But, we did find this:

Take a seat. No, really, take a seat:

It’s like a chair explosion

One of our real serious SQL guys found his multiple-monitor setup replaced by this:

Even the office plants weren’t safe:

Happy April Fool’s Day. Stay safe and keep a smile on your face. We’ll save our normal tips (like getting out of Spokeo and other databases , or protecting your privacy on Facebook) for other newsletters.

Sometimes, it feels like Google is trying to copy Skynet.  The company’s goal is to “organize the world’s information”–all of it.  I’m not kidding.  All of it.  Google wants to know every fact, every tidbit of information, and every iota of knowledge in the world, and make it easily accessible.

Some of this is good.  Thanks to Google, it’s possible to find information that was once incredibly obscure.  Scientists, historians, researchers, students, and others have all gained immensely from the ability of Google to find and display useful information from around the globe.  The world is a richer place for it.

But Google is starting to earn a bad reputation for its methods.  In particular, Google has announced a massive plan to scan every book in the libraries of universities like Harvard and Stanford.  So far so good: scanning books is a useful pursuit and Google is a great company to do it.  But then Google announced that it was going to put part of the content of these books online.  That caused a little bit of a problem when the authors of some of these books–who would much prefer to sell copies of their books in bookstores than let Google users read them for free–sued under existing copyright law.  It’s an interesting question whether Google’s use of the books is “fair use” (exempt from copyright infringement), and a lot of legal scholars hoped that the lawsuit would help clarify copyright law in the digital age.

But, instead, Google settled the lawsuit with the authors.   It paid the authors a fixed sum of money for the right to put their books online.  The only problem is that Google bargained for the exclusive right to digitize copyrighted books that were published before the Internet.  If the settlement stands, Google will be the only company with the legal right to display old books online.  That would be a powerful competitive advantage over any other company that seeks to display digital information (or sell old books, or serve as a resource to students, or countless other things).

There has been a lot of controversy over so-called “software patents” (like the Amazon “one-click” patent) that give one Internet company the exclusive right to perform a certain function.  But these patents only last about 20 years. If Google’s deal stands Google will have the exclusive right to display old books until their copyrights expire, which could be 80 years or more from today.  This is the legal deal of the century.

Thankfully, Microsoft, Amazon, and Yahoo! figured out that Google might have just bought itself 80 years of slanted competition.  Now, the Department of Justice, Microsoft, Amazon, and Yahoo! are all investigating the anti-trust implications of the Google settlement to see if Google broke any anti-trust laws by buying 80+ years of exclusivity.  The irony is, of course, that Google scanned thousands of anti-trust textbooks that describe exactly why this deal is questionable under anti-trust law.  But, apparently, Google’s lawyers didn’t have access to Google’s scanning equipment.

The investigation continues.  In the meantime, the books are staying in Google’s archives, where they can only be accessed by other computers.  At least Skynet will have something to read.

As legions of other chattering experts have said, Rosemary Port’s lawsuit is a guaranteed loser.

IN SHORT:
The court forced Google to reveal Rosemary Port’s name.  It can’t be liable for what a court ordered it to do. And Google definitely never agreed to indemnify Rosemary Port for the consequences of what a court ordered it to do.  Anyway, Google’s Terms of Service make clear that Google will respond to court orders.

IN DEPTH:
Privacy is incredibly important–and that includes both the privacy of bloggers and the privacy of private individuals who think they have been defamed by a blog.  This balance has always been a part of American free speech law, and it is an important balance to consider when thinking about cases like this one that balance the rights of a blogger to speak (Port) and the rights of a private individual to live her live without being slandered (Cohen).

Nobody forced Rosemary Port to use the Blogspot.com service offered by Google.  She chose among blog providers, and picked Google’s.  By signing up to use Google’s blog service, Rosemary Port decided to accept the balance of privacy that Google provides.  Google is a private company and it could set any privacy policy it wants: As long as Google made its policy clear up front, Google could set a policy of never revealing identities, or it could set a policy of buying full-page advertisements in the New York Times with the name of every Blogspot user.

