[Brad is chairman of EFF. --Declan]
-------- Original Message --------
Subject: Re: [Politech] Matt Deatherage clears up confusion about Apple
suing "bloggers" [fs]
Date: Thu, 13 Jan 2005 20:04:57 -0800
From: Brad Templeton <btm@private>
Organization: http://www.templetons.com/brad
To: Declan McCullagh <declan@private>
CC: politech@private
References: <41E6B465.8020903@private>
On Thu, Jan 13, 2005 at 12:48:21PM -0500, Declan McCullagh wrote:
> I have no doubt that the debate about blogging, probably as amateur
> jounralism, and the First Amendment will heat up in the years to come.
> This debate is not that debate. I have to wonder if some people are
Ah, but it is, for this debate centers on two issues. One is the
"who is a journalist" question. Your argument is that these sites
are professional journalists, not amateur bloggers, and that's an odd
argument because tradition has let professional journalists protect
the identity of their sources in many cases.
(OK, to be fair, Apple's argument is that they are not journalists,
professional or otherwise, just violators of trade secrets. But
in this case whether they are professional or not is not so germane.)
The question of the difference between an amateur journalist (call it
a blogger if you will) and a professional one and what legal rights
they have is an interesting one, part of the issue in this case.
However, there is another issue, which is the right to anonymous
communication until proven guilty.
One pole of this argument has plaintiffs asking for the identity of
anonymously-publishing alleged wrongdoers in the early phases of
a suit, before proof has been provided of their wrongdoing.
This is of great concern, because it means there is no right to
anonymous communication, if people can go fishing by suing, filing
a subpoena and getting the identity -- they possibly dropping the
matter with no determination of guilt or liability.
Another pole has anonymous posters free from all risk.
There is a middle pole. Prove that they did wrong first, without
knowing who they are, though with access to as much information as
necessary to help your case short of that which would reveal who
they are.
Then, if they did wrong, exacting punishment might include unmasking
them. (Though in theory, if the remedy is just cash, it could be
done without unmasking, but this is less likely.)
Now there are two objections plaintiffs have to this.
a) If they don't know who it is, it can be harder to prepare their
case.
b) If they don't know who it is, they don't know how much money
they have, and how lucrative it would be to sue, or how easy
it would be to intimidate them.
I have some sympathy for (a) but there will be some price for
not having a complete removal of anonymity. I have little sympathy
for b, and suspect most of the public doesn't as well.
Please note this is a summary of issues, not EFF's legal stance
in the court.
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