September 01, 2013

Advance Sheet: Anonymity Anyone?

Are the old rules on privacy still good enough?

Robert E. Shapiro

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Anonymity certainly isn’t what it used to be. There’s almost nowhere left to hide. Anyone who thinks it is still possible to get lost in a crowd need only look at the Boston Marathon bombings. The two brothers who carried out that atrocity must never have thought their identities would become known after having left their deadly backpacks to work their horror. Indeed, a traditional eyewitness stared into the eyes of one bomber and later scratched out a message to that effect while heavily sedated after an operation in which he lost both legs. But he could say only that he had seen someone, not whom he had seen. Still, within days the pictures of the two brothers were broadcast all over the world, and soon the networks were bubbling with information about the two fugitives who had paralyzed Boston and transfixed the rest of the country.

The reason for this law-enforcement success was, of course, modern technology and especially the Internet. Extreme freedom-of-privacy advocates excepted, most people were more relieved than upset that the crime scene had been under almost constant, if not exactly targeted, surveillance. Once the investigation began, the Federal Bureau of Investigation and other investigators had access to dozens, if not hundreds, of videos and photographs, shot by everything from the most sophisticated closed-circuit TV camera to the ubiquitous cell phones of the various bystanders. And just as technology captured the information, it was also responsible for its dissemination, as pictures of the brothers on the Internet allowed for the speediest possible identification. No door-to-door Jack Webb–style inquiries or post office most wanted pictures in this modern age.

Technology has intruded in this way into all aspects of our lives, seemingly making many notions of privacy out of date. Even the most private and essentially harmless conduct is not beyond public view these days. During the most recent presidential campaign, researchers for at least one candidate compiled detailed information about target voters based on their Internet usage. By tracking what websites a person visited and what may have been purchased, the campaign prepared an individualized message designed to appeal to that voter’s particular tastes, whether the newest recipes, pornographic movies, or classical music. With a simple mouse click, all expectation of privacy was doomed.

Snooping exists everywhere. In the workplace, intrusive technology is in the ascendant. Video recordings of workaday activities have become routine. In some states, conversations cannot be taped without consent, but what is there to protect employees who agree at hiring to their conversations being recorded? Likewise, it is established law that employers own the email facilities their employees use and their access to the Internet. A Harvard dean took flak for having snooped on her instructors, but few contended that she broke the law. Employers can barge in on the most intimate tryst or monitor their employees’ web browsing. Today privacy, let alone anonymity, is rare indeed.

In fact, it is difficult to think now of any place where anonymity is possible at all, short of wandering alone on a deserted island beach, assuming you are not being surveilled by a passing mini-drone. Or perhaps sitting by oneself at home as long as no technology of any kind is in use. Is this a cause for panic? Should we now develop new rules to specially protect our privacy? Are the old rules still good enough?

Assessing the Situation and Rules

To begin assessing this question, note that there are two different scenarios here. One concerns the use of technology to monitor ordinary behavior. The other concerns the rights one has, or the consequences one faces, in using technology in the first place. In the first instance, it is difficult to see where new laws and legal decision making are really needed. There is certainly a greater ability in the modern world to snoop. In Israel, for example, sophisticated drones provide surveillance throughout the country 24/7. But in a country like ours, where even traffic stop cameras cause a fuss, it is difficult to make the case that new rules are warranted.

If anything, the greater problem lies not in too much technology but in people trusting it too much. Take the extreme case in Canada recently where it was reported that the mayor of Toronto, the ever-colorful and controversial Rob Ford, had been caught on video, apparently taken by cell phone, smoking crack cocaine. The reporters who first filed a story on this case did not have the video. Rather, they reported on what a source had shown them in the latter’s effort to sell the video to the highest bidder. The authenticity of the video had not been and could not be verified. But the reporters ran the story nonetheless.

Now, had an unnamed source whispered to the reporters that Ford had engaged in recreational drug use, this might have been a reporter’s lead, but it would not have been a story. It seems unlikely that what someone of questionable activity and motives had merely said had happened would have been newsworthy without quite a bit more investigation. But the video seems to have changed matters in the reporters’ minds. Having seen with their own eyes a video showing Lord-knows-what, the reporters felt comfortable writing about it, with dire consequences for Mr. Ford and, to some extent, the city of Toronto itself.

This is not technology’s fault. The reporters’ greater confidence on the basis of the video that their facts were right was misguided, given how easily advanced technology can be used to doctor advanced technology. They acted irresponsibly in publishing the story before the authenticity of the video could be tested, no less than if they had reported a tip before confirming the authenticity of the source. In short, it was mistaken social attitudes, not technology, that were at issue. And if this had occurred in the United States, the usual rules of libel would still have served quite well. If the video turned out to be a fake, the reporters’ reliance on it, at two steps removed, would simply have figured prominently in the determination whether there was the malice involved that would be necessary for a libel finding.

The case in which technology itself is the issue may at first seem to present thornier issues, but again, looks may be deceiving. Take the case of Thomas M. Cooley Law School v. John Doe 1, No. 307426 (Mich. Ct. App. Apr. 4, 2013). Cooley concerned that most prominent technological contribution to our contemporaneous political culture, the blog. Blogs are in many ways a boon for democracy. The Internet has given ordinary people an opportunity to make their opinions known. Where those opinions resonate with others, bloggers can develop quite a public following and become influential. One might reasonably ask whether this has led to greater insight and clarity. Bloggers inevitably attract like-minded people. And some popular blogs have ventured into extreme rhetoric and even hate speech. But any such concerns are dwarfed by the benefit of allowing ordinary people to express their views. Blogs, it could be said, are the 21st-century equivalent of the 18th-century pamphlet, without even the need to find the spare change for a printer (though it helps to have a high-speed Internet connection).

