In the Terminator franchise, “Skynet” is a computer network that has become self-aware.  It thinks that it knows everything and it is trying to take over the world—starting by killing all of the attractive humans in Los Angeles in the early 1990s.

Sometimes, it feels like Google is trying to copy Skynet.  The company’s goal is to “organize the world’s information”–all of it.  I’m not kidding.  All of it.  Google wants to know every fact, every tidbit of information, and every iota of knowledge in the world, and make it easily accessible.

Some of this is good.  Thanks to Google, it’s possible to find information that was once incredibly obscure.  Scientists, historians, researchers, students, and others have all gained immensely from the ability of Google to find and display useful information from around the globe.  The world is a richer place for it.

But Google is starting to earn a bad reputation for its methods.  In particular, Google has announced a massive plan to scan every book in the libraries of universities like Harvard and Stanford.  So far so good: scanning books is a useful pursuit and Google is a great company to do it.  But then Google announced that it was going to put part of the content of these books online.  That caused a little bit of a problem when the authors of some of these books–who would much prefer to sell copies of their books in bookstores than let Google users read them for free–sued under existing copyright law.  It’s an interesting question whether Google’s use of the books is “fair use” (exempt from copyright infringement), and a lot of legal scholars hoped that the lawsuit would help clarify copyright law in the digital age.

But, instead, Google settled the lawsuit with the authors.   It paid the authors a fixed sum of money for the right to put their books online.  The only problem is that Google bargained for the exclusive right to digitize copyrighted books that were published before the Internet.  If the settlement stands, Google will be the only company with the legal right to display old books online.  That would be a powerful competitive advantage over any other company that seeks to display digital information (or sell old books, or serve as a resource to students, or countless other things).

There has been a lot of controversy over so-called “software patents” (like the Amazon “one-click” patent) that give one Internet company the exclusive right to perform a certain function.  But these patents only last about 20 years. If Google’s deal stands Google will have the exclusive right to display old books until their copyrights expire, which could be 80 years or more from today.  This is the legal deal of the century.

Thankfully, Microsoft, Amazon, and Yahoo! figured out that Google might have just bought itself 80 years of slanted competition.  Now, the Department of Justice, Microsoft, Amazon, and Yahoo! are all investigating the anti-trust implications of the Google settlement to see if Google broke any anti-trust laws by buying 80+ years of exclusivity.  The irony is, of course, that Google scanned thousands of anti-trust textbooks that describe exactly why this deal is questionable under anti-trust law.  But, apparently, Google’s lawyers didn’t have access to Google’s scanning equipment.

The investigation continues.  In the meantime, the books are staying in Google’s archives, where they can only be accessed by other computers.  At least Skynet will have something to read.

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As we have previously mentioned, “skanksnyc” blogger and FIT student Rosemary Port has sued Google for $15 million, claiming that Google violated her privacy by revealing her identity.  The whole conflict got started when model Liskula Cohen noticed an anonymous blog on Google’s Blogspot.com site that made allegations that Cohen was a “psychotic” “lying” “skank” who performed oral sex in nightclubs.  Cohen sued Google to reveal the identity of the anonymous blogger, so that she could sue the blogger for defamation.  Google was forced to reveal Port’s email address to model Liskula Cohen after the Supreme Court of Manhattan issued an order requiring it to do so.

As legions of other chattering experts have said, Rosemary Port’s lawsuit is a guaranteed loser.

IN SHORT:
The court forced Google to reveal Rosemary Port’s name.  It can’t be liable for what a court ordered it to do. And Google definitely never agreed to indemnify Rosemary Port for the consequences of what a court ordered it to do.  Anyway, Google’s Terms of Service make clear that Google will respond to court orders.

IN DEPTH:
Privacy is incredibly important–and that includes both the privacy of bloggers and the privacy of private individuals who think they have been defamed by a blog.  This balance has always been a part of American free speech law, and it is an important balance to consider when thinking about cases like this one that balance the rights of a blogger to speak (Port) and the rights of a private individual to live her live without being slandered (Cohen).

Nobody forced Rosemary Port to use the Blogspot.com service offered by Google.  She chose among blog providers, and picked Google’s.  By signing up to use Google’s blog service, Rosemary Port decided to accept the balance of privacy that Google provides.  Google is a private company and it could set any privacy policy it wants: As long as Google made its policy clear up front, Google could set a policy of never revealing identities, or it could set a policy of buying full-page advertisements in the New York Times with the name of every Blogspot user.

