

There's a difference, anyway, between bias and a news organization writing a story that leads to a conclusion.

The most ridiculous behavior that I've seen media organizations, especially news outlets, engage in after decades of the efforts by the far right to "work the refs" is when they believe every story has "two sides" that both need to be presented to give "balance". Sometimes I think that if President Obama cured cancer, Fox news would make sure to get cancer's side of the story. The only time this does not happen is when conservative conventional wisdom is presented. Then, there's no need for any opposing view. For example: the run-up to the war in Iraq. Even our most prestigious news organizations fell all over themselves making sure that no dissenting opinions were heard, at least until troops had been committed and the big defense contracts signed.

Re:New section called editorial (1)

Shakrai (717556) | more than 5 years ago | (#28028049)

Why are you limiting your criticism to right-wing news outlets? On at least a few issues the so-called "mainstream media" is biased in one direction or another. Gun rights in particular are rarely given a fair play in the mainstream media.

Re:New section called editorial (1)

PopeRatzo (965947) | more than 5 years ago | (#28031081)

Which media is "mainstream"? Is Rush Limbaugh, on more than 800 stations nationwide "mainstream"? Is Sean Hannity who's the biggest name on the biggest cable network "mainstream"?

I'm sorry, the fragmentation of the media has made descriptors like "mainstream" meaningless.

For the right-wing, "mainstream media" means anybody who doesn't agree with them. Just the way everyone who doesn't agree with them is a "socialist" or "godless".

If there is such a thing as the "mainstream media" it's the media that's owned by huge corporations, and their coverage is mainly protective of corporate power and nothing more.

Look at the way the debate over torture and other war crimes suddenly became a hollering match over whether "Pelosi Lied", and the "mainstream media" went along like the obedient puppies they are.

Look at the way every Sunday morning political talkshow on the "mainstream media" has a panel consisting of 2 republicans for every democrat. Look at the way conservative pundits like George Will or David Broder, who have been wrong about almost everything are considered worthy of attention by the corporate media but an economist who wins the Nobel Prize is considered a radical.

Sorry, the big corporate media in the US pushes the right-wing conventional wisdom and nothing more.

Re:New section called editorial (2, Interesting)

Austerity Empowers (669817) | more than 5 years ago | (#28027921)

There will always be a bias, but there's a long way from CNN/FOX to neutral.

In any event, Slashdot is a news aggregate, I'm not sure we should expect it to have unbiased coverage. Honestly I read the articles looking for ammunition, and read the comments looking for good arguments. It's not a huge stretch that occasionally good arguments will make the headlines, and I'm not sure it devalues the site.

I only worry that the bias is sometimes so far out that it caters to people who are at times, not very glued in to the real world, or completely overlook some severe faults in their choices.

There's a difference between creating your own reality, and living an alternate reality.

Re:New section called editorial (0)

Anonymous Coward | more than 5 years ago | (#28028777)

Wait a minute, you mean to tell me Foxnews isn't reporting the whole, unbiased truth 100% of the time? They are interjecting their personal opinions into the fray? Holy crap, I would have never figured it out on my own. Thanks for waking me up.

Re:New section called editorial (1)

penguin_dance (536599) | more than 5 years ago | (#28028715)

separating actual news from opinion

Is such a thing possible on the internets?

There's actual news on Slashdot?

Parent is teh ghey (0, Troll)

Adolf Hitroll (562418) | more than 5 years ago | (#28025759)

It would also be great if they reckoned that such non-news suck monkey balls and should be mailbombed by misterbabyspam on Digg instead of disturbing the few remaining grown-ups here...
OK, let's get back to K5... need oxygen.

Re:Parent is teh ghey (1)

PopeRatzo (965947) | more than 5 years ago | (#28027899)

Wow. I don't know what you just said, but I admire your insanity.

Re:New section called editorial (4, Funny)

hansraj (458504) | more than 5 years ago | (#28025779)

You want summaries to just be summaries and not editorials? You must be new here.

Oh, and prepare for the karma burn mate! ;-)

Re:New section called editorial (-1, Offtopic)

Jurily (900488) | more than 5 years ago | (#28026173)

Oh, and prepare for the karma burn mate! ;-)

Me too, me too!

Imagine a beowulf cluster of karma burn!

Re:New section called editorial (1, Insightful)

Anonymous Coward | more than 5 years ago | (#28025827)

Why was this modded offtopic? The editorial section of any major newspaper is the first to grab many folks' attention. Edit: mods with sense - less funny and more insightful for parent post, please!

The first poster may or may not have said that out of spite, as Bennett Hassleton is clearly in love with his own writing, but it's a good point. It would be win-win for those who enjoy editorials and those who don't.

Re:New section called editorial (1)

PopeRatzo (965947) | more than 5 years ago | (#28027923)

Bennett Hassleton is clearly in love with his own writing

I don't know about Bennett Hassleton (good name, though) but the best writers always are.

Re:New section called editorial (0, Offtopic)

underqualified (1318035) | more than 5 years ago | (#28025883)

It would be great if Slashdot had a new section called editorial, so the Staff and their frequent contributors could post op-ed pieces like this one. It would be better categorized, separating actual news from opinion, and give users the option to read or disregard it.

it would be great if Slashdot had a new section called Offtopic Comments, so the Staff and their frequent contributors could post offtopic pieces like this one. it would be better categorized, separating on-topic and off-topic comments and give the users the option to read or disregard it.

Re:New section called editorial (0)

Anonymous Coward | more than 5 years ago | (#28026653)

That's why that comment is at +4 and you're just left looking like some whiny prick who deserves the offtopic much more than the first poster does.

Go cry to Soulskill, you pusillanimous bed-wetter. The real men will be here handlin' business.

Re:New section called editorial (5, Funny)

Hatta (162192) | more than 5 years ago | (#28026027)

Slashdot has a section for op-ed pieces. It's called Slashdot.

Re:New section called editorial (0, Offtopic)

GreatAntibob (1549139) | more than 5 years ago | (#28026155)

Instead of an "editorial" section, how about a "Bennett Haselton" section.

As I often think, I've just been "Bennett Haselton'd". I don't mind editorials on the front page, but I'd just as soon avoid the poorly conceived, sophomoric op-eds that seem to be his bread and butter.

