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Are sockpuppeteers criminals?

January 14th, 2009

The Lori Drew case, in which a US woman set up a Myspace account under the name “Josh Evans” to torment a teenage girl who had fallen out with Drew’s daughter, and drove her victim to suicide, has some legal implications of interest to bloggers. Drew was ultimately sentenced to jail, not for her cruel prank and its fatal consequences, but for “unauthorized access to a computer system” by virtue of the false name under which the account was created. On the face of it, the same offence is committed (at least under US law) every time a commenter on a blog or noticeboard uses a sockpuppet to evade bans or blocks, or to post under multiple identities in violation of contractual terms.

Drew’s lawyers, who include Volokh conspirator Orin Kerr, are appealing on the unappealing (at least to a me as a non-lawyer) grounds that “fraudulently induced consent is consent nonetheless“. They claim that, by allowing the creation of the account, “MySpace affirmatively authorized the access to its computers”.

Kerr’s argument reflects his views in a 2003 article where he distinguishes between the kind of contractual violation involved in the Drew case and “bypassing of a code-based restriction such as a password gate”. But sockpuppeters illustrate the difficulties of this distinction. A typical case would be a blog commenter, blocked under one identity, who reappears under a new one. In lots of cases, this involves bypassing a software block. Admittedly, the block is easily enough dodged, but the fact that a lock is easily broken is not a defence against a charge of burglary.

Moreover, there’s no easy distinction between sockpuppeteers and spammers. The typical sockpuppeteer infests one system at a time, as opposed to the millions attacked by spammers. On the other hand, spammers are often easier to deal with.

The real defence is that so many people do this kind of thing, usually with relatively trivial harm, that it should not be criminalised. But that’s a claim that’s applicable to all sorts of nuisance offences, and there seems to be no consistent pattern. For example, sometimes abusive language is a crime and sometimes it’s just a violation of etiquette. I’ll be looking forward to a test case.

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  1. scott
    January 15th, 2009 at 03:04 | #1

    IMO annonyminity is part of the spirit of blogging and forums etc.

    Its tragic that people get hurt by such behaviour, but calling it criminal wont help.

    I started a list of what I would call criminal occupations until I realised I have an identity.

  2. John Mashey
    January 15th, 2009 at 05:27 | #2

    The real defense is that the *opinions* of anonymous posters are at best, worthless, i.e.:

    IUOUI: Ignore Unsupported Opinions of Unidentifiable Individuals

    Note that the opinions of *pseudononymous* individuals may carry more weight, i.e., if some uses a unique pseudonym, has a website, and you think that it’s the same person.

    For example, I listen hard to opinions of “tamino” at Open Mind, although I don’t know who he is in the real world. His on-line record is coherent and well-supported enough to create a reputation.

    But, I’m always puzzled why anyone cares in the slightest about unsupported *opinions* by truly anonymous posters, of whom sockpuppets are only a small fraction.

    Of course, all this begs the question of multiple identities, whether you can connect with people in the real world, etc, etc … questions tah will occupy lawyers for many years to come.

  3. BilB
    January 15th, 2009 at 09:19 | #3

    It is the substance of an opinion that really matters. An opinion reputation based on consistency is a thing of value. Most seek to add value to an argument. A contributor who seeks to disrupt the flow of an agument with maliscious behaviour may be stepping onto the dark side. There are many possible outcomes that could have a criminal connotation. But straightout sock puppeting would not of itself fall into that area.

  4. John Mashey
    January 15th, 2009 at 15:05 | #4

    Much of the behavior decried lately in blogs replicates that seen in USENET decades ago.

    Killfiles work, at least in some blogs, albeit not quite as well as the old USENET newsreaders, which zapped a poster across all newsgroups. If people are disciplined, and ignore antisocial posters, the latter often stop.

    I still remember the awful time (1993) when AOL unleashed vast hordes upon USENET, yielding the effect sometimes called Eternal September.

