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Saturday, March 09, 2013

Commenter anonymity

The comments section at The Faculty Lounge is awash in comments accusing several prominent law bloggers of working together to "out" people who comment anonymously or pseudonymously on TFL and other blogs. (The brouhaha is broader than that, actually, but I'm not going to repeat what appears to be a sordid mess).

I'm interested in a narrower point (one also raised by regular Prawfs reader Bruce Boyden in TFL comments): A few comments over there have suggested that these bloggers have done something unlawful in passing along and/or using email addresses and other information to identify the unknown commenters. Is that right? Is it unlawful for the administrator of a noncommercial blog to disclose the identities of anonymous/pseudoymous commenters, when that disclosure is for noncommercial purposes? And if so, what source(s) make it unlawful? One suggestion was FTC regulations; but can the FTC regulate non-commercial speech?

Please note: I am asking this because I genuinely want to know; I hope anyone who actually has an answer will respond to the question in that spirit, without tangents about how ignorant or evil I am because I teach in a law school.

Update, March 11: The permanent TFL bloggers posted a statement on the blog asserting that none of them has ever disclosed identifying information about a commenter to any third party and that none of them has any basis to believe that any guest blogger has disclosed such information. I would hope that this would be the end of this kerfuffle (as Bruce called it at Madisonian), since it responds directly to the question several commenters had put to Dan. But at least some of the early comments suggest some people are not fully satisfied. Actually, the run of comments in the first several hours shows a small cadre of loud commenters who are unsatisfied. Oh, well. The denial of a conspiracy ought always to be taken for the strongest evidence of a conspiracy.

Posted by Howard Wasserman on March 9, 2013 at 09:31 AM in Blogging, Howard Wasserman | Permalink


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1. "I don't think being a professor takes a tremendous amount of courage, so I'm not lionizing the academic profession."

2. "[H]istory's pages are replete with courageous professors who were mathematicians, astronomers, lawyers, physicists, biologists, etc. This is not only the case in the United States, but throughout the world."

It's certainly possible and probably likely the case that both propositions are true. In the contemporary period, however, and at least in the United States at least, I'm inclined to conclude that we witness relatively few instances of "courage," intellectual, moral, what have you, among academics (that's my personal experience, but I think there's evidence of same beyond the anecdotal: ask Friedrich Dürrenmatt, Bertrand Russell, John Dewey, Noam Chomsky, Howard Zinn (yes, I know, he's dead, as are some of the others here), Russell Jacoby, Jean-Paul Sartre, Edward Said, Paul Feyerabend, civil rights and New Left activists from the 1960s, physicists opposed to nuclear weapons, etc., etc.). In short, courage in the academic world, much like outside the academic world, is comparatively rare.

Posted by: Patrick S. O'Donnell | Mar 11, 2013 7:52:34 PM

Another point in defense of anonymity/pseudonymity: It unfortunately continues to be the case (and has been sometimes true in my anonymous-commenting experience) that points made by commenters who self-identify as female are less likely to be taken seriously. There is also at least some evidence that women who express controversial opinions are more likely to be subject to threats and personal attacks (see, e.g., Zerlina Maxwell). For those reasons, I value having the option of concealing my sex in situations where I do not think it is relevant.

Note also that similar factors may come into play for other groups of people, such as law students, whose opinions might be more likely to be (unfairly) discounted if their identities were known.

Posted by: Alice | Mar 11, 2013 1:08:12 PM

Saw this at Volokh as a reason given by a professor for not hiring someone:
"My favorite, reported to me from an actual law professor quoting another actual law professor, discussing a right-of-center candidate at a faculty meeting: 'I found an error on his blog.'" Sometimes people have agendas for not overlooking misstatements, which is why being careful in attributable statements can be important.

Posted by: anon | Mar 11, 2013 12:16:30 PM

Note: I'm going to riff off of an observation I read somewhere else (perhaps elsewhere at this blog).

In oral conversations, everyone (no matter how smart or thoughtful) makes misstatements. You overstate an argument, misremember a fact, etc. The beautiful thing about oral conversations, though, is that if other people disagree or ask questions, there are easy face-saving maneuvers, such as, "Oh, I didn't really mean that, let me clarify." Then everyone can move on in a friendly fashion. No one is taping you for the purpose of forever dogging you with every misstatement you ever made.

Blog comments are a way of having conversations online. Like conversations, they are quick and off-the-cuff. Unlike conversations, though, blog comments are (relatively) permanent. Once you make a misstatement, or an argument that isn't as clear or nuanced as you might have written with several days' thought, it stands there forever, waiting to be thrown back in your face as a taunt ("You're the guy who was dumb enough to argue 'X' and then you yourself had to back off that assertion").

Given the relative permanence of blog comments, anonymity or pseudonymity is a way of being able to have a free-flowing conversation while still preserving some of the face-saving that occurs in oral conversations.

Posted by: JSB | Mar 11, 2013 11:41:53 AM

O.k., so much to say and so little time. It’s a good thing it’s spring break....

Orin, Thanks for your deep thoughts. I always enjoy seeing your comments, so glad you write comments using your name. As for me, I always choose pseudonymity. I've already explained why, so no need to be repetitive.