Re:New section called editorial (1)

PopeRatzo (965947) | more than 5 years ago | (#28028077)

But he's got a hell of a name. You've got to give him that. If you're going to be a sophomoric windbag, you're going to want a name like "Bennett Haselton". It's even better if you can put something like "III" at the end of it. Or, an initial in front. "J. Bennett Haselton III" is an ideal name for that kind of writer.

[Note to Bennett Haselton: I don't know your writing well enough to judge, I'm just showing sincere appreciation for your distinctive name. It's really nothing personal. You're probably a fine guy who comes from a long line of fine guys, all of whom belong to private clubs. Me, I was born with a last name with a vowel at the end, like most other progeny of immigrants from places where the food is spicy and the hair oily, so my people don't get to join those kind of clubs. I've always envied the guys with the good wasp-y names and their lives of privilege.]

Huh? (1)

spacefiddle (620205) | more than 5 years ago | (#28029721)

I don't know anything about the guy, but reading this was a nice mental exercise in "follow the logic," and I enjoyed it. Why the hate?

Re:New section called editorial (1)

funwithBSD (245349) | more than 5 years ago | (#28026295)

I think they call that "Idle" here.

Re:New section called editorial (3, Interesting)

queenb**ch (446380) | more than 5 years ago | (#28026397)

My personal feelings agree with you. However, I find this to be incredibly valuable as this is an area that I deal in quite a bit. A friend of mine runs a quite popular local web site that I write for as a reporter. Many of the artciles deal with political corruption; negligence, malfeasance, or just outright stupidity of elected officials; and now we're going after the school board for just plain being tards.

It's quite useful for us to have the ability to harvest comments off our news blog for further investgation. However, I'm going to put up a disclaimer and point people to a web form that will email me. Set up CAPTCA so that the bots don't drive me insane and we should all be good.

Re:New section called editorial (0, Offtopic)

binford2k (142561) | more than 5 years ago | (#28027507)

And even better, there would be an option to just hide anything that contains the words "Frequent Slashdot contributor Bennett Haselton"

Better question (2, Interesting)

Estanislao Martnez (203477) | more than 5 years ago | (#28027853)

A better question is: why is Slashdot giving this guy a soapbox in the first place? He's really not got a lot of insight into the legal stuff. Take for example, his "Judge Rules That I Own Slashdot" [slashdot.org] piece, where not only he proceeds to blame the judge for his own very badly argued case, but remains completely oblivious throughout to the flaws in his argument.

For example, Haselton consistently expects that the judge must accept his unsubstantiated statements about the facts of the case as true, and dismiss the spammer's retorts as false. He never stops to notice that the judge is obligated to treat Haselton's unsubstantiated truths the same as the spammer's unsubstantiated falsehoods. No, he just thinks that he ought to win, and if the judge doesn't let him win, it must be because the judge is stupid. (And of course, this tells you what Haselton's full paragraph of hatin' on the legal profession in the present piece comes down to.)

And more generally, what's the deal with Slashdot and "frequent" contributors à la Haselton, the late Piquepaille, or that other guy whose name I forgot? Do they pay Slashdot for increased access? Are they folks who met Malda on a convention, drank him under the table, and got him to sign some stuff?

I demand this Anonymous Coward guy be unmasked! (5, Funny)

Anonymous Coward | more than 5 years ago | (#28025753)

Finally, I'll be able to give that f-tard a piece of my mind.

Oh. Shit. I have seen the enemy...and he is us.

-AC

Re:I demand this Anonymous Coward guy be unmasked! (1)

Spy der Mann (805235) | more than 5 years ago | (#28026935)

Oh. Shit. I have seen the enemy...and he is us.

-AC

Funny in appearance, but quite insightful. Because the real identity of anonymous commenters is "we, the people".

Take away anonymity, and you take away the right of "we, the people" to express our opinions without fearing retaliation. This is what unmasking commenters is really about: Protecting corporations from public opinion.

Won't affect me... (2, Interesting)

rednip (186217) | more than 5 years ago | (#28025773)

I always post from random free access points, using a wireless nic I bought with cash!

Re:Won't affect me... (4, Funny)

FudRucker (866063) | more than 5 years ago | (#28025981)

you should have posted as Anonymous Coward you insensitive clod!

Re:Won't affect me... (0)

Anonymous Coward | more than 5 years ago | (#28025995)

With cash? :O

Re:Won't affect me... (3, Insightful)

stararmy (1541581) | more than 5 years ago | (#28026281)

Unfortunately for you, Mr. Rednip, most free access points are near businesses, and most businesses have camera surveillance. True anonymity is hard to come by.

Re:Won't affect me... (0)

Anonymous Coward | more than 5 years ago | (#28027277)

His tinfoil hat will protect him from all the surveillance cameras.

Re:Won't affect me... (1)

StikyPad (445176) | more than 5 years ago | (#28031937)

There are no less than 7 open access points reachable from the comfort of my home. I can't say for sure whether or not their owners want to share them, but they're certainly available.

On a related note, I have to wonder how many people are inadvertently connecting to their neighbor's wireless networks, especially with ambiguous SSIDs like "LinkSys".

Re:Won't affect me... (0)

Anonymous Coward | more than 5 years ago | (#28026423)

Wearing a disguise, that you also bought with cash, in a taxi cab that you paid the driver for his time with cash?

Posting anonymously from a random free access point using a disposable cash bought wireless nic in the back seat of a cab while wearing a disguise that i paid for in cash.

Re:Won't affect me... (1)

Joe U (443617) | more than 5 years ago | (#28027045)

Yeah, I just change my wireless MAC address randomly. It's cheaper.

The right to anonymous speech (4, Insightful)

erroneus (253617) | more than 5 years ago | (#28025785)

People have the right to anonymous free speech. Without that right, people can more easily harass the speakers into silence. And in this case, isn't this quite likely what is being sought?

Re:The right to anonymous speech (3, Informative)

MozeeToby (1163751) | more than 5 years ago | (#28025889)

And in this case, isn't this quite likely what is being sought?

It's a murder case and the commenter seemed to have knowledge of the crime. If, and that's a big 'if', this ruling is limited to similar circumstances (i.e. commenter seem to have intimate knowledge of a serious crime), I see no problem with it. Like most potentially abusive laws/rulings, it is the 'potentially' that worries me.