Blogging

It is a striking feature of blogging that it seems to buck the privacy-be-damned trend seemingly favored by modern technology. Bloggers can, if they want, labor anonymously, even if they mostly prefer the pleasures of celebrity to those of anonymity. Is this a good thing? On the one hand, it is easy to see how this might encourage a blogger to act irresponsibly. It is a lot easier to say outrageous things when no one knows who is saying them. On the other, we can see some obvious benefits. Unpopular speech can lead to dire consequences for oneself. There are certain opinions people would rather not hear, even if true. And, of course, anonymity is critical if it is a higher authority, particularly a government, that does not want to hear those opinions. One need not live in China to worry about becoming the victim of the retribution of officialdom.

For reasons such as these, the Supreme Court ruled in the 1990s that the rights associated with free speech protected the right of anonymity as well. It did so in a case involving political leaflets. One of its bases was the fact that the writers of the Revolutionary Era often wrote using pseudonyms. From this it drew the conclusion that the First Amendment was intended to protect that approach as a “right.” Strictly speaking, this is a non sequitur. That 18th-century writers used this approach in cases in which no one had any reason or desire to challenge it does not mean that there was a belief, let alone a general rule, that no one could do so. But the principle is now firmly established.

Cooley tested the limits of the principle in the new world of technology and the political blog. The immediate context was the recent spate of controversies in which former law school students have sued their law schools for supposedly having misrepresented how many of those who matriculated have obtained a law job. The blogger in Cooley made some particularly nasty accusations against the school, which the latter contended had the important additional vice of being factually untrue. It sued the blogger for defamation.

But who was he? The Thomas M. Cooley Law School wanted to know. Anonymity is just fine, it said, when the law is being respected, but it is quite another matter when the identity of its tormenter is needed to prosecute a defamation claim. The school sought the records of Blogger Doe’s service provider to find out who had sourced the calumny. The blogger moved to quash.

Now one wonders if Cooley really needed to go to all that trouble. Consider one recent dramatic case involving a popular, nonpolitical blogger. Writing in her blog, she made it apparent she intended presently to kill herself. An alarmed and enterprising reader went through all her blogs and figured out from unintended clues where the blogger must have lived. She slowly narrowed down the possible sources in that town until she determined who the blogger must be. Rescue squads arrived before the blogger could inflict the deadly wound.

But whether Cooley couldn’t figure it out or didn’t want to take the time, it argued to the Michigan court that it shouldn’t have to. The blogger, it contended, had forfeited his right to anonymity by defaming his alma mater. The blogger, of course, countered he had done no such thing for, among other things, truth was a complete defense. A classic catch-22. The rights of the parties seemed to depend on the final outcome of the contest but needed to be determined before any outcome could be reached.

New Rules for New Technology

What’s a court to do? The trial court did what so many courts seem to do today. Faced with a problem seemingly created by new technology, it reached for new rules. It immediately began hunting in other states for new tests that purported to strike a more proper balance between the interests of the anonymous blogger and his law school. Cases in New Jersey and Delaware seemed to provide what was necessary: a new four-part test to determine which side had the prevailing interest under the circumstances. Applying that test, the court ordered that the blogger’s identity be revealed.

Was a new test really necessary? How frequently the courts seem to think so. They tend to be as awed by the existence of technology as the reporters in Toronto. One thinks particularly of the modern courts’ passion for e-discovery rules. Technology tended to make e-discovery look like a qualitatively different problem from document production disputes of old. But the only real difference between current production problems and their earlier counterparts is one of volume. Electronically stored data are no harder to find and, if anything, are less likely to have been destroyed than hard copies. E-discovery could have been a matter relatively simply handled by allocating costs, which in fact is where the courts began. A simple rule works. The more burdensome you make the production, the more likely you are to have to bear the cost.

But soon the aura of something new caused the matter to spiral out of control. Courts began falling all over themselves creating new rules, which hardly seemed necessary and have mostly proved pernicious. However much sense a document retention “hold” might make as a general matter, there was nothing peculiar to e-discovery that made it more worthy of introduction. Meanwhile the ipse dixit procedures created by one Southern District of New York judge have done nothing but wreak havoc, diverting attention from the merits of cases to phony issues of spoliation, which test nothing but the ingenuity of the lawyers in trying to gain a tactical advantage.

The Michigan trial court took the same bait, devising new rules for a situation that, while involving technology, hardly seemed to warrant special attention at all. Enter the Michigan Court of Appeals, riding to the rescue. It noted that the existing rules regarding discovery in Michigan operated just fine, thank you very much, to balance the interests of the parties. Over the dissent of one judge, the majority reversed the trial court’s ruling and its new-ish test, and ordered the trial court to try again under the traditional standards.

In doing so, the court presented a valuable lesson. Technology is really not the game changer it seems to be. The old rules work rather well, and before we go devising new rules of questionable effect, we really ought to give existing law a go. And try not to be distracted by that camera-drone hovering outside our office windows.

Robert E. Shapiro

The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelbert LLP, Chicago.