As it happens, the Terms of Service for using Google’s Blogger website sets a clear policy for when Google will reveal the identity of a Blogger.com / Blogspot.com user:

“… You agree that Google may access or disclose your personal information, including the content of your communications, if Google is required to do so in order to comply with any valid legal process or governmental request (such as a search warrant, subpoena, statute, or court order)…”

And that’s exactly what Google did.  Google followed its own privacy policy to the letter.  Google hired big-shot lawyers to try to quash (prevent the execution of) Liskula Cohen’s subpoena (demand for information), but the court went ahead and ordered Google to turn over the information.  Google probably went beyond what most normal people would expect for a small blog — it probably cost Google at least $10,000 worth of lawyers’ time to defend the blog, based on the written briefing and oral arugment that was conducted.  That’s something like $20 per word!

Rosemary Port might have been able to win if Google did not try to defend her name, or if Google ignored its own privacy policy and turned over her name before the court ordered it to.  But by all accounts, Google did exactly the right thing and followed its own privacy policy to the letter.

It should not take a court very long to dispose of the case.

WHAT THIS MEANS

Think carefully about the information you turn over when you speak online.  If you give your information (such as your name and email address) to a private company, that company could reveal it to the government or to another person.  If you intend to say controversial things, you may want to think carefully about whether it is wise to use a free commercial blog service–after all, the blog site might not turn over your ID without a court order, but it might not put up a very big fight either.

If you have been attacked online, think carefully about whether it makes sense to sue.  More people heard the word “skank” near “Liskula Cohen” because of the lawsuit than ever would have if Cohen had worked out her problem in a different way.  Sometimes, it makes sense to call for professional reputation management rather than just lawyers.  A strategy to carefully control the offensive content might have solved Cohen’s complaint with much less fuss.

Status: MYTH BUSTED

This case is not the end of anonymous speech on the Internet.  This was just one order from a state trial judge in New York City.  The decision in this case does not have any legal power over courts outside New York, and it can still be overturned or modified by appellate courts in New York.  Bloggers in other states are completely unaffected by this decision, and the decision barely has any effect within New York.

The United States Supreme Court has not weighed in on the subject of anonymous blogging, although there are other U.S. Supreme Court cases about anonymous speech that have generally upheld the right to speak anonymously until other laws are broken.

And, there are still technical means (such as proxy servers and anonymous browsing) that allow completely anonymous speech.  It looks like the accused blogger–Rosemary Port–used her real email address when setting up her “Skanks in New York” blog.  If the blogger had used a fake email address and a proxy server, she might still be anonymous today.

High-profile celebrity cases like this one get a lot of attention, but rarely set important legal precedent.  So far, this case has done no more to make anonymous blogging illegal than the O.J. Simpson case did to make murder legal.

So rest easy, anonymous bloggers.  The rules are still the same: don’t break other laws, and your anonymity is still safe.  An anonymous blogger can still criticize the President, pontificate about public policy, or just ramble about his day.

Myth 2: Google is on the hook (link here)

Status: MYTH BUSTED

Contrary to some reports, Google is not liable to Liskula Cohen for anything, and is probably not liable to revealed blogger Rosemary Port either.

Liskula Cohen’s lawsuit named Google as a defendant, but all that she wanted from Google was the identity of the blogger behind the “skanksnyc.blogspot.com” blog.  As soon as the court ordered Google to reveal the email address of the “skank blogger” (now known to be Rosemary Port, an aquaintance of Cohen and a student at the Fashion Institute of Technology) Google’s role in the case was done.  Google doesn’t owe a single dollar to Liskula Cohen.  In fact a federal law–Section 230 of the Communications Decency Act of 1996 (“CDA”)–means that Google cannot be held liable for what bloggers say through the Blogger/Blogspot.com service that Google runs, even if The New York Times might be held liable for running the exact same content in its print edition.  In short, Section 230 of the CDA immunizes Internet companies from liability for what is published on their sites to a much higher degree than dead-tree print media.

Outted blogger Rosemary Port has now sued Google for $15 million, claiming that Google violated her right to privacy by revealing her identity.  To put it simply, Rosemary Port’s lawsuit against Google is a guaranteed loser.  Google went to court to defend her identity and did legal everything in its power to stop it from being revealed.  Google paid high-power lawyers (probably better ones than Port could afford on a student’s budget) to try and keep Port’s name a secret.  But the court ordered Google to release her name anyway.  There was nothing more for Google to do at that point; Google cannot ignore a court order.