As for the difference between anonymity and pseudonymity; I'm not sure it matters. In Christology the books of Acts and Didache are both written anonymously. With Acts we think Luke wrote it, with the latter there's no knowing. Revelations most claim it to be by John, but no one knows which John, and it was almost certainly not the apostle John. Their anonymity or pseudonymity makes these books no less substantive and influential.

The picture with Publius is more sophisticated than you make it out to be: Madison wrote pseudonymously because he was a Virginian and the Federalist Papers were is written for New Yorkers, so Madison wanted his domicile to be secret. Hamilton didn't want fellow New Yorkers to know that the author was biased by his participation in the Philadelphia Convention. Jay's reasons I don't know. In later years, Madison and Hamilton disputed about the authorship of some of the numbers, so even they eventually became confused about attribution (remember the same is true about McCartney and Lennon, but for a different reason).

But there were many other reasons for anonymity and pseudonymity during the Revolutionary Era. Jefferson's anonymity with the Kentucky Resolutions hid the fact that the Vice President (Jefferson) was writing against the Adams administration. Madison’s Virginia Resolutions were anonymous seemingly simply to keep a low profile.

Some of the Hamilton's pseudonymous work against Adams, during the campaign of 1800, were downright nasty because he disliked the man and wanted control of the Federalist Party. That use of pseudonym backfired with Jefferson being elected president with Burr in the vice presidency, soon ending with Hamilton’s death at the hand of Burr.

I want to also return to something Paul wrote earlier: "I don't think being a professor takes a tremendous amount of courage, so I'm not lionizing the academic profession." Here I take some offense , not only for me but for academics in general. I think that history's pages are replete with courageous professors who were mathematicians, astronomers, lawyers, physicists, biologists, etc. This is not only the case in the United States, but throughout the world.

Posted by: AnonProf | Mar 11, 2013 10:28:54 AM

I did not see anything inherently wrong with the initial disclosure by TFL, if that was the case. I am assuming the posts were anonymous inappropriate personal attacks on a named person (I have seen some of them, and they do fall into that category, but I do not know what all of them consisted of). Let's put aside who the named person is, and what you might think of them. Shouldn't the named person be put on a level playing field by knowing the name of his attacker? I am surprised that the attackers are being treated as victims.

If this were a third grade playground, I would not be running to the protect the kid who threw a snowball in a crowd started the trouble and protect his anonymity. I would not be sympathizing with him because the guy he threw the snowball at found out who he is and is threatening to retaliate. I would not be blaming the kid who ratted him out when he tried to hide in the crowd. I would be asking the kid who threw the snowball whether he apologized and whether he promises not to do it again.

Posted by: Justin | Mar 11, 2013 10:13:40 AM

Marc is right that this has become more about the normative value of anonymity/pseudonymity, but it's a worthy discussion to have.

Cynic, No one (certainly not me in the original post) has weighed in on whether the alleged disclosure was right or wrong (I don't know enough about what did or didn't happen to engage on that). But several commenters at TFL suggested this was unlawful and that did not seem right to me.

On that note, I recommend Bruce's analysis at Madisonian--it seems right to me. I would add to it only that some First Amendment concerns ought to be floating around. Right or wrong, "outing" an anonymous/pseudonymous speaker who is part of a public discussion on what seems to be a matter of public concern is protected expression. So any prohibition on it would have to be clear. And while there is a right to speak anonymously/pseudonymously, no one involved in this mess is a state actor.

Alex: I'm somewhat less surprised that TFL has not responded to all this. The blog's comments section has been hijacked by this (there are 34 posts on the Kansas-Nebraska Act, all about this lunacy). If this post and discussion (or one like it) were to go up there, it would be similarly hijacked. It seems to me the better thing for them might be to let it blow over with some time.

Posted by: Howard Wasserman | Mar 11, 2013 8:18:32 AM

In the case of the Federalist Papers and similar material, the authors wrote pseudonymously, not anonymously, and this might make a difference with respect to their reasons. I agree with AnonProf that timidity was probably not a reason, or if it was a reason, that reason was likely to diminish the further on down the numbers of the Federalist one went. As they continued to use their pseudonyms, they were likely to be recognized by a (growing) part of the reading public and the writing associated with their real names. But maybe by the time one reaches, say, the 30s or 40s of the Federalist, the sorts of ad hominem dismissal that Orin is talking about might have been of less concern because of the perceived quality of the prior numbers. That is, pseudonymity might have given them a grace period within which they could establish a kind of argumentative bona fides, and then later they really did not need the pseudonymity any longer but continued to use it for continuity. Just a guess, though, and surely a historian knows better.

Posted by: Marc DeGirolami | Mar 11, 2013 6:58:39 AM


I think we all agree that anonymous commenting has great value as a general matter. I think the issue is much narrower: What are the stronger or weaker reasons for anonymity in different specific contexts? Like most things, anonymity can be good or bad, and reasons for it can be good or bad.

In the case of the Federalist Papers, for example, I thought the reason that they wrote anonymously was to avoid ad hominem responses. That is, all of the authors were prominent men who had their own interests and histories, and writing anonymously was a way to make sure that the ideas were taken seriously and not dismissed based on their authorship.