    Blogland may seem new … but many of the issues are actually pretty old.

  5. Socrates
    January 16th, 2009 at 14:41 | #5

    I can’t comment on the law but its certainly unethical and so, if it causes damage, I hope it is illegal, or at least actionable. Just because something is done often doesn’t make it right. Anonymnity is one thing, but fraud and deliberate deception are something different. Sockpuppets, as opposed to consistenly used pseudonyms, are not a desirable feature of the internet IMO.

  6. Joseph Clark
    January 16th, 2009 at 14:50 | #6

    “Just because something is done often doesn’t make it right.”

    Equally, just because something is wrong, doesn’t mean it should be illegal.

  7. Ikonoclast
    January 17th, 2009 at 07:39 | #7

    I think the key is that the “relatively trivial… should not be criminalised”. However, I speak as a blogger not as someone who has managed a blog forum. Perhaps I have little idea of how annoying, malicious and damaging a determined sock puppeteer can be.

    Ultimately, it might be the content of the sock puppet’s messages that leads to a court case though sheer nuisance could be an issue in some cases.

  8. John Mashey
    January 17th, 2009 at 09:51 | #8

    From 20+ years’ experience in online forums: IMHO if you want to have forums open to the public, social mechanisms (i,e., ignoring without comment) are likely to work better than laws. In particular, people can waste a lot of time without using sockpuppets, and making sockpuppetry illegal means:

    a) You can define it in a *useful* way.
    (“Can’t define it, but I know when I see it” is not very useful)
    b) You can detect it.
    c) You can prove it.

    And given browser anonymizers, b) is not trivial in the face of a determined sockpuppeteers. It’s hard enough to do this even in the more constrained Wikipedia world.

    As to waste of time without sockpuppets, I offer the earlier thread here.

    As of this writing, it has 98 posts, of which:
    9 are by Tony G
    19 are replies to Tony G, in whole or in part

    Hence 28/98 are either Tony G or replies.

    Here’s a useful exercise: pick a thread like that, in which you have spent time posting. Reread it in a year. Ask yourself:

    a) How much did I learn? Was it worth the time?
    b) How much did I contribute? Was that worth it?
    c) How much of this thread is still useful?
    Would I refer back to this?

    Of course, many threads are short-term topical, and sometimes one improves articulation of issues by posting. So, there are no right answers, but this exercise may help gain perspective on one’s own behavior patterns.

    On the amusing side, it’s nice to know that Peter Steiner has earned more than US$50K from reprinting of his famous cartoon “On the Internet, nobody knows you’re a dog.”

  9. Ikonoclast
    January 18th, 2009 at 08:06 | #9

    OK, I’ll take up the challenge re an old selected thread.

    (a) I learnt very little. Probably not.
    (b) A moderate amount. I’d like to think so but most of my comments do not stand the test of time either.
    (c) Very little to nothing. No.

    On the positive side writing and reading blogging can send one off on research paths. One also picks up gems from the general mud. Gerard (unintentionally) gave me Thorstein Veblen to research and a great word to add to my vocabulary, namely “dirigism’ or “dirigisme”.

    From Wikipedia – “Dirigisme (from the French) (in English also “dirigism” although per the OED both spellings are used) is an economic term designating an economy where the government exerts strong directive influence.

    While the term has occasionally been applied to centrally planned economies, where the government effectively controls production and allocation of resources (in particular, to certain socialist economies where the national government owns the means of production), it originally had neither of these meanings when applied to France, and generally designates a mainly capitalist economy with strong economic participation by government. Most modern economies can be characterized as dirigiste to some degree – for instance, governmental action may be exercised through subsidizing research and developing new technologies, or through government procurement, especially military (i.e. a form of mixed economy).”

  10. Paul
    January 25th, 2009 at 13:07 | #10

    Are sockpuppeteers criminals?

    IMHO less so thab mime artists, but more so than shadow puppeteers.

    Or am I missing something crucial in this post?

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