As it happens, the Terms of Service for using Google’s Blogger website sets a clear policy for when Google will reveal the identity of a Blogger.com / Blogspot.com user:

“… You agree that Google may access or disclose your personal information, including the content of your communications, if Google is required to do so in order to comply with any valid legal process or governmental request (such as a search warrant, subpoena, statute, or court order)…”

And that’s exactly what Google did.  Google followed its own privacy policy to the letter.  Google hired big-shot lawyers to try to quash (prevent the execution of) Liskula Cohen’s subpoena (demand for information), but the court went ahead and ordered Google to turn over the information.  Google probably went beyond what most normal people would expect for a small blog — it probably cost Google at least $10,000 worth of lawyers’ time to defend the blog, based on the written briefing and oral arugment that was conducted.  That’s something like $20 per word!

Rosemary Port might have been able to win if Google did not try to defend her name, or if Google ignored its own privacy policy and turned over her name before the court ordered it to.  But by all accounts, Google did exactly the right thing and followed its own privacy policy to the letter.

It should not take a court very long to dispose of the case.

WHAT THIS MEANS

Think carefully about the information you turn over when you speak online.  If you give your information (such as your name and email address) to a private company, that company could reveal it to the government or to another person.  If you intend to say controversial things, you may want to think carefully about whether it is wise to use a free commercial blog service–after all, the blog site might not turn over your ID without a court order, but it might not put up a very big fight either.

If you have been attacked online, think carefully about whether it makes sense to sue.  More people heard the word “skank” near “Liskula Cohen” because of the lawsuit than ever would have if Cohen had worked out her problem in a different way.  Sometimes, it makes sense to call for professional reputation management rather than just lawyers.  A strategy to carefully control the offensive content might have solved Cohen’s complaint with much less fuss.

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In the wake of the decision forcing Google to reveal the identity of a blogger who allegedly defamed model Liskula Cohen (the court order, our legal analysis, and our initial coverage), there has been a lot of misinformation floating around the Internet.  Here are the top 5 myths about the case, followed by a little mythbusting from the ReputationDefender team.
Myth 1: This is the end of anonymity on the Internet (link here)

Status: MYTH BUSTED

This case is not the end of anonymous speech on the Internet.  This was just one order from a state trial judge in New York City.  The decision in this case does not have any legal power over courts outside New York, and it can still be overturned or modified by appellate courts in New York.  Bloggers in other states are completely unaffected by this decision, and the decision barely has any effect within New York.

The United States Supreme Court has not weighed in on the subject of anonymous blogging, although there are other U.S. Supreme Court cases about anonymous speech that have generally upheld the right to speak anonymously until other laws are broken.

And, there are still technical means (such as proxy servers and anonymous browsing) that allow completely anonymous speech.  It looks like the accused blogger–Rosemary Port–used her real email address when setting up her “Skanks in New York” blog.  If the blogger had used a fake email address and a proxy server, she might still be anonymous today.

High-profile celebrity cases like this one get a lot of attention, but rarely set important legal precedent.  So far, this case has done no more to make anonymous blogging illegal than the O.J. Simpson case did to make murder legal.

So rest easy, anonymous bloggers.  The rules are still the same: don’t break other laws, and your anonymity is still safe.  An anonymous blogger can still criticize the President, pontificate about public policy, or just ramble about his day.

Myth 2: Google is on the hook (link here)

Status: MYTH BUSTED

Contrary to some reports, Google is not liable to Liskula Cohen for anything, and is probably not liable to revealed blogger Rosemary Port either.

Liskula Cohen’s lawsuit named Google as a defendant, but all that she wanted from Google was the identity of the blogger behind the “skanksnyc.blogspot.com” blog.  As soon as the court ordered Google to reveal the email address of the “skank blogger” (now known to be Rosemary Port, an aquaintance of Cohen and a student at the Fashion Institute of Technology) Google’s role in the case was done.  Google doesn’t owe a single dollar to Liskula Cohen.  In fact a federal law–Section 230 of the Communications Decency Act of 1996 (“CDA”)–means that Google cannot be held liable for what bloggers say through the Blogger/Blogspot.com service that Google runs, even if The New York Times might be held liable for running the exact same content in its print edition.  In short, Section 230 of the CDA immunizes Internet companies from liability for what is published on their sites to a much higher degree than dead-tree print media.