To put any doubt to rest, the Terms of Service for using Google’s Blogger tools include:

“… You agree that Google may access or disclose your personal information, including the content of your communications, if Google is required to do so in order to comply with any valid legal process or governmental request (such as a search warrant, subpoena, statute, or court order)…”

By signing up to host her blog on Blogspot, Rosemary Port agreed that her identity might be disclosed if a court ordered Google to disclose it.  That is exactly what happened.  There is not much left for a court to decide here.

Myth 3: The judge trampled on the First Amendment (link here)

Status: MYTH BUSTED

As we have already said once, this is not a big First Amendment case.  The First Amendment is important to a free and healthy democracy.  And the rights inherent in the First Amendment should be upheld to their highest extent. But the right to speak freely has limits, and libel has always been one of the limits.

Contrary to some assertions, there is a First Amendment issue in the case.  Google is a private company and could choose to allow or disallow a blog for any reason.  Google’s internal decisions about what kinds of content to publish do not implicate the First Amendment in any way.  But the First Amendment does become relevant when the government (through the courts) forces Google to reveal the identity of a speaker.  Thus, there is still a need to consider the First Amendment when analyzing this case.

But, the First Amendment analysis need not go very far.  The First Amendment has never been a license to speak without consequences.  The First Amendment establishes a right to speak without government censorship–and especially establishes the right to speak without having to seek government approval first.  Hundreds of years of cases have held that the First Amendment prohibits so-called “prior restraint” (attempts by the government to stop a speaker before he or she has made a statement).  But hundreds of years of cases also say that the First Amendment does not mean freedom from consequences: falsely shouting “fire” in a crowded theater is a form of speech that is not protected by the First Amendment.  Other forms of speech that have consequences include inciting a riot, revealing classified secrets to the enemy, and libeling or slandering a private figure.

The same goes for anonymity.  The First Amendment means that the government may not demand to know the identity of people who blog about politics or distribute leaflets criticizing the administration.  But private parties who have been defamed (just like Liskula Cohen believes she has been) have always been able to seek out the person who they think defamed them, so that they can sue in court.

These ideas have always been part of the First Amendment and this case is nothing new on those grounds.  The only question is whether model Liskula Cohen showed enough of a likelihood of winning a defamation lawsuit that she deserved to know the identity of the person who attacked her online.  The judge in this case–after weighing all of the evidence and reading all of Port’s blog posts about Cohen-decided that Cohen had a good chance of winning and deserved to know the name of her attacker so that she could sue the blogger in court (and so that blogger could have a chance to defend herself).

Courts have been very reluctant to unmask anonymous speakers who write about politics; the Federalist Papers–some of the most important documents debating the Constitution–were written under the pseudonym “Publius.”  Even the responses to the Federalist Papers were written under assumed names like “Federal Farmer” and “The Republican,” some of which are still unidentified today.

Myth 4: The Supreme Court said it (link here)

Status: Technically right, but really BUSTED

Well, yes, but that’s not really what people mean.  The case was decided by the Supreme Court . . . of Manhattan.

In most states, the “Supreme Court” is the most important court.  And the Supreme Court of the United States is the most important court in the country.

But New York is a little different.  In New York, the lowest court is called the “Supreme Court.” And each judge on that court is called a “Justice”–the title normally reserved for members of the most important court.  But this “Supreme Court” is really a trial court that should be called a “Superior Court” or even a “Municipal Court.”  The most important court in New York is called the “New York Court of Appeals” instead.

In chart format:

FEDERAL COURTS

Most important: The Supreme Court of the United States
Middle: The United States Courts of Appeals
Least important: United States District Courts

OTHER STATES

Most important: “State Supreme Court”
Middle: “State Court of Appeal”
Least important: “Superior Court” or “Municipal Court”

NEW YORK

Most important: “New York Court of Appeals”
Middle: “Appellate Division”
Least important: “Supreme Court”

Myth 5: The blogger already lost (link here)

Status: MYTH BUSTED

The judge did not determine whether the blogger defamed Liskula Cohen.  Rosemary Port still has a chance to defend herself against the allegation that she defamed Cohen.  Rosemary can hire her own lawyers and tell her side of the story to a jury, just like any other person accused of defamation.  The only thing that has happened so far is that a judge has identified Port so that Cohen may file a lawsuit against Port.  Normally, that would be the first step in the process, but here Cohen had to go through an extra step because Port was blogging anonymously.

