Is this justified, or a threat to free speech?

[The Romulan Republic]

I just found out (via email) about a debate involving York University in Toronto (my university though I'm not currently their), specifically involving the administration's getting court orders to require Google and other companies to turn over information on the identities of faculty members sending anonymous emails criticizing the university administration. Here are a couple of links, I've quoted the text of the first one below.


http://www.thevarsity.ca/article/19848

http://www.nationalpost.com/story.html?id=1985798

Following court orders, Google Inc., along with telecommunications giants Rogers and Bell Canada, has handed over the IP addresses and customer information of several York faculty members who anonymously sent out emails accusing the university of academic fraud.

The legal action took place after York President Mamdouth Shoukri announced Martin Singer as the first dean of the university’s newly formed Faculty of Liberal Arts & Professional Studies in January, calling him a “renowned scholar of Chinese history.” Several faculty members were quick to point out that this claim was fraudulent and that Singer’s academic record was spotty at best.

Singer, who worked as a professor and administrator at Concordia University for over 30 years, has said that he has not called himself a renowned scholar.

“As for the poor choice of words, I’m responsible for what’s written in YFile,” Berton Woodward, York’s publications director, told The Varsity in a previous interview. Shoukri and Singer denied accountability for the misleading claim.

David Noble, a history professor at York and the outspoken representative of the group York Faculty Concerned About the Future of York University, insists that both Shoukri and Singer were aware of the misleading remarks and should be reprimanded.

Disgruntled faculty members formed the group and used a Gmail account to send the emails. After Noble refused demands from York to reveal the names of the others involved in the group, York won a court order forcing Google to list the IP addresses of those who accessed the account.

Rogers Communications and Bell Canada were named as the Internet service providers of the identified IP addresses. In August, York then got a court order compelling the two companies to hand over customers’ contact information. Both Rogers and Bell complied without notable objection.

“What they [York admin] are doing is, they’re establishing a precedent: going after people’s emails,” said Noble. “At York, people say, ‘I’m not going to use the York email because that’s being monitored, so they set up something else, like a Gmail or Hotmail or something like that. What this [legal action] means is that’s not good enough either because [York admin] are going to try and go after that too.”

York claims that Noble’s group goes beyond free speech and that its comments are damaging to the institution.

“Academics enjoy quite extensive latitude in what they say and what they write and what they research at Canadian universities but I would say this about any of us: The right of free speech is not unlimited,” said Will McDowell, a lawyer representing York, to the National Post.

The costs associated with York’s legal actions have not been disclosed. McDowell is a partner at a Bay Street law firm Lenczner Slaght.

“They’re just grasping at straws,” responded Noble. He pointed out that York’s court proceedings come as the university is making budget cuts across the board.

York has not declared its next course of action, but further litigation is possible. The administration could not be reached for comment.

I'm not quite sure what to make of this. Is this an acceptable limit on free speech as the University claims, or not? Also, while this story obviously has some personal significance for me, I have put it here rather than in Off-Topic because it is newsworthy and has political ramifications. I hope this was appropriate.

Edit: changed title because its wording was kind of similar to a quote in the other article, and I didn't want it to look like I was using someone else's words, if inadvertantly.

[Edi]

I don't know what kind of regulations cover handing over telecommunications data in Canada, but anybody who tried a suit like that here on the grounds presented in the article would end up as the target of a criminal investigation related to at least three or four offenses I can think of out of hand.

It'd be one thing to monitor their own emails, but it is hard to see how there is any grounds to go after unaffiliated ISPs. Of course, I'd need to see the relevant laws first, but if this was legal, somebody had their head up their arse when they were written.

[Rogue 9]

Of course it's a threat to free speech. Such a suit would never succeed under U.S. law, and whether or not the university can even legally punish the faculty members depends on whether it is a private or public institution; the latter is bound by the same rules under the Constitution as any other government agency and may not infringe free speech. Since it's a Canadian institution I don't know what laws and legal rights may or may not apply, but in my view punishing the professors for speaking out is a grossly unethical breach of free expression and academic freedom regardless of the legality of the matter.

[ThomasP]

Ars had an article on this very matter just the other day. Apparently this is an issue in the US as well:

You're anonymous when you post comments online—except when you're not. Though many Internet users still believe that their identities are as hidden as they choose to make them, online anonymity is not always guaranteed and, in fact, there's no way to stay truly anonymous. There is always a company somewhere that has information that can be traced back to you, whether it's Google or your ISP, and judges have shown themselves willing to issue subpoenas to unmask anonymous posters.

But what determines whether or not you will be unmasked? Unfortunately, it's hard to say—there is no black-and-white line to be crossed. There is, however, a gray area that you could find yourself in if you do the wrong things.

Really piss people off

The first step to getting yourself unmasked online is obvious enough: give someone a reason to go after you by being as obnoxious and offensive as possible in a series of online comments, whether on your own blog or on a forum, or everywhere in between. Of course, being offensive isn't against the law, and is actually protected by the First Amendment as free speech. However, the more attention you draw to yourself in this manner, the more likely it is that someone you're targeting will attempt to sue you.

It's what you do next that could determine whether you are walking directly into the gray zone or not.

