The Unmasking Option

The paper version of my talk from Denver University’s Cyber Civil Rights symposium in November is now online, along with the other conference essays. I’m very happy with how this one came out: while the paper may have started its life as a deliberate provocation, it now makes a quite serious argument about the uses and abuses of civil procedure in dealing with online abuse. It’s called The Unmasking Option, you can get it in PDF and HTML versions, and here’s the abstract:

In the recent “Skanks in NYC” case, the plaintiff dropped her defamation lawsuit once the court had unmasked the John Doe defendant. Although the plaintiff was criticized for her seemingly pretextual use of a lawsuit, the outcome was substantively just. The harasser got almost exactly what she deserved for trying to humiliate her victim: embarrassment of her own.

This brief essay discusses a counterintuitive proposal inspired by the Skanks in NYC case: that the law unmask anonymous online harassers as a substitute for litigation, rather than as an aid to it. Identifying harassers can be an effective way of holding them accountable, while causing less of a chilling effect on socially valuable speech than liability would. While the proposal itself is probably unworkable, decoupling anonymity from liability enables us to understand more clearly what’s at stake with each.

While you’re at it, check out the other essays, too. Our hosts at Denver put together an outstanding program, and the presentations fit together remarkably well. I particularly recommend Mary Anne Franks’s The Banality of Cyber Discrimination, or, The Eternal Recurrence of September, which is one of the best-written and best-argued pieces of legal scholarship I’ve read in quite some time. Franks is a rising young academic star, and her piece makes it quite clear why.

Prof. Grimmelman - could you elaborate further on your commendation of Prof. Frank’s essay? From my view, it tends toward many of the divisive themes that marked the beginning of the symposium while discarding much of the useful discourse that occurred throughout the rest of the day. To me, its framing of the debate seems so one-sided as to be borderline disingenuous. It unfairly raises numerous strawmen while ignoring many of the valid points made by those on the other side of the aisle. I think there is a lot of fertile ground in the hard issues in the middle of this debate, but I don’t think this essay explores much of it.

Cyber-harrassment and cyber-slander are routine and acceptable in some e-groups I’m on, and most of the harrassers are quite open about their identities. It’s viewed as a recreation/game. I’ve even seen a group of people openly band together and call the employer of someone they disliked and threaten to boycott the employer’s (small, fragile) business unless she fired the woman. The employer did it too.