Anyway, thanks for the exchange, whoever you are. :-)

Posted by: Orin Kerr | Mar 11, 2013 12:14:15 AM

I file this under "just because you can do something (i.e. share the emails/ISP addresses to a third party) doesn't mean you should."

Posted by: cynic | Mar 11, 2013 12:00:35 AM

This is an interesting discussion, although it probably has veered from Howard's original post into discussing Paul's post on anonymity (for which comments are closed, so it is understandable that we are discussing it here). I also will note that I find it a bit strange that the folks at TFL have not run a post on this yet -- whatever one thinks of the specific controversy (including whether there is a controversy), it seems like there ought to be a forum for discussing it over there.

In any event, I guess I am not sure why anonymity by law professors is something to lament, Paul, or why you say more strongly in your separate post that it is not a "valid" choice for them. If it makes the conversation less rigorous or informative or civil etc., then I am with you that it is something to lament -- and maybe it does, but it is hard to know what the universe would look like if law professors always posted under their own names. Although I regularly read law blogs, I don't post a lot, and when I do I almost always post under my own name. I think initially I was more inclined to post anonymously because I was new and quite frankly insecure -- maybe that is something for me to lament but I am not sure why it is something that other profs would find lamentable. In the past few years I can only recall one time that I decided to post anonymously when commenting on a legal issue, and it related to the alleged use of race in the selection of articles for publication at certain journals. I posted twice anonymously mostly because I wanted to engage with the conversation but was still working out where I actually stood on the question. When I figured that out, I ultimately posted under my own name (actually, in response to one of your posts, Paul). I think my reasons for initially posting anonymously were complicated, and maybe insufficient, but I am not sure how they degraded the conversation.

But I take your separate post not necessarily to be about the costs of anonymous posting by law professors, so much as the lack of justification. One might ask, however, what the justification is for signing comments. If the idea is to reach a better understanding of the law, or to engage in a rich conversation, I am not sure what signed comments have to do with that. My view of the merits of a particular argument should not generally depend on who is articulating that position. I guess I would say that posts should be respectful and try to engage with the question at hand, but other than that I don't know why knowing the identity of the participants is that important.

Posted by: Alex Reinert | Mar 11, 2013 12:00:14 AM

Dear anon,

No, no, no. By no means am I "annoyed" with you and, to the contrary, genuinely happy that you joined and enriched the conversation.

As I sit and burn the midnight oil over an article, I appreciate having your comments to keep me company.


Posted by: AnonProf | Mar 10, 2013 11:28:17 PM

I wrote the comment about being timid, and I really wasn't trying to dismiss or characterize others. I was really talking about myself, because at times, both situationally (not sure if the ideas I am expressing really hold water) or psychologically (just having one of those days) I feel a bit timid. On my psychologically timid days, being able to post anonymously has the same appeal as wrapping myself in a warm Snuggli and watching reruns of the sitcoms I loved in my childhood.

This exchange illustrates the value of anonymous posting. AnonProf, who has posted thoughtfully and with whom I agree, seems annoyed at me, and may even think I'm a raging jerk. I'm glad he cannot attach any negative feelings to my real name.

Posted by: anon | Mar 10, 2013 11:12:17 PM

I wonder whether at the time of the American Revolution when Publius, Cato, Brutus, the Federal Farmer, Agrippa, Centinel, Caesar, and Cincinnatus wrote their missives on politics anyone called them timid for presenting their ideas anonymously?

Asserting that anonymous posters lack courage is dismissive. How about if the poster seeks to hide race, sex, sexual orientation, ethnicity, age, physical condition, union membership, law school affiliation, political party membership confidential to avoid stereotype and engage in ideas rather than personalities? Who's to judge what legitimate? Offensive comments, as we've seen in the past couple of days on other blogs, can just as readily be written nonymously as they can anonymously.

My guess is that if this blog forbade anonymous comments, it's comments sections would be almost empty. But I would be fine with that, if that's what the administrator's think best.

Posted by: AnonProf | Mar 10, 2013 10:23:09 PM

I've figured out a solution to my long comment problem, which is to make the comment as a post on another blog. So, my thoughts on the question Howard put in the original post above are here: http://madisonian.net/2013/03/10/can-a-website-operator-disclose-identifying-information-about-blog-commenters/

Posted by: Bruce Boyden | Mar 10, 2013 10:05:00 PM

For what it's worth, I can certainly sympathize with that last point, both as a matter of human nature and because I agree that there is value in online brainstorming and dialogue. But I suppose I would add two thoughts. The first is that I worry about putting things too strongly in terms of cowardice and courage as binary moral absolutes, although I have written here before that I think professors ought to value courage. I don't think being a professor takes a tremendous amount of courage, so I'm not lionizing the academic profession; and I'm not trying to condemn all anonymous commenters as utter cowards. (In any event, my real objection is to those who crave the security of anonymity but also treat that security as liberating them to be as intemperate as they please. Nothing about your comments, or "anonprof's" comments, was especially intemperate.) I just think that the willingness to speak for attribution in the vast majority of cases is a reasonable part of the job description for academics.

