Note: I
am not a lawyer, and this is not legal advice. If you want
legal advice, see a lawyer, not me . . .
Personally, I hope that there is a special place in hell for people
who defame others anonymously on the Internet, and I don't see any
reason why there should not be Federal law requiring anybody who
publishes (on the internet or anywhere) to disclose their true
identity.
But how do you get the true identity of the
anonymous blogger comments?
There are many pitfalls in disclosing the true identity of a blog
commenter.
- It’s easy to get a court order mandating the blogger to
disclose the IP address of the person who posted the blog
comment.
- The next hurdle is resolving the IP address into an
actual identity. When a person connects to the internet
via a dial-up, DSL, or Satellite, the ISP assigns an IP address
tot eh individual. Even though it’s easy to keep records
of IP address assignment, there are no laws requiring an ISP to
keep records, and there are many unscrupulous ISP’s who
deliberately facilitate internet crime by refusing to keep IP
address assignment details.
When a blog commenter wants to publish libelous comments they
will often make their statement through an “open relay”, a foreign
computer that acts as a proxy, hiding the “real” IP address of the
commenter. In Internet Explorer, it just take a second to
pop-in the IP address of a proxy server, effectively making the
person's "real" IP address impossible to locate.
I have had my lawyers serve court orders on
foreign ISP’s, and because most of them hate Americans, getting
justice can be fruitless. Even within the jurisdiction of the
United States, ISP’s are not required by law to track the identity
of the people when they are assigned IP addresses at sign-on time.
The technology for keeping IP address records is cheap and
simple, and it’s time that ISP’s step-up to their responsibility and
stop hiding behind
section 230 of the DMCA.
The DMCA, (47
U.S.C. sec. 230) says that online service providers are not
publishers (and hence not responsible for content posted by their
users), but many people misunderstand that a blogger IS NOT an
internet service provider. For example, AOL is an online
service provider, while somebody’s blog is clearly not an ISP.
This DMCA immunity does not extend to record keeping, and this
loophole also allows terrorists to communicate anonymously. Personally, I
would like to see Federal legislation making it a crime for any ISP,
foreign or domestic, to fail to keep records of IP address
assignment.
Note: As a former
database administrator for Lawyers Coop (ALR, AmJur), Shepards and
Bancroft Whitney, I know that the case law changes daily. If
you are planning to cite a judgment relating to Internet Law, make
sure to have your attorney Shepardize it and check the
Bancroft-Whitney latest case service to insure that it is still
valid caselaw.