Now, Liskula Cohen can decide if she wants to sue the blogger.  And the blogger will have the chance to defend herself in court if Cohen goes ahead with a lawsuit.  So far, the judge has said only that Cohen has a chance of winning her lawsuit, not that she is certain to do so. If the lawsuit proceeds, it will be up to a jury to decide if the statements on the “skank” blog add up to defamation. Update: Cohen has dropped her lawsuit against Rosemary Port and decided not to proceed to trial.

As we previously reported, a New York trial court in Manhattan has issued an order (linkable full text -or- PDF full text) that requires Google to turn over the identity of a blogger that called Liskula Cohen a “skank” and called that Ms. Cohen went “lying” and “whoring” around New York.  Several other blogs have also carried the news about Liskula Cohen — some supportive, others less supportive, and some with mixed reactions.

WHAT REALLY HAPPENED

Liskula Cohen is a Canadian-born model who worked in New York City until recently.  She still considers herself to be part of the New York “scene” even though her modelling days are nearing their end.  One day, Ms. Cohen discovered a blog called “SkanksNYC” at http://skanksnyc.blogspot.com (it has since been removed).  The blog consisted only of posts about her–all of them alleging that she was a “skank” or “ho” and that she went “whoring” around NYC, that she is a “psychotic, lying . . . skank,” and making other insinuations about her sexual activities. The blog also contained photographs that had been cropped and captioned to make it appear that Ms. Cohen was about to engage in oral sex at a nightclub.  Ms. Cohen claims that all of these claims are false: she claims that she was not about to perform oral sex at a club, that she is truthful, and that she is not promiscuous.

The blog was written anonymously, so Ms. Cohen had no way to get in touch with the author.  Ms. Cohen did what comes naturally to any American: she called a lawyer.  Her lawyer told her that she had a cause of action for defamation against the blogger who claimed that she was “psychotic” and “lying” and made it appear that she was engaging in sexual relations in a nightclub.  The only problem is that Cohen did not know who to sue: the blog was written anonymously and Google refused to tell her who wrote it.  Google said its privacy policy allows it to turn over a blogger’s name only with a court order.

So, Cohen’s lawyers sued Google to try to force Google to turn over the identity of the blogger.  The anonymous blogger lawyered-up and the blogger’s lawyer showed up at the hearing.  Under New York law, there is an established test to determine if the name of an anonymous defendant (like the blogger) can be revealed.  The test depends on whether the plaintiff (Cohen–the model) has shown that she has a good chance of succeeding in a lawsuit against the anonymous defendant (the blogger).

Here, the judge issued an order (PDF) ruling in favor of Liskula Cohen and ordering that Google turn over the blogger’s name to Cohen so that Cohen can pursue a lawsuit against the blogger for defamation.  The ruling says that Cohen has a good chance of winning her lawsuit: the blog’s use of terms like “psychotic,” “lying,” and “skankiest in New York” could be understood by a reasonable reader as factual allegations about Cohen’s character and sexual promiscuity.  And the fact that the blog used the terms repeatedly to attack Cohen (and only Cohen) suggests that the blogger was malicious in his/her blogging, rather than just commenting on the New York social scene in general.

(see analysis inside...)

ANALYSIS

This is yet another court decision that has held that there is a limit to anonymous speech on the Internet.  The old days of the Wild West are coming to a close.  The normal laws that govern our society are starting to apply to the Internet, just as much as in the “real” offline world.  Bloggers are free to create blogs talking about any topic they want, but they will be held to the same standards as newspaper reporters.  Bloggers get all of the protections that the dead-tree press get, but they are also subject to the same limits on their speech.

UPDATE: The blogger’s name was publicly released.  It is not clear whether the blogger’s identity will ever be publicly revealed.  The judge could still require the lawyers (and Liskula Cohen) to keep the blogger’s name secret until there has been a full trial.  This kind of “protective order” is common in cases where there is an interest in anonymous speech.  Or Cohen could settle with the blogger out of court; now that Cohen has the blogger’s identity, she has a lot more leverage than before.  She may be able to extract a cash settlement, or just an apology.

If Cohen does actually sue the blogger, she’ll have to meet the New York test for defamation.  Under New York law (which has been upheld against First Amendment challenge, see below), the elements of a defamation lawsuit are:

1. a false statement;
2. published to a third party without privilege or authorization;
3. with fault amounting to at least negligence;
4. that caused special harm or defamation per se.

