By Kevin O'Keefe

Anonymous blogging: how far is too far?

anonymous blogAnonymous blogging and commenting has been on the tip of everyone’s tongue lately. Earlier this month in Kentucky, Republican representative Tim Couch made national headlines and caused outrage in certain circles of the tech blogosphere when he introduced House Bill 775, his radical plan to make any anonymous web posting illegal. If response on the web is any indication, Couch’s bill seems destined to fail…and even if it didn’t, the odds that such a law would stand up when challenged in court seem low.

Less clear-cut is the issue currently facing Rick Frenkel, director of IP litigation at Cisco Systems and the man recently outed as author of the anonymous blog Patent Troll Tracker. A day after a bounty hunter seeking the $15,000 offered for Troll Tracker’s identity by attorney Raymond Niro (of Niro Scavone Haller & Niro, a Chicago firm Frenkel has blogged about) revealed his name, both the blogger and his company were sued for defamation. What then erupted was an Internet debate over how, where and when anonymous blogging is appropriate.

The answer? Rarely, according to Joseph Hosteny, an attorney at Niro Scavone whose scathing piece “The Cowardice of Anonymous Bloggers” appeared in Intellectual Property Today already addressed the question when it published in late February (back when Frenkel’s identity was still a mystery). By calling anonymity a “repugnant disguise” and essentially comparing Troll Tracker’s actions to those of an amoral paparazzi photographer, Hosteny makes clear his position on the issue:

Anonymous postings are poisoning the online well, making any real debate over our patent system in the Internet arena difficult to nearly impossible. We litigators have been told, over and over, that we are not civil enough to each other. Unlike some politicians, many of us have heard — and heeded — the message. But these anonymous bloggers, and those who post anonymous comments to these blogs, can say whatever they want. As [Chicago Tribune public editor Timothy] McNulty said in his article, “Anonymity emboldens the cowardly and the liars.” But recently, the situation has become worse. We are now seeing death threats.

[…]

A good propagandist knows that repetition can make a lie true. It isn’t public debate when anonymous posters slander their opposition, or encourage violence. It’s time for these cowards to make themselves known.

Chicago IP attorney David Donoghue agrees that violent threats serve no constructive purpose in the blogosphere. But he also notes that this  doesn’t discredit anonymous blogging altogether.

Hosteny argued that anonymity is cowardly and not in the tradition of the First Amendment because the Declaration of Independence was signed by the Continental Congress. But he leaves out that the Federalist Papers were signed with aliases. Anonymity can be useful in that it can provide courage to voice ideas that otherwise might not be interjected into public discourse. For that reason, I think there is a place for anonymous blogging and commenting, as long as anonymous bloggers do not use anonymity as an excuse to avoid the rules of our profession and of common sense.

Some people may get caught up in Hosteny’s smooth talk and fear mongering. But the shocking points he refers to are the exception, not the rule. Anonymous blogging and commenting may  – to quote McNulty – “embolden the cowardly and the liars,” but it also emboldens the rest of the readers who feel they have some insight to add the discussion but for whatever reason don’t want their name attached to it. Hosteny seems to lose track of this point in all his rhetoric, and comes across as little more than an out of touch lawyer who doesn’t understand the full value of the Internet.

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