The second is that, in thinking about these issues, we have to benefits the value of free and open brainstorming and dialogue against the costs of unfettered invective, flame wars, and so on, even leaving aside the grosser instances of misbehavior. I can't be the only regular blogger who thinks that there has got to be room for serious disagreement online, but that many threads of late have suffered from a terrible signal-to-noise ratio, to put it mildly. Some bloggers have resolved simply never to allow anonymous commenters. I think the cost-benefit calculation still favors a general rule of allowing them, although I'm increasingly happy to close comments on particular posts or to ban particular commenters who, even when they have valid criticisms, just can't manage even a modicum of civility. As I say, I do think there is value in anonymous commentary and that it shouldn't be impossible to do so. But those of us who maintain comment threads incur a real cost in trying to keep them reasonable, and those who fail to maintain them at all do a disservice, I think, to the possibility of decent but still critical discussion. It shouldn't be impossible to have anonymous discussion, but I think it's reasonable for us to maintain expectations with respect to how those discussions are carried out.

Again, I tend to think speaking with attribution is a basic part of the academic job description in any event, so perhaps this second point is, um, secondary. But I wanted to respond in full, especially because your comment is hardly the kind I object to.

Posted by: Paul Horwitz | Mar 10, 2013 9:45:38 PM

By the way, it has not been my experience that trying to 'cabin' the comments by disclosing them as preliminary or not fully thought out makes any difference at all. If you become known as the guy with the off the wall ideas, you become known as the guy with the off the wall ideas. It's been my experience that that condemnation can be painful and significant even if time proves that you were right. Online, the condemnation goes to the idea, not the person.

In terms of social consequences, I think discouraging half baked ideas bears on innovation. If we create a universe where people concerned about reputation express only full formed ideas which they are prepared to defend fully, we create a world where we get a lot more status quo ideas and many fewer ideas still in the process of formation and expression. Both law and academia tend to be inherently conservative and non-innovative, being excessively concerned with institutional status, historical precedent and consensus thought. I think any processes that make the academy, especially the legal academy, more that way would be unfortunate, especially given the tumultuous times in which we live.

Posted by: anon | Mar 10, 2013 9:30:49 PM

I've thought about this a bit more, and have one more small point. Sometimes, when I choose to be anonymous, it's not just because I am a coward (although sometimes surely I am that) but because I am not sure about what I am saying - not sure because it's hateful, or bigoted, but just because I'm not sure that I've thought it through. I think the tendency of being unsure about an idea would tend to correlate positively, not negatively, with quality scholarship, because it is after recognizing that we are unsure about something that we keep digging, perhaps getting to something important. That said, it has been my life experience that attaching my name to inoffensive but half baked ideas has not always been a good idea, or as quickly forgiven and forgotten as seems to be the experience of others. I've learned the hard way to be careful about letting half formed ideas proceed into the dialogue with my name attached. Online, I appreciate the opportunity to brainstorm without fear of personal condemnation, and would regret a world where that became much harder to do.

Posted by: anon | Mar 10, 2013 9:08:21 PM

Since I wrote one of those related threads, let me say that I am not offering categorical condemnation for anonymity, and certainly not for anonymity by reason of timidity. As a general rule, I allow anonymity on my posts; I don't always allow comments, but when I do I allow anonymous comments. What I said, and believe, is that professors ought not comment anonymously, as a general rule; that this is especially true when their comments are opinions on the law or on the legal academy; and that for the most part all professionals, absent strong justifications to the contrary, ought to be capable of commenting under their own names, commenting anonymously but with some politesse, or just not commenting at all. That this doesn't appear to be the case is not cause for categorical condemnation, especially since I sympathize with the timid; but I think it *is* cause for lament.

Posted by: Paul Horwitz | Mar 10, 2013 9:03:26 PM

Since I wrote one of those related threads, let me say that I am not offering categorical condemnation for anonymity, and certainly not for anonymity by reason of timidity. As a general rule, I allow anonymity on my posts; I don't always allow comments, but when I do I allow anonymous comments. What I said, and believe, is that professors ought not comment anonymously, as a general rule; that this is especially true when their comments are opinions on the law or on the legal academy; and that for the most part all professionals, absent strong justifications to the contrary, ought to be capable of commenting under their own names, commenting anonymously but with some politesse, or just not commenting at all. That this doesn't appear to be the case is not cause for categorical condemnation, especially since I sympathize with the timid; but I think it *is* cause for lament.

Posted by: Paul Horwitz | Mar 10, 2013 9:03:15 PM

It would be a better world if everyone in it, including law professors, were uniformly confident and brave. People should post their opinions online with their real names attached. They should go up to that attractive person they find fascinating and make contact. They should leave their boring job and start the firm or the company or pursue their dream of teaching, and not worry too much that it won't work out.

But, nice as that would be, people are not all like that. And, even some of us who are like that some, even most, of the time, aren't like that all the time. Sometimes we are timid.

It seems to me that being a bit timid, perhaps only some of the time, without more, doesn't deserve the condemnation it's getting on this and related threads. Yes, it's not optimal. Unless, however, it's a cover for hostility or prejudice or some other independent evil, I don't see that it justifies categorical condemnation.