Re:The right to anonymous speech (2, Informative)

Anonymous Coward | more than 5 years ago | (#28025929)

which constitution are you reading wherein a right to anonymity is extended? The right to privacy is only provided by reading between the lines in a most tenuous fashion. Anonymity is certainly not a right.

Anonymity would allow you to be slandered with no recourse against the perpetrator. It would allow your business to be undone by an anonymous competitor's false advertisement. Does that sound like a good thing?

Re:The right to anonymous speech (4, Informative)

Opyros (1153335) | more than 5 years ago | (#28026159)

Re:The right to anonymous speech (1)

rjhubs (929158) | more than 5 years ago | (#28027075)

I'm sorry but the idea that it is the government's responsibility to protect your anonymity in a public forum is ridiculous.

I don't even feel like its necessary to mention the constitution, as it is only designed to declare the responsibilities of the government, we have all sorts of rights and freedoms that aren't listed in that document.

Sure the founders of the US used to publish documents under pseudonyms.. And we are free to write things on the internet without signing our real name.

However the real analogy here is if someone sees drop off an anonymous letter and it matches your handwriting can that evidence be used in court? If someone traces the IP address back to the computer you were using at that time, can that be used against you in court? I would argue no in both cases because those are pretty much heresay, no one witnessed you writing the words in question. But this has nothing to do with anonymity. I am sure the writers of anonymous documents were careful to make sure no one could easily trace their words back to them, just as I feel whistleblowers need to be responsible for the protection of their own identity if they do not want it to be known. The whole system whistleblowing is rendered useless if there is absolutely no accountability. Because it is more important for someone who slanders to remain anonymous than someone who is providing truthful dissent.

Re:The right to anonymous speech (0)

Anonymous Coward | more than 5 years ago | (#28027473)

I would argue no in both cases because those are pretty much heresay, no one witnessed you writing the words in question.

You can be convicted of a crime, even if no one witnessed you committing the crime. They would not use the handwriting as their only means of identifying you, but as a lead to investigating you to find something more concrete that would tie you to the crime/event.

Re:The right to anonymous speech (0)

Anonymous Coward | more than 5 years ago | (#28028343)

While we're mentioning the Constitution of the United States, the first amendment guarantees teh right of Free Speech. Not the right of anonymous posts on the internet.

Not that there's anything wrong with that.

Re:The right to anonymous speech (2, Insightful)

zeropointburn (975618) | more than 5 years ago | (#28026707)

Never does it say that the people have no right to anonymity. How exactly can we have free speech, religion, assembly, etc. if we are not anonymous? Since the issue is not addressed in the Constitution, that right falls to the people. Since the people have never been very interested in defending that right, the states and the federal government have encroached upon it in typical stepwise, 'think of the children', well-meaning, but ultimately misguided increments.
  This decision is logical, though it would have been better to use the term 'commentor' rather than 'blogger'. Capital crimes investigations take priority over a lot of borderline practices in order to discourage more capital crimes. Even a proper news source could have been court-ordered to disclose a statement to the police in cases of murder, arson, kidnapping, terrorism, etc.
  Lesser crimes (such as slander) would have no standing compared to the protections afforded by shield laws. If an anonymous person slanders you or your business, you sue them. They are breaking the law, which typically breaks their right to anonymous speech (as it is not covered speech). This is a completely unrelated and already resolved concern with no bearing on the issue of anonymity in general or shield laws and blogs in particular.

Re:The right to anonymous speech (1)

Atlantis-Rising (857278) | more than 5 years ago | (#28028597)

Why is the right to anonymous speech necessary to have free speech? We already have laws against threatening others, or inciting imminent lawless action. If you are concerned that your speech might make people want to attack you, we already have legal consequences and protections revolving around that. Anonymity is not necessary.

Re:The right to anonymous speech (0)

Anonymous Coward | more than 5 years ago | (#28030041)

It is irrelevant. Any right not specifically allowed to be abridged by the Government constitutionally yet also not given outright is considered a natural constitutional right. We have the right of privacy specifically because nothing in the Constitution denies it.

Basics.

Re:The right to anonymous speech (1)

Atlantis-Rising (857278) | more than 5 years ago | (#28034749)

Oh really? Proof of this statement?

And don't use the 10th Amendment, because I'll laugh at you, as would any self-respecting constitutional scholar. In the clearest words it can be put "The 10th Amendment adds nothing to the Constitution as originally ratified".)

Re:The right to anonymous speech (1)

Feyshtey (1523799) | more than 5 years ago | (#28028611)

How exactly can we have free speech, religion, assembly, etc. if we are not anonymous?

How, exactly, does one 'assemble' anonymously? I'd like to see you show up at the Republican National Convention in a ski mask.

You are protected by the Constitution to speak your mind regardless of your anonymity, or lack thereof.

I know the argument is a fear of reprisals for what you might have to say. But how far can anyone act on what you say without verification of the facts. You can claim crimes, or unethical behavior, or challenge the status quo, but without your name to back up your word, what you say can only carry limited weight.

If you feel strongly about what you have to say, then you will have to attach yourself to your statements personally in order to further your cause. Barring that, there are methods to speak anonymously if you really are that afraid to do so publicly. They just take a minimal amount of effort to accomplish rather than an ability to flippantly type whatever comes to mind and publish it with a click.

And that is not even addressing the appreciable (and growing) percentage of the population who find pleasure in anonymously derailing relatively civil and respectful debate by purposefully interjecting hot-button rhetoric. More and more there are those who believe little of their own diatribe, but who find it endlessly amusing to watch the reaction boiling over from it. Dropping their âprotectiveâ(TM) curtain would show the cowards for what they are, and much of their bile would cease.

This is how (0)

Anonymous Coward | more than 5 years ago | (#28029169)

You turn up at a rally.

They have your name address and all other information that identifies you. And where you work falls out from that automatically.

You are no longer anonymous.

The rally you go to is, for example, the G20 protests.

Your CEO is told he has a criminal protester who may want to see the business fail (a la Unabomber stylee).

You are sacked.

So how do you go to the next one?

Knowing this scenario *could* happen, you don't go to the rally.

Now, if you'd be anonymous, you would not be harassed and you'd know it. So you go to the rally.

See "Chilling effect".

Jesus, is this the same group of people who threw over a tyranical government a few scant hundreds of years ago?

Seems like a load of pussies now live there.

Re:This is how (1)

Feyshtey (1523799) | more than 5 years ago | (#28029281)

Your CEO is told he has a criminal protester who may want to see the business fail (a la Unabomber stylee).You are sacked....

