Update: Dean Levmore's talk is now available as an .mp3 file.
The walls of the Law School's bathroom stalls used to display the student body's complaints about professors and fellow students, but the internet made those walls obsolete. Is the internet different from the bathroom stalls in some fundamental way? Does the internet mark a break from the paradigm of previous media? Dean Levmore does not think so.
On Tuesday, November 11, Dean Saul Levmore gave a talk on "The Internet's Anonymity Problem" as part of the Chicago's Best Ideas lecture series. His main contention is that the internet is not different from other media and should be subject to the same legal regime. Currently, it is not; § 230 of the Communications Decency Act provides that internet service providers (ISPs) are not publishers with regard to user-generated content, so they are for the most part not responsible for online torts committed by their users. (One questioner pointed to Fair Housing Council of San Fernando Valley v Roommates.com (9th Cir 2008) (en banc), where Judge Kozinski wrote an opinion holding a website liable under the Fair Housing Act for discrimination committed by its users, but Levmore remarked that the case is an outlier because, after all, it was written by Judge Kozinski.) If a newspaper, on the other hand, publishes a defamatory letter to the editor, the newspaper may be sued. The most commonly cited reason for the nonpublisher rule in the legislative history of the Act is that the internet is a new medium, so it should be allowed to develop and flourish. But the Act was passed twelve years ago, and the internet has matured since then, so it is time to take stock.
Levmore illustrated the problem with the website Juicy Campus, which I will not link to; obviously, many similar websites exist. The website categorizes gossip message boards by school: one for UCLA, one for Tennessee Tech, one for University of Chicago (which is rather sparse), and so on. The homepage advertises—right in the middle—that posting is completely anonymous, no registration required. Users may post whatever they like, and they do. Levmore gave an example of a typical message thread: Someone asks, "Who is the biggest sorority slut on campus?" Someone responds, "I saw Amy X doing such-and-such behind Biddle Hall." Seven people give props for the post and ask for more detail. Another person gives a modest defense and says that Amy X isn't so bad, to which a poster replies, "Not only is Amy X a slut, she's fat." Someone asks if anyone can think of someone fatter. Several posters throw out some names. And so forth.
Thanks to the different legal regime, the internet does not exert the same controls on speakers as other media do. Television, for example, is subject to a fair amount of government regulation, and consumer demand constrains what appears on television as well. (Consumer demand is the real reason why Big Bird will not drop the f-bomb on Sesame Street any time soon.) Bathroom stalls are cleaned occasionally, and the harm is less because--unlike Juicy Campus--they are not searchable. Soapboxes, such as in London's Hyde Park, are regulated by social sanctions; everyone can see who the speaker is. Newspapers are occasionally subjected to defamation lawsuits, but they are more often protected from speech regulations. Consumer demand prevents them from publishing anonymous, defamatory letters to the editor. But the internet does not have any of those controls. Posting is anonymous, and ISPs usually refuse to give up the names associated with IP addresses. Thus, neither the ISP nor the speaker face legal liability, and the speaker is shielded from social constraints. Consumer demand does not help; a website can support itself with only niche demand, but any internet user may stumble across the page because the message boards are searchable.
Levmore recommends eliminating the liability restrictions on ISPs and forcing them to divulge the identity of IP addresses if subpoenaed. The logic underlying his recommendation is a hypothetical bargain among all users of the internet. The benefit to each person is tiny from being able to post degrading insults about others, but the cost of being a target of these insults is very high. Even if the chance of being targeted is small, the cost is large enough that the expected value outweighs the miniscule benefit. Thus, the bargainers would not immunize such conduct. Levmore focused on differences in expected costs and benefits to each person while implicitly assuming homogeneous preferences, but an alternative formulation could depend on differences in preferences. No one wants to be targeted, but only a minority wants to target others, so the majority demands the minority give up its antisocial behavior.
The present regime presents a conundrum: politicians tend to overreact to problems, yet here the reverse happened. Gangs are an example of the general principle. We do not really know what proportion of violent crime is caused by gangs, but politicians provide a wide array of legislation targeting the gang problem. Yet with the internet, the problem resulted in additional protection for the perpetrators. Levmore provided the classic public choice explanation. The people subject to the regulation are a small, passionate, organized group; the potential victims are the public at large, so their interests are diffuse. Organized groups typically trump diffuse groups when collecting government payouts.
A possible addition to that explanation for exceptional rules for the internet is gender disparity. The victims are disproportionately female, and the unfettered internet's most vocal defenders are mostly male. Not only are the victims mostly female, the hurtfulness of many of the comments is premised on the target's gender. Levmore implicitly acknowledged these facts through his use of examples (though he doesn't discuss it): his paradigm example was "Amy X is a slut," and "fat" and "small-breasted" were other examples. He does not press further because the vast majority of examples would be too vile for the classroom. (This is not to say all remarks are directed towards women; sometimes speakers target businesses as "cheats," and sometimes speakers target males such as, for example, Levmore himself.) Those who want the internet to be completely unregulated, on the other hand, are much more likely to be male. As a rough proxy, more than 80 percent of undergraduate engineering students are male. Those with a more technical bent are keenly aware of the benefits of a free flow of information on the internet, but--since this group is mostly male--they will undervalue the costs of antisocial behavior on the internet. Disparaging comments are less commonly directed at them, and the most harmful comments lose their meaning if directed at males. A skewed understanding of the costs and benefits translates into the policy choices that the organized internet interest group lobbies for at the expense of the diffuse potential victim group.
This additional explanation points to a gap in Levmore's framework: some theory explaining why posters post. Levmore takes the economist's approach of treating preferences as a given; essentially, he gets by on the assumption that if you build it, they will come. A more sociological explanation of why speakers have the preferences they do could be illuminating, and it may have policy implications. Traditional sanctions are inadequate if the motivation underlying disparaging speech differs on the internet than in traditional media; however, if the motivation is the same regardless of medium, then traditional sanctions should fit well. The basic outline of the behavior is the same in both cases, but the cost of engaging in it is significantly lower with the internet. Adding marginal members because of reduced cost may or may not change the group's characteristics. More investigation is needed on this point.
To end, Levmore gave a prediction for the future: internet entrepreneurs will eliminate user-generated content or require registration to post. To attract consumer attention, the value of the information a website provides must be high. Since anonymous, insulting posts have zero value, the average value of the information on a website decreases when it permits those posts. Some websites are apparently already doing this. Wikipedia has an army of 75,000 registered editors to keep its entries in line. Amazon and CNet use robots to track swear words and other mechanisms to keep their customer reviews (relatively) high value. YouTube has always prohibited pornography and has recently become much better at keeping copyrighted content off its site. The University of Chicago Faculty Blog moderates its comment boards. Levmore provided the grounds to believe these developments are positive.