Posted by: anon | Mar 10, 2013 7:35:19 PM


Those strike me as good reasons not to post on the Internet when drunk or angry (or both). But I personally don't see them as good reasons to write anonymously. It would strike me as sad if even tenured professors who enjoy light teaching loads and high salaries are so worried about being judged for our opinions that we will only express them with names attached when we have the buffer of multiple drafts and round of comments to iron out our our errors. But maybe my view is quirky, as I realize that only a very small percentage of law professors blog or post comments.

Posted by: Orin Kerr | Mar 10, 2013 3:32:04 PM

First I just want to mention that the accusations against Filler were pretty much verified when his non-denial was posted on ATL. There is something really disturbing about it from an ethical standpoint, and I think Filler could make the first steps towards redeeming himself with a public apology.

But anyway, even if it didn't violate any electronic privacy statutes, state-level deceptive trade practices could apply (the board implicitly represents that identities are private), as plenty of states have very broad definitions of what constitutes "trade practices." There's also possible liability for civil fraud (though I don't think what he did would fall under criminal fraud anywhere). If Leiter's crusades actually cause any real damage to people it could also result in civil liability for tortious interference with contract.

Posted by: xavier | Mar 10, 2013 1:11:20 PM

Very sorry. I had to break this up into three posts b/c the system didn't allow me to fully post my comments in smaller increments.

Here's a bit more about the EU directive: http://books.google.com/books?id=3ZfDy4sqQBEC&pg=PA224&dq=eu+privacy&hl=en&sa=X&ei=xnA8UdimNITbyAHrsYCQAQ&ved=0CC0Q6AEwAA#v=onepage&q=eu%20privacy&f=false. I do not know whether there is case law as to the EU Privacy Directive's applicability to blogs at all, especially to U.S. blogs.

I do think the privacy standards in the U.S. are significantly looser than they are in Europe. That's beneficial for some and harmful to others.

With all that said, I doubt very much there is a cognizable legal claim in the dispute that prompted Howard Wasserman's initial post. The whole thing is so unseemly, ungainly, and unpleasant that anonymity is good just to try to steer clear of that conflict.

Posted by: AnonProf | Mar 10, 2013 9:14:50 AM

I think you're correct about the ECPA. As for the European Privacy Directive, it's application to U.S. sources derives from the international character of Internet websites (another significant difference from the classroom or any other temporal conversation), where the material can be written and disseminated from the United States but the harm felt in Europe. The best known such case is Yahoo! from a French court. There are others that hold that effect in Europe is all that's needed for liability under European law to attach.

Posted by: AnonProf | Mar 10, 2013 9:13:49 AM

I'm having the same problem posing that Orin and Bruce mentioned before, so I'll need to break this up in two:


Your point about disclosure is well taken. I respect it, but completely disagree. In a classroom there are only 10 or 100 students. Once a mistake is corrected in oral conversation, it is likely to be forgotten. At the very least, memory of those mistakes is not persistent (and almost permanent)the way it is on the Net. And the verbatim thing stated is almost never remembered unless recorded by some other electronic medium (like a tape recorder). Therefore, mistakes corrected in oral conversation can often be done with some obfuscation (ie. "You must have misunderstood me. I didn't mean X but Y." OR "I can't even remember exactly what I said. Perhaps I misspoke. So just in case I made a mistake let me start again to make sure I get it right....") Such conversational style often allows the speaker to save face while making the called for correction. That style of conversation is curtailed on the Internet. On the Internet all is recorded, subject to nitpicking, and persistently available (whether to employers (present or future), students, or colleagues). Paper publication, blog posting, or brief writing allow us to carefully weed out mistakes; iron out inaccuracies, inconsistencies, and plain error; and reorganize argument before others read our work. Comments on blogs are more like oral conversations but made to potentially hundreds, thousands, or even millions of readers.

Posted by: AnonProf | Mar 10, 2013 9:12:30 AM

As noted upthread, there's a valid issue as to whether the comment box at TFL constitutes a contract offer. Beyond that, even if it does, one might question whether it promises any anonymity beyond simply not posting the email address alongside the comment. That said, I've seen bigger stretches than interpreting an invitation to "Post a Comment" along with "your email address will not be posted" as a commitment that anonymity will be honored if you accept the invitation to post.

On consideration, that seems easy. Sites live and die on community participation - Facebook's value, for example, doesn't flow from its technical excellence. While the value of any one comment is small, the value in aggregate of being popular is high. Comments provide free content and hooks for more traffic. On the other side, those posting comments must see value in having the platform offered, or else they would not participate.

Posted by: anon | Mar 10, 2013 7:20:36 AM

Bryan Choi wrote: "The ordinary rule is that if A tells a fact to B, A has no right to stop B from telling that fact to C."

Same result if C says to B, "tell me the identity of A, because I intend to threaten and harass A" and B then reveals the identity? Same result if C doesn't expressly say that to B, but B reasonably understands that that is C's purpose? In addition to slicing and dicing the test of the relevant statutes, what would be the situation sense of the ordinary trial judge under those scenarios? Suppose that B is aware that C has in the past threatened to harm the professional reputation of people like A and has taken steps to do so and then B reveals the information?

Posted by: anon | Mar 10, 2013 3:29:41 AM

An admin could probably be sued for defamation if the identification were false -- and maybe even if it were simply unverifiable. The admin could then counter with a good faith or opinion defense.