You sue the ever-living **** out of your former employer, upheld by your constitutional rights to free speech and assembly, and you retire on a beach of your choosing.

Re:This is how (1)

HomelessInLaJolla (1026842) | more than 5 years ago | (#28030127)

Except that, no matter which legal attorneys you have, your employer will most certainly have more. If you could afford more attorneys than your employer then why would you need or want to work for them anyway? If you had that much free capital of your own then, likely, you would pursue your hobby in your own time and be free of the restrictions of the corporate world.

In any termination case the terminated employee is bound to lose unless they qualify to a very specific set of conditions. If the terminated employee was part of a massive layoff then, likely, the employer would have covered the severance package with a severance contract (or whatever they call it)--employer's know full well the impact of a class action lawsuit representing more than a handful of terminated employees. Any other wrongful termination case hinges, near exclusively, on some sort of discrimination. Discrimination is a legal area which is very specifically defined: the terminated employee must be able to show that the discrimination was based upon race, age, sex, religion, veteran status or disability. If none of those apply then the employers often win by default or, if they are pressed hard enough (again, if you have enough money to afford the legal muscle to press a corporate employer, then you likely weren't going to be working for them to begin with), they will invoke the employee agreement which most often contains some form of a definition of "at will employment".

In the case where attending a rally results in an employee being sacked the order to sack the employee will not be executed the day after the rally or even the day after the CEO decides to sack the employee. The employee will gradually be placed in progressively more demanding, less rewarding, catch-22 style situations. They will, over the course of two or three months, lose the support of their managers who, likely, will place demands on them to do things that are designed to fail and then write them up for their failures. It's a steady process of railroading the employee. If the employee confronts the managers about the railroading they will be labelled as aggressive, abusive, insubordinate, and all of the proper managerial reprimand paperwork will be filed with the human resources office.

Even being anonymous is no protection as an employees opinions and points of view are drawn out in typical daily socializing with coworkers. Opinions which don't pander to the herd mentality of the common employment workplace are seen as threats by the management and the same above system of railroading applies. It is even somewhat debatable if this is a deliberate SOP style procedure or if it is just another fulfillment of the herd mentality. It could be entirely a behavioral response--like HIV. HIV is a warning from cells that they are malfunctioning and it is an insidious message to the immune system to begin sacking t-cells. The lymphocytes which perform the sacking, though, are often unable to distinguish between those cells which are directly producing HIV and uninfected t-cells. The result is AIDS when the immune system begins the wholesale sacking of any t-cells who happened to attend the undesirable conference or express the undesirable opinions. It does not matter to the lymphocytes if the destruction of the t-cells weakens the entire body. The lymphocytes do not want to hear about a better way to do things, or how they are doing their job the wrong way, or how the uninfected t-cells are really and truly on their side if they would just think about it. The conditioned response is,"There's something here that we have been told not to like, you look like it, and now you're dead, too."

In most cases anonymity is a method of abuse. People may argue that they remain anonymous because they fear a backlash but, if they feared a backlash, then they already acknowledge that whatever they are about to say or do is extremely unpopular to begin with. You cannot fight a herd mentality even if the herd is wrong--and remaining anonymous won't lend any additional credibility. Anonymity is, by far, used by people who wish to be the agents of abuse but want to retain the facade of being a good, upstanding, kind, moral person when they are in the general public.

Re:This is how (1)

Feyshtey (1523799) | more than 5 years ago | (#28030791)

So by your reasoning, there's no way that a 79 year-old grandmother could possibly sue the multi-national empire of McDonalds because her coffee was too hot, let alone win.

Wait... that happened...

Arguments about severance packages are wholly irrelevant for this discussion. Unless you're suggesting that a company would manufacture a layoff of many employees to rid themselves of one who attended an anti-G20 raly?

You've definately made a compelling argument about the rest of your case. But you do have to admit that there's a limit to the law. You can't expect the law to protect you when you voice your personal political or moral viewpoints in the workplace where typically that type of discussion is expressly prohibited. Unless there's direct relevance in your topic to your work, it's not bright or appropriate to indulge in it. There will be consequences if your views are out of whack with the herd. You've spoken, you've been heard, and you will be judged. The fact that you've drawn an analogy to this and and a deadly virus is disturbing, at best.

You've made no effort to address the person's ability to speak out anonymously without realistic possibility of being identified, even if his or her identity were pursued. Anonymous letters have found their way into the hands of influential people and groups for far longer than there have been blogs or message boards. The possibility exists for someone to present facts or opinion to people who can pursue them, so long as that person isn't inept or lazy.

Re:The right to anonymous speech (1, Funny)

Anonymous Coward | more than 5 years ago | (#28025969)

Is someone just modding every reply in this thread "funny"?

Re:The right to anonymous speech (0)

Anonymous Coward | more than 5 years ago | (#28026595)

Apparently so... too bad the moderating process is anonymous.

What about people using their neighbors wireless? (1)

Zakabog (603757) | more than 5 years ago | (#28025879)

My girlfriend lives in a big apartment building with a really crappy wireless router for the tenants in the basement, we're on the 4th floor. Currently we're using some wireless connection from a nearby home, and I can't imagine that I'm the only person in the world doing this. Then there are people who browse through a proxy. Did anyone tell them that the IP address of a blog commenter is quite useless?

Topper (2, Informative)

sakdoctor (1087155) | more than 5 years ago | (#28026009)

That's nothing!

I aggregate all my neighbours wifi (open or otherwise) into one large, fault tolerant pipe.

Re:What about people using their neighbors wireles (1)

Feyshtey (1523799) | more than 5 years ago | (#28026207)

Ah, yes. It's the "My brother was playing on my account! Honest!", defense.

Sorry, couldn't resist.

I do see what you're saying, and it has some merit. But if they can narrow down a poster to an apartment building, they can probably further narrow it to a person in that building. It would depend on the particular case in question. But as a general rule....

tl;dr and some style notes (5, Informative)

Red Flayer (890720) | more than 5 years ago | (#28026071)

Bennett, I'm sure you have some nice insight into things, but you've got to change your writing style if you want to communicate your ideas effectively to more people.

Your sentences are too long, with too many interwoven clauses. If you need to write a 60-word sentence with twelve clauses, you'd probably benefit from reorganizing your thoughts. This makes it easier for people to follow what you're writing.