(from Dillon v. City of New York, 261 A.D.2d 34, 38 (N.Y.A.D. 1 Dept. 1999))

IMPACT ON OTHER CASES

This is just a trial court ruling in New York.  It does not have precedential value for other courts — in other words, other courts outside New York are not bound to follow it.  And within New York State, there can still be appeals that could change the outcome in this case. In theory, the parties in this case could appeal it all the way to the New York State Court of Appeals–the highest court in New York.  (New York’s courts are named counter-intuitively: the “Supreme Court” is the lowest court, and the “Court of Appeals” is the highest court).  If the Court of Appeals issued a ruling, that ruling would become binding law for all courts in New York.

In other words, the legal value of this ruling is nearly nil.

But, the Cohen case still sets a precedent in the court of public opinion.  This is a celebrity case that is being followed by a lot of people who otherwise would not be interested in the technicalities of Internet law.  It is sending a clear message to would-be spiteful bloggers who are quickly learning that their cloak of anonymity may not be as thick as they once though it was.  It is one more step along the road from Internet-as-Wild-West to Internet-as-suburb.

DOES COHEN ACTUALLY HAVE THE DEFENDANT’S NAME?

Cohen encountered one of the biggest problems in online reputation: she was smeared by an attacker hiding behind a cloak of anonymity.  She took the right first step by contacting Google (which manages the blogspot.com address where the blog was hosted).  But even Google might not know the name of the blogger.

After all, the blogger might have signed up with a false name, or used a fake email address to create the blog.  If so, then Google will know only the fake name and fake email address.  That won’t necessarily allow Cohen to identify a real-life human being to sue.

Instead, Cohen might have to file another lawsuit to try and identify the blogger.  Google almost certainly kept logs of the “IP address” of the person who created the blog.  An IP address is just a number, like “127.0.0.1″, that is used to route information around the Internet.  If Cohen knows what IP address was used to create the blog, she might be able to find the Internet Service Provider (“ISP”–like Time Warner Cable, or Comcast, or RoadRunner, or AOL) who manages that address.  And then–with another court order–the ISP might reveal what real-life person was using that IP address at the time.

All of this requires even more court orders and more activity from the lawyers.  The technology of the Internet makes it tough to get redress for online wrongs.

BUT WHAT ABOUT THE FIRST AMENDMENT?

Lots of people are wondering about the First Amendment implications of this case.  After all, the First Amendment says that “Congress shall make no law …  abridging the freedom of speech.” But the freedom of speech has never been held to be absolute: you can’t yell “fire” in a crowded theater, you can’t falsely advertise your products, and you can’t spread lies about other private individuals.  These ideas have always been part of the balancing act of free speech in the United States–and, indeed, in every Western democracy.

The Liskula Cohen case proves that same standards apply to bloggers as to everyone else.  In the United States, people who are defamed by a newspaper can sue the newspaper for libel.  And many people have done so: one of the most famous cases about the First Amendment started when an individual named L.B. Sullivan sued the New York Times for allegedly repeating lies about his conduct during the Civil Rights Movement.

The judge in the Cohen case correctly reasoned that rules that govern libel in dead-tree newspapers hold true for electronic publications: if you are defamed by a blog, then you can sue the blogger who wrote it.

The only question is whether Liskula Cohen is a so-called “public figure.”  Public figures are people who have chosen to lead their lives in the public eye.  In order to win a defamation lawsuit or a libel lawsuit, the Supreme Court has held that the First Amendment requires that a public figure plaintiff show that the defendant (like the blogger) acted with “actual malice.”  This requires showing that the defendant (blogger) was more than just careless or opinionated; the plaintiff must show that the blogger knowingly said false statements with an intent to harm the victim.  In other words, public figures have less protection against defamation–it is the price they pay for trying to live in the public eye.  Here, there is a good argument that Cohen chose her modeling career to be in the public eye, and that she thus has less protection than truly private individuals who have not sought the spotlight.  But, Cohen still might be able to meet the “actual malice” standard and win her lawsuit because the blog was directed only at her, contianed so many negative comments about her, and appeared to be just a spiteful attack on her.

Only time will tell what happens.  Keep an eye on this blog for more updates.

And here is a linkable version to share.

Much more analysis to follow.  For now, note the consideration of First Amendment issues in Footnote 5 of the document.  It is a relatively short decision.

