LuminousVoid

Brian Leiter has been in a tiff with Juan Non-Volokh, an anonymous or pseudonymous blogger at the Volokh Conspiracy. Blogging at the Volokh Conspiracy are several legal scholars and professors. The part of the disagreement linked to above takes issue with Juan’s anonymity. It seems Juan stays anonymous because he’s worrried about tenure.

I’d say Leiter has a strong case for at least asking for the reasons for anonymity. Sort of like a rational relation test. Leiter might not like the answer, but that’s not the point. We just want to make sure that the anonymous person is acting rationally. It also has the nice effect of promoting a discussion of the anonymity, as well as creating a stock of pro-anonymity arguments.

On the whole, I’d say there is plenty of good reason to remain an anonymous academic. Here’s a story of a CUNY prof that passed up a position because his identity was revealed. [Which I now notice Leiter — who I don’t read — is linking to].

Shortell was forced to decline his appointment because of an (apparently unsigned and undated) atheist polemic he posted on a private website called Anti-naturals.org. The Anti-naturals appear to be a collective of writers, visual artists, and critics. The website is not affiliated with the City College of New York, or any other institution. They have a manifesto, but no list of signatories.

Shortell’s controversial essay argues that blind religious faith undermines an individual’s capacity for genuine moral agency. His central theme is the rather commonplace observation that people who use a code of “revealed truths” to guide their behavior are shirking the hard work of moral deliberation. The author calls these people “moral retards.” Unfortunately, he conflates blind followers of religious dogma with thoughtful believers who reason independently within a religiously-informed framework. But make no mistake, the former really are moral retards. Blind followers of dogma may conduct themselves well if they seize on a sound set of rules, but “just following orders” isn’t a moral position, even if you think you’re just following orders from God.

The funny thing in the Leiter/Juan tiff is that at least part of the substantive disagreement Juan and Leiter have is over academic cowards who support whoever the current power system is.

Also known as “price discrimination.” This is the situation when a seller gets to discriminate among purchasers and sets different prices for different purchasers, usually along with some profile information. A very simple example is student and senior prices at movie theaters. A concern that people have is that the profiling and discriminating could get much more detailed, and perhaps reach categories we do not think of being as deserving as students and seniors.

We recently went to see the release of a study by the Annenberg Public Policy Center. The study detailed how little consumers know about privacy online. It also asked consumers what they think about more extensive price discrimination. Consumers wanted disclosure and they were bothered that others paid less than they did. However, consumers did not mind being given incentives to be return or frequent costumers.

Who gets hit by this?

Clearly, consumers as a whole get hit by this. Think about your average supply and demand situation. The demand goes down as price goes up. People have what is called a “reservation price.” This is the maximum price they are willing to pay for a product. However, the market has only 1 price for everyone. For some people, this will be exactly their reservation price. For others, this will be less. The difference between reservation prices and the market price is added up and called the “consumer’s surplus.” Here is a picture:

With perfect price discrimination, a seller can charge each consumer their reservation price. People will still buy: the reservation price is by definition the price at which people are willing to buy. But there will be no more consumer’s surplus.

But what about class?

I was having a conversation a few days after the presentation of the study. They mentioned that we often think that the victims of these practices are the poor or lower classes, but in fact the people who have the most surplus taken from them are the rich. It is the rich that are likely to be consuming more. And it is the rich that are likely to have higher reservation prices.So the proper way to analyze the situation is not, at the first order, as something against the poor — it is a transfer from consumer to producer.

But there is a second order effect once we see it as a transfer to those who own the means of production. The victims are the lower classes because they are less likely to be on both sides — to be both consumers and owners of the means of production. The rich may be making transfer to themselves, but not the poor.

Another factor to consider is that the poor consume a greater proportion of their income. This is related to the dynamic in the previous paragraph. We can consider the non-consumption activities of the rich — savings and investments — as staking out their ownership on the means of prodution.

The Electronic Frontier Foundation has written a legal guide for bloggers. It includes sections overviewing the legal liabilities faced by bloggers, IP and defamation law. There’s also a bit on media treatment for bloggers. They promise and upcoming labor law section — I think they mean employment law — to talk about blogging and work. Lastly, they also have a section on CDA Section 230 Immunity. My previous post was about the hypothetical of applying the CDA to someone who might provide erroneous info from the official florida sexual predators website on his own site. The EFF’s analysis is a little more sure than mine:

Your readers’ comments, entries written by guest bloggers, tips sent by email, and information provided to you through an RSS feed would all likely be considered information provided by another content provider. This would mean that you would not be held liable for defamatory statements contained in it. However, if you selected the third-party information yourself, no court has ruled whether this information would be considered “provided” to you.