Outted blogger Rosemary Port has now sued Google for $15 million, claiming that Google violated her right to privacy by revealing her identity.  To put it simply, Rosemary Port’s lawsuit against Google is a guaranteed loser.  Google went to court to defend her identity and did legal everything in its power to stop it from being revealed.  Google paid high-power lawyers (probably better ones than Port could afford on a student’s budget) to try and keep Port’s name a secret.  But the court ordered Google to release her name anyway.  There was nothing more for Google to do at that point; Google cannot ignore a court order.

To put any doubt to rest, the Terms of Service for using Google’s Blogger tools include:

“… You agree that Google may access or disclose your personal information, including the content of your communications, if Google is required to do so in order to comply with any valid legal process or governmental request (such as a search warrant, subpoena, statute, or court order)…”

By signing up to host her blog on Blogspot, Rosemary Port agreed that her identity might be disclosed if a court ordered Google to disclose it.  That is exactly what happened.  There is not much left for a court to decide here.

Myth 3: The judge trampled on the First Amendment (link here)

Status: MYTH BUSTED

As we have already said once, this is not a big First Amendment case.  The First Amendment is important to a free and healthy democracy.  And the rights inherent in the First Amendment should be upheld to their highest extent. But the right to speak freely has limits, and libel has always been one of the limits.

Contrary to some assertions, there is a First Amendment issue in the case.  Google is a private company and could choose to allow or disallow a blog for any reason.  Google’s internal decisions about what kinds of content to publish do not implicate the First Amendment in any way.  But the First Amendment does become relevant when the government (through the courts) forces Google to reveal the identity of a speaker.  Thus, there is still a need to consider the First Amendment when analyzing this case.

But, the First Amendment analysis need not go very far.  The First Amendment has never been a license to speak without consequences.  The First Amendment establishes a right to speak without government censorship–and especially establishes the right to speak without having to seek government approval first.  Hundreds of years of cases have held that the First Amendment prohibits so-called “prior restraint” (attempts by the government to stop a speaker before he or she has made a statement).  But hundreds of years of cases also say that the First Amendment does not mean freedom from consequences: falsely shouting “fire” in a crowded theater is a form of speech that is not protected by the First Amendment.  Other forms of speech that have consequences include inciting a riot, revealing classified secrets to the enemy, and libeling or slandering a private figure.

The same goes for anonymity.  The First Amendment means that the government may not demand to know the identity of people who blog about politics or distribute leaflets criticizing the administration.  But private parties who have been defamed (just like Liskula Cohen believes she has been) have always been able to seek out the person who they think defamed them, so that they can sue in court.

These ideas have always been part of the First Amendment and this case is nothing new on those grounds.  The only question is whether model Liskula Cohen showed enough of a likelihood of winning a defamation lawsuit that she deserved to know the identity of the person who attacked her online.  The judge in this case–after weighing all of the evidence and reading all of Port’s blog posts about Cohen-decided that Cohen had a good chance of winning and deserved to know the name of her attacker so that she could sue the blogger in court (and so that blogger could have a chance to defend herself).

Courts have been very reluctant to unmask anonymous speakers who write about politics; the Federalist Papers–some of the most important documents debating the Constitution–were written under the pseudonym “Publius.”  Even the responses to the Federalist Papers were written under assumed names like “Federal Farmer” and “The Republican,” some of which are still unidentified today.

Myth 4: The Supreme Court said it (link here)

Status: Technically right, but really BUSTED

Well, yes, but that’s not really what people mean.  The case was decided by the Supreme Court . . . of Manhattan.

In most states, the “Supreme Court” is the most important court.  And the Supreme Court of the United States is the most important court in the country.

But New York is a little different.  In New York, the lowest court is called the “Supreme Court.” And each judge on that court is called a “Justice”–the title normally reserved for members of the most important court.  But this “Supreme Court” is really a trial court that should be called a “Superior Court” or even a “Municipal Court.”  The most important court in New York is called the “New York Court of Appeals” instead.

In chart format:

FEDERAL COURTS

Most important: The Supreme Court of the United States
Middle: The United States Courts of Appeals
Least important: United States District Courts

OTHER STATES

Most important: “State Supreme Court”
Middle: “State Court of Appeal”
Least important: “Superior Court” or “Municipal Court”

NEW YORK

Most important: “New York Court of Appeals”
Middle: “Appellate Division”
Least important: “Supreme Court”

Myth 5: The blogger already lost (link here)

Status: MYTH BUSTED

The judge did not determine whether the blogger defamed Liskula Cohen.  Rosemary Port still has a chance to defend herself against the allegation that she defamed Cohen.  Rosemary can hire her own lawyers and tell her side of the story to a jury, just like any other person accused of defamation.  The only thing that has happened so far is that a judge has identified Port so that Cohen may file a lawsuit against Port.  Normally, that would be the first step in the process, but here Cohen had to go through an extra step because Port was blogging anonymously.