RELATED COVERAGE:

RDBlog: The no-longer-anonymous blogger strikes back with her own lawsuit against Google
RDBlog: Analysis of the legal impact of the Cohen order
RDBlog: Initial coverage of the ruling

As always, I’m guest-blogging and I don’t represent the views of Reputation.com.

Most recently, three major ISPs–Verizon, Sprint, and Time Warner Cable–recently bowed to pressure from the Attorney General of the state of New York and agreed to stop carrying Usenet newsgroups that contain child pornography and other reprehensible content.

First, a brief history lesson: “Usenet” is a throwback to the early days of the Internet. It is a set of discussion areas–”newsgroups–that were very popular in the 1990s as a way to discuss everything from programming to politics. In more recent years, the popularity of Usenet has fallen the Web (what you’re using right now) became more important. But, some people still communicate through Usenet. And a small fraction of those people use it to send child pornography and other illegal material to each other.

Verizon, Sprint, and Time Warner Cable stopped “hosting” some Usenet newsgroups on their own servers. As a result, the ISPs are no longer providing access directly to subscribers. It’s still possible for subscribers of those ISPs to access the newsgroups, such as by paying $10 to $20 per month for access through a web-based Usenet gateway (a service that shows Usenet through a web browser). A good analogy to what these ISPs did would be if your ISP no longer provided email service and you had to pay another company for web-based email.

This is one of the first times that a major ISP has limited its services on the basis of content. While any customer can still access any newsgroup they want, the ISP has made it substantially more difficult to access newsgroups that contain illegal content. Some think this is the first step toward ISPs enforcing content controls based on other forms of illegal content, like music or video file sharing and possibly even going as far as restricting the transmission of libelous or false information online.

Current laws, combined with the nature of the Internet, put a lot of pressure on ISPs to filter content. Because the Internet is global, harmful and illegal content can easily be found overseas. U.S. politicians can’t control what overseas websites do, since U.S. courts lack jurisdiction over many foreign websites, and even if there were jurisdiction it would be a nightmare to try to try to enforce the laws overseas. But, U.S. politicians know that every web user has to use an ISP to get online. And they know that ISPs that serve the U.S. are subject to U.S. law and can easily be dragged into U.S. courts. Even more importantly in this case, it’s a lot easier to go after a handful of ISPs than it is to try to track down and locate many anonymous Usenet users who posted the original illegal images. Thanks to anonymity services like TOR, it may be completely impossible to locate the people who first put the underage images on Usenet. But, the government can find the major ISPs just by looking in the phone book. It’s a lot easier to go after the known intermediary than it is to chase down foreign or anonymous wrongdoers.

The same is why the RIAA hopes to filter music file sharing before it reaches customers. If ISPs block file sharing, then the RIAA won’t have to chase anonymous or overseas file sharers.

The U.S. isn’t the only country where intermediaries–like ISPs–are being held liable for wrongdoing by other users. A recent court case in France held eBay liable for fake handbags sold by independent sellers on eBay. Again, the reasoning went that it’s easier to force eBay to solve the problem than it is to chase down many small-time sellers of fake handbags.

Is this the first step toward extensive filtering, going as far as ISPs stopping the transmission of sites that contain libelous or hurtful materials? It’s technically possible for this to happen. Spam blacklists already exist. And lots of programs — like McAffee’s “SiteAdvisor” — already detect some forms of malware and provide warnings to users before proceeding. Google already warns users about pages that might be dangerous, based on their own internal blacklist. And some ISPs already block certain emails under the guise of being viruses or spam.

Adding another filter for sites that have been ranked as hurtful or libelous by enough users would just be another simple step, nothing more than a Digg-like button “bury as inaccurate” for the world. It’s entirely possible that ISPs could display a message that “this site has been marked as inaccurate by 40% of visitors.” We’re really not that far away from having this capability: sites like StumbleUpon use a Firefox extension to rate literally millions of websites.

Of course, what about the First Amendment? After all, the government can’t just censor all speech that it doesn’t like. But, the Supreme Court has repeatedly held that child pornography is not protected under the First Amendment. The Supreme Court has also held that libel–malicious lies about a private individual–is also given not protected under the First Amendment. So, under current law, it’s at least theoretically possible for a state government (like New York in the case of child pornography on Usenet) to threaten ISPs to stop providing access to some kinds of objectionable content. Of course, if government-mandated web filtering ever became common then we’d likely see another challenge in the Supreme Court, possibly with a different outcome.