Arguably, ECPA or CFAA could apply if the admin went above and beyond to verify that identity, but the admin would have to do something analogous to wiretapping or unauthorized snooping, not just disclosing information he passively received and logged.

If the identification were accurate, I agree with Orin: "The ordinary rule is that if A tells a fact to B, A has no right to stop B from telling that fact to C." One could try to apply the privacy tort framework, but it would be an odd inversion because the private fact (i.e., the comment) has already been disclosed and the claim would be limited to wrongful attribution. The claim would have to be that the attribution itself is of no public interest, which seems to me a difficult argument to make when the commenter intended his comment to have a public effect. (Things might be different if it were a private, password-protected site.)

If the commenter wants to make a breach of contract claim, where was the offer/consideration? The reputational/career benefit to the admin, mentioned earlier, seems rather tenuous. But even assuming that the admin is receiving some valid consideration, what is the admin offering the anonymous commenter for his comments? Aren't the comments provided purely on a voluntary basis? Suppose a speaker announces a free, public rally and allows attendees to wear masks if they like. If the speaker then unmasks a rowdy heckler in the crowd, has he broken any promises or violated any contracts?

Posted by: Bryan Choi | Mar 10, 2013 3:16:25 AM

Oops, I meant to say that the SCA specifically allows non-disclosure of non-content information "such as e-mail addresses," not "such as e-mails," in the middle paragraph above.

Posted by: Orin Kerr | Mar 10, 2013 1:07:07 AM


I think comment sections can be as informed and deep or as foolish and superficial as you want them to be. As for why you would want to attach your name to such a thing, I'm not sure I understand the fear, at least assuming you are not expecting Senate confirmation. If you fear that you will make a mistake, you can just express the view tentatively and acknowledge error if you are wrong. My sense is that everyone respects that; no one is perfect. It's a lot like teaching a class when a student asks you a question that is not really part of the class but still seems relevant to the students. I hope no professor would decline to answer or even speculate on the ground that they cannot express a view without first giving the issue years of research and drafting.

As for your question about ECPA, I can't see any non-frivolous argument as to how ECPA applies. A blog is just a destination website, not a provider of connectivity or a place to store files or have them processed. Thus a blog does not act as a covered provider (ECS/RCS) under the Stored Communications Act. See, e.g., In re Jetblue Airways Corp. Privacy Litigation, 379 F. Supp.2d 299, 307, 310 (E.D.N.Y. 2005); United States v. Standefer, 2007 WL 2301760 at *4-*5 (S.D. Cal. 2007). And even if you misconstrue a blog as a covered provider under the SCA, the SCA specifically allows non-disclosure of non-content information such as e-mails " to any person other than a governmental entity," 18 U.S.C. 2702(c)(6), with "government entity being defined by 18 U.S.C. 2711(4) as "a department or agency of the United States or any State or political subdivision thereof." I have heard Brian Leiter called many things, but I have never heard him called a government agency.

I know next to nothing about EU law, but I'm not sure how it would apply. I believe everyone at the Faculty Lounge is in the United States; they are hosted by typepad, which I believe has its servers located in California; and they are discussing U.S. legal education with others who are also believed to be in the United States. Does EU law govern disclosures inside the United States among individuals inside the United States involving others in the United States?

Posted by: Orin Kerr | Mar 10, 2013 1:03:49 AM

Why, Paul, because when I put my name to something it's always well thought out (sometimes after years of research, discussion, analysis, drafting, and writing), and the comments sections (as opposed to posts) of blogs are places for quick opinions given with minimal research. The question for me is why anyone would want the computer record to forever be linked to the normal hiccups that are a natural part of conversations. To demand rigorous research for each comment would shut down the type of conversational debate that I believe blogs are best for. It's one thing to say something off the cuff in oral conversation, where one corrects and laughs it off and moves on with only those gathered in a room remembering the imprecision, and another to have an almost eternal computer error of minor analytical glitches.

Posted by: AnonProf | Mar 9, 2013 10:06:50 PM

Why would a law professor, tenured or not, want or need anonymity to discuss or even speculate about the law? Whatever valid purposes anonymity may sometimes (hardly always) serve, that seems like an illegitimate one to me.

Posted by: Paul Horwitz | Mar 9, 2013 9:05:02 PM

The theory on joint and several would be that TFL is a partnership, operating a website, with all the admins being members of the partnership. As you know, you do not need articles of partnership to form a partnership. If one of the partners commits a tortious act related to his duties in the partnership, the normal partnership rule is joint and several liability. Tactically, if I were going to sue (and I predict no one ever will), the normal practice is to name every member of the partnership, especially since, while there are allegations out there that an email address was leaked that supposdly only could have come from TFL, even assuming those allegations are true, no one can say which admin leaked it. I would name the partnership (site) and all its members to avoid a Twiqbal pleading problem that you don't have facts to allege on which specific admin leaked info.

Posted by: anon | Mar 9, 2013 8:08:10 PM

Orin and Bruce,

I would highly counsel anonymity in these posts. We are essentially mulling over legal ideas, and our speculations may or may not be correct given that we’re giving a first impression; the equivalent of going into each other’s office and talking it over rather than putting in the research, speaking to a client, and then providing a well-founded (ie. sufficient under FRCP Rule 11) advice. I am purely writing to the abstract question posted by Howard Wasserman on this blog and not giving legal advice to anyone.

