- The Washington Times - Thursday, August 2, 2001

Rep. Gary A. Condit could lose his job if some of his colleagues have their way. But the California Democrat has already lost his reputation, and the Internet has figured prominently in that.
As of last week, any Web surfer from Maryland to Mali could within 11 seconds begin retrieving 11,800 references to the congressman — and many are as blunt as one that begins, "Missing: Gary Condit's character "
But one particularly scurrilous Internet report about the lawmaker points to what many see as a serious and growing problem that the Internet presents — a flow of unbridled defamation.
The Condit article by NewsMax.com columnist and former Congressman John LeBoutillier ran for most of the day on July 13. It was a hearsay account, accusing the representative of sordid sexual activity and complicity in murder. The site's keepers ultimately killed the column.
However, lawyer David H. Peirez, a communications law specialist with the Garden City, N.Y., firm of Reisman, Peirez and Reisman, points out:
"Whatever you say on the Internet cannot be retracted by simply pulling it back. A book or newspaper can pull back — they can print a retraction that largely negates the insult or mistake. But put something on the Internet, and it's on for good. If I send you something, and you delete and trash it, it's still on the Internet somewhere."
So even as Rep. Bob Barr of Georgia and three other Republican lawmakers again called for Mr. Condit to resign, the damning Web posting was recirculating via e-mail, to be tucked in countless files and retransmitted at Web users' whims.
As an elected official and public figure linked to a news event, Mr. Condit's right to privacy is limited. Consequently, he would be less likely than an ordinary citizen to prevail in a libel suit. The point is, though, that as things now stand, the Internet leaves almost everyone vulnerable to similar, widely disseminated malice.
As many see it, that's an acceptable price for Internet freedom. Yet the cost can be high for victims, who rarely can identify their anonymous tormentors or seek restitution. Still, a few victims have obtained redress, and their cases show the nasty ways in which some use the Internet's freedom. For instance:
* Charles Neville of Kennebunkport, Maine, wrote an essay to the world, ranting about a woman with whom he claims he had sexual relations. He accused her of being a heavy drinker. He revealed personal details about her that he reportedly gathered by shadowing her and her family. Reporters who read the screed before it was finally removed said Mr. Neville proclaimed he was publishing it on the Internet because he knew it would cause the woman pain.
He reportedly wrote, "One of the things I particularly like is that neither of us will know who has read it."
Police did nothing about the Web posting. However, they charged Mr. Neville with stalking the woman.
* Jonathan R. Oppenheimer, a pathologist, adopted the name "fbiinformant" and posted messages on the Yahoo message board accusing Dr. Sam D. Graham Jr., then chairman of the Emory University School of Medicine's urology department, of accepting kickbacks from a urology company. Dr. Graham subsequently gave up that post. He eventually was able to clear his name and won a $675,000 award from Dr. Oppenheimer. It was the first libel victory against someone who anonymously posted defamatory statements on the Internet. Tracking down Dr. Oppenheimer took more than eight months.
* Teen-ager Ian Lake of Milford, Utah, claimed in vulgar, obscenity-filled Internet postings that certain girls in his class were "sluts," that one school official was "the town drunk," and that certain faculty members were incompetent. Police arrested the youth on charges of criminal libel. It was the first case of criminal libel involving the Internet in Utah history. The boy's case is wending its way through Utah's courts.
"Any freedom can be abused, and will be. There is more of everything on the Internet. More bad speech, more good speech, more persons with no special expertise writing on topics they know nothing about. But crafting laws that rule out abuse while allowing freedom is hard," says Harvard Law School professor John Zittrain.
Lawyer David Post, a professor at Temple University Law School, concurs and adds: "We're now seeing a complicated social phenomenon of some significance. There are differences between the Internet and other media, and we are now discovering what those differences are. The courts are wrestling with this slowly. I can't say the courts recognize the differences yet."
The difference lies in the accessibility the lnternet provides an estimated 110,825,000 users in the United States and 89,012,000 in the rest of the world to publish their words. Their audience is worldwide and, if the writers choose to, they can conceal their identity. There are special software programs that guard the messages of con men, malcontents, molesters and vindictive scribblers whose words are available 24 hours a day.
Never before have so many had such license. As Mr. Zittrain puts it: "Apart from the Internet, there is a middleman filtering the information presented to the masses. There is a newspaper or a CBS News with middlemen who know what they are doing and know about libel laws. You don't have open mike night on CBS News."
Mr. Post, Temple University's Internet law specialist, served as local defense counsel for Web columnist Matt Drudge, who was sued by former White House aide Sidney Blumenthal for $30 million. Mr. Blumenthal dropped the suit after Mr. Drudge apologized for an unsubstantiated and false report that Mr. Blumenthal is a wife beater.
But the suit raised what lawyers insist is a vitally important and groundbreaking issue.
Mr. Blumenthal and his wife, Jacqueline, had included in their suit charges against America Online (AOL), which presented the Drudge column. AOL argued it was not liable because it does not act as a publisher and did not edit the Drudge article. It merely presented the writing.
A federal judge agreed. In fact, federal law spares these Internet service providers (ISPs) from culpability when people use their service to publish defamatory statements.
By contrast, if this newspaper were to publish an article considered libelous, both the paper and the easily identified author could — and probably would — be sued. The same material published on the Internet leaves only the typically anonymous author liable.
And typically the author of an Internet posting can be determined only with the cooperation of the ISP, and ISPs are increasingly loath to cooperate.
"Besides, the authors are likely to be judgment-proof — unlike a large newspaper or publisher, they don't have much money. And they may be far away," says Mr. Zittrain.
Mr. Peirez, the Garden City lawyer, puts it this way: "What good does it do if the culprit is a 20-year-old, unemployed bagel salesman? There's no money there."
"As an attorney, I see this as a loophole. I believe you protect people's freedom to say bad things until it becomes defamation, but then you treat it as you treat defamation in all other media. We should rethink laws that protect Internet service providers," says Kimberlianne Podlas, an Internet law professor at Bryant College in Smithfield, R.I.
But some think even that statement is malicious. The nonprofit Center for Democracy and Technology, for example, calls for an "open user-controlled" Internet and for the "free flow of [Internet] information." Such groups as the Electronic Frontier Foundation and the American Civil Liberties Union are working to keep Internet users' names private. Yet these groups, too, could become cyber-assault victims.
As Mr. Zittrain asks: "The technologies that allow subversive speech to get into China also allow stock manipulation in the United States and the proliferation of derogatory statements. But is the damage to be caused an argument for more control?"

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