 In 2019, Jeff Kossoff published the 26 words that created the Internet, the definitive biography of the controversial law known as Section 230, part of the 1996 Communications Decency Act. Section 230 grants broad immunity to websites and internet service providers from legal actions based on user-generated content. Section 230 is the law that enabled the participatory nature of the web, from YouTube videos to Yelp reviews to basically all of Twitter and Facebook. It's the reason why reason can't be sued for libelous or defamatory content posted in our comments section, though the authors of such comments can be. Now Kossoff, who teaches cybersecurity law at the United States Naval Academy, is back with the United States of Anonymous, how the First Amendment shaped online speech. His new book looks at the history of and controversy surrounding anonymous speech, activism, and more. Before becoming a law professor, Kossoff worked as a journalist at the Oregonian, where he was a finalist for a Pulitzer Prize and the winner of a George Polk Award. I talk with him about why he thinks anonymous speech is generally a good thing, but getting harder to maintain. Why Democrats and Republicans alike keep freaking out over Section 230, and how his past as a journalist informs his interest in protecting freedom of speech and assembly. Here's the reason interview with Jeff Kossoff. Jeff Kossoff, thanks for talking with me. Thanks for having me. So, you know, let's start with the elevator pitch for the United States of Anonymous. Yeah, so I wrote this book because we've had a lot of focus in recent years on various issues related to free speech, including misinformation and Section 230. And one area that I feel has not been adequately addressed is the ability of people, particularly in marginalized groups to be able to speak without having the repercussions of their real name being associated with that speech. And so it seemed like an odd enough concept for me to spend a few years researching. And what I found was that the right to speak anonymously online, while not absolute, is very strong, and it's tied to a history that goes back to the founding of our country. So this book really explores the values that our country has placed on anonymity and how the law has incorporated it. Yeah, you know, and it's funny, if you're of a certain vintage as I am, you know, I remember AOL, I remember AOL, I could stop right there, but the actual selling point of AOL as the internet and kind of email and, you know, the web became a thing, one great thing about AOL was that you picked a stupid name that was anonymous, it was a tag, and they were actually quite good about protecting the anonymity of their users, as opposed to CompuServe and Prodigy, the other two popular commercial services that gave people kind of access to the internet. We're going to talk about AOL and anonymity in a bit, but let's start with, you know, just anonymous speech in America, particularly in, you know, the colonial period and the early or, you know, the pre-Republic period. You know, there's a couple of very famous cases of anonymous speech being super important to what we call the United States. Talk a little bit about that and, you know, the Federalist Papers and, you know, what it meant to be able to have the right to speak pseudonymously or anonymously. So the majority of the really controversial political writings in the pre-revolutionary period was published anonymously or pseudonymously, primarily. There were all of these very colorful pen names or people just would not sign any names to them at all. And there were a variety of reasons. In part, it was just to protect the individual's safety and protect from any legal or criminal threats at the time. Other aspects were to protect their jobs and also really to distance their identities from their speech, because the identity of someone who even was in power or had a powerful position might perhaps taint the message that they're trying to get out because there's baggage that's associated with their identity. So they wanted to set up an identity like a farmer from Pennsylvania rather than a lawyer who has been active in politics. Thomas Payne, he signed Common Sense as written by an Englishman. And there were varying levels of anonymity. Some people, it was speculated that they were the authors. Other people, even to this day, we don't know. We might have a narrow group of people who are the authors to ratify the Constitution. For example, Hamilton, Madison, and Jay wrote the Federalist Papers, but they signed it as Publius, a Roman ruler from 500 BC. And there was a close group of people with whom they shared that they were the authors, and there was a lot of speculation. But at least for right at the time, there were a lot of readers who did not know. And the idea was that these arguments had a different effect than coming from these three very prominent political leaders. Can I ask about that? Because it's a double-edged sword, and you kind of talk about this. So on the one hand, if it's Alexander Hamilton talking, and obviously he's more famous now because of the play than he was perhaps in colonial or pre-Revolution or pre-Constitution America. But it's one thing if it's coming from a political partisan, and that also, if that person has a good reputation, that will help sell the argument. But it also might make people peel away. Is it that use it beyond all the safety concerns using a pseudonym kind of forces people to look at the argument, rather than it arguing from authority? It does. And that's why a pseudonym is so important because it's a persistent identifier that can stay with someone. And even on the internet today, there are people who post under pseudonyms, and I don't know who they actually are, but they might have a reputation for being very thoughtful. There are sometimes when the lack of a real name might reduce the credibility of an argument, but that's really up to the marketplace of ideas, that it's up to the reader to decide how much credibility do we want to invest in what this particular person is saying. And it's kind of nice. I'm a libertarian. I like having choices, so it's kind of nice to have the choice of either going with, okay, here I'm bringing the accrued, whatever the accrued currency and value of my reputation to bear by signing my name, or I'm going to publish it anonymously. So maybe people will take it in a different way. Were there trolls, or can you talk about when I think what a lot of people think about anonymous speech on the internet right now? It's always like Power Glute 69, or I remember Mark Foley barely remembered Congressman who was largely responsible for giving the Democrats the majority of Congress in 2006, because he was involved in a sex scandal. His AOL Instant Messenger handle was MAF 54, but are there, where there are good troll names back in the days of kind of a pseudonymous journalism? They were different. The names themselves, some of them were very colorful, perhaps not as explicit as some of the more modern pseudonyms online, but there definitely were trolls. I start the book actually with someone I refer to as the OG troll, which is Junius in England. I mean, he was a great troll. And to this day, we don't have a definitive consensus as to who he is. There's a lot of speculation as to one person, but he basically trolled the king, he trolled the prime minister until he resigned, and he was very effective. And when I read a lot of these days about how civility with online speech has gone down the toilet, and how we've never or cable news or whatever the panic of the day is, I've spent so much of the past few years immersed in things like Junius and these colonial newspapers, which were better written, but also were just far more cutting than what you typically see online today. So I don't necessarily think that trolling or a lack of civility is a new trend. Yeah. So to the extent that people learn about the federalist papers outside of law school or something like that, we know this was great because they were important and they made arguments in order to justify the ratification of the Constitution. I realize there's an academic debate about their actual effectiveness in that, but everybody loves an anonymous truth teller when they kind of agree with the truth that those people are telling. What in 19th century America, you know, we get through the revolution, the Constitution said even the, you know, the War of 1812, what was the attitude to the people in power towards anonymous speech or pseudonymous speech? Were they like, well, you know what, this is part of being an American, so we're going to put up with it? Or were they constantly trying to clip it and unmask people and punish them? In the 19th century, there wasn't as much of an attempt to unmask people. It was actually more just focused on bringing things like sedition charges against publishers of newspapers, even if some of the things they published were anonymous. There were varying reactions to it, but it really, it was all, it was so prevalent that the idea of pseudonymous speech at the time and someone who's actually captured it probably better than anyone else that I've read has been Justice Thomas because he is an originalist when he looks at whether we have a right to anonymous speech. And this is where he differed sharply from Justice Scalia. He did, in a few opinions, very thorough analyses of what it was like at the time of the nation's founding in terms of anonymous speech. And he said it was so prevalent that you can't read freedom of the press and not think that part of that freedom is the freedom to be anonymous because it was just all over the place at the time. Yeah, Justice Thomas, Clarence Thomas is kind of one of the heroes of this book. I have no idea how you feel about his overall jurisprudence, but he is remarkably good on this question of giving a right to or insisting on rights to anonymous speech. Where is that coming from, his originalism? Does it come from one of the themes that goes through this book? And you talk about cases where the NAACP, among others, pushed to have their membership committees or their membership roles kept secret, partly because being outed in Alabama