Fail to file an objection

"The civil system is set up by default to allow for the disclosure of information," Electronic Frontier Foundation staff attorney Matt Zimmerman told Ars. "By default, unless someone objects to a specific request for info, someone's identity is most likely to be disclosed."

In a civil lawsuit, a litigant is often allowed to send out subpoenas in the name of the court—without the court's prior approval—to Google, Yahoo, or wherever in order to request information about someone, Zimmerman explained. This can even be done before filing a lawsuit in some states, and some entities use it as a way to find out who their detractors are without ever drawing up a complaint. If the accused user doesn't file an objection within some period of time (Google's is 20 days), the company will usually go ahead and turn that information over.

One of the highest profile examples of this is a recent case that pitted a former Vogue model against an anonymous blogger posting on a site called "Skanks of NYC." The blogger made numerous posts about the model in question, which the model (Liskula Cohen) argued were defamation—she alleged that she was decidedly not a skank and that the statements were meant to ruin her reputation.

In August, the court agreed that the posts could be found by a jury as defamatory and gave the green light to subpoena Google for the identity of the blogger, Rosemary Port. Port turned out to be a loose acquaintance of Cohen's who had been to various parties with the model around NYC and apparently had an axe to grind. Since then, this case has become even more controversial, as Port has talked about suing Google for compromising her privacy and otherwise ruining her life. Zimmerman didn't seem to believe she would have a case, though. "If that blogger wanted to appeal the decision to subpoena her identity, she could have," he said. "I don't know why she didn't."

Of course, the onus isn't entirely on the person being sued if they fail to respond to the subpoena. Zimmerman noted that many service providers (Google included) will send a notification to the user's e-mail address, only for it to end up in a spam folder or not get noticed for weeks. And often, the person receiving the notice don't know what to do and doesn't have the resources to object, leaving them stuck with no response at all. Zimmerman said that it's not surprising that the threat of a lawsuit or being outed might chill speech for those who don't have the legal know-how to oppose these subpoenas.
Seriously: make 'em work

If you do file the objection, the court will be forced to ask whether the complaint alleges something that is actionable and whether the information is absolutely necessary for the case. Luckily for you, the courts have often sided with anonymous posters in these cases, such as a case involving anonymous donut shop critics, a blogger critical of a local police department, and a blog commenter who targeted a Massachusetts real estate developer. In these situations, the judge felt that these commenters were acting within their free speech rights, and the ultimate decision was that the commenters were protected by the First Amendment.

Another judge in California recently acknowledged that there may be some scenario in which unmasking commenters is OK, but that the litigant would have to jump through some extra hoops to get the information. Police officer Calvin Chang had previously settled a lawsuit with UC Davis over race and sexual orientation discrimination, but believed that recent comments on the Vanguard of Davis blog may have been from university insiders attempting to discredit him—a breach of the settlement he had reached with the university.

Chang attempted to subpoena to have the commenters identified, but the judge did not immediately go along with it. Instead, she ruled that Chang could hire an investigator to find out whether the commenters were "managing agents of the university." If they are, then they would indeed be in breach of Chang's settlement and the judge will permit their identities to be revealed so that he could pursue further action.

Of course, the only way to truly avoid being outed and sued is to avoid saying controversial things online in the first place, but that goes against the open spirit of the Internet. "You don't get to pick and choose whose speech is important and whose isn't," Zimmerman said. Unless litigants have a legitimate need for people's personal information to go forward with a lawsuit, it's worth fighting back to not only protect your own rights, but the rights of others online as well.

It looks like this is a matter that's still looking for resolution everywhere.

My personal outlook is that this is a bad, bad precedent to set, given that this isn't a criminal issue, but it will be interesting to see what the courts decide.

[The Romulan Republic]

Of course it's a threat to free speech. Such a suit would never succeed under U.S. law, and whether or not the university can even legally punish the faculty members depends on whether it is a private or public institution; the latter is bound by the same rules under the Constitution as any other government agency and may not infringe free speech.

Yeah, I thought this sounded bad, but since I don't know all the relevant laws very well or all the circumstances surrounding the case (I only heard about this last night), I didn't want to assume anything.

Since it's a Canadian institution I don't know what laws and legal rights may or may not apply, but in my view punishing the professors for speaking out is a grossly unethical breach of free expression and academic freedom regardless of the legality of the matter.

Keep in mind that to the best of my knowledge, no one's been "punished" yet (though the universtiy appears to be considering litigation according to the articles).

This really pisses me off though, because a scandle that calls into question both freedom of expression and academic integrity at York is the last thing they need right on the heals of their epic months-long strike last year. Why do I wonder if the university I've already sunk thousands of dollars into is about to become a complete joke?

[Rogue 9]

If the university doesn't plan on taking action against the professors, why go to all that trouble to uncover who they are? No, lawsuits and/or firings are coming on the heels of this.

[Solauren]

Rogue 9 is right, but wrong.

No one is going to get fired over this, however...

#1 - The school could decide not to renew the teacher's contracts when they expire.

Also, they could view this as a "poisoning" the work environment and want to take steps to remind everyone that's not acceptable

They could also view these as semi-legitimate greviances, and want to speak to the posters to hear them out properly to address the problems.