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A few months ago, a physician who attended one of my talks started a correspondence with me about sites in which patients critique doctors. Anonymously, sometimes ungently. And sometimes by making statements that are false and injurious to the doctor’s reputation. That’s the definition of libel. What, I was asked, can be done?

There are, of course, many sites where anonymous garbage gets posted — think rottenneighbor.com or dontdatehimgirl.com. But a site such as¬†RateMDs.com¬†– the libel is discrediting a laboriously earned professional credential, in a way that could cost physicians their livelihood.

This is a classic case of the problems of anonymous speech. It should generally not be believed, unless there is some evident reason to think that the speakers could be imprisoned if their identities were known. Otherwise, with no skin in the game, why wouldn’t the speakers identify themselves, except to shield themselves from libel charges? It would seem that their confidence in their speech is very low if they hide themselves.

And yet anonymity has always been protected. Whistleblowers may have all kinds of reasons to want to get the truth out without spending their lives defending what they say. Ben Franklin wrote pseudonymously, even when he was just writing his almanac and had no political ax to grind. And so on. Courts generally are protective of online anonymous speech, and won’t force web site operators to reveal the names of their posters. Laws banning anonymity — though they do get proposed every now and then — would almost certainly be unconstitutional.

Now comes a free-market solution. Medical Justice provides waiver forms that doctors can ask their patients to sign. Sign the form and you agree not to malign the doctor on any web sites. Don’t sign the form and you can perhaps expect to be told that you might prefer to see another doctor. At least the doctor will be armed with a signed release from you if he or she tries to get a site to remove something unkind you’ve said.

Now this is a free-market solution, only if there is real competition in the doctor business. In a rural town with only one doctor, there may not be. In that case, the choice would be waiving your right to criticize the doctor, no matter how incompetent or unmannerly he or she proved to be, and forgoing treatment.

I tend to go with those, like the patient advocate quoted in this story, who find this practice noxious. Though you shouldn’t believe anonymous speech, this way of handling the problem blocks speech indiscriminately, the true along with the false and libelous. One can imagine all kinds of professionals asking clients to waive their rights to speak up. Even though only anonymous speech is at stake, the price seems too high.

But the doctors who use these forms are within their legal rights. So how to fight back? With more speech. RateMDs.com is planning to create a “Wall of Shame,” listing doctors who make their patients sign waivers. Whatever you think of the criticism, or libel, of doctors on that site, that’s a fine approach to fight the doctors’ attempt to gag their patients.

Some teenagers are being charged under child pornography laws — extremely serious charges — because they passed around a cell-phone nude photo of another teenager. (Quite the rage, apparently.) What if Mom and Dad bought the perpetrator the phone? Are they in trouble too?

No one can say for sure, of course, but in civil court you can sue for anything and see if any money shakes out. Here’s an interesting discussion of the possibilities.

As an academic exercise this is a wonderful example of the dilemmas that come from giving everyone a free printing press, capable of producing a million copies at no cost. And, of course, the weird fluctuations in the meaning of “privacy” in the digital age. Parents need to talk to their children about cell phones — but that is not easy if they can’t talk to their kids about anything else!

This is the sole case of copyright infringement by downloading that had actually gone to trial, prior to the case of Joel Tenenbaum in which Professor Charles Nesson is active. The Thomas case, which we discuss on page 198, is being re-tried after the judge threw out the first decision. Today Thomas’s expert, Prof. Yongdae Kim of the University of Minnesota, filed his report, which includes a strong attack on the evidence against Thomas and also on the report of the opposing expert. The site “RIAA v. the People” has a good summary, and a hotlink to Kim’s full report. For me the killer sentence is this:

MediaSentry claims to have much experience in identifying individual committing copyright infringement. However, they insist that their methods are proprietary and thus cannot be subject to scrutiny by an impartial third party. No academic studies exist of their internal investigative techniques, methods, software, data collection practices, or even employee training in retaining collected data in a way that would allow for it to be used as evidence at a trial.

MediaSentry is the private police force of the RIAA, of which Nesson also complains. How on earth can one defend oneself against a private investigator who makes a claim about what you did but says that its methodology for gathering the evidence is proprietary and even the judge can’t review it?

On Saturday I spoke at a Harvard Club event in Baltimore. In the audience was Ruth Glick, a romance and suspense novelist whose pen name is Rebecca York. She blogged my talk here. The hilarious part is that she says the cell phone causes her problems as a novelist: she has to keep coming up with excuses for why people can’t get in touch with each other! Makes sense — suspense requires a degree of isolation, and that is no longer a phenomenon of daily life, all the scary Verizon ads about dead spots notwithstanding.

There has been a lot of anxiety about the ease with with web sites can invite vicious, defamatory comments, and allow the people making the comments to remain completely anonymous. If the speaker is the person who controls the site, he or she can be sued. But what about the anonymous contributors? Do their free speech rights trump the rights of the maligned parties to seek compensation for the damage these comments do to them? Should the site operators be required to disclose the IP addresses from which the comments were posted, or other identifying information the operators may possess?

A decision by the Maryland Court of Appeals sets a very high bar for breaking through the anonymity and compelling the site to disclose the identity of the commenters. It’s a standard that could be reached, but it is going to be awfully hard. Here is what the plaintiff has to do:

1. Notify the anonymous poster that the poster is the object of a subpoena (by, for example, posting a message on the same site).
2. Identify to the court the exact statements made by the anonymous poster
3. Show in what way each statement caused damage to the plaintiff.
4. Provide specific information to support each claim.

At that point, the judges need not order the disclosure. First they need balance the damage done to the plaintiff by the anonymous speech against the anonymous defendant’s First Amendment rights.

The decision matches a standard set in 2002 by a New Jersey court, and seems to be part of a pattern in which courts are giving great deference to the right to anonymous speech on the Web.

Someone working for a defense contractor in Bethesda, Maryland did what millions of teenagers do — he installed a peer-to-peer filesharing program on his computer so he could share and download music. He evidently was unaware that the same permission that allows computers elsewhere to reach into his computer and take copies of songs also allows those computers to reach in and take other files stored on his computer. Such as, for example,¬†engineering and communications information about Marine One, President Obama’s helicopter, which turned up on a computer with an IP address locating it in Teheran, Iran. Oops! The story goes on to explain,

Retired Gen. Wesley Clark, an adviser to Tiversa [the company that made the discovery], said the company discovered exactly which computer the information came from. “I’m sure that person is embarrassed and may even lose their job, but we know where it came from and we know where it went.”

Well, General Clark may be half-right there; no doubt they identified the source. But who knows where else that information now is? Once it’s out there, there is no taking it back.

The bad guys are out there, just checking who’s left the back door unlocked. I doubt this computer in Bethesda is the only one.

Thanks for the tip to my colleague Matt Welsh, who is, by the way, running his own blog. The most recent item is about his experience of blowing his music to bits — that is, freeing his music collection from the plastic CDs that used to contain it.