You could also consider the utility of lists. They work very well for clear communication when many concepts are being discussed.

In short, Hemingway is a poor model for clear writing, especially when writing non-fiction. Please consider reading newspaper editorials and magazine articles for some insight into how to communicate ideas easily and effectively. You may also want to consider taking a business writing class, or joining an online writing group -- writing groups are great for getting critiques on style.

Final note: I'm by no means the best writer in the world. I hope you take this post as I've intended it, as helpful advice to make it easier for you to communicate your ideas.

Re:tl;dr and some style notes (4, Funny)

Reziac (43301) | more than 5 years ago | (#28026325)

There's a sentence in the prologue of Hawthorne's THE SCARLET LETTER that goes on for a bit over *two pages* in 5 point type. Being at the time a bored 10th grader and this book being required but very dull reading, the only fun to be had was in diagramming that sentence.

It took a full sheet of paper writ small, and the diagram twisted in new and different ways never before seen by grammarians.

Some blog comments rival this antique literary nightmare. And a problem thereby arises: sometimes that overstuffed sentence can arrive at grammatical and therefore legal ambiguity which an evil-minded lawyer or prosecutor could twist in novel ways. (Witness the legal arguments derived from comma placement in the 2nd Amendment!)

So -- learn to write clearly, for your own protection.

Re:tl;dr and some style notes (2, Insightful)

Red Flayer (890720) | more than 5 years ago | (#28026405)

So -- learn to write clearly, for your own protection.

Not just for legal protection, either. It's a waste of time to re-explain things, or deal with misunderstandings. In business, I try to write in short sentences to make it easier on the people reading my memos and emails. I constantly remind myself "staccato" -- it helps :)

Re:tl;dr and some style notes (1)

Reziac (43301) | more than 5 years ago | (#28027245)

"Staccato" is a good description of CJ Cherryh's action scenes -- they work in part because you wind up reading the action in realtime, not dragging along word by word.

As a good general rule, if you have trouble making a sentence work, you are overstuffing it and it needs to be broken up.

Which principles I do well by when writing fiction, but often ignore when writing comments like this one, where I often delve into layers of parentheticals and other hideous constructions :)

(A side effect of having a brainfull of clutter :)

Re:tl;dr and some style notes (1)

mangu (126918) | more than 5 years ago | (#28027485)

(Witness the legal arguments derived from comma placement in the 2nd Amendment!)

I think this last parentheses goes against what you and the GP were trying to say. We should simplify our speech, using small sentences and paragraphs, OK. But the Second Amendment is very short, it's just one sentence less than thirty words in length.

For me the real argument in the 2nd is the "well regulated" part. There are two types of militia mentioned in the US laws, the organized militia which means, basically, the National Guard, and the unorganized militia which can be anyone.

If "well regulated" means controlled by laws and regulations, then the "well regulated militia" that has the right to bear arms would be only the National Guard. OTOH, if "well regulated" means "smoothly functioning" then the right to keep and bear arms should go to people who take the time and effort to organize and train themselves as a militia.

You can take away all the three commas in that sentence and still I cannot see how anyone can walk into a gun shop and buy anything without having to prove he's able to handle a gun safely and responsibly.

I think you have a point - one *should* try to write clearly - but, unfortunately, no matter how clear your writing is, someone will always find a way to distort it to his benefit.

Re:tl;dr and some style notes (1)

Reziac (43301) | more than 5 years ago | (#28028379)

If you look at the supporting documents written by the various framers, they weren't speaking of an "organized" anything, but rather the common man's ability to defend himself against future tyranny.

But as you say... however you write, someone can and will find a way to twist it, should they be so inclined.

"If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged." -- Cardinal Richelieu

Re:tl;dr and some style notes (1)

mangu (126918) | more than 5 years ago | (#28028921)

If you look at the supporting documents written by the various framers,

If you have to look at supporting documents, it means the original document wasn't well phrased to begin with.

That's the big problem with the 2nd Amendment, it's not a consensus. The problem is not with a particular comma or an interpretation of the word "regulated". The problem is that, differently from the 1st, the right guaranteed by the 2nd is not as clear in people's minds.

And there is where the interpretation problems begin.

Re:tl;dr and some style notes (1)

Reziac (43301) | more than 5 years ago | (#28030993)

And back to the original point: write clearly the first time, so you don't become someone's argument or crime stat. :)

Re:tl;dr and some style notes (0)

Anonymous Coward | more than 5 years ago | (#28034601)

If "well regulated" means controlled by laws and regulations, then the "well regulated militia" that has the right to bear arms would be only the National Guard. OTOH, if "well regulated" means "smoothly functioning" then the right to keep and bear arms should go to people who take the time and effort to organize and train themselves as a militia.

I don't want this to become a giant off-topic gun control thread, but the problem with interpreting the Second Amendment is that it is using a meaning of "regulated" that has become archaic.

If you look up "regulated" in the Oxford English Dictionary, the last definition for "well regulated" troops is "properly disciplined." A phrase that used to be used spoke of "discipled and regulated" [google.com] or "disciplined and well regulated" [google.com] troops, showing how these concepts (disciplined, regulated) are linked, if not exactly the same. So the Second Amendment's opening clause is not referring to a militia limited by government restrictions, but a well-trained militia.

Another point of language that gets overlooked, is that the amendment talks about "a well regulated militia being necessary to the security of a free state." Some of those who believe that a professional, highly-trained army is militarily superior to a militia, see this as further proof of the amendment's anachronistic nature. However, it's not that the Founders believed that a standing army was incapable of providing security to any state; rather, they feared a standing army would stage a Caesarian or Cromwellian takeover. The militia's key advantage over a standing army was not superior security, but superior freedom.

It's also the case, that interpreting "well regulated" to mean that the government can basically pass any restriction on guns it wants, makes it unclear just what "right" it is protecting. If the amendment means that "the people that the government allows to have arms can bear arms," then the government's power isn't being restricted at all, and there is no purpose for the amendment.

Re:tl;dr and some style notes (1)

StikyPad (445176) | more than 5 years ago | (#28032021)

the only fun to be had was in diagramming that sentence.

I know it's a cliche that Slashdotters need to get out more, but I believe in this case it's particularly applicable..

