As I indicated Friday, I saw too many years of the legislative sausage-making process to really want to weigh in on the so-called “blogger bills” in the state House, particularly at this early stage. But the blogospheric lines seem so sharply drawn (with attendant personality conflicts) when it seems somewhat unnecessary. There’s no sense arguing over First Amendment issues when the bills are defective from a practical standpoint.
Let’s start with this indisputable proposition: no one has a legal right to defame another person and while the First Amendment imposes some limits on defamation law, actions for libel or slander do not alone violate the First Amendment. At the same time, this debate doesn’t need to be one surrounding any First Amendment rights to remain anonymous while speaking. Common sense alone suffices.
As introduced, House Bill 1277 would allow someone to name “the online content provider” in a defamation lawsuit “for the limited purpose of obtaining information” about another person who posted something. The online content provider then has 30 days to provide any information that is “reasonably available and kept in the normal course of business” that may identify that other person and is entitled to be dismissed from the lawsuit once it has done so. The provider is not liable solely by virtue of being a online content provider.
While I don’t like “online content provider” not being defined, the major problem here is the law isn’t necessary. South Dakota already allows someone to bring what is commonly known as a “John Doe lawsuit” if you don’t know the true identity of the intended defendant. Thus, in an action based on some anonymous internet posting, the defamed person can file their lawsuit, naming John or Jane Doe as the defendant and then subpoena the information that would be sought via HB 1277. This is commonly used in the federal system, including actions by the RIAA against downloaders. Any First Amendment issues can be addressed in responding to the subpoena.
Creating a new statutory procedure does not eliminate any First Amendment issues or eliminate the cost of litigating them if someone doesn’t want to turn over the information. So why create a new and separate procedure just for online content? Why name a blogger as a defendant in a defamation lawsuit — a matter of public record — when a method already exists to do what HB 1277 claims to accomplish? Let’s go back to the adage heard over and over and over and over in the halls of the state Capitol during session — “if it ain’t broke, don’t fix it.” Unless and until someone can show John Doe lawsuits won’t work in this context, there is no reason for HB 1277.
From one standpoint, HB 1278 could be more beneficial to bloggers than the “John Doe” provisions — but it goes beyond impractical to the impossible. As introduced, the bill says: “Any person who allows internet posts shall keep a record of the internet-protocol logs adequate to provide identification and location of otherwise unknown, anonymous, or pseudonymous persons who leave or upload content.” (Emphasis added.) Notably, that information is to be provided only upon a court order meeting specified standards. Bloggers should find solace in the bill to the extent it elevates what someone who seeks the information must show. But it is virtually impossible for bloggers to comply.
To begin with, as far as I know certain blogging platforms, such as Blogger, don’t provide IP logs for the blogger. Bloggers can get IP address information from services like Sitemeter but that will simply tell you to which internet service provider the IP address is allocated, whether Midco in Sioux Falls, SBC Internet Services in Los Angeles or or StarHub Cable Vision in Singapore. Only the ISP knows who had that IP address at any particular time. The same is true of comment features on blogs. Many, if not all, allow the blog owner to see a commenter’s IP address. Again, though, the most you can tell is what ISP was being used, not who was using it.
Thus, the bill asks the impossible. To the best of my knowledge, no blog will have IP information that will identify a specific individual or even street address. Despite that, HB 1278 says a blogger (and others) “shall” keep IP logs adequate to identify a commenter. Where should a blogger buy the nonexistent software or services to comply with the law? Even if such software existed, would bloggers then be required to neutralize anonymizer products and services? If no bloggers can avoid violating the law, then the fear that the law will mean shutting down commenting all together isn’t an imaginary one?
Courts avoid constitutional issues unless necessary to decide a case. The same concept should be used here. There’s no sense in fighting these bills, at least in their present form, on First Amendment grounds because their true fatal flaws are in creating new procedures or standards that are unnecessary or impossible.
We live in a stage of politics, where legislators seem to regard the passage of laws as much more important than the results of their enforcement.
William Howard Taft, Our Chief Magistrate and His Powers