We mentioned the ‘Skanks in NYC’ case in yesterday’s Morning Docket, and I’ve written about it extensively over at True/Slant.

To summarize: a blogger started a website called ‘Skanks in NYC’ in order to say nasty things about model Liskula Cohen. Cohen discovered the site containing just five posts, in which the blogger called Cohen a skank, a ho, and an old hag, among other nasty things, and posted photos of her.

Cohen decided she wanted to file a defamation suit against the anonymous blogger, so her lawyer subpoenaed Google — which hosted ‘Skanks in NYC’ at Blogger — to obtain the writer’s e-mail and IP address. The blogger’s lawyer fought the subpoena but lost. Manhattan Supreme Court Judge Joan Madden ordered Google to turn over the information. Google sent it along. Cohen filed her defamation suit outing her alleged defamer: Rosemary Port, a 29-year-old Fashion Institute of Technology student who was mad at Cohen for saying nasty things about her to Port’s boyfriend.

The press wrote lots of stories about the case and about Port, whose name the media obtained from court papers. Cohen then dropped her $3 million defamation suit, making it appear that this may have been a Cyberslapp: “a new form of lawsuit… threatening to overturn the promise of anonymous online speech and chill the freedom of expression that is central to the online world.”

Now Port wants to slap Google with a $15 million lawsuit, saying Google violated her First Amendment rights by complying with the court order. Her lawyer went so far as to compare ‘Skanks in NYC’ with the Federalist Papers. From the New York Daily News:

“I’m ready to take this all the way to the Supreme Court,” [Port’s lawyer, Salvatore] Strazzullo said. “Our Founding Fathers wrote ‘The Federalist Papers’ under pseudonyms. Inherent in the First Amendment is the right to speak anonymously. Shouldn’t that right extend to the new public square of the Internet?”

It’s been widely reported, but what are the actual merits of the suit against Google? We spoke with renowned privacy expert and George Washington Law professor Daniel Solove about the case and have an answer for you after the jump. While we had him on the phone, we also discussed how one becomes the foremost U.S. expert on privacy by age 37.

So what do you think of Rosemary Port’s threatened lawsuit against Google?

It’s a really interesting case. But if Google was complying with a court order, I don’t know what the cause of action would be.

So that’s a no-go…

The case does raise interesting issues about privacy and anonymity online, though. It’s improper to use the legal process to unmask anonymous bloggers. Courts should be very reluctant to force that unmasking. There should be a very high standard to get that identity, and the identity should be kept confidential for as long as possible.

A plaintiff needs to show they can survive summary judgment — the Doe vs. Cahill standard — and show that they have the ability to take the case to trial. Anyone can bring a case and make a complaint. That’s not enough to override the First Amendment right of the anonymous speaker.

Surviving a motion to dismiss is not a good standard. That’s not very hard. After discovery is done and summary judgment made, that’s when identity should be revealed. If the plaintiff survives that, the case is going to trial. The plaintiff should have to make a showing that, without the identity, there’s no other way to get the information for the suit…

There should be rules against parties using suits to disclose identities.

I support a high standard when it comes to unmasking anonymous speakers, but I do think speakers should be unmasked when there’s a valid invasion of privacy or defamation claim.

The Internet shouldn’t mean that people have unbridled freedom to do things they wouldn’t do before without repercussions. We have an unprecedented power to broadcast something to the entire world. Never before in history have you had the power to do this without the aid of the mainstream media.

The argument against that standard would be that you need the identity during discovery…

One element of defamation is malice. How can you show malice without knowing who the person is? If you don’t have the identity, you don’t have to show that element.

Alternatively, disclose the identity to the plaintiff, but do so under a protective order.

Ed. note: You can read more about Solove’s thoughts on the Skanks case at Concurring Opinions.

How did you get interested in privacy issues?

In law school in the 90s, I took one of the early Internet law classes with Jack Balkin. Back then, the Internet was just getting popular. There were lots of legal issues emerging and I knew that a lot would be happening with cyberlaw. I was very interested in constitutional law, the First and Fourth Amendments, but there are so many scholars already writing about that. But cyberlaw was still an open field with lots of theoretical questions to be explored.