In the end, it’s not clear whether this is a good thing or a bad thing. There’s plenty of things, like child pornography, that is so disgusting that something needs to be done to stop its spread. And, this most recent move by the New York ISPs suggests that illegal images are still prevalent, despite many attempts by law enforcement to find and prosecute the people who take them. And ISP warning for libelous or hurtful content might save thousands of reputations from unfair But, ISP filtering is also dangerous if it’s applied overzealously to things like file-sharing: there are plenty of forms of file-sharing that are legal (for example, many downloads of the Linux operating system use file-sharing networks to speed up downloads and to allow many users to download updated versions at the same time). Filtering could also be abused for political purposes, but it’s unlikely that the Supreme Court would allow it.

What do you think? Is this the end of the open playground? A step toward moral responsibility for ISPs? Or plain old censorship?

* As always, I’m guest-blogging by invitation, I don’t necessarily represent the views of Reputation.com or any of its headcount, and I hope to start a discussion rather than providing definite answers.

[Editor's note: Since we don't want to impact his campaign one way or the other, we're applying the "nofollow" attribute to any link related to his Googlebomb. The "nofollow" tells Google to ignore the links and not consider them in its rankings.]

This is a pretty big development. It’s not the first time that Google has been an important part of a presidential campaign. For example, Ron Paul’s supporters tried very hard to keep positive information about their candidate at the top of a Google search for “Ron Paul.” They were so confident that they would be able to keep positive information about their candidate at the top of a Google search that they rented a blimp that instructed viewers to “Google Ron Paul.” And it’s not the first time that the White House has been the subject of a Google bomb; there was once a rather famous googlebomb that tried to make George W. Bush appear at the top of a search for “miserable failure.”

But, this is the first time that there has been a public attempt to influence a presidential election by artificially inflating the negative publicity surrounding a candidate through a Googlebomb. Some people think it’s a dirty trick. Other people think it’s a natural part of a modern political campaign. Either way, it’s a trend we haven’t seen the end of.

The idea of a Googlebomb is especially powerful given how important the first page of Google results are. Google has around an 80% market share for search. In other words, 80% of people get their search information from Google. And we’ve talked about how most users only read the first page of Google search results, and then focus most of their attention on the first three results (“power hits”). This kind of technique allows politicians and their supporters to control the first page of Google, and thus control what information the world discovers about a candidate.

It’s also especially powerful because it allows candidates to campaign negatively without looking like they are running a negative campaign. It’s possible to launch a completely anonymous Googlebomb, unlike most other forms of negative campaigning. Candidates can get all the benefits of a negative campaign without having to face the backlash that usually follows attack ads.

It’s also possible that this will lead to an arms race on the Internet between campaigns. Right now, opponents of John McCain are dropping a negative Googlebomb against him. It’s possible that his supporters will respond by trying to bomb positive results back to the top of Google and by attacking Barrack Obama through a negative googlebomb of their own.

Is a campaign tactic that will become commonplace in the future, a dirty political trick, or both?

If you’ve been a target of a Googlebomb, it’s not too late to restore your online image. Services like MyEdge can be a first step toward getting your good name back.

* As always, I’m proud to be guest-blogging and my views don’t necessarily represent those of Reputation.com or its employees.

(Source: Cornell University study – see full size Google results chart here.

The data are similar for AOL’s web search: the top 3 results in an AOL search get 63% of the clicks. (Source: AOL mistake)

Of course, you could explain this because search engines tend to deliver relevant results in the first three hits. But most websurfers wouldn’t know: Most websurfers don’t look past the first three results at all. Scientific eye-tracking studies used cameras to track exactly where volunteers were looking when they were searching for various topics. The vast majority of people looked only at the first three Google results, the power hits. They never looked at the rest of the results to know whether they were better.

(click to enlarge — Source: Eyetools promotional material)

The diagram above is a “heat map” of a Google search. Hotter colors represent areas where people spent more time looking; gray areas are places where nobody ever glanced. The “x” marks on the picture represent areas where people clicked.

The short attention span theory continues by comparing different pages. Almost 90% of clicks come from the first page of Google results, up from 80% a few years ago. (Source: Enquisite) And, 76% of French websurfers look only at the first page of Google results. (Source: French study).

There are many possible explanations for this sudden short attention span. The New York Times blames it on intrusive technology, like constant email, text, and instant messaging interruptions when trying to work. Web surfers make lots of fast queries and just go with whatever comes up first. Very few people examine their search results in close detail, and very few will ever find results buried beyond the first page.

