BY ANNA BROOK
After weeks of debate over the pros and cons of online anonymity, several groups, including The Dean of Students Office, HLS Student Government, HLS ACLU, Women’s Law Association, Journal of Law and Gender, JOLT, and Stop DV, organized a panel discussion on the subject on Thursday, April 5 in Langdell North. The panel, moderated by Professor Charles Nesson, sought to address the following issues, as stated on the event’s wiki: “Open forums with anonymous postings discussing issues relating to law school, such as AutoAdmit, have become more prevalent on the Internet. Do targets of offensive postings have the right to have such material removed? Are these attacks, or are they just expressions of free speech? These questions and more will be discussed by a panel representing a wide range of views from free speech issues to anti-defamation issues, women’s issues, and internet capabilities and responsibilities.”
The panel had already been a hot topic of discussion online on AutoAdmit, with the majority of posters supporting their right to remain anonymous. Originally, the panel was meant to discuss online anonymity in general, not only on AutoAdmit. The conversation, however, centered on AutoAdmit when the first panelist, Michael Fertik, the CEO of ReputationDefender, quoted emails from his clients to the operators of AutoAdmit asking to remove posts that included their names, links to photos, and hurtful content.
Fertik’s company works to have unwelcome information about people removed from the internet. He explained that it is difficult to do so on anonymous websites where the posters cannot be tracked down and there are no forum moderators. On the other hand, it is very simple for a potential employer to search for the applicant’s name online and form a negative impression based on often untrue information on such forums.
Robert Trestan from the Anti-Defamation League asked where the limits for online expression should be drawn. One problem is that online activity is not limited to the US. If laws are passed seeking to either moderate or eliminate anonymous forums, the forums can easily be hosted from another country that does not have any limits. The online community allows people to take on completely different identities. Trestan even mentioned the example of high school students posting MySpace profiles for other students and impersonating them.
HLS Professor Mark Tushnet opined that the posting of harmful content is “relatively straightforward invasion of privacy tort-like actions or slander tort-like actions.” Even if the actions do not fit the existing definitions of these torts, slight modifications to the laws could include online posts. The problem, however, is who should be held accountable, the posters, the operators of the forum, or both.
Dina Lassow of the National Women’s Law Center saw the issue not as invasion of privacy, but a Title IX case of discrimination on the basis of gender. She explained that federally funded institutions such as universities cannot allow a hostile environment to exist if it is aware of the situation. Female students have approached the administrations at schools to discuss the online discrimination. Lassow singled out Yale, where students have complained of postings, yet the school did not take any effective action to alleviate the situation.
Other panelists asked what a school could possibly do to control students’ activity day and night, both on and off campus to prevent them from posting on forums. Ideas such as a school paying a student’s litigation costs related to the incident were quickly dismissed as not feasible. Another idea was to take action against an operator of the offending site if he is at a particular school, as was the case with AutoAdmit. This too was rejected because the operator of a site can be across the globe.
Nesson pointed out the impossibility of such rules, saying, “My heart goes out to this student who has been defamed, and as a school I’d want to do anything to help her,” but none of the suggestions were adequate to handle the situation.
Wendy Kaminer, a lawyer and social critic who currently serves on the National Board of the American Civil Liberties Union, provided the free speech/feminist perspective. She disagreed that these messages constitute sexual harassment under Title IX. She stated that students should not expect people in positions of authority to solve such problems for them. Deans and school administrators have a responsibility to set the moral tone of the institution, to address the community about the appropriate modes of conduct, but they do not have to protect individuals. Adults, she said, should be able to deal with these issues.
When challenged whether this applies to people of any age, Kaminer explained that all the cases mentioned involved adults and that a different approach could be taken with children, but that was not the current issue. She also did not jump to the conclusion that the postings caused students to not receive any job offers. There may be other reasons for this since, as one student pointed out, people do not generally believe everything they read online, especially in the context of anonymous, unmoderated forums. The student compared such postings to writing on a bathroom wall – hurtful, but not widely accepted as truth.
Nesson stepped into the debate “to represent the position of persons missing” – namely Anthony Ciolli and Jarret Cohen, the creators of AutoAdmit. Nesson imagined how the site came to be from Ciolli’s viewpoint.
“I’m Anthony,” he said. “I started this discussion board thing. I’m a geek and you wouldn’t believe what happened. This think just wham, started exploding. … It clearly filled a need, there was a mass of people contributing to make this one of the most exciting sites on the net. The thing that made it exciting was that it was anonymous, it was hip. … There is always somebody who acts out, goes beyond. What am I supposed to do? This thing is not moderated. Am I supposed to be sued for this?” In this role, Nesson explained that there was no way he could moderate thousands of posts on the site and be a law student. Fertik commented that the site is selectively moderated because posts threatening to “out” anonymous posters are occasionally removed.
After the panelists’ views were presented, the floor was opened to questions from the audience. Most students had mixed feelings about the need to trace harmful posts and the ability to remove them, balanced with the recognition that the online community is full of such anonymous activity. When polled, the audience was rather evenly divided between those who were in favor of maintaining anonymity and those who would create a way to identify posters.
The bottom line question from Nesson, still in the role of Ciolli and Cohen, was, “Do you want me to exist or not? … Do we serve a purpose in society?” Although the panel reached no definitive answer, it considered possible solutions to resolve the conflict between the posters, administrators, and the victims of vicious posts. The problem with the internet, according to Fertik, is that it can take his company 200 hours to undo 20 minutes of harm.
Fittingly for the issue being discussed, some attendees at the panel were concurrently summarizing the panel on AutoAdmit. A recording of the event was later available via the Berkman Center wiki. Another panel focusing on AutoAdmit is planned for late April to allow comments from those who were unable to attend the first one.