Now, Liskula Cohen can decide if she wants to sue the blogger.  And the blogger will have the chance to defend herself in court if Cohen goes ahead with a lawsuit.  So far, the judge has said only that Cohen has a chance of winning her lawsuit, not that she is certain to do so. If the lawsuit proceeds, it will be up to a jury to decide if the statements on the “skank” blog add up to defamation. Update: Cohen has dropped her lawsuit against Rosemary Port and decided not to proceed to trial.

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RECAP

As we previously reported, a New York trial court in Manhattan has issued an order (linkable full text -or- PDF full text) that requires Google to turn over the identity of a blogger that called Liskula Cohen a “skank” and called that Ms. Cohen went “lying” and “whoring” around New York.  Several other blogs have also carried the news about Liskula Cohen — some supportive, others less supportive, and some with mixed reactions.

WHAT REALLY HAPPENED

Liskula Cohen is a Canadian-born model who worked in New York City until recently.  She still considers herself to be part of the New York “scene” even though her modelling days are nearing their end.  One day, Ms. Cohen discovered a blog called “SkanksNYC” at http://skanksnyc.blogspot.com (it has since been removed).  The blog consisted only of posts about her–all of them alleging that she was a “skank” or “ho” and that she went “whoring” around NYC, that she is a “psychotic, lying . . . skank,” and making other insinuations about her sexual activities. The blog also contained photographs that had been cropped and captioned to make it appear that Ms. Cohen was about to engage in oral sex at a nightclub.  Ms. Cohen claims that all of these claims are false: she claims that she was not about to perform oral sex at a club, that she is truthful, and that she is not promiscuous.

The blog was written anonymously, so Ms. Cohen had no way to get in touch with the author.  Ms. Cohen did what comes naturally to any American: she called a lawyer.  Her lawyer told her that she had a cause of action for defamation against the blogger who claimed that she was “psychotic” and “lying” and made it appear that she was engaging in sexual relations in a nightclub.  The only problem is that Cohen did not know who to sue: the blog was written anonymously and Google refused to tell her who wrote it.  Google said its privacy policy allows it to turn over a blogger’s name only with a court order.

So, Cohen’s lawyers sued Google to try to force Google to turn over the identity of the blogger.  The anonymous blogger lawyered-up and the blogger’s lawyer showed up at the hearing.  Under New York law, there is an established test to determine if the name of an anonymous defendant (like the blogger) can be revealed.  The test depends on whether the plaintiff (Cohen–the model) has shown that she has a good chance of succeeding in a lawsuit against the anonymous defendant (the blogger).

Here, the judge issued an order (PDF) ruling in favor of Liskula Cohen and ordering that Google turn over the blogger’s name to Cohen so that Cohen can pursue a lawsuit against the blogger for defamation.  The ruling says that Cohen has a good chance of winning her lawsuit: the blog’s use of terms like “psychotic,” “lying,” and “skankiest in New York” could be understood by a reasonable reader as factual allegations about Cohen’s character and sexual promiscuity.  And the fact that the blog used the terms repeatedly to attack Cohen (and only Cohen) suggests that the blogger was malicious in his/her blogging, rather than just commenting on the New York social scene in general.

(see analysis inside...) Continue reading →

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Here is a PDF version of the complete court order by Manhattan Supreme Court (New York state trial court) order by Justice Joan Madden, ordering Google to reveal the identity of an anonymous blogger who called model Liskula Cohen a “skank.”  This is the full text of the court ruling responding to Liskula Cohen’s subpoena.  This is the judicial decision that will force Google to turn over the real identity of the blogger to Ms. Cohen’s lawyers.

And here is a linkable version to share.

Much more analysis to follow.  For now, note the consideration of First Amendment issues in Footnote 5 of the document.  It is a relatively short decision.

RELATED COVERAGE:

RDBlog: The no-longer-anonymous blogger strikes back with her own lawsuit against Google
RDBlog: Analysis of the legal impact of the Cohen order
RDBlog: Initial coverage of the ruling

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