“Internet Cesspools”, Rise of Executive Power: Reactions

April 19, 2009

I spent the weekend in the University of Chicago Law School where I took note of some of views with regard to internet regulation circulating amongst the legal scholars.  I’ll begin this post by parsing some of the opinions of these legal scholars and wrap up by discussing the interaction between the legal movement for regulation and current cybersecurity concerns. 

Brian Leiter and Saul Levmore, faculty of U. of Chicago Law School, have been the most vocal of the faculty and have both published views to the effect that the internet anonymity should not be the status quo (or that internet anonymity should be disallowed for certain sites) because of the negative effects produced by such widespread anonymity (flame wars, hate speech, libel).  While, like others in this class, I am largely  in favor of anonymity on the internet because it allows unpopular opinions to be expressed without the danger of political reprisals or social disapprobation, I don’t think that their opinions should be immediately dismissed.  

What Leiter and Levmore both argue for is a limited cessation of internet anonymity in places they call “internet cesspools.”  The context is this: in the past year, two Yale Law students were the objects of sexual harassment speech, libel, and sexual threats on a popular law school admissions site, and the perpetrators of the hate speech could not be punished because it was difficult to identify the people who had posted the threats.   Their argument, loosely, is this: if people aren’t allowed to slander people in public, than why should people be allowed to publish slander online?

If the internet had some control from the center, Leiter and Levmore argue, there would be an easier way to track down cyber criminals or perpetrators of hate speech.  Levmore’s position is that internet anonymity should be regulated so that the “bad” sites where hate speech and libel is being published should be regulated more closely. (Leiter, I think, agrees, but his position is still a bit fuzzy to me.)

In theory, this sounds fine by me–regulate the “bad” sites, but keep the rest of the sites running with full anonymity–but the problem is threefold: first, who should decide which sites are “good” or “bad”; second, with what metrics do we determine the “goodness” or “badness” of the sites; and third, assuming that we’ve given some central authority the powers to make these determinations, how do we ensure that this authority does not abuse its privilege (e.g., by targetting certain sites as “bad” or selling the personally identifiable information (PII) of its internet users to third parties)?

The third problem, I think, has somewhat of a conceivable solution.  Given America’s “exceptionalist” suspicion of government oversight and of placing power into the hands of any one monolithic entity, I think the only approach toward selectively managing anonymity of the internet and handling the PII of internet users would be to create a public-private conglomerate (of say, 20 organizations comprised of corporations, human rights organizations, and government groups) that would have “shares” of users’ information.  And along those lines, only if, say, 14 of the organizations put together their shares could the PII of an anonymous internet user be divulged under a court subpoena.  The fractioning of power in this regulatory system would work like the separation of powers model that the Founding Fathers of the United States constructed for our political system to protect the interests of the populace by pitting the separate interests of different bureaucracies against each other.

And I think what we’d have left, under a model of regulation like this one would still be a great deal of internet anonymity to protect the freedom of political dissent, privacy, and other civil liberties.

That still leaves us with the first two problems to wrestle with, however.  As the CSIS Report details, the President (or the Executive Branch, at large) does not have the clear constitutional authority to manage the internet.  While I think it’s good that the President can use his office to swoop in and take care of crises that require immediate action (and take care of this sooner than Congress could convene), I think that the increase in Presidential power over the past several decades is a troubling trend that offsets the distribution of power that was meant to be shared equally between the three branches of government.  Cybersecurity is one of the latest issues that the Executive Branch has claimed jurisdiction over (see Cybersecurity Act of 2009) and claiming jurisdiction in this arena gives the Executive more unchecked power than I think is healthy for our democracy.

As the intersection between technology and security become increasingly difficult to wrestle with, I am concerned that instead of finding a best solution, we are opting for the quickest solution, a solution that may have devastating unintended consequences for America’s political future.

–Laura Fong


One Response to ““Internet Cesspools”, Rise of Executive Power: Reactions”

  1. If Levmore thinks anonymity leads to cesspools, would not regulating some parts of the net just cause the cesspools to migrate to those unregulated portions? And if the regulation expands to cover those new cesspools (as one would expect), it will lead to a completely regulated net.

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