Advocacy groups claim free speech imperiled

A coalition of US advocacy groups has launched an effort to stop what it calls "cyberslapp" lawsuits.

The suits are brought by companies trying to unmask anonymous Web-based critics, according to the group, which includes the American Civil Liberties Union, the Center for Democracy and Technology, the Electronic Frontier Foundation, the Electronic Privacy Information Center (EPIC) and Public Citizen.

The group has launched a Web site, Cyberslapp.org, to promote its cause.

Cyberslap lawsuits usually occur when an individual sets up a Web site that mocks a trademark or includes negative remarks about a company. The company targeted by the attack then subpoenas the site's Internet service provider's (ISP) records trying to find out the identity of the unknown critic.

Large service providers receive hundreds of such civil subpoenas every year, a tactic the group charges is used by large corporations to intimidate people into silence, said Paul Levy, an expert at Washington-based Public Citizen.

"Anonymous speech is part of a vaunted American tradition that goes back to the Founders, who often published unsigned political pamphlets," said Megan Gray, senior counsel at Washington-based EPIC. "Yet on the Internet, citizens are forced to depend on Web sites or ISPs to protect their anonymity."

Levy said the group wants all service providers to handle such subpoenas the way Dulles, Va.-based America Online Inc. does. When AOL gets a subpoena, it informs the individual that a company is making an attempt to discover his or her identity. This gives the person a chance to take action against the subpoena and the company.

According to the coalition, Yahoo Inc. and Earthlink Inc. also notify customers when they receive subpoenas for identifying information.

"These companies have led the way," Cindy Cohn, legal director of the San Francisco-based Electronic Frontier Foundation, said in the statement. "But too many online companies and discussion hosts still aren't protecting their customers from these privacy-invading abuses of the legal system."

Asked about the larger ramifications of the issue, Boston University law professor Tamar Frankel said more is at stake than free speech. She said the subpoenas -- and the underlying legal fight over free speech -- are really the result of a collision between a great innovation, such as the Internet, and an attempt to control forces it has unleashed.

"Every innovation destroys some value; that is the nature of any innovation," Frankel said. "The Internet is a tremendous innovation that has [done] wonderful, wonderful things for the world."

But it can also undermine a corporation's traditional ability to control its image, she said. As a result, Congress has moved to give companies far greater control over trademarks than in the past, which Frankel said is a mistake. "There is too much protection for trademarks," she said.

Trademark protection was originally meant to keep consumers from being confused by similar companies, Frankel said. When someone creates a Web site mocking a company's trademark, a reasonable person will see that it's meant as satire.

"Take the horse and buggy industry," Frankel said. "When the auto came about, a whole industry went down the drain. Did we give them a subsidy? Did we give them protection? No, we told them to go look for something else."

"These companies have to get used to the fact that the individual investor or individual persona has an opinion and...has a right to voice that opinion," said EPIC's Gray. "As we are seeing with all these stories of questionable accounting practices that lone voice is important."

Gray said smart companies don't engage in these kinds of suits because they can backfire. First, if a company tries to silence a Web site and fails, then the level of rhetoric coming from the site becomes more vitriolic. And secondly, no company can monitor the entire Internet.

"Companies have got fat and happy with having complete control over their PR spin," Gray said. "It is time they got over it."

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