Re:tl;dr and some style notes (1)

Reziac (43301) | more than 5 years ago | (#28032075)

[laughing] Considering that this was in 1970, perhaps you're right :)

Re:tl;dr and some style notes (1)

JustinOpinion (1246824) | more than 5 years ago | (#28026737)

Agreed. Additionally, Bennett suffers from injecting too many ideas into a single op-ed. He is well-meaning: those tangential paragraphs are intended to preemptively defend against a potential criticism.

But those kinds of "yes I thought of this angle; yes I thought of this problem" paragraphs break the flow of the discussion and make it more confusing (not to mention longer). Tangents should be minimized; by shrinking them to a single parenthetical, using footnotes, etc. Often they should be removed entirely, which can be difficult for we hyper-analytic geeks who love all those details. Yes people will then attack you on those points--that's fine, especially on Slashdot where you can depend on other posters to provide the obvious retort.

Like Red Flayer, I'm trying to give constructive advice. I frankly enjoy Bennett's editorials. They are very well thought-out and generally spark interesting discussions. But they are so verbose that I can only handle them when I'm in the right kind of mood. And I don't think it's just a matter of laziness on our part.

Re:tl;dr and some style notes (1)

Red Flayer (890720) | more than 5 years ago | (#28026937)

That's a really good point about the pre-emptive inclusion of counter-arguments breaking the flow. I think that's probably the biggest problem in his pieces -- moreso that the length of his sentences and paragraphs.

In most well-written pieces I've read that include those, they are footnotes (as you suggest), or at least at the end of the piece.

I think it's a common problem with people who use outlines to map out a work. Organizing the piece by topic, and addressing each topic completely before moving on to the next, really does break up the flow -- especially when there isn't a synopsis of the full argument in the beginning.

Re:tl;dr and some style notes (1, Insightful)

pileated (53605) | more than 5 years ago | (#28027433)

Your writing is just fine. If you read actual legal notes, as I've been doing recently, you realize how convoluted writing really can be. It's sad that most readers can no longer read a sentence with more than one clause in it. That's the reader's problem, not yours. God forbid that writing should sink to the level of the lowest common denominator.

This is one reason I can't see the internet ever replacing newspapers or magazines. The latter are designed for slower, more thoughtful reading. The former is better for quick news bytes and shorter bits of information. They both have their place. But many problems are complex and can only be explained in a complex way. Of course the best writers still manage to make their complex explanations seem simple. But none do it without multiple clauses. That's just part of explaining something in terms more simple than black and white.

Re:tl;dr and some style notes (1)

Red Flayer (890720) | more than 5 years ago | (#28028629)

It's sad that most readers can no longer read a sentence with more than one clause in it. That's the reader's problem, not yours.

I disagree. If your goal is to communicate an idea, failure to communicate that idea due to poor writing is your problem, not the readers'.

For a tech analog, look at UI design. Is it the fault of the users, or the fault of the designer, when the users have problems using the software due to the UI?

Of course the best writers still manage to make their complex explanations seem simple. But none do it without multiple clauses. That's just part of explaining something in terms more simple than black and white.

I have no issues with using multiple clauses -- my posts in this thread make that obvious. However, there is a limit to what can be parsed easily. And generally, reorganizing what you're trying to write can make the dependence on entangled clauses disappear.

It is possible to explain complex thoughts clearly, concisely, and accurately. Most convoluted prose is needlessly so. It is not the fault of the reader that they did not care to expend the extra effort required to read convoluted writings. It is the writer who has failed to communicate.

Re:tl;dr and some style notes (1)

pileated (53605) | more than 5 years ago | (#28032009)

You say that there is a limit to what can be parsed easily. But there is no such objective limit. Why do people continue to read such writers as James Joyce and Henry James? Obviously some readers do parse them and enjoy doing so. Of course fiction is not the same as non-fiction.

Nonetheless not all readers want or enjoy non-fiction writing that sacrifices nuance for simplicity. Sometimes, in fact most times from what I can tell, writing is so pared down, so simple, as to not have much substance to it. Obviously this is partially subjective. What is richly complex and rewarding to one reader is muddled and confusing to another. Every author needs to make a choice as to just who their audience is.

But there is no reason that an author needs to write for the lowest common denominator. That may be your suggestion but there's no reason that anyone else need agree with it.
I realize that you said you were writing with the good intention of helping the author be more effective in reaching his audience and I don't want to question that.

My argument is that I think that you are wrong in being so uncompromising in your idea of what is good and clear writing. Entangled clauses can be both better for explaining a subject and more enjoyable reading for the right audience.

I've spent a lot of time over the last month reading legal documents. They are incredibly complex and I'm only reading them because they refer to the company I work for. It is difficult reading. But as I've read them I've understood that their seeming complexity is really just an attempt to put very complex thoughts into precise, language. When I was done I admired the language used even though it had been a pain to understand it. But that's the value of language: it can help explain complicated subjects.

Re:tl;dr and some style notes (2, Informative)

PCM2 (4486) | more than 5 years ago | (#28027515)

In short, Hemingway is a poor model for clear writing, especially when writing non-fiction.

Eh? Poor choice there, considering Hemingway is renowned for his blunt, economical writing style. The average Hemingway sentence probably contains about 12 words. Hemingway also spent time as a print journalist. You probably mean someone like Hawthorne, as another commenter suggested.

Re:tl;dr and some style notes (1)

Red Flayer (890720) | more than 5 years ago | (#28028481)

Yup, sorry. Made a mistake.

As I said, I'm not the best writer around :)

Re:tl;dr and some style notes (1, Funny)

Anonymous Coward | more than 5 years ago | (#28028723)

Yup, sorry. Made a mistake.

As I said, I'm not the best writer around :)

I'll use little words.
So that you can read.

Hawthorne, Hemingway.
Both start with H.
Both are long names.
You got them mixed up.
I think I know why.
Both names are TLDR.

Re:tl;dr and some style notes (1)

david_thornley (598059) | more than 5 years ago | (#28028321)

Not to mention that reading on the Web is usually noticeably harder than reading paper. Therefore, you need to adapt your writing style when moving between them.

You need short paragraphs, much shorter than on paper. You won't be able to use as many words, so you have to be more economical, and perhaps drop some detail. You should be trying to cut unnecessary words on paper, too, but it's more important on the web.

The topic sentence for a paragraph is more important. You can't expect readers to read halfway into a long paragraph to get the point. The reader should be able to get most of the basics from reading the first sentence of each paragraph.