At the time, privacy was an issue that no one was writing much about. So I sat down and read everything on it — which was possible at that time! — and then I wrote an article about it [in 1999; the piece, Privacy and Power: Computer Databases and Metaphors for Information Privacy, was published by the Stanford Law Review in 2001.] It took me a while to get it published, though the unpublished version helped me to secure a teaching position at Seton Hall.

Ed. note: To give a little biographical background, Dan graduated from Yale Law School in 1997. Then he clerked for Judge Stanley Sporkin on the U.S. District Court for the District of Columbia. Then he worked at Arnold & Porter in Washington, D.C., and then went back to clerking, for Judge Pamela Ann Rymer, on the Ninth Circuit. After During the second clerkship, he went onto the teaching market.

I started teaching a privacy law course at Seton Hall [in 2000]. I originally thought I would write that first article on privacy and then move on to other cyberlaw topics, but there were just more and more privacy issues to tackle. Aspen Publishing contacted me and asked me to work on a privacy law casebook. I continued writing more privacy articles…

All of a sudden, people considered me an expert in privacy. And the field just keeps expanding.

Is there a field — like privacy in the late 90s — that you’d point to today that prospective legal scholars could dive into and make their own?

I’m not as in touch with other fields now, so it’s hard for me to say. There’s still a lot in the field of privacy left unexplored. Until the 90s, privacy torts were mainly linked to defamation. They were covered in advanced torts class and maybe in First Amendment classes. Now, the field has really opened up.

Privacy is such a wide-ranging, amorphous concept that it can be hard to pin down. How do you choose what to focus on?

I just write about what’s interesting to me. The fight over ‘what privacy is’ is a bit of a sideshow. Having a concept of privacy is important, but I’m more enamored of a pragmatic philosophy. I look to John Dewey. We should look at the problems and start there, rather than looking at a broad abstract concept and proceeding from there.

I see this a lot in the law: the fact that a lot of times, if the court is deciding a Fourth Amendment issue and defines a very narrow concept of privacy, and if it’s somehow not privacy, it doesn’t deserve Fourth Amendment protection. But it is a problem and needs to be addressed even it doesn’t fall into privacy exactly. I wrote Understanding Privacy because we need to address these problems.

Like with surveillance. Being watched makes people feel ill at ease…. The law says surveillance is only prohibited when it invades privacy. And if you’re in public, there’s no protection against surveillance. But surveillance in public can be used to violate rights, like those of demonstrators. The narrow conception of privacy gets in the way of addressing real problems.

In the case of surveillance, the problems could be addressed by limiting retention of data or setting guidelines on how that surveillance data can be used.

Dan, you’ve told me you’re working on a novel this summer. Is this your first time delving into fiction writing?

Yes. It’s nice not to be doing legal writing. Last year, on a lark, I decided to give it a try.

Are you finding it harder or easier than your usual writing?

When I’m doing legal or academic writing, I know what I need to do for a successful article. I know the beginning and end, and can be a good self-critic. Plus, it’s much easier for me to publish that work with law reviews or academic presses.

With fiction, I’m not as certain it will be published and read. And my internal critic is not as strong. Is it good? Is it not? How do I know when it’s done?

But it’s liberating to imagine things, create characters, instead of making arguments and citing things. It’s nice just to write a scene.

Are you planning on incorporating or translating your ideas about privacy into your novel?

I actually didn’t want to do anything having to do with my field. I have other things to think about other than privacy. This fiction break wouldn’t have been as fun and as interesting [had I used it to tackle more privacy issues].

Dan Solove didn’t want to talk about the specifics of the novel, but described it as “mixed genre literary fantasy.”

Dan, thanks for indulging our fantasy — picking your brain about privacy issues. Good luck with the novel!

Can You Be Sued for Unmasking an Anonymous Blogger? [Concurring Opinions]
‘Skanks in NYC’ blogger plans $15 million lawsuit against Google [True/Slant]
Outed blogger Rosemary Port blames model Liskula Cohen for ‘skank’ stink [New York Daily News]