Protection sought for online critics

A range of free-speech activists are supporting a bill that would require Internet service providers (ISPs) to notify customers if their identity is going to be revealed. The ISPs would have to tell the customers either by U.S. mail or through a notice on the bulletin board where the posting appeared. Once notified, the customers would have a chance to file an objection.

The bill, which is still in its early stages, was heard in the Assembly Judiciary Committee on Tuesday but has not yet garnered enough votes to move out of that committee. It would still have to pass through an appropriations committee before the full assembly and senate have a chance to vote on it.

The measure, Assembly Bill 1143, is designed to protect the identity of online critics and whistleblowers who post negative comments about a company on the Web. It's also aimed at stemming the flow of so-called John Doe cases.

Those cases, which have skyrocketed in recent years, are filed by companies in an attempt to unmask those who disparage them in Internet chat rooms. Often, companies that issue such legal threats don't follow up with legal action and are merely trying to learn the identities of critics, a practice roundly condemned by civil liberties groups. A free-speech coalition, including the Electronic Frontier Foundation, the American Civil Liberties Union and the Privacy Rights Clearinghouse, is pushing the bill, which was drafted by The Samuelson Law, Technology and Public Policy Clinic at the University of California, Berkeley.

Cindy Cohn, legal director of the Electronic Frontier Foundation said the measure would stem attempts to silence critics, who might be pointing out legitimate problems of a company.

"The Internet is really empowering a whole range of folks to participate in discussions about stocks they own," Cohn said.

Most ISPs, including major companies such as Microsoft, EarthLink, Yahoo and America Online, already notify customers who are the target of such actions, mainly via e-mail. Notification allows individuals to decide on a response to the threats. But sometimes smaller ISPs immediately reveal the identity of the critic without letting their customers defend themselves and their postings.

Still, even those ISPs that already notify their customers say the bill goes too far. Yahoo, for example, said it agrees with the intention of the bill--protecting customers from unfair attempts to reveal their identity--but that the measure would unfairly burden the Internet company.

"AB 1143 would impose complex notice obligations and potential liability on Internet companies who are not parties to John Doe litigation," company representatives wrote in a letter to bill sponsor Assemblyman Joseph S. Simitian, D-Palo Alto, last week. "Asking an Internet company to act as an intermediary and to bear liability for being a witness to facts in litigation is comparable to placing such burdens on an eyewitness of a hit run accident, or on a university for postings on a bulletin board in the student union."

Simitian called the concerns of ISPs "legitimate, but overstated."

"These are folks who have set themselves up in business to be the middleman," Simitian said.

Because it would be a state law, the bill, if passed, would affect only those companies that operate in California. But Simitian said that California is often a trendsetter and that he hopes a law in his state would spark similar legislation in other states and at the federal level.

The issue of identifying anonymous ISP customers has become more prominent lately. Two weeks ago, a federal court said Verizon had 14 days to turn over the name of a subscriber accused of offering music files for download using the Kazaa file-swapping service. The decision sparked an outcry among free-speech advocates. Verizon plans to appeal.

However, that case and the bill don't have any direct bearing on each other because the legislation deals with civil subpoenas at the state level while the court decision involves federal copyright law.