You need to provide more structure for anything long. The named section headers are good. Lists are good because they provide structure. Complicated sentences are bad.

This is likely to change, with better display technology. It would certainly be nice to be able to write longer paragraphs with more details and better reasoning on the web, but that's not where we are now.

Free not Anonymous (4, Insightful)

Kurusuki (1049294) | more than 5 years ago | (#28026093)

Free Speech is not anonymous speech. Just because you have the right to say whatever you want, with some caveats, doesn't mean you, at any point, are granted the protected right of being anonymous. You are currently at liberty to say what you want anonymously, but as with all liberties, it is not guaranteed by the Constitution.

Re:Free not Anonymous (2, Insightful)

Anonymous Coward | more than 5 years ago | (#28026475)

We've grown up in a world in which we can say the most inane or offensive things without repercussions, so I understand why you think that freedom of speech is not impaired by limiting anonymous speech. The world is changing and, while we don't yet live in a society in which people die for speaking out against government officials (see Rodrigo Rosenberg case), once people start fearing for their livelihood or their well-being when they speak their mind, then freedom of speech depends on the right and ability to speak anonymously. In that sense, the right to anonymity is a direct prerequisite to freedom of speech when that freedom really matters.

Re:Free not Anonymous (1)

ImaLamer (260199) | more than 5 years ago | (#28027939)

I work at a newspaper and I frequently read the comments to stories... because they are sickening but fun to read.

I'm having issues though with some of the comments I read. We regularly have people posting things like "lynch him" or my latest favorite "the Day of the Rope can't come soon enough!" - always people advocating violence (against a racial group). Should these people be protected behind their screen names? When people are calling for violence should the police be allowed to look into it?

I'm sure if I posted something about doing something to a certain head of state I would be exposed by /. in a heartbeat...

Re:Free not Anonymous (0)

Anonymous Coward | more than 5 years ago | (#28029397)

Uh, yes, people you disagree with should also have the right to express their opinions freely.

Re:Free not Anonymous (1, Insightful)

Anonymous Coward | more than 5 years ago | (#28026805)

But anonymity is a very strong bit of free speech.

Re:Free not Anonymous (2, Insightful)

sploithunter (1399781) | more than 5 years ago | (#28027861)

"as with all liberties, it is not guaranteed by the Constitution"

All liberties are guaranteed by the Constitution! Many argued that the bill of rights should not be added to the Constitution because they feared that adding a list of rights would be construed to mean those where the only rights protected. They added the ninth and tenth amendments to clarify; however, most conveniently ignore them. History has proven their fears justified.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Re:Free not Anonymous (1, Insightful)

Anonymous Coward | more than 5 years ago | (#28028517)

Free Speech is not anonymous speech. Just because you have the right to say whatever you want, with some caveats, doesn't mean you, at any point, are granted the protected right of being anonymous. You are currently at liberty to say what you want anonymously, but as with all liberties, it is not guaranteed by the Constitution.

The right to free speech includes the right to anonymous speech. Speech isn't free if it isn't free from malicious retaliation, and the Supreme Court has ruled as much.

Else why have witness protection programmes? (0)

Anonymous Coward | more than 5 years ago | (#28029239)

After all, if there's no downside to losing anonymity, why not let that mob boss know you're going to testify against him next month...

Also, aren't state secrets anonymous wordings? At least in general: names are removed if at all possible.

Re:Free not Anonymous (1)

misexistentialist (1537887) | more than 5 years ago | (#28029349)

Sex isn't protected by the Constitution either, so if Obama becomes a Shaker I guess we're in for some hard times.

I don't care what it is (2, Interesting)

gringofrijolero (1489395) | more than 5 years ago | (#28026491)

Compelling a person to speak against his will is no different from and equally obscene as prohibiting a person from speaking. You should fight it at every turn. I will grant that a civilized person will come forward, but under today's rules it's not always the best thing. *No good deed goes unpunished...*

Privileged by Profession? (4, Interesting)

scorp1us (235526) | more than 5 years ago | (#28026769)

The 14th Amendment [wikipedia.org] to the Constitution provides "no state shall ... deny to any person within its jurisdiction the equal protection of the laws". This means to me that we are all equal [wikipedia.org] and that a chosen profession does not grant anyone any additional rights than those not of the profession. (Licenses, like the BAR, MD, etc not withstanding. We're not talking about the ability to practice law or write a prescription, but rather protection of rights)

Journalists have been getting unequal protection for some time. We need to extend those "rights" to everyone if we are to live in a free society.

Re:Privileged by Profession? (1)

nickspoon (1070240) | more than 5 years ago | (#28027549)

The question is whether these laws extend only to professional journalists - that is, those people who report for money, or more specifically as their main occupation - or more widely to the act of journalism itself.

If it is the former, then I agree that the protection of journalists alone is wholly unfair. It would be akin to saying that professional truck drivers have the right to break the speed limit. The latter, on the other hand, seems completely reasonable - it is the protection of free journalism, which is one of the cornerstones of free society.

Bloggers and blog commentators are the same thing (2, Interesting)

Sloppy (14984) | more than 5 years ago | (#28026993)

I think the distinction is artificial and no policy should legitimize such a distinction. A lot of code running today just happens to index, search, and present their uploaded text differently (and largely for promotional and styling reasons), but other than that, bloggers and commentators are really doing the same thing. They're writing stuff in the hopes that someone reads it.

Shield laws shouldn't treat 'em differently. Actually, shield laws shouldn't treat any person's speech differently than anyone else's. A free press is damned important, and the one of the best ways to protect it is to remember that it is not a privilege; it's a right. The government isn't doing reporters a favor by shielding their sources; it is doing what it necessary to keep the 1st Amendment functional. If it's necessary to do that for professional reporters, then it's necessary to do that for everyone. Professional bloggers and kooks with too much time on their hands, should be legal equals.

If you have a law that sees them as different, then you have an injustice. Either the government is screwing some little guy, or the government just did a favor to the "big" guy and now can expect some integrity-compromising payback for it.

Re:Bloggers and blog commentators are the same thi (1)

JasterBobaMereel (1102861) | more than 5 years ago | (#28027491)

The difference is between a published item and a source

Sources are shielded, publishers are not

I cannot sue a publishers source, because they do not have to reveal who they are, but I can sue the publisher....