That said:


Why do you think the ECPA doesn't apply? Is there any legitimate counterargument? Even if the ECPA doesn’t apply isn’t there a potential cause of action based on the law of a European Union country that has adopted the European directive? It would of course take filing the claim in a European forum or a U.S. forum that would choose European law. I’m specifically thinking of these seemingly relevant provisions of the directive, but may be wrong:

“Definitions ¶ For the purposes of this Directive: ¶ (a) 'personal data' shall mean any information relating to an identified or identifiable natural person ('data subject'); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity; ¶ (b) 'processing of personal data' ('processing') shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction”

The directive requires member states to require those processing data to provide the “data subject” information to “learn of the existence of a processing operation and, where data are collected from him, must be given accurate and full information, bearing in mind the circumstances of the collection.”

The preamble of the directive states that “data which are capable by their nature of infringing fundamental freedoms or privacy should not be processed unless the data subject gives his explicit consent.”


I’m unconvinced that joint and several liability applies. What if the identifying information were to be divulged by one blogger without the permission or knowledge of any of the other blog operators?

Posted by: AnonProf | Mar 9, 2013 7:41:19 PM

What is the policy at this site? Is there even a policy? Is is the owners' discretion to provide that information to someone who may use it against the commenter? Do the owners reserve the right to turn that information over to Brian Leiter?

Posted by: anon | Mar 9, 2013 7:32:59 PM

3. Having said all that, let me conclude by saying that I'm not a fan of litigation like that I outline. I'm simply trying to answer the question asked. I am a fan of cobblers' children having shoes, and of law professor websites putting up Terms of Service and Privacy Policies that protect them from litigation and fear of litigation. 

Posted by: anon | Mar 9, 2013 7:20:29 PM

2. If you want to do a count by count analysis, take your own time to go to Wikipedia or Lexis, look up the elements of the causes of action listed before, and see if they fit. Remember that there will always be additional facts that impact the analysis  (as there allegedly are here), and that our general body of laws apply to activities that occur in whole or part on the internet. That none of these causes of action are lay down winners does not mean that they would rise to the level of harassment worthy of sanctions. On tortious interference, there is an issue of whether sufficiently definite interests will be breached. On intentional infliction, there is the issue of whether the conduct is sufficiently outrageous. On deceptive trade practices, there is the issue of whether the comment box is deceptive, whether deceptive is enough absent fraud, and whether the exchange between website operator and user is the kind of service covered by those laws. On contract, there's the issue of whether the comment box can fairly be understood as a contract offer. Some of those may be fact issues, and some of those clearly are legal issues that could be resolved by a judge. I wouldn't guarantee these claims all go away quickly, and I doubt sanctions would be in order. On the facts alleged around the web, people had understandable expectations of privacy that may have been defeated through an intentional scheme, they may have suffered real damage at the hands of folks intending to cause that damage, and our litigation system is designed to help people like that work through potential causes of action without undue penalties. In a world where most of the academy opposes simple English Rule fee shifting,  don't think very many law professors would argue for sanctions being imposed on a litigant who has lost his or her job as a result of someone else's intentionally harmful conduct just because after extended briefing they can't quite fit it into one of several arguable causes of action.

Posted by: anon | Mar 9, 2013 7:19:40 PM

1. I don't have sufficient time or interest to accept Orin's invitation to research and analyze the causes of action count by count, but let me ask you this: if you were general counsel to a website, and the proprietor came to you and asked, "There's a guy out there who wants to out commentors on my site, intending to cause them embarrassment and perhaps costing them their jobs, and in order to achieve that goal he wants me to hand over to him the email addresses of these commentors, even though the comment form on our blog can be read as a promise not to release their email address if they help us by contributing comments.  I'm thinking of giving him all the info we have on our commentors - email addresses, IP addresses, whatever - so he can go harass these people, but I thought I would check with you just to make sure it was a good idea. What do you think?" Is there anyone here on such a hypothetical, fictional scenario who would say, sure, go ahead, no problems there? I didn't think so. Trust your gut.  There are potential problems if the actual facts turn out to be anything like those alleged in certain corners, and for everyone who can be labelled a partner in the site.

Posted by: anon | Mar 9, 2013 7:18:57 PM

Thanks Michelle, that seems to be the problem. Except that my shorter comment was about 3 paragraphs or so, the same as one above, and that one didn't appear either. Maybe because it was within a minute or so of the first one.

Posted by: Bruce Boyden | Mar 9, 2013 3:19:12 PM

If your comment is too long, Typepad (used by both TFL and, I believe, Prawfs) will simply swallow it alive whilst telling you, cheerfully, that "Your comment has been posted!" Needless to say, it's very annoying. I don't know what the magic word or character limit is, but it's happened to me at TFL. The solution is breaking up one's comment into multiple comments (and, of course, saving comments in Word or whatever).

Posted by: Michelle Meyer | Mar 9, 2013 3:10:52 PM

I wrote a long comment over at TFL which, like Orin's, did not go through either time I posted it (fortunately I saved a copy). Then I posted it just now at Prawfsblawg with the same non-result, along with a shorter follow-up responding to a couple of comments above. None are going through for some reason. Suffice it to say that in my opinion none of the bases for liability offered so far are viable. And filing a complaint for a non-viable claim just to impose litigation costs, as suggested by a commenter above, is a good way to lead to sanctions.