What does this mean for you? If you’re trying to sell a new product, or to get information out about a cause, or do anything else in Google, you need to be in the top three results. You need to be one of the power hits. If you’re not in the top three Google results, you might as well be invisible. Some blogs have estimated that the difference between a #1 result and a #5 result is the difference between 50,000 monthly visitors and 6,000 monthly visitors. If your statement about a political candidate isn’t in the top few results, nobody will ever know about it. Ron Paul’s supporters knew this: Their motto was “Google Ron Paul” because they controlled the top three hits in Google (the power hits) for any search related to Ron Paul. They knew the top three hits in Google were positive and that they could keep them positive. That’s all it took for them to be comfortable sending traffic to Google.

The lesson: If you can control your name on the first page of Google, you can control your image. If you control the first page of Google for your political cause, you can make a difference.

Others have covered similar topics. In future posts I’ll share more information about making the most of your power hits. Of course, commercial services like MyEdge can help you get started in managing your image. MyEdge helps you to move positive content about you to the top of a Google search result for your name. Or, at the least, monitor your reputation using a service like MyReputation that will tell you what people are seeing when they search for your name in the “deep internet.” If you have need a custom reputation management service for a unique situation or for faster results, this is also available.

More interesting reads: Political dirty tricks and Google – The 2008 Election and Faces of MySpace (video)

* As always, it’s a pleasure to be guest blogging and this post doesn’t necessarily represent the views of RepDef or any of its defenders employees.

Many blogs (more and yet more) have covered the free speech aspects of the case. The result is clear: In the United States, for better or for worse, the article and the magazine would be protected by the First Amendment.

But it does raise a more important issue: What is the line between personal harassment and political opinion online?

In the United States, the First Amendment, has long been understood to protect all forms of political speech. There’s no doubt that bloggers are protected by the First Amendment when discussing Obama and McCain. (See our offer to Obama here, and our coverage of McCain here). (Note from the lawyers: the First Amendment doesn’t protect malicious libel of public figures, but there is an extremely high standard for malice –just because a blogger has said something false doesn’t mean that it’s malicious under the First Amendment. The courts have always been very protective of political speech and usually respond that the right answer is to spread the truth rather than to sue people who are getting it wrong. Anyway, very few politicians would ever bring a lawsuit.)

But, many forms of personal harassment are not protected by the First Amendment at all. For example, the First Amendment doesn’t give you the right to slander a private individual by saying false things about them. And the First Amendment doesn’t make it okay to publicize personal secrets, like medical history or a concealed sexual orientation, even if the information is completely true.

Until now, it’s been pretty easy to figure out what’s protected speech and what’s unprotected speech: If a magazine published an article about the politics of Islam, it would be protected under the First Amendment, even if the article wasn’t accurate. If a magazine published an article about a random private citizen that contained false information, it would not be protected. And, thanks to the massive staff it took to run a newspaper or magazine, the vast majority of publications were very careful about fact-checking: They had the resources to do it, and a lot to lose in court if they got it wrong.

But, what happens online? Now, anyone with a computer can publish a website attacking anything. There’s no requirement to check facts, and many bloggers have very little to lose. And any blog post is instantly available worldwide, unlike a dead-tree newspaper or magazine with a limited circulation.

Right now, the courts have said that the normal First Amendment rules apply. If the target of the attack is big–like an entire religion or government–then the First Amendment should still protect them. And if target of the attack is one person–like a neighbor or co-worker–then the normal rules for harassment under the First Amendment apply. But what if the target is somewhere in between? For example, if the blog falsely attacks the members of a particular church congregation, or falsely accuses the teachers at a school of wrongdoing.

In the case of an attack on a small group, the harm of false statements will be be felt by the members of that group. Google is incredibly powerful, and has a habit of bringing up negative information near the top of search results. Someone looking for information about the group or its members online is likely to see the false information, and it’s likely to be repeated across other blogs and websites until it fills the top search positions.

The answer isn’t clear. But we need to think about where we draw the line between protected political speech and unprotected personal attacks. The courts in the future will have to draw these lines in an age of instant global anonymous publishing. This is a conversation that will continue for many years.

* I thank Reputation.com for letting me continue to guest-blog. The views in this column don’t necessarily represent those of RefDef or its employees.