Is a blog post/comment a source, when everyone can read it (and be defamed by it)

Short Dissent (1)

TaoPhoenix (980487) | more than 5 years ago | (#28027067)

I wish this had been posted in the evening so I could study it. For now, here's a very brief dissent:

I feel B. H. is inaccurate, and that this is a threat to liberties. My basic reason is that laws have a terrible tendency to "grow" uses lately, and therefore anything with the words "unmask ____ is not a threat" is too abusable precisely because of the posters complaining about his writing style.

P.S. Some/Many News rags are creating the absolute worst model to follow. "Let's communicate the wrong interpretation nice and crispy!" (Deliberate grammar spike there.)

Fallacious (0)

Anonymous Coward | more than 5 years ago | (#28027167)

As I never tire of saying, if judges are really "experts" in a sense that lay people are not, then it should be possible to put 10 judges in separate rooms, present them with the same facts of the same case, and have most of them independently come to the same conclusion about the correct answer, with a higher degree of accuracy than lay people would be able to reach the same conclusion.

That is what happens with judges. They agree on almost everything. You have significant selection bias because the /. crowd mostly only pays attention to cases at the nexus of technology and constitutional rights. If /. paid attention to "developments" in Delaware corporation and agency jurisprudence, you'd come to quite the opposite conclusion. Like any newly-developing field, tech law has some dispute about how to approach it. Like any philosophical field, con law has some dispute about how to approach it. Put the two together, and yes, you will find wildly divergent opinions among the judiciary, but that's only because you're talking about the frontier of an area.

By your logic, there's no such thing as a computer science expert, because Andrew Tanenbaum would have failed Linus Torvalds for designing a monolithic kernel. Dissent and difference are key in most fields; they are not an indication that expertise in such a field doesn't exist. Remember that Einstein never bought into a lot of the quantum hubbub ("god does not play dice with the cosmos," etc.).

Let's say you had a case where two gay people were barged in on the police while they were having sex, and prosecuted under a no-dirty-sex statute that was never applied to straight people. If you presented those facts to 10 (or, let's say 9) judges, and each of the judges was either a living constitutionalist, or a textualist/judicial minimalist, or an originalist, you'd get three genres of answer.

The first group would say that there's a substantive component of the due process clause which recognizes rights fundamental to ordered liberty, and the right to private consensual conduct is one of those rights. The second group would say that the statute was applied unconstitutionally because it applied to only one group and not another, in clear violation of the text of the equal protection clause. The third would say that private gay sex is not a fundamental right recognized by the framers of the constitution or the fourteenth amendment.

Surprise surprise, that's exactly [findlaw.com] what [findlaw.com] happens [findlaw.com] .

tl;dr version: the judiciary as a whole is consistent, and even on the frontiers, where it isn't, individual schools of thought are consistent.

Not So Logically Rigorous (1)

sploithunter (1399781) | more than 5 years ago | (#28027671)

"The Telegraph has an interest in protecting its online blogger's identities while the State has an interest in prosecuting someone who has allegedly murdered a child." That sounded to me like sarcasm on first reading, but actually I think he's just being logically rigorous."

This is not so logically rigorous. The ruling was whether a subpoena could be used to identify "bloggers" not a search warrant. In the statement above, clearly a search warrant could be sought to gain access to records. Much more logically rigorous, and more to the point on how the law would be used, is a situation where a search warrant can not be obtained (because no probable cause exists). The, not perfect mind you, but more logically rigorous evaluation should be "The Telegraph has an interest in protecting its online blogger's identities while the State has an interest in identifying potential threats to society."

How would you like to find yourself on a no fly list because of some rant you posted on a political site? Better yet, would you begin to hesitate making such a rant after a number of your fellow "bloggers" found themselves on a no fly list?

No comment. (1, Insightful)

Anonymous Coward | more than 5 years ago | (#28027763)

No comment.

One Thing I've Learned... (1)

penguin_dance (536599) | more than 5 years ago | (#28028809)

Every time I raise a question like this, it provokes the ire of law students and lawyers who say that judges are the real experts on what is legally correct, and it's not appropriate for lay people to comment.

Law students are just as arrogant as the members of the press! Judges all know best? Remember that when one rules against your argument, f-tard!

Journalistic Integrity? (1)

ff1324 (783953) | more than 5 years ago | (#28029103)

Journalistic Integrity? Is there such a thing any more?

All information is a source (1)

btempleton (149110) | more than 5 years ago | (#28029163)

What is the consequence if the law treats any source of information for a reporter as a source? It just means the reporter can't be compelled to answer "Where did you get that information" all the time, including if the answer is, "I got it from a web search."

Now in most cases a reporter would answer the question, but the law simply gives them the option not to ask. It may be that the commenter on the blog is *also* a secret source who decided to make a public comment. There are other reasons.

I see no harm in saying that anything is a source, because it doesn't affect what people do, just what the reporter can be compelled to reveal.

And is it not useful for a journalist site to be able to say, "comments on this blog are anonymous and we can't be compelled to give you up" if the site wishes to? At to have them be able to back that up? Must the protected source information only come via a secret meeting?

Not a new precedent (1)

Jerslan (1088525) | more than 5 years ago | (#28029671)

This is no different than a being able to subpoena a newspaper's anonymous sources. Yes, there are certain protections, but it's a Judge who ultimately makes the call on whether the source is revealed.

We could be seeing the rise of journalistic integrity on the internet, not the death of it. Imagine if everyone was ACTUALLY responsible for what they say, and could be sued for libel. What a horrible world we would be living in.

missing the point (0)

Anonymous Coward | more than 5 years ago | (#28035039)

The lawyers' position is not that the judges are the "experts," it's that the judges are the AUTHORITIES on the subject. The only thing lawyers have to sell, that's valuable, is an ability to REMEMBER WHAT JUDGES HAVE SAID IN THE PAST, to INFLUENCE WHAT JUDGES SAY IN THE PRESENT, and to PREDICT WHAT JUDGES WILL SAY IN THE FUTURE.

You, and me, and the guy behind the tree all can have our own opinions on what's "legally correct."

And if those opinions don't turn out to square with what the judge does, then those opinions have no value or purpose. No one will pay for them, no one will listen to them, basically nobody cares what you, personally, think.

The law is not philosophy. Thinking about it is not an end in itself.

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