basically any time until relatively recently, that was kind of like if not a death warrant, it puts you under attack. Is that does that inform Thomas's appreciation for anonymity, do you think? No, that informed the liberal justices with whom he joined and to form majorities, that informed their views in terms of the benefits of being anonymous. They really looked at what the virtues of anonymity are. Justice Thomas would write separately and say, I agree with the outcome, but all of this is nonsense. That's not what we look at. What we look at is what did freedom of speech and of the press mean at the time the Constitution was written, and that's all we look at. And Justice Scalia, who took the same approach to constitutional interpretation, applied that same framework, but he came out entirely differently. And he said, no, there's nothing about being anonymous in the First Amendment. And so they both applied originalism but came to a different conclusion. Justice Scalia, he also in some of his writings, it was very clear that he just had a real distaste for anonymous speech and he didn't see much value in why anyone would want to be anonymous. But for Justice Thomas, he said, that makes no difference. What I care about is what these words mean, and I can't see how it wouldn't mean anonymity. You spend a lot of time talking about two cases, Tally v. California and McIntyre versus Ohio Board of Elections, which helped to establish the right to distribute anonymous speech in specifically political contexts. And this is always amazing. As much as one can be a free speech absolutist, I am. I don't think that commercial speech or artistic speech should be accorded less freedom than political speech. And I realize all these categories are kind of hard to disentangle. But for most of the existence of the U.S., people were willing to say, well, commercial speech is not as protected as political speech. But Tally v. California, McIntyre v. Ohio Board of Elections are specifically about anonymous political speech in a political context. Can you talk about them and why they are so important? Sure. So the Tally case, it was a little broader. Because for Tally, it was in 1956, or the events happened in 1958, I believe, where there was a man named Manuel Tally who was a fairly prominent civil rights activist in Los Angeles. And he was distributing handbills outside of a grocery store in Los Angeles urging a boycott because he said that grocery store purchased goods from companies that discriminated in their employment practices. So there was a long list of the types of products that he believed were purchased from these companies. And at the bottom of the pamphlet, he listed his group's name and address, but it did not have his name on it. And there was an ordinance at the time in Los Angeles that was not just restricted to political pamphlets. It said, for any pamphlet that's held or a handbill that's handed out in public, you need to list the author of the handbill. And interestingly, that grocery store also handed out handbills at the same corner. And they did not list the author of their handbill. But only one of them got fined and charged by the LAPD. And of course, that was Manuel Tally. He challenges this all the way. It's a $10 fine. He challenges it all the way up to the Supreme Court. And the Supreme Court in a six to three decision says that this ordinance is facially unconstitutional, because we have this longstanding tradition of anonymous speech going back to the Federalist Papers, to Thomas Paine, to Junius. And we, and by imposing an identification requirement, you are effectively censoring and chilling a wide swath of speech. Is it fair to say that was the intention of the ordinance? It's not clear. The record was, I was able to get actually his trial transcript, but it was at a municipal court. And the judge basically just said, I'm going to have to throw it up to the higher courts. I'm not qualified to make these sorts of judgments. So it's really that that wasn't as much argued. But I mean, it clearly was not uniformly enforced because you had stores that were handing out these flyers without people's names. But when you have a civil rights activist, then he gets cited for a violation. So at least in enforcement, there's some problems. Yeah. And then what about McIntyre v Ohio Board of Elections? This was settled in 1995. And for the old timers out there, I wrote about this a couple of years into starting market reason. And I remember just being gobsmacked that this could even be a case because the facts of it seem so ridiculous. Would you explain, you know, what McIntyre versus Ohio Board of Elections talk about? Sure. So Margaret McIntyre, she lived in a suburban town in Ohio, and she very much disagreed with a proposal for a school referendum that would increase taxes. So she made photocopies of flyers that she was going to hand out at various school board meetings, explaining why the why the tax was unfair and why people should vote no. And there was an Ohio law at the time that said you needed to include the name of the author of a hand bill if it's involving any sort of ballot initiative or anything political. It was something actually political. It's like, yeah. Yeah. Yeah. So it was restricted. It was something enforced by the Ohio Elections Commission. So porn porn could be anonymous or, you know, but not a bill saying like don't vote for this school board increase. Yeah. With the idea that the justification is that we want to inform voters and we don't want all sorts of confusion about who is sending a message out. Right. And she actually tries to comply with it and she puts her name on the hand bills, but she made photocopies and some of the photocopies cut off her name. So they weren't on some of them. Now, unfortunately, one of the hand bills that she was handing out at a school board meeting was spotted by the assistant superintendent of schools who very much opposed her saying that she don't want people to raise taxes for the schools. So he sees this flyer doesn't have her name on it. He reports her to the Ohio Elections Commission and they hold a hearing and they issue a fine and she very much she wants to take up the cause that this requirement is unconstitutional based on manual tally and other Supreme Court precedent like the NAACP cases you talked about. So she challenges this and it goes through three different court systems in Ohio. It gets reversed and then affirmed and it ends up going to the Supreme Court, the U.S. Supreme Court. She dies in the interim, but the Supreme Court lets her husband take up the case for her and the Supreme Court finds that for many of the same reasons in that manual tally won his case that Margaret McIntyre also wins her case because this law is unconstitutional and the court better clarifies the right to anonymous speech that it's not absolute. They apply a standard called exacting scrutiny which has had some controversy over the years because it's kind of like, oh, we'll just make up, we'll have a standard that's kind of like strict scrutiny but not really. But Justice Ginsburg writes separately to say she agrees that it's unconstitutional but she says, well, there might be some circumstances in the future where this right does not overcome the real needs of the government and Justice Thomas actually writes separately, this is his most extensive writing on anonymous speech where he concurs but he basically argues for much stronger protections and he says, you know, this is how I see the First Amendment reading and it shouldn't be this weird societal balancing test, it should be we have a right to speak anonymously and that really helps to reaffirm the tally precedent and really emphasize that even in a political context we have a right to be anonymous. Now, Justice Ginsburg's caution, I think, was basically left the door open for what the court would do over the next 15 or so years which would be in a number of campaign finance related cases even in a case like Citizens United which expanded the ability of for expenditures, they did affirm a number in Citizens United in the McConnell case involving McCain-Vangold, the Supreme Court did affirm the ability for the government to impose campaign finance disclosure requirements. Yeah, that's why at the end of every ad, whoever is doing it, they either have to say who it is or if it's a candidate, they have to say that they endorse this statement or whatever. Yes and for expenditures and disclosures and donations and Justice Thomas has in a number of these cases has dissented and he's said, you know, this is not consistent with what we said in the McIntyre case and I think he has a point. Yeah, I think it is difficult to reconcile. Yeah, how do you feel about that because a big part of the power of the argument for anonymity is that when you are speaking truth to power, you know, you are putting yourself out there and being anonymous gives you protection not necessarily to speak, you know, untruths but rather so that you will actually engage in speech. I know there was a case, I guess this was in the 90s, I believe in California, where a couple of people decided to try and unseat the speaker, the California State Senate, I believe they were total rubes when it came to organizing a political campaign. So they did not file a bunch of laws like where you have to have disclosure and you have to have an address and, you know, and, you know, of the people who give because it's got to come from a certain area and things like that. They did not recall the politician they wanted they failed and then they got slammed with the highest fines in California state history for election problems. I mean, that kind of exemplifies why you don't really want disclosure laws, right? Yeah, and I think that's right. And I also think that in a case that went up to the Supreme Court about a decade ago, again, where Justice Thomas dissented over the majority, where they said that you can allow the disclosure, the public disclosure of people who signed ballot referendum petitions. How do you feel about that? I mean, I see the arguments on both sides for it. I do feel that I do worry that it has a chilling effect because even signing I think does have an expressive