Posted by: Bruce Boyden | Mar 9, 2013 3:05:29 PM

I wrote a long comment that the comment system seems to have swallowed, so here's the short version: As much as such a disclosure is/would be very disturbing, I don't understand the theory that it is unlawful. The ordinary rule is that if A tells a fact to B, A has no right to stop B from telling that fact to C. There's no blog commenters privilege, and ECPA doesn't apply. So there needs to be some affirmative source of law that trumps the usual rule here. Could those who believe that the disclosure is unlawful lay out the elements and explain how they might have been satisfied, ideally by citing cases that back up the claim?

Posted by: Orin Kerr | Mar 9, 2013 2:13:04 PM

If I were one of the proprietors of TFL, with no protective Terms of Service with the standard mandatory arbitration clause that would foreclose a class action, with allegations of behavior that might be a potential violation of law, and with angry and perhaps irrational or attention seeking out of work lawyers in the mix, this is what I would be worried about: http://classactioncentral.com/aol-settles-class-action-lawsuit-for-5-million/

They don't have to win to cause a lot of pain if they are allowed their day in court.

Posted by: Non | Mar 9, 2013 12:46:20 PM

I think the no commercial purposes is not a given, but at least a litigatable issue. Universities are not outside the scope of 'engaged in trade or commerce' and professors blogging are often promoting themselves and advancing their careers - much as lawyers do with their websites, which rather obviously are for a commercial purpose. Do professors mention their blogging on their CV? On the school website? In their tenure application? Some do. The test will be the engaged in trade or commerce language for those statutes that apply that test, and the outcome is not all that clear to me. Other laws, such as contract or tort, apply no matter how selfless your economic purpose.

Posted by: Non | Mar 9, 2013 12:36:13 PM

"Is it unlawful for the administrator of a noncommercial blog to disclose the identities of anonymous/pseudoymous commenters, when that disclosure is for noncommercial purposes?"

I'm interested in reading answers from knowledgeable commenters. For those with expertise on the issues, does some of the analysis turn on the nature of the "noncommercial purpose"?

Wouldn't we have to know (1) to whom the information is being given and (2) the expected use the recipient will put it to?

Suppose, hypothetically, that a person was pursuing the identity of a commenter and I (the blog owner) reasonably understood that the pursuer wanted to send along an interesting article that the commenter might like. Would it be different if, hypothetically, I reasonably understood that the pursuer wanted to harm the commenter in some way? I wonder if in the latter case there could be secondary liability for what the pursuer does.

Posted by: anon | Mar 9, 2013 11:12:13 AM

Depending on the injury suffered, there are several possible routes to civil liability. Liability would seem to be joint and several for the operators of the blogs, as they seem to be operated as informal partnerships

One issue is the representations made implicitly or explicitly by the website. If the website states, as some do, that the aidress "will not be published" I think expectations are created. I'm not seeing typical terms of use agreed to before clicking to upload a comment on any of these sites (a basic fail in applied lawyering, that, but I'm not touching what that might imply), so I think the "won't be published" language may be all the contract there is. It may also be that, if such language is considered deceptive or misleading, various consumer protection laws are implicated, although I'm not sure if running an ad supported site alone is enough to invoke those. If invoked, they typically have a lot more bite than contract or common law tort. Last but not least, there is common law tort, with the various flavors of intentional infliction and intentional interference coming to mind.

Beyond the possibility of legal sanctions, I think there is an ethical issue for the operators of the blogs when they release information after having created an expectation that it would not be released, and that this properly will have an impact on the individual and collective reputations of those running the sites. I certainly think that releasing names publicly without first having sent email messages asking for different conduct or providing a cease and desist warning seems a bit sketchy.

Beyond all that, is anonymity all that bad? If a commentor has reasons to not invoke the attention of colleagues or friends for non-offensive comments, why should that choice be overridden without any prior notice or warning? The commentor might just not want to be held permanently accountable for off the cuff thoughts, or be called out by name if a quick blog post contains an error of law or fact. If a commentor is persistently offensive, why not issue a private warning and/or block the commentor's IP address? It's also not clear that the commentor meant to be offensive. One person's plain speaking of truth is another's offensive comment. I recognize that toxic commentors can be poisonous to a site, but so can ethically questionable 'outing' without prior warning.

Posted by: Anon | Mar 9, 2013 11:07:59 AM

The "Directive" appears to be just that: a directive to member states.

Posted by: anon | Mar 9, 2013 10:59:52 AM

I should add, and something probably obvious from my previous post: The likelihood of vindication will be predicated on the locus where the case is filed, the choice of law principles of the jurisdiction, and the discovery rules at play there.

Posted by: AnonProf | Mar 9, 2013 10:06:15 AM

I don't know the case law on this, but the European Union Privacy Directive would indicate that it may be a legal violation to divulge the private information of persons posting on social media, without receiving the prior permission of the person posting on that electronic media.

See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:NOT

Posted by: AnonProf | Mar 9, 2013 9:53:02 AM

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