How Big is Big: Letter to Ziff Davis
An apology to Dan Rosensweig (and any variation thereof)
Part of the beauty of the Internet is the ability for people to assume identities that enable them to explore aspects of their personalities and partake in interactions that allow them to transcend the barriers that exist for them in the real world. Whether it's children being respected for their opinions rather than being judged by their age, a whistleblower speaking out against a potentially disastrous nuclear cover up, or whether it's a highly decorated Senior Chief Petty Officer, on active duty in the United States Navy with seventeen years of distinguished service under his belt exploring his sexuality, the right and need for that anonymity must be preserved at all costs. It is the essence of why communications technology is where it's all happening on the Internet.
We agree that the ability to impersonate someone is potentially problematic. Especially if the nature and tone of the impersonation is serious, or intended to portray seriousness, or genuinely results in fraudulent misrepresentation, or has consequences that are genuinely damaging to the individual or entity impersonated.
Does anyone at c|net honestly believe that Dan Rosensweig would send c|net management such a card? And yet, without the benefit of any conclusive evidence, we removed six postcards bearing the name Dan Rosensweig from our web site. If these were sent by another Dan Rosensweig, we apologize to you.
In a well known case, and subsequent movie, Reverend Jerry Falwell accused publisher Larry Flynt of damaging his reputation by publishing a parody in which Falwell was depicted having sex with his mother in an outhouse. The claim for damages was rejected on the basis that no one would believe Jerry Falwell would have sex with his mother in an outhouse (his sister maybe, but not his mother). In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the Supreme Court held that the magazine's "patently offensive" parody was constitutionally protected. Even though the parody was "gross and repugnant in the eyes of most", and was found by a jury to be an "outrageous" and intentional infliction of emotional harm (which ours wasn't), it retained First Amendment protection. Which brings us to the point of the entire exercise. Perceptions.
We have more pressing concerns than to engage in litigation with Ziff-Davis. Especially if it will detract from the necessary focus they need to be applying to their content quality deficit and journalistic thoroughness inadequacies.
Ziff-Davis has audaciously made the following demands, and to each, we have responded with commentary or counter demands:1. This letter is to confirm telephone conversations that I had earlier today with an employee of your company and with your lawyer, William Bennett Turner, regarding an pornographic ApolloMedia postcard which was sent out by your company under Mr. Rosensweig's name. Mr. Rosensweig never ordered this mailing and it was created and ordered by a third party without his knowledge or consent.
First of all, there is no legal definition of pornography. Annoy.com is a web site that challenges notions of "indecency" and "annoying", and is currently in litigation with the Attorney General Janet Reno, challenging a provision of the Communications Decency Act that makes it a punishable felony to transmit communications that are "indecent" with an intent to "annoy" another. Indeed, one might consider your understanding of law and technology "annoying" if not "indecent".
2. We understand from Mr. Turner that you have shut off any access on your website to any postcards "from" Mr. Rosensweig.
Allow us to clarify what we have done. We very agreeably have made inaccessible six particular postcards that appear to have been sent by someone claiming to be Dan Rosensweig to the individuals to whom they were sent only. We immediately removed them to ameliorate your anxiety as relayed to us by an assistant at ApolloMedia and your conversations with our attorney William Bennett Turner. We have no conclusive evidence to support that Mr Rosensweig did not send the postcards. Someone could feasibly still go to annoy.com and sent a communication "to" anyone "from" anyone, including Mr. Rosensweig. In fact, they could send it from you or from President Clinton or Monica Lewinsky for that matter.
3. We must demand that you remove the postcard from the Internet to ensure that it can no longer be accessed by anyone.
No. In fact, we made it bigger. However, we must demand that Ziff-Davis remove the inaccurate, offensive and annoying annoy.com story from the Internet to ensure that it can no longer be accessed by anyone, as well as an apology and a retraction as visible as the story itself is.
4. In addition, you are now on notice that no future orders for postcards using the name Dan Rosensweig (or any variation of that name) should be accepted by your company.
We don't understand the request technologically or otherwise, nor what a "variation" of Dan Rosensweig's name might be. Here are some anagrams or variations that we were able to come up with (in some instances we dared to use Daniel):
Not to mention how "annoyed" our good friend Dan Rose would be that we cut off his access to annoy.com. Or Rose Daniels - can she have access, or would you like us to disable her as well? Annoy.com does not accept transactional "orders" for postcards online. And neither do we, from clumsy, lazy legislators, the Department of Justice or from overzealous General Counsel corporate attorneys seemingly unfamiliar with the legal and technological territory in which they are wading. We regard the internet as a sacred medium, and wonder how the users and supporters of Ziff-Davis will feel when they discover that Ziff-Davis is attempting to control both the medium and the message. Microsoft endures an enormous amount of criticism and ill will because of their efforts to control operating systems globally. Does Ziff-Davis wish to evoke the same sort of response with regard to online expression? Or is the size of the audience more important?
For the purpose of demonstration, we have emailed the offensive and damaging story about annoy.com to Ziff-Davis, using Ziff-Davis' technology, and made it appear to have come from No_Gonads@zdnet.com, stating the following:
Dear Mr Morris:
Perhaps once Ziff-Davis has developed, tested and implemented technology that prevents the delivery of email bearing the name "annoy.com President Clinton Fein", (or any variation of those names) they will let us know - maybe even make it available to us - and we, in turn, might attach more credibility to their demands.
Further, to ensure that we take what might be considered reasonable precautions to avoid people misrepresenting others, and perhaps dispel our image as the Net's problