Orwellian, eh?

March 25, 2009 4:17 PM

In what has been described as "a major blow to online free speech in Canada", an Ontario court has ordered the owners of FreeDominion.ca to disclose all personal information on eight anonymous posters to the chat site - including email and IP addresses.

Protection for anonymous postings is certainly not an absolute, but a high threshold that requires prima facie evidence supporting the plaintiff's claim is critical to ensuring that a proper balance is struck between the rights of a plaintiff (whether in a defamation or copyright case) and the privacy and free speech rights of the poster. I cannot comment on the postings themselves (and I recognize that Warman has been a frequent target online) but I fear that the high threshold seems to have been abandoned here, with the court all-too-eager to dismiss the privacy considerations associated with mandated disclosure by not engaging in an analysis as to whether the evidentiary standard was met. - Michael Geist

posted by Joe Beese (34 comments total)

God keep our land glorious and free!
posted by gman at 4:23 PM on March 25, 2009

The solution is not to log e-mail or IP addresses.
posted by LSK at 4:25 PM on March 25, 2009 [5 favorites]

Huh. Interesting. PIPEDA is quite a good piece of legislation, and we've got a strong Privacy Commissioner - this ruling hurts. I need to read it longer before I have a really strong opinion.

This is not Orwellian. At worst, it's a restriction of the assumption of privacy when posting texts on the web.
posted by Lemurrhea at 4:28 PM on March 25, 2009

As an Internet user, you should never assume that a system is anonymous when it makes you enter any sort of information as a condition for posting. If it requires an email address, then you should assume that email address may at some point be disclosed and matched to your screen name. This is a good reason for using throwaway emails, one for each nickname or online handle.

Disclosing IP addresses is much more troubling, and I would like to see more participation-oriented websites come clean on exactly what their logging and retention policies are.

The best way to not get information subpoenaed is to not save it one second longer than you absolutely have to.
posted by Kadin2048 at 4:38 PM on March 25, 2009

Oh, right: I did my schooling in Kingston, and I remember the Free Dominionists. Their association is one of the main reasons I can't take Marc Emery (the Prince of Pot Himself) seriously. They're pretty much Objectivists, so they get kudos for standing up to censorship & restrictions of free speech, they're still nuts.

Every time I would run into them, I got the creepy-crawlies. Self-aggrandizing terrors.

None of this has any bearing on what I do or will think of the actual lawsuit, obviously.
posted by Lemurrhea at 4:38 PM on March 25, 2009

LSK: "The solution is not to log e-mail or IP addresses."

That was their approach. But I assume it will be a trivial matter to begin legally requiring that such logs be kept.
posted by Joe Beese at 4:39 PM on March 25, 2009

Huh.

Right-wing website gets ordered to give up private information.

Wonder how the right-wing tinfoil heads will respond to this.

After all, they could have been harboring... terra-ists!
posted by mark242 at 4:50 PM on March 25, 2009

Pic related.
posted by mullingitover at 5:07 PM on March 25, 2009 [2 favorites]

After all, they could have been harboring... terra-ists!

Or even worse - separatists. Which they apparently were.

Well, anyway, there goes my plan for a site centered on antisemitism, death threats against federal politicians and the overthrow of Loblaws. I guess I'll try to clone club penguin instead and incite minors to slander Richard Warman.
posted by GuyZero at 5:09 PM on March 25, 2009

And just to clarify, he's not getting them to disclose identities for giggles, he actually has some sort of valid legal action he wants to take against the former John Does, right?
posted by GuyZero at 5:11 PM on March 25, 2009

I wouldn't want to defend Warman or the value of his suit, but I have a lot of trouble accepting the argument that one does not have to defend oneself from accusations of libel if one has written under a pseudonym. Surely no one would want to argue that anyone can commit criminal acts without expecting to be unmasked, so I'm not sure why we would argue that civil cases should have different standards in this respect (leaving aside frivolous cases).
posted by ssg at 5:15 PM on March 25, 2009 [4 favorites]

Oops. I seem to have set all of my server logs to > /dev/null. Should I not have done that?
posted by barc0001 at 5:15 PM on March 25, 2009 [3 favorites]

In early 2008, the website was sold to Liberty News Service in Panama.

Huh.
posted by jokeefe at 5:27 PM on March 25, 2009 [1 favorite]

ssg, Geist and the rest are claiming that in this case, the courts are pretty much dropping the requirement that the plaintiff give enough evidence that it would in fact be libel if all of the evidence were true. Thus a frivolous case would make it through the court, force them to give up the identity, and then the frivolous case would lose/be dropped by the plaintiff, because they got what they came for.
posted by Lemurrhea at 5:28 PM on March 25, 2009 [2 favorites]

Parsing error. Trying again.
"ssg: Geist and the rest..."
posted by Lemurrhea at 5:28 PM on March 25, 2009

This isn't a significant precedent, and simply follows in the existing trend of jurisprudence relating to online privacy. If someone brings a legal action against you, and it is demonstrated that you may have committed a crime online, then SURPRISE! your identity may be disclosed to allow a trial to occur. This doesn't obliterate the expectation of privacy - it just allows a plaintiff to bring legal action against an online identity, and if a judge considers that action to be valid, then a defendant may be forced to disclose whatever information is available. (As others have pointed out, if you haven't kept IP logs, then that's that.) The ruling provides an excellent overview of the field and explains exactly why this decision is a non-decision. As Geist quoted the ruling:

The court also looks at the string of recent cases involving child pornography cases and ISP disclosure of customer information, concluding that "the court's most recent pronouncement on this is that there is no reasonable expectation of privacy."

Canada is unlike the USA, and closer to Europe, in that there are restrictions on free speech - specifically hate speech. All that said, online citizens do have a reasonable expectation of privacy in Canada - it just does not shield them from criminal or civil liability. ISPs "donating" private information to other corporations (or the NSA, lol!), for example, is still against the law.
posted by mek at 5:29 PM on March 25, 2009 [7 favorites]

I have worked with people who have been the target of defamation on the Internet, and it is not pretty. It should come to no shock that often people lie in postings. Lots of people are far more than emotionally hurt, they can be outright branded with a scarlet letter and lose everything, all because someone starts anonymously posting false information. Many of these websites are just slimy. They pretend to be the last great bastion of free speech, when in reality they just provide a forum for people to hurt each other.

I understand the whistle-blower and free speech aspects, but there is a line out there. If someone lies about you, you should have a right to find out who they are and challenge them legally. The websites should be required to provide that information and, if shown to be false, remove it.

In fact, there is an argument to be made that websites are not liable enough for what they allow to be posted. It takes time to prove in a court of law that something is false. Meanwhile, the false statement stays up, the damage is done, and probably 9 times out of 10 the lying dirt-bag has absolutely no remorse or money to pay for the damage caused. Maybe allowing people to be hurt this way is the price we pay for a forum for our thoughts, but let us recognize that often, too often, the bad guy is the anonymous person, not the person seeking their identity.
posted by Muddler at 5:38 PM on March 25, 2009 [2 favorites]

Delving deeper into the ruling, the judge has actually made a significant distinction re: disclosure requirements between civil and criminal matters. Basically, the criminal bar is set much higher. In this (civil) case, of which there is little relevant precedent, the Rules of Civil Procedure were directly applied: "In my view, the Rules of Civil Procedure impose a high standard of discovery upon the litigants." The only truly relevant case is Irwin Toy which is problematic in that there the plaintiff was "seeking leave of court to order production of documents form a non-party to examine a non-party", which is far more spurious than in this case.
posted by mek at 5:47 PM on March 25, 2009 [1 favorite]

Knoppix (puppy, whatever) Linux + flash drive + free wifi + Tor
posted by plexi at 6:11 PM on March 25, 2009 [1 favorite]

plexi, I wouldn't run a Tor node for all the tea in China. Here's my comments on why.
posted by barc0001 at 7:04 PM on March 25, 2009 [1 favorite]

Yeah, I'm not quite sure what the big deal is here, haven't the courts always been willing to turn over logs, etc?

lexi, I wouldn't run a Tor node for all the tea in China. Here's my comments on why.

First of all, Tor isn't really a truly secure way to anonymize yourself, you could always just connect to someone who just wants to read other people's traffic, as opposed to a 'real' Tor node.

Secondly, I think the concerns are a little overblown. I remember This story where (apparently) an IP address got mistaken and an innocent family was raided, by sheriffs who brought Shaq along for good measure. While it wasn't fun for them, it wasn't the end of their lives either.
posted by delmoi at 7:44 PM on March 25, 2009

can someone give some context behind this ruling? Did someone make a threat on the freedominion forum or something?
posted by spacediver at 7:49 PM on March 25, 2009

If I (don't) post what I really think, will I be the next domino to fall?
posted by inkyroom at 7:50 PM on March 25, 2009

Muddler: Canada is unlike the USA, and closer to Europe, in that there are restrictions on free speech - specifically hate speech. All that said, online citizens do have a reasonable expectation of privacy in Canada - it just does not shield them from criminal or civil liability.

People should remember that even the US right to privacy doesn't shield them from criminal prosecution - nor should it. And defamation is illegal no matter where it happens.

The difference, as you say, is that in Canada it may be illegal in some contexts to say something like "I really hate black people" or "Jews are running the world, and we have to fight them." In the US, as long as there's no active threat, those are just words, and you have freedom to say what you want.
posted by koeselitz at 9:38 PM on March 25, 2009

Oops. I seem to have set all of my server logs to > /dev/null. Should I not have done that?

Not if you hope to debug anything ever, or try to track down or stop an attack.

No matter what policies sites have, it still takes serious effort to NOT log IPs in Unix/Linux. Seems to me they're logged everywhere, by everything, by default, all the time. One would need to take a very deliberate hand (as above) to deliberately not log them.

Policies, I suspect, have to be aimed more at how they're used than whether or not they're logged. Since, like, 99% of the time, of course they are.
posted by rokusan at 12:57 AM on March 26, 2009

I've been following this case for a few days now. It seems like nothing more than a giant witch hunt. Somene might have said something that might be perceived as something that could possibly be something that might make someone angry. I predict the lawsuit will be dropped as soon as the prosecution gets the identities they came for. I think they need to move their server to another country and institute different admins after this. They can't produce what they don't have access to.
posted by Logboy at 1:28 AM on March 26, 2009

Recent US lawsuit of interest
posted by First Post at 2:03 AM on March 26, 2009

And defamation is illegal no matter where it happens.

Which is fair enough. The key point in this case though is that the Judge has ruled that because there's 'no general expectation of privacy' in an online forum, no prima facie evidence need be offered in order for the logs to be turned over.

The upshot of this is that by starting a bogus civil suit for libel against a canadian site, you can get access to all the user logs - including the domain registration info and the billing records for the site itself, as in this case - and even get your fees paid for you. All this, without having to provide any significant evidence that defamation has actually occurred, i.e. there being a case to answer for.

Once you've got all the private logs and the identities of the anonymous posters, you can then drop the suit that had no chance of actually succeeding, and walk away with the identities of the anonymous posters.

The implications for this are deeply worrying. Lets say there's a canadian metafiltersucks.ca. Matt could, if he so chose, go after the site, get the email and IP of all the posters, then ban then from mefi. Or someone decided to find out who posted that anonymous askmefi comment (if mefi was canadian)

Now imagine it's a corporation finding out, then sacking its employees that visited corporationsucks.ca site (or facebook.ca) because the CEO accuses the site of hosting defamatory content about him - no evidence required.

Anonynimity is important for the exercise of free speech. It's protection should only be voided where a court judges there's sufficience evidence of a case to answer for, even if the information is posted online.
posted by ArkhanJG at 2:50 AM on March 26, 2009 [2 favorites]

Also, for those of you that don't know, freedominion.ca is the canadian version of freerepublic.com. While the speech posted by canadian freepers may well have been libellous, and I generally detest most everything they say and stand for, they still deserve the full process and protections of the law while it is proven they broke the law, same as everyone else.
posted by ArkhanJG at 2:59 AM on March 26, 2009 [1 favorite]

This judgment is definitely something that needs to be tested.

I didn't save the link, dammit, but somewhere in FreeDominion's self-defense I believe they included something to the effect that "this is the Internet and people often say things they wouldn't otherwise say in public or in writing". Again, I'm kicking myself for not having the link to back this up, sorry.

Anyway, yes I am in favour of online anonymity to protect free speech, but people have to acknowledge that an internet posting is both public and in writing, and forum operators have to know that at some point they may be responsible for content they host. A forum is NOT a common carrier. I think MeFi is a good example of where minimal moderation keeps most discussions within reasonable bounds.

So, forum operators can steer clear of many such cases by gentle moderation, and posters help strengthen free speech by posting responsibly. I'm not by any stretch advocating less free speech, I'm only trying to stress that the flip side of freedom is responsibility.
posted by Artful Codger at 7:01 AM on March 26, 2009

Thus a frivolous case would make it through the court, force them to give up the identity, and then the frivolous case would lose/be dropped by the plaintiff, because they got what they came for.

I think you'll find Geist's argument is considerably weaker. He says that while he "cannot comment on the postings themselves" he "fears" that the "high threshold seems to have been abandoned". He isn't saying that the suit is frivolous, just that he doesn't know if it is or not.

I think the jump that you are making here from this decision to the conclusion that any frivolous suit is good enough to force disclosure is not warranted.
posted by ssg at 8:12 AM on March 26, 2009

Although I would grant, on re-reading the last couple pages of the decision, that it seems like the judge goes a bit off the rails, conflating linking an IP address to a person with linking a pseudonym to an IP address (and an email address). I think it would be pretty reasonable to argue that there is a different expectation of privacy in those two cases.
posted by ssg at 8:26 AM on March 26, 2009

And slowly Canada circles the drain, bound and determined to flush all that is good about this country down the toilet.

My long-term bet: this whole idea of human rights and equality and democracy is utterly doomed to failure. It relies far too much on people putting society before self.
posted by five fresh fish at 6:57 PM on March 26, 2009

My long-term bet: this whole idea of human rights and equality and democracy is utterly doomed to failure.

All this has happened before; all this will happen again.
posted by rokusan at 11:58 PM on March 27, 2009