component and I worry that particularly for controversial issues where someone might have ramifications on their employment, I think that there are valid reasons for that. So I think that's a closer call. Yeah, but it's also true. And, you know, I think I can argue this either way that it's also true if you sign something that is kind of a public statement. And, you know, why shouldn't we know who's, you know, who supports something or who doesn't. I know there was the big case, and this is going back years now, Brendan Eich, who was a programmer who was involved with the Mozilla Firefox Foundation. He was named the head of Mozilla Firefox for about 15 minutes until it came out that he had signed an anti-gay marriage proposition and he got cashiered. And it's kind of an interesting question, right? Because should he, I guess there's many questions there, should he be able to do that anonymously? But then it's also like if you're counting signatures in order to get something on the ballot, they have to be valid signatures. So you need to know who signed it so you can check them. But then, you know, the question of can it be made public, it's probably gonna be, right? Just because we're in an age of forced transparency to begin with. And then finally, there's that larger question of let's say he did it, everybody knows it, should people get fired for that kind of stuff? That's also a kind of thorny issue as well. Sure. What about, you know, let's talk a little bit about the right to anonymous association because, you know, the NAACP sued the state of Alabama to keep its list of members or donor secret. And did they won that, right? Yeah. So that was a case where this was sort of right in the few years after Brown versus Board of Education, you had the NAACP working in Alabama very vigorously amid a tremendous number of obstacles to desegregate schools and implement other civil rights measures and not surprisingly, a number of Alabama state officials very much opposed all of the NAACP's efforts. And there was a segregationist attorney general who went on to become governor. And he thought he found a way to basically shut down the NAACP. And that was that they had not complied with this pretty arcane corporation registration requirement for the state. The NAACP didn't think that they needed to because they were not based in Alabama, but they in fact did. An easy way to solve this would be to have them fill out the proper paperwork and maybe pay a small fine. But Alabama sued the NAACP to get them to shut down their operations. And then on top of that, as part of the discovery in this case, the state requested a membership list of everyone in Alabama who's an NAACP member, which is completely irrelevant to whether they registered as a corporation. But unfortunately, the judge in the case was a man named Walter Jones who actually also was the trial court judge in New York Times for Sullivan. And he was a white supremacist. He wrote, and I'm not using that term lightly, he wrote newspaper columns titled, I Speak for the White Race. And so he also very much did not want the NAACP to be operating. And so he both temporarily ordered NAACP to shut down its operations in the state and also required the NAACP to provide its membership list. And the NAACP went to the Supreme Court. They tried the Alabama Supreme Court, but not surprisingly that did not help them very much. So they go to the US Supreme Court. And they said that there's a right to associate anonymously. And they gave very good reasons of saying there's actual evidence that members will have threats to their safety if we just give the state a list of everyone who's a member. And the US Supreme Court unanimously found that there is this right to associate and part of that in the First Amendment and part of that freedom of association is the freedom to associate anonymously. And this was really the first case where the Supreme Court, this was two years before Tally's case. So this was the first case where the Supreme Court really recognized a strong right to be anonymous. You also write about cases though where that becomes inverted. And it's Ku Klux Klan or white supremacist groups that are now suing to keep their list secret or to be able to associate anonymously. It seems like from a principal point of view, it's like you got to go, yeah, you don't have to, the state should never be able, I guess, except for if they have a criminal warrant or a warrant that has gone through a legal procedure where that information is necessary, people shouldn't really have to divulge membership lists. Is that accurate? Well, so the courts have come out both ways. There have been a number of cases involving the Ku Klux Klan. And this is because a number of state and local governments have passed anti-mask laws, nothing having to do with the COVID debate. It's about 100 years old, a lot of these laws, some even more, that say you can't wear a mask to conceal your identity in a public place. They vary in what they actually require. But some judges have looked at these laws and said, no, they're violations of the right to be anonymous. And I read through the records of a number of these cases, a lot of them were in the 90s. And there was something pretty chilling about the Ku Klux Klan's citing precedent that the NAACP created. But then what really struck me, and this really stayed with me more than most of the other things that I found in the book was there was a case involving a regulation that Giuliani's NYPD, when he was mayor in the late 90s, tried to enforce an anti-mask law, where they basically tried to get the Klan to not do a rally in New York by saying, we're going to enforce our anti-mask law. And the Klan challenged this kind of in a last minute proceeding. And so I was able to find all the briefs that were filed. And I was looking through and I saw a national action network, which is Al Sharpton's group. And I just immediately assumed that this would be something saying, we don't want the Ku Klux Klan to come to New York, because that would be logical. The Ku Klux Klan is kind of antithetical to everything that Al Sharpton stands for. But Al Sharpton's brief, it's actually a very very, very powerful brief that says we detest everything the Klan stands for. But we support them in this case, because if you're able to violate their First Amendment rights, and such a fundamental right, you'll also be able to violate our First Amendment rights. And I found that such an intellectually honest and powerful statement. And I'd imagine that at the time it was perhaps not the most politically popular stance for him to take. But I think that really demonstrated the power of anonymous speech for groups that otherwise wouldn't have a voice, that he would go to those lengths to side with the Ku Klux Klan in that case. Part of the book talks about, from a legal perspective, a virtually no right is absolute. So there is always some kind of balancing act going on. Do you think that things like anti-masking laws, do they ever serve a useful function that you would say, yeah, yeah, we really shouldn't allow this kind of event or this group of people to be able to show up covering their, you know, their identity? Yeah, I mean, I think that it really depends. And I think that there are good arguments, even for anti-mask laws, that the police in the Giuliani case, they said, you know, it makes it really difficult to maintain public order when you have people running around in masks, you can't see who they are. I don't think they provided enough evidence that this difficulty overcame the right to be anonymous. But there are valid justifications. It's not all just sort of like 1950s Alabama state officials who are trying to suppress the NAACP. I mean, there's offline, and especially when you get to online, there are some very valid reasons why you would need to unmask someone. Yeah. And well, let's kind of talk about online stuff, because that seems to be where, you know, most of the worst kind of speech, you know, where speech is much more likely to be anonymous or pseudonymous or harder to track, but also where a lot of the most intense stuff is going on. What are the decisions governing anonymity in terms of comments and user identities online? And how if you could start with the earlier days, you talk a lot about like Yahoo Finance message boards, which at one time could, you know, could make or break companies, this move markets, the Yahoo Finance boards, not so much anymore. But what was going on there that is, you know, really kind of paradigmatic about the issue of anonymous speech and anonymous association. Yeah, it's hard to even state how influential the Yahoo Finance boards were. And I was, I had started as a business journalist in 2001. So I kind of caught the talent of this, but it really started in the mid to late 90s, when Yahoo Finance set up and they had a bulletin board for pretty much every publicly traded company. And people could go on and create a pseudonym Yahoo would ask for your email address, but it didn't have to be a real one. And they would log your IP address, which is a unique string of numbers associated with your internet connection. Yeah, and it kind of, it's kind of an identifier, but it's not, you know, it's it's about as good as a social security number in the sense that it, it's, you know, can be forged or it can be very inexact about linking to the particular person who's speaking. Yeah, I mean, I could tell you right now, if I go and look at my my available Wi-Fi connections at my house, I see some neighbors who have unsecured Wi-Fi connections, which I think is insane in this day and age. But you know, that used to be that used to be considered good etiquette, right? Everyone networking first came out. You were only dicks like would secure their network because the idea was that, you know, the the traveling hobo is going to need an internet hookup. But yeah, yeah. So that's what Yahoo would collect. And the reason why Yahoo was so influential at the time was because corporate executives are pretty thin skinned. And that's, I think you're going to need some citations for that. Well, I can say it from my time as a business reporter that corporate executives are very thin skinned. But