Scooping up from the Florida site and rehosting that info thus is using the information provided by another, because you have not “selected it yourself.” So my long shot argument to try to get the provider out from under the CDA would not work. Now that I think about it, that push/pull distinction is flawed. Firstly, anything that is “made available” is also “provided by.” And the act is meant to cover automatic processes of information transfer, so the decision to gather one RSS feed is just as immune as the decision to allow comments, or to mirror other sites.

The EFF does not mention the Zeran issue, that is, whether once you are notified that you are hosting defamatory information, you have to take it down. I guess you should call the EFF.

Here is a guy that has integrated the Florida Dept. of Law Enforcement sexual predators database with Google Maps to create his own version of the database: FloridaSexualPredator.com. Its got lots of whiz-bang features like a color coded scheme for “predators” and “offenders” (as classfied by the state) and pop-ups with their photos and addresses.

Defamation?

What happens if his software screws up, and an incorrect address or name are given? If his security is poor and someone adds in the name of another? If the information he gleans from the florida database is incorrect, and he falsely repeats that someone is a sexual predator?

To find defamation liability, his fault would have to be at least negligence. Hard to say that it is unreasonable to rely on the FL database, but then again, it does say a fingerprint check is necessary so that positive ID with a sexual offender can be made. However, his program could be negligently written, so that he transfers addresses wrong, and points to the wrong house. Or he includes a subroutine in there from an older program that looks for a different addresses.

So there are a few ways that fault could sneak in there. Of course, he could just be plain old malicious and actually try to defame someone.

Publisher and Distributor Liability

Lets say that the fault is at the FL state database, and our operator is merely repeating this information. In his defense, he would try to argue that he was merely a “distributor” of the information, and not a “publisher.” This is akin to the distinction between a bookstore and a newspaper, both of whom are passing on the defamation, but one has more editorial control. The former needs to actually know he is actually defaming, while the latter is treated like the speaker — negligence will do.

CDA Limitation of Liability

A section of the Communications Decency Act comes into play. Section 230 says

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

On its face this appears to mean that our website operator can only be a “distributor,” and thus can only be liable if he actually knows. So if we are hurt, we tell him that he is being defamatory. He now knows. If he does not fix his site he will face defamation liability.

Zeran

The problem with this notice is Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997). That case reads the CDA 230 as eliminating notice-based liability as well. Providers of interactive computer services, who are notified of their defamatory statements, can keep them on their websites.

Zeran gives very good reasons for this: Imagine the amount of notices that AOL would receive. Also imagine how AOL might take down speech simply upon notice, without investigating. Thus a notice could be a way to silence someone. This sort of thing keeps the internet vibrant. The internet activists like to say it “pushes decision-making to the edge of the network.”

User/Provider and Push/Pull

Zeran applies to providers of “interactive computer services.” Zeran would not shield the website if it was found to be run by a “user of an interactive computer service.” An interactive computer service is defined in the CDA 230 as

any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

Whatever that is, our website operator wants to provide it. Not use it, if he wants to retain his immunity. He would argue that he provides access to google maps and the FL database. He might even say that his webserver software, or the scripts he wrote to draw up that pretty stuff provide access to the server he is hosted on. I think it’s a long shot but a court might buy it.

A way to get around Zeran is by getting out from under the CDA. We could do this by arguing that the website operator is not putting out there information “provided by” another. He himself is going out there and getting it. That is not “provided by another,” that is “made available by another.” This is sort of a “push/pull” distinction.

I do not know whether this has been accepted or rejected as CDA doctrine. But I do know that this would have pretty clear ramifications for some technology out there. A lot of websites “pull” feeds of articles from each other and redisplay them — you can do that with this blog’s RSS feed . This would make these aggregators unable to gain the CDA’s immunity.

The office has gotten a copy of the 18th edition Bluebook — which I had previewed. I immediately checked out Rule 18, on internet citations, which has been re-written. I must say I was surprised to find my reading of Drew Curtis’ Fark.com to intersect with my legal education in such a direct way.

Rule 18.2.4 E-mail Correspondence and Online Postings includes this:

Postings to discussion forums should also follow a similar format [to listserv’s and email], but should include the URL and should not include the author’s email address.

The example provided is:

Posting of Pokey Woulda Had It to http://forums.fark.com/cgi/fark/comments.pl?IDLink=1127888 (Sept. 17, 2004, 12:57:36 EST).

I’ve added the HTML so that you can follow the link, but would be just plain text. I’ll have to digest the rest of the changes to Rule 18 some other time.

Maybe I don’t have to switch from PC to Mac at all. Maybe Mac will come to me.

CEO Steve Jobs announced Monday that Apple will gradually shift its Mac line to Intel-based chips over the next two years. The move confirms a timetable first reported by CNET News.com.