Lawyers needed to protect against Internet trolls and improper incursions into online privacy

In his Friday column in the Chicago Tribune, John Kass wrote about anonymous, malicious Internet trolls. He wasn't writing about the ones who respond to his columns online (or to any other news article or opinion column on a mainstream media website) -- though these are bad enough. Kass was writing about college kids trashing one another on an anonymous website called College ACB (Anonymous Confession Board). The name may put one in mind of other confessional sites like Post Secret -- but Kass says the name is misleading. "Is it a confession to tell the world that someone named Tina is a slut crawling with disease?" Kass asks.

And even the "press release" describing the site does not pretend it is for kids to secretly confess their own failings. According to its "press release," College ACB "is the campus center, the dorm room, the cafeteria, and the lecture hall, all combined into a single, easily accessible forum where everyone is invited to converse openly, without fear of reprisal or reprimand. From sexuality to politics, from keg parties to concerns about course selections, the ACB is a website that helps build community and engenders the open exchange of information."

If Kass is correct, though, the real focus of ACB is providing a platform where college kids can say the most vile things about other college kids, even identifying them by name. Kass sums up thusly: "It's all about anonymous cruelty."

Kass suggests that sites like College ACB will eventually fade away. He speculates that lawyers will be part of the solution -- and he's not happy about it. He concludes:

"Both the law and the Internet are evolving as new cases arrive," said Sam Bayard, assistant director of Harvard University's Citizen Media Law Project. "In the absence of a Supreme Court case that takes up how this should work, it will continue to be a patchwork of legal doctrines."

Yet sooner or later, the Supreme Court will get around to it. The trolls will be identified, perhaps on "Expose the Trolls Who Dissed You on ACB" or on some libel law firm's site like "cashfortrolls.com."

There is one species even more bloodthirsty and relentless than the Internet trolls:

Lawyers.

And like reality, they bite.

Mr. Kass: Why are lawyers bad here? What's the problem with the law evolving on a case by case basis? The common law has been evolving since the reign of Henry II. Progress has been uneven, certainly, and not always free of controversy -- but human rights have advanced since the 1100s, haven't they? And, anyway, what's wrong with exposing Internet trolls to the sunshine -- and defamation liability? What's the alternative? Repeal of the First Amendment?

Gosh, I hope not.

Modern technology has made the First Amendment more important than ever. The Fourth Amendment, too. A man's home may still be his castle, but the battlements needn't be breached before the inhabitants' privacy is. In suburban Philadelphia, for example, the Lower Merion School District is being sued because security software in school-issued Macintosh laptops was used to take pictures of students in their own homes. According to this AP story by Mary Claire Dale, The software allegedly let Harriton High School technology personnel take "over 400 screen shots and webcam images" of sophomore Blake Robbins. (ABC News coverage here.)

The school may have been authorized to activate its spy technology when students failed to pay the required insurance for the laptops, or failed to return them at year end. But 400 images of one student? Awake, asleep and undressing?

In other technology/privacy news, the Federal Department of Justice just dropped efforts to obtain warrantless access to certain Yahoo! Mail accounts pursuant to an application under 18 U.S.C.A. §2703(d). This is not a change in heart prompted by a change of administrations: The government has been pursuing this application for some time since Mr. Obama's election(see this related April 13 CNET story for background.)

Yes, government lawyers are pursuing a number of courses that endanger the expectation of privacy that we have in our emails and other private electronic communications -- this February 11, 2010 CNET article, for example, relates how the DOJ has filed a brief trying to uphold the convictions of bank robbers who were tracked through their cell phones, arguing that cell phone users have no reasonable expectation of privacy concerning their cell phones' location.

But other lawyers are resisting and trying to find an appropriate balance between the needs of society as a whole in fighting crime and individuals who don't like being tracked like migratory caribou with radio-transmitting collars.

I would hate to think that the price we must pay for holding on to the shreds and tatters of our remaining privacy in modern, high-tech America is the tolerance of Internet trolls defaming our children. I prefer to think courts and lawyers will and should play a helpful role in helping to establish new and acceptable Internet behaviors that respect privacy, anonymity, and our families. Even -- aside to Mr. Kass -- if some of them make a couple of shekels in the process.

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