when I would write an article about them, they would usually, my editor got tired of getting complaints from the executives, but they knew who to call and they knew who to get angry at. But Yahoo Finance was different because they would get much more cutting criticism. A lot of it is very informed. Some of it is pretty clear that it's coming or a lot of it was pretty clear that it was coming from people who worked at the companies. And what was maddening to them is they didn't know who was doing it. And they because, and they weren't used to that sort of criticism. They were used to just operating their business and employees would stay in line. But now their employees were going on the internet and broadcasting to the world why the company was not properly functioning. So the company, the executives at a lot of these companies from big and small, from small startups all the way up to Raytheon, what they started doing in the late 90s and early 2000s was they would try to use the legal system to figure out who these people work. So it was a multi step process. They would first have to file a lawsuit. It was typically some pretty weak defamation lawsuit or a lawsuit alleging that these employees violated their confidentiality agreement, something like that. Although, even without knowing for sure that it was one of their employees. Yeah, that's part of the reason why it's so weak to say you violated an agreement that we think you signed. We don't know if you signed it because we don't know who you are. And they would then they'd file it against John Doe's one to 20 and sometimes they'd file it against their often pretty bizarre usernames. And then as part of the early discovery in the case, they would issue a subpoena first to Yahoo and say we want every all the information you have about these posters. And some of the times Yahoo would be and Yahoo at first, they did not give any notification to the users that their information was subpoena. There was no requirement for them to do it. So they would Yahoo would typically at first just turn over the information and it usually wouldn't be their names. But in many cases it was their email address, which contained their names. But other times it was just some weird, some really indecipherable email address, but they'd at least have the IP address. And then if they only had the IP address, then the company would be they could tell what ISP was associated with that IP address. And they'd issue a second subpoena to the ISP saying we want the subscriber name. And this was before people had Wi-Fi. So it was usually pretty effective. I mean, Tor wasn't around nothing like that. So it was pretty effective at identifying people. The companies would then usually it was employees. If it was an employee, they'd fire them. And then they would dismiss the case. And that's how our legal system was being used. And what you started having were there was more coverage of these sorts of cases over the over a few years. And you started to have people at privacy advocacy groups, the Electronic Frontier Foundation, Paul Levy a public citizen was one of the most active and he helped set the standard that started either filing amicus briefs or representing these defendants because soon enough, Yahu started giving notice to the people because it got a lot of public criticism that it wasn't giving people the opportunity to challenge. So they would start moving to cost the subpoenas. And what you had by 2003 to 2005 was a variety of different standards that courts would apply all based on tally and McIntyre and this First Amendment right to anonymous speech. And the standards vary. But what they basically say is if you're going to unmask someone in the sort of defamation or confidentiality case, you need to fulfill a number of procedural requirements like trying to notify people, get their identity through other means. But also, and most importantly, you have to have a strong case and they use different legal terms of how to get there, but that you can't just say, we think they violated a confidentiality agreement or we think they defamed us, but you need to show evidence of all of the elements of defamation. And what this has done is what would those be beyond saying, you know, Raytheon stock is going to tank because of this, that and the other reason. And you know, the administrators there, the executives, there are idiots. Well, so we depend on the case. If it was a defamation case, you would have to show, you'd have to show falsity and you would have to show damages. You'd have to show that it was oven concerning you. So you and you it's not enough to get discovery in these sorts of cases because it involves anonymous speech, you have to do more than you would in a typical subpoena, which is pretty much rubber stamped. And the and what this did is this created a barrier, which is not absolute. So I mean, there are cases where particularly involving harassment or really persistent defamation of individuals where the subpoenas are approved by the courts. And I think it's largely struck the right balance in these sorts of cases, like defamation, where unfortunately, it's really fairly limited to defamation, confidentiality agreements, those sorts of cases. What we had in parallel happening in the early 2000s was where a number of copyright related cases where if you remember the recording industry had the idea that because people were using peer to peer services, they would just start suing people. And part of that lawsuit was issuing subpoenas to identify them. And the courts basically through those cases found that there was some First Amendment protection for these peer to peer cases, but not as much because copyright isn't that they said, you know, copyright is not First Amendment protected. I disagree with how they reasoned it because there's no, we haven't determined copyright infringement happened. We haven't determined these are the people, but they basically came up with a compromise that's a much lower standard. The big problem is that over the past 10 years, this standard has been used not as much with music, but with pornography companies, legal pornography, but pornography that's traded on peer to peer networks, the owners of those copyrights sue, and they're able to use the same standard, which is pretty low. And it effectively, one judge said that it was like an extortion scheme, because basically you're, you have the choice of, you know, do you settle? Or do you risk being named in a lawsuit that your friends, your family, most importantly, your employer could see that you've downloaded this particular pornographic movie. And for some people, their employers won't care. But for some people, that could mean that their jobs are on the line. So that I think that that's one area. And the other area is criminal and grand jury cases. We don't have very much case law, because it's usually pretty hard to challenge a grand jury subpoena for from the target, because they're not going to be aware of it. But the case law that we do have has largely indicated that it's a much lower standard. And that's a problem to me, because as as troubling as it is in the civil context, in the criminal or grand jury context, you have the prospect of someone's liberty possibly being at stake. And I think we need to really rethink that. Could you talk about how this these kinds of cases intersect with section 230? I mean, one of the reasons Raytheon couldn't sue Yahoo itself, that's because of 230, right? Yeah. So section 230, the basic justification for it is that you can sue the person who posted, but not the platform where they posted it. Because they the the the you know, the owner of an interactive computer service, you know, Yahoo, Yelp, whatever, will not be seen as the publisher of that of user generated material. Yeah, exactly. So that's where it intersects. But the issue becomes what if the person is anonymous, and you can't track them down, right, then you because it's not just the legal protections, I include a chapter in the book about Torah, people using multiple VPNs, which aren't as anonymous, someone could use their neighbor's Wi Fi connection, there's ways to anonymize at least temporarily, where there there are, there is a potential for not having a remedy. And and where this really intersects with 230. And I write about this in the book is that this is more for not as much about mainstream platforms, but there, I'd encourage everyone to read Cashmere Hills, reporting in the New York Times about slander sites that basically exist. And they have a strict policy, which they can have because of section 230 of not taking down content, including content that calls it's not just normal insults, it's things that accuse people of doing horrific things that can really ruin their lives. And the they both they, the idea is that, you know, you could sue the person who posted it. Right. And oftentimes, that person's anonymous, sometimes they're not. But if you sue, and you get an adjudication that the content was defamatory, so it's not constitutionally protected, you still at least, according to the California Supreme Court, in a case that did involve Yelp, that section 230 prevents an order in the case between the poster and the and the subject from requiring the site to take down the content that's adjudicated to be defamatory. And there are valid reasons for, for example, people forge court orders, which I think is a problem that people are forging court orders. Right. Also, that often these cases of the anonymous poster doesn't show up, they just become default judgments. So the person that there might not be a really vigorous adversarial argument about whether this content was actually defamatory. But there does become a problem where you can have someone something that's posted anonymously that a court determines is defamatory and you still can't get it taken down. And that's one area where it sort of intersects with 230. When you were talking about quashing subpoenas, how do you do it, say Raytheon, to go back to them? Like they see something on a Yahoo finance border on a bulletin border in a comment section and they, you know, then they subpoena a particular commenter who they believe or a person they believe is that commenter. What are the grounds that the commenter can quash the subpoena? Well, so now because of the precedent that folks like Paul Levy at Public Citizens said, it's First Amendment grounds. They say that this subpoena is not, the complaint under which the subpoena was issued does not allege, let's say, a viable defamation claim. There's no, and this wasn't defamatory by any legal standard or there's not sufficient evidence to support it. So this violates the First Amendment right to anonymous speech. And then the company would then file an opposition saying, you know, this is all of our evidence, this is our argument. And then it would be up to the judge to decide whether the plaintiff has demonstrated sufficient evidence and met other burdens to allow the identifying information to be released. Are there reasons to believe that corporations or, you know, that there are more of these suits now than there were or have corporate America or, you know, and also groups and whatnot? Have they gotten, you know, are they like, we're not going to do something that's going to bring more attention? We're not going to, we're not going to, you know, consciously enact a Streisand effect where we're going to bring more attention to something that, you know, nobody's paying attention to. Is it is it ramping up? Is it or have we kind of settled into a kind of pattern where, you know, people recognize, look, anonymous, trollish comments in various places, nobody takes them that seriously precisely because they are anonymous and trollish. So there's kind of a social check on the influence of anonymous speech. So it's hard to tell with any sort of statistical certainty because there's no official tally of these sorts of cases. I'd say there are fewer published court opinions over the past five years or so than there were in, let's say, the mid to late aughts. And I mean, I think that there might be a few reasons for this. In part, companies might be getting slightly thicker skins. This was all very new to them in the late 90s that they would actually get criticized by lowly employees who would dare to criticize these brilliant executives. If I may be misremembering this, but in the early days, I'm thinking in the early to mid 90s, when a bunch of sites started doing things like raiding doctors and lawyers, there was pushback, you know, like, no, how dare you do that. And there were attempts to ban those kinds of sites in the name of, you know, professional etiquette of doctors and lawyers. And now that seems to have faded because people recognize that you need to promote a good reputation online. So instead of trying to control people, you just try to make sure that they have a better experience with you. Yeah, I think that's right. And I think the Streisand effect does play into that in that if you're going to sue an anonymous commenter now, you're very likely at the very least going to have a courthouse news and a law 360 article written about you. So then when people Google your medical practice, your illegal practice, one of the first things that comes up is that you've sued your customers. And I think that does play into it. But I don't want to minimize that this is this is still going on. So I mean, I read about glad I started out the book writing about Glassdoor. And Glassdoor actually should really be commended because they it's a site where people post reviews of employers, and they actually really they not only notify people, but they actually stand in the shoes of the posters and file their own challenges to the subpoenas. And if you as you can imagine, Glassdoor gets tons of these subpoenas because they're basically saying this is the home for people to write candid reviews about employers. So it definitely is still happening. Yeah. Could you briefly, for people who might not know it or know the nuances of what is what is the Streisand effect and where did it come from? And I say this also partly because any chance I get to kind of make fun of Barbara Streisand, I'm going to take it. But explain the Streisand effect. So the Streisand effect it was it was Barbara Streisand. I think it was 2005, I believe, was trying to get a photo taken down I believe it was her home and unflattering photo of her home. And so she filed a very weak. Yeah, that was part of that was part of a like the California Coastal Commission or something had aerial photographs of all these kinds of houses in a database because that was part of what they were doing. Yeah. And so she she filed she she filed a lawsuit and that drew a lot more attention to to this issue. And so Mike Maznick at Tector, he wrote about this and he called it the Streisand effect because that it was her efforts to be treated differently or to to stop a conversation, you know, which wasn't even happening because it was something like there were dozens of downloads of the aerial photograph of her property before. But that was too much for her to bear. And then after she made a big stink about it, hundreds of thousands of people looked at it. And I mean, I'll say the Streisand effect does work in the opposite way. So for people who I and I mean, I've spoke I spoke for this book and my previous book, I spoke with a lot of people who are have really had awful things happen to them online and really awful defamatory things that I mean, and I don't call things defamatory lightly, but these are defamatory. And they choose not to do something about it, not to file a lawsuit, because even though it's making it hard to get a job, they know that if they file the lawsuit, that this would create even more attention to it. So it does work in both ways, even if it's things that you really think, you know, should be taken down. Yeah, would you you in one part of the book, you talk about online anonymity as a shield. And I think we've kind of covered that why, you know, having being able to post anonymously or pseudonymously gives people the ability to enter conversations they might not otherwise and actually share information, which will then be evaluated based on, you know, kind of the way it's presented and and taking into account the fact that it's anonymous, right. But you also talk about online anonymity as a sword. And you spend a fair amount of time talking about a character named Ryan Lin, who is kind of like the, the Michael Jordan of cyberstalkers, who was this guy and how does he show the real negative potential or negative realization of online anonymity. So Ryan Lin, he was in his mid 20s, he had a computer science degree, and he was living in a house in Massachusetts with three other people who were also in their 20s. And he was only there for about a month, and he got into a dispute with one of the women there. And over various issues, and she had left her computer unlocked, and it had all of her online passwords. So before, before he moved out, he was able to get access to all of her accounts and from those passwords. And basically for months after, he engaged in a very extensive harassment and cyberstalking campaign, not only involving her, but involving her parents, her coworkers, other people to where it was he found, for example, her online diary, where she had written about having an abortion and some intimate photos of her. And he basically created a collage of these photos, along with other photos he found not of her. And he would email it to her parents' coworkers, to her coworkers. He would use Tor and other anonymizing technologies. Sometimes he would make it look like it was coming from her. And he would sign her up on bondage sites. And he called in bomb threats to her home he actually called in more than a hundred bomb threats throughout the area, which anonymously that caused real disruptions for local schools. He did, it was persistent. And it really ruined her life. Her parents were worried about their security. And she knew that it was him. But there's a difference between knowing that it's him and having enough evidence to be able to prosecute someone. So she went to the police, the local police, and they really wanted to help her. This one local police officer actually took computer classes to try to figure out how to be able to unmask him. But they really weren't able to do it. And I think that really revealed, and I've heard the story so many times, the real lack of investment that we have in cyber crime that we don't, and a lot of law enforcement, we don't take it as seriously as non internet related crimes. But fortunately, after a long time, she a friend of a friend knew someone who a lawyer who I'm good friends with named Kerry Goldberg. And she has a law firm that basically specializes in representing people who are the victims of online crimes. And Kerry was able to work with her contacts at the FBI, fortunately, because they were interested in it, both because of the bomb threats and also because some of the materials that he sent contain child sex abuse material. And so that gave a federal jurisdictional hook, which really very well could there could not have been in which case, they might not have been able to help. So they're able to finally they were able to finally track him down because he logged on to two different email accounts on the same VPN. And this VPN apparently kept logs. So they're able to finally arrest him. And he pleads guilty. And he gets sentenced to 17 and a half years in prison. And it's I've spoken with the woman who is his main target. And I've read through the entire very extensive court record. And it really demonstrates how someone can use anonymity tools, even when you're not purely anonymous, even when people, many people might know who you are, think they know who you are. But it showed both how someone could use them to devastate people. But it also shows that even someone who has a computer science degree and is taking all of these steps, even he can eventually be unmasked. But the problem is that he's unmasked after months of causing these tremendous harms. This is kind of the brave new world, right? Where I think about this in connection to when the Silk Road case in the early teens kind of started bubbling up. And people have been confused and thought that Bitcoin was anonymous, that you wouldn't know who was using it. And it turns out Bitcoin facilitates a lot of activity that otherwise wouldn't be taking place. But it's not quite anonymous. I mean, online anonymity, it's there. But it's, you know, where it, you know, nobody is quite, nobody is quite invisible, right? It seems like, and as we develop these technologies and become more comfortable with them, that's probably going to become more and more the case where if we may just briefly talk about AOL, you know, because AOL now to the extent that it exists anymore, it's, you know, it's like the Edzel of ISPs or something, nobody wants to take it seriously. But it was the largest ISP for a long time. And part of its pull was that you didn't have to use your real name. Who came up with that? And, you know, how did that, how did that help AOL really gain a lot of market share at a certain point in time? Well, so, you know, I'm not as familiar with AOL's business model. I know Steve Case, at least from the people, the lawyers I spoke with who worked at AOL, Steve Case, he actually was, they say, was very passionate about defending people whose information was subpoenaed. So, I mean, there were a lot of times that AOL did have identifying information about people, because if they were paying with a credit card, and then there was a way to trace people. But what AOL really did was they went to court a lot. It was actually kind of like what Glassdoor does now, and they would notify people if they were the targets of subpoenas, because they really saw privacy as a selling point for their service. So, it's a bit different than what we now see for big tech companies. But that was really one of their features. Yeah. So, you were a journalist. Let's talk a little bit about how you ended up becoming a law professor. But, you know, when were you born? Where were you born? Where did you grow up? Well, so I was born in upstate Watertown, New York in 1978. But the subject of Frank Sinatra's greatest and possibly only concept album. But I don't remember it. I grew up in New Jersey and Central New Jersey. All right. Central, wait, now, you're just trolling me because I am from Central Jersey. And I often say the only people who even acknowledge Central Jersey as a region are people from Central Jersey. Because there is a Central Jersey. I agree. What town were you raised from? From East Brunswick. Oh, okay. Very nice. I went to Rutgers. So I know East Brunswick will quote from that. And the stuff your face there on rat 18. Yes. I grew up in Middletown, New Jersey, which is on the eastern edge of Central Jersey. So you you grow up in New Jersey. So that means that you're a malcontent and you have an attitude problem. Where do you go next? I went to college at the University of Michigan. Okay, that's a problem. But okay, because I lived in Ohio, but I don't want to make this about me. But yeah. So yeah. So yeah, after that, I had interned I, I, I say I went to college, I got a degree from the University of Michigan. I sometimes went to class, but most of my time I spent at the college newspaper of the Michigan Daily. So that's where I was probably there much more. And so I did journalism internships. And one of the summers I interned at the Oregonian in Portland. And so I was out there for a summer when it's nice and sunny. And they miraculously offered me a job. This was kind of at the beginning of the tech boom, they needed another tech reporter. So they said when you graduate, come back. And I was like, Oh, this is great. Portland's always sunny. And I came back and I learned that Portland was not sunny. But I was in Portland for a few years covering technology and doing investigative work at the time. What were you, what was the, you were a finalist for Pulitzer Prize? What was that about? Yeah, so that I actually after I moved out to DC after a few years in Portland, and I covered Congress for the Oregonian, but also did investigative work. This was for a program that's now changed its name, but it was called Javits Wagner O'Day. It was started in the 1970s, a federal program that basically set aside some federal contracts for sheltered workshops. And the requirement was that 75% of their work had to be performed by people with severe disabilities. And it was always, they would make like note pads and pencils for a long time. Then we went to Iraq and Afghanistan and the program grew from a few million dollars a year to billions of dollars a year. And what we found was more, more than 10% of the entire program was going to one place in El Paso, Texas that was making a lot of chemical warfare suits for the military. And this is, we were curious about that. I'm sorry, that is so dark. Yeah. So what we found, and they, they employed, they said they employed about 4,000 people with severe disabilities, which seemed like, you know, that's a lot of people because that the criteria for severe disabilities was quite high. But what we found after months of investigating and me spending far too much time in El Paso, Texas, and I'll add the CEO, he had a consulting firm that the nonprofit paid millions of dollars to, he had a private jet company that the nonprofit paid for his private charter jet. And he was one of the most well connected people in town. And what we found was that they're, they were counting anyone who speaks English as a second language as having a severe disability in El Paso, Texas. So the day that our stories ran, we did a whole series, actually Steve Engelberg who's now the editor of ProPublica, he was the managing editor on the project. I learned a ton from him on that. The day the stories ran, the FBI raided the nonprofit, the executive, I think he's out of prison now, but he was sentenced to quite a bit of prison time. But we relied actually quite a bit on anonymous sources and he dealt with a lot of legal threats throughout that case. So that really shaped my interest in free speech because I mean, I remember getting claims from lawyers saying, you know, this is violating the Texas penal code. And I remember calling Steve Engelberg and saying, does this mean that I go to jail in Texas? I don't really want to go to jail in Texas. But I think the central Jersey you could live with. I think the Broadway State prison is technically central Jersey. Texas is different. Yeah. Yeah. So anyway, that really sort of made me appreciate and we had great lawyers and they really did everything great for us. So when I was practicing law before I went into academia, one of the my favorite things to do was doing pre-publication review work for media companies because I remember just sort of how important that sort of work is to helping get stories out. Were you at all worried when Donald Trump was running for president and he may have said it after he got elected? I don't remember, but he definitely said it on the campaign trail where he was like, hey, you know what, we're going to open up the libel cases because he wanted to go after the press in a way that was rare for, you know, all presidents and all presidential candidates, all politicians, bitch and moan about the press. But he was saying, I wanted to open up the libel laws, kind of pull back on the Sullivan case and other protections that newspapers or media people have in kind of talking about public figures. Do you think he had a negative effect on journalism in that way? You know, I wasn't really worried when he said it because he couldn't change New York Times or Sullivan. What does worry me is that two Supreme Court justices have called for revisiting New York Times or Sullivan. And one of those, unlike the president, they actually could change the president. Was Clarence Thomas one of them? Justice Thomas has done it twice, but then Justice Gorsuch most recently. He didn't say we need to overturn it. He just said we need to consider whether it is still relevant in these times. And it's unclear whether any other colleagues agree with them on that. But we actually last year, we had a judge on the DC Circuit, Judge Silverman, write something that was really a stinging invective on the liberal media. And as part of it, it was a dissent where he basically said, I think the Supreme Court needs to get rid of New York Times or Sullivan because the press is so biased toward the Democratic Party and they could be used for authoritarian means. And that was pretty, that was scary. Because I mean, I don't think we're quite there yet in the Supreme Court overturning Sullivan. But I can say that from practical experience, both representing media companies and being a journalist, that there will be a substantial chilling effect on overturning Sullivan, if you overturn Sullivan. I think of people like Nadine Strausson, late of the ACLU, and others who talk about how the Supreme Court has been pretty damn great on free speech issues and First Amendment issues generally for the past 30 or 40 years, much better than the population. Do you think that's still true that the Supreme Court is pretty firmly on the side of expanding speech and expression and assembly rights? Or is that starting to turn? Or is it, and just to make the question more convoluted and longer, it seems like the broader society is kind of getting sick and tired or fed up with free speech? And is it that, does the Supreme Court ultimately follow public opinion when it starts kind of making decisions about things like anonymity, but also just kind of more freewheeling discussions of everything? I worry that they might. And I think there is a lack of appreciation. I mean, I'll give one example that I only started using Twitter a few years ago, actually, to promote my Section 230 book, and I kind of got dragged into it. What a big mistake that has proven to be, hasn't it? And I somehow got dragged into a debate where someone asked me, what can the FCC do to stop Tucker Carlson? And I said, nothing, because the FCC doesn't regulate cable news. I even somehow, I'm sure he appreciates it, I somehow dragged Ajit Pai, who was the chairman of the FCC, to agree with me to say, yes, the FCC does not have authority to regulate cable TV channels. But that didn't, there were people who basically said he didn't know what he was talking about. Why would he know? But even if the FCC had statutory authority to regulate cable TV channels, what they're saying is they want them, they want Fox News shut down, because it spreads misinformation. And what I've been trying to have a dialogue, I shouldn't try to have a dialogue, but I've tried to say, you know, can you possibly imagine a president who says that media outlets that are not friendly are fake news and that they're misinformation? Yeah, just imagine it. Oh, no, that wouldn't happen because we wouldn't let them get into power is the response. Right. Of course. And it's so short sighted. But it worries me because and this isn't just coming from sort of fringe elements. This is coming from, I mean, I've had on the Sullivan case, I've had some very mainstream people from both parties say to me, you know, why do we still have Sullivan? Yeah. And so I think that just very clearly Sullivan, Sullivan really raises the bar to for a public figure to be able to sue a media outlet or somebody for defamation or life. Yeah, exactly. And it's it's not the only protection. And I mean, in practice, there are other there are other defenses that in many cases are actually more useful than the than the actual malice requirement. But it's definitely a key component. Right. And it's also something I mean, I think about this a lot because every every survey, every poll seems to show the younger people are the less they privilege or prioritize free speech. You know, they think it needs to be balanced or it's not all that. And we may have, I think we're, you know, within, you know, spitting distance of each other and age. And we may have grown up in this moment of maximal free speech culturally, where people were really pushing the envelope. And I think for a long time, I mistook that as universal. I thought that's the way it always was. But obviously pre Sullivan, it wasn't. And when you look back at the fucking court cases of stuff that was being banned as obscene, like into the early 60s, it's just nuts. And then because of the lack of alternative outlets, the FCC can regulate content on broadcast, you know, radio and TV, like stuff wasn't being said in a way. Now we have an infinite number of places to curse and to shake our fists at clouds. But yeah, this might be this might just be this blip really in a longer history of kind of fairly, fairly tight suppression of speech. Yeah, absolutely. I do worry that we that it isn't necessarily a linear trajectory. And I think we might we might be gone in the other direction. Do you worry about I mean, your book on section 230 is, you know, the definitive account. It is widely cited, clearly not as widely read. But I hope that you know, I hope the check clears on every purchase of the book for you, regardless. But you know, both Republicans and Democrats in the Senate in Congress, you know, it's a you know, it's a rare day that somebody somewhere is in bashing section 230 and saying it needs to be gotten rid of. Is that do you think that's a live threat? And if so, would that be a terrible thing? I think it is a threat. I think maybe perhaps a little less now than it was a year ago, because I think even the so starting really in 2019, when which coincided with my book coming out, section 230 has been a proxy for people's anger at big tech. So we're angry at big tech either for taking too much stuff down or keeping too much stuff up. So that means we got a repeal section 230. And I think those arguments have been tested quite a bit in public hearings and the media. And I think we're at least moving away a little bit from that as seeing section 230 is the solution to everything. Right. Now the problem is that people are still very angry at big tech companies, but they might be realizing, okay, do we look at other avenues? And a lot of those avenues are blocked not because of section 230, but because of the First Amendment. Right. And could you explain that briefly? Because this I think is very important, but it doesn't seem to sink into a lot of people. Yeah. So I mean, I'd say that so when I'll give one example, when my book came out that I was interviewed by the New York Times for my first time ever. And I was so excited. I was like, wow, I'm going to be in the New York Times. I spoke with the reporter for an hour and there was like a two word quote that was used, but that was still cool. But I was pretty shocked because it was basically across the entire front of the business section. The headline and I don't have it in front of me. So I can't recall exactly what it said, but it said something like hate speech is everywhere on the internet. And then it showed the 26 words of section 230. And then underneath it, it said, because this law protects it. Right. They had to run a correction that said it's actually not section 230, but the First Amendment that protects hate speech, which is like kind of the whole premise of the article. And I think that that's an illustration of a lot of there's a lot of bad stuff, but sort of lawful awful, but lawful type of content that you could get rid of section 230 protections for it. But it's still going to you can't ban it. And I mean, I'm currently writing a book about misinformation. And while misinformation is depending on how you categorize it, if it's defamatory, you can go after it. But I mean, the Supreme Court held in 2012 that there's not sort of a categorical exception to the First Amendment for false speech that there's a lot of reasons why we protect false speech. And so there's a lot of that stuff that basically we don't like it. So we want to amend section 230, but you can't because it's First Amendment protected. And then on the other side, you have people who are angry, the platforms are taking down too much content. And they say, well, section 230 protects the platforms and it does provide a defense and early defense in these search of claims. But unless you're going to adopt a theory that I strongly disagree with that social media companies are like the phone company, there's a First Amendment right of the platform to be able to take down content. Where did that noxious notion, and I come across this almost on a daily basis where people say, you're either a publisher or you're a platform. And that's in section 230. And that's the law, like you can't be both. That's why they passed section 230, which of course mentions none of that. But that argument that you either have to be a platform kind of like the phone company where your Twitter, I guess, and you just anybody can use you and you all you do is make sure that the messages get routed through. But you don't get to have any discretion over what is actually published or passes through your content. Where did that come from? I don't know the origin of it. I can say it really started in 2019 when there was all this debate about big tech. And you had a lot of prominent politicians saying it, but I don't know who actually developed that theory. But I mean, I spent a lot of time everywhere I could in the media with in meetings with staffers just saying, you know, this isn't it's not the requirement. Actually, the reason why Congress passed section 230 was that they were concerned that the existing First Amendment protections would actually discourage platforms from moderation. And they actually wanted more moderation. So I don't know where it came from. And I think that people are moving away from it a little bit. And now more of the argument is, you know, the platforms are being unfair. So why do we give them this great protection under section 230? Why do we treat them differently if they're going to be biased? And I mean, that there's some some credibility to that argument. I mean, I could see why you would say that. And to be fair, there have been some bad decisions from platforms. And it's hard because you're moderating a huge amount of content at scale. But what I think is missing from that argument is if you get rid of section 230, they're going to be blocking a whole lot more content, because suddenly they're going to face much more liability potentially. And so if something's right on the edge of being defamatory, right now the platforms can say, well, we're going to determine whether it's within our user content guidelines. But without 230, if I'm any rational type of platform, I'm going to say take it down or just don't allow user comments at all. Yeah. One question I wanted to raise, and I think this you mentioned in the book, it's partly because of your experience as a journalist, and obviously you were doing some pretty hairy investigative stuff there. You are in favor of journalism shield laws. And can you explain why? Because and a shield law is something that would, and there are a lot of them at the state level, I there is not yet a federal journal media shield law, but this would keep journalists from having to divulge anonymous sources in legal proceedings, right? Yeah. And so most states have some sort of shield law protection at the federal level. We don't have a statute. We do have at least a fairly weak it depends on the circuit constitutional protection that says in certain cases, primarily civil cases, there's going to be a balancing test. But it's pretty weak. And the reason why I'm so passionate about this is exactly right. It was the project that I told you about where I was getting information and we were facing various legal threats. And I had to get this information from people. I had to say to them that they wouldn't talk to me or give me documents. Unless I said, you know, I will not tell anyone who you are. And you can have varying agreements, you could say, you know, I won't tell anyone who you are until I'm subpoenaed. And you could try that, but people are going to reasonably say, no, that's not good enough. And it's a horrible position to be in to make that decision of saying, you know, this is information we want to get out. But we have to make the decision about whether we would be willing to go to jail to do our job. Did Texas have a shield law when you were working? So from what I remember, I don't remember. I remember there at least being a risk of possibly if there was a subpoena. I mean, in that case, there were other cases where it was much more likely. This wasn't the only project that I worked on. Because my concern about a shield law is that it creates I always worry about it as a backdoor way of the government regulating the press or licensing the press, because suddenly then you have journalists who are real journalists because they the state will say, Oh, yeah, well, you work for the Oregonian, you work for reason, you work for a legitimate outlet. But you, you know, Mr. pajama pants, you're not a real journalist, so you're not going to be covered. And that I worry about that. Yeah, and I mean, that's a legitimate concern. And I think that that came up in the last time that we had any real substantive debate at the federal level of the shield law was right around 2013. And that came up. And in the hearings, there were some members who said, you know, do we want to extend it? At the time, the concern was, if anyone just starts a blog, will they suddenly be considered a journalist? And there was a reasonable definition. I think it was Senator Schumer, who was taking the lead. Interestingly, be one of the people who wrote some one of the most thoughtful bills was then Congressman Mike Pence. He was actually the one of the strongest supporters in Congress of the shield law. But I think that you could look at, you know, what the primary business model is, and not necessarily, you know, not having a licensing regime or anything. Right. I mean, I guess I want the first amendment. You know, the first amendment, I guess guarantees freedom of the press, but it doesn't define the press. And we all have a printing press now. So we're all journalists. I'd like to think. But yeah, I mean, I think that you could define it functionally. I mean, I agree with the concern, but I mean, I think when the alternate alternative is just don't have any protection and have a journal have like another Matthew Cooper or Judith Miller situation. Yeah. That's not, I mean, I think that it would be definitely an improvement. Do you think this might be beyond the your scope of interest or expertise? What about somebody like Julian Assange and WikiLeaks? And you know, obviously this is a, you know, unbelievably complicated case, but he is doing something that journalists are known to do, right, where you you receive documents that are gotten, you know, illegally. But as a journalist, you have a you have a right to publish these things, right? Yeah, I have some pretty strong feelings about that. But I think I'll pass on that. So just to kind of as a wrap up about the United States of anonymous, you write at one point that you you have concluded in the book that the benefits of America's strong anonymity protections far outweigh the harms from Thomas Paine to Manuel Talley to the anonymous anonymous employees of the late 90s Yahoo finance boards. Anonymous speakers have often been those who sought to challenge existing power structures, which is wonderful, I think, and totally right, limiting either the laws or technology that protect anonymity would too often also restrict the ability to speak freely about those in power. That's fucking great. Are you worried about the future of online anonymity and where are the biggest threats coming? Yeah, so I'm worried about it. And actually, the primary threat that I see is not even the government but companies. So we've seen a number of high profile unmaskings of people in various contexts, where the unmasking is not because someone's using a subpoena or the the NSA is spying on someone. But it's that we have companies that amass huge amounts of data about people. And it's not everyone immediately thinks Facebook and Google. And I mean, that's clearly Google with geolocation is there's a lot of data. But what I'm even more concerned about are data brokers that traffic in a lot of identifying information. The New York Times a few years ago did this great story where they purchased a file of geolocation points. And I mean, I, I have a long commute, I live in Arlington, Virginia, and I work at the Naval Academy. I'm probably one of the only people who does that. So if you get a geolocation file of someone's cell phone, even my name's not associated with it, and you see someone who every day is going from Arlington to Annapolis, that's me. And there's a lot, I mean, that's a so that's identifying. But there are no restrictions on the on the sale, the disclosure of this data. And so I think I know it's a lot to ask Congress to pass laws. Yeah, I mean, yeah, they're very busy. Yeah, they're very busy talking about cuties or whatever. They like savings time. Yeah. But I think that our failure to have an effective national privacy law is really shameful. And we have states doing these laws that are well intentioned. But what they basically do is they just create more bureaucracy, and they create longer privacy policies. And what they effectively say is, you know, we're going to give user individuals the choice and the ability to request companies delete their data. And that's a good thing. I mean, that that's a positive step. But the problem is for data brokers, I mean, I work in the field, and I don't know all the data brokers that have my data. So I don't know who to go to. And I think that a better way in addition to giving people choice is to say, there are certain types of data use that we and collection that we just will not tolerate. And we're going to say companies can't do certain things. So you can't sell facial recognition databases to local police. And I mean, some local governments have prohibited the use by their police and that data. And I think that's the sort of model that we need to have. So that's really the biggest threat that I see to anonymity. Ultimately, is it, you know, are we foolish to rely on laws as opposed to, you know, kind of a public consensus, and that's very soft and vague, but also technology, because you know, it's partly technology is what drives the collect, you know, the ability to speak anonymously, but also the ability to be caught speaking anonymously. And is it ultimately, you know, maybe you will be driving and you will have something on your phone, you know, which is obviously, I mean, our phones are like, you know, they're, they're bugs, you know, in like old movies, when, you know, a spy would put a bug on the back of a car, like we're carrying the bugs with us. Maybe we come up with a way of anonymizing, you know, our location and all of that kind of stuff. I mean, it seems, I want to believe in laws that are effective and that work as intended and then don't create the next monstrosity, you know, that we need to deal with. But do you think it might be more of a technological fix, fix or a cultural fix where we say, you know, we're just, we're not going to be doing this sort of thing anymore? I think it's a combination of both technology, culture and law. I don't think it's one or the other side. And I mean, Torah, for example, which I profile how it was created. And it's been tremendously useful, especially in the Arab Spring. I mean, it was crucial on that. But there are some downsides, including that it's very slow. So that, but it's partially useful. I think law can help. I also think I spend a chapter talking about people who think that they're anonymous when they're posting online, but they give enough clues that they're unmasked. And so I think part of it is just self responsibility that, you know, you you're going to recognize that if you give enough pieces of the puzzle, people are going to be able to put it together. So individuals ultimately have to say, do I need to put everything on Instagram? Well, I think the answer is clearly yes. But that might be a different conversation. Do you think that we're also, you know, speaking of people like Assange and WikiLeaks, Edward Snowden comes to mind, Chelsea Manning. I mean, those those are kind of the high profile people who reveal things, particularly about governments. But then there's also the Panama Papers. And there's all other sorts of things. We're living in an era of kind of forced transparency, where whether you like it or not, you're going to be, you know, your nudes are going to show up somewhere. And that the, you know, that we need to learn new ways of dealing with that and living with that. And I think we have in many ways, when you look at something like, you know, a celebrity, celebrity sex tape, a leaked sex, sex tape in the 80s destroyed the career of a female sportscaster named Jane Kennedy, it made the career of Kim Kardashian of Paris Hilton. And that I don't, you know, I don't want to put too much weight on this, but it's almost like our social evolution to be like when we're in a world where people can take a lot of compromising photos, we're going to become more chill about that. You know, and in terms of forced transparency, are we going to, you know, do we really, first of all, we have to do is kind of upgrade to the next, you know, iteration of our social program system to just be like, we're going to learn a lot more about each other. And we're going to have to just learn not to freak out or become really tendentious about how we use this data. Yeah. I mean, I think that might be part of it. I mean, I think asking Americans not to freak out is a pretty tall task. Yeah. When you put it that way, I withdraw the entire point, but yeah. But I mean, I think that the problem is that, and I hear the argument a lot about just anonymity in general, there are a lot of proposals now to require real names on social media. And I worry that I think for a large segment of the population, they probably would not be terribly burdened by a real requirement. But I think that is perhaps the segment of the population that has the luxury of being able to post under their real names. I think that particularly marginalized groups, groups that have various very good reasons for being anonymous don't have that ability and aren't going to in the near future. Jillian York at the Electronic Frontier Foundation, she calls proposals for real names. She calls them the white man's gambit because she says, you know, guys who are able to post with their real names. Yeah. And I think there's a lot of truth to that. Yeah, for sure. Okay. We're going to leave it there. The book is The United States of Anonymous. The author is just Jeff Kasev. Thanks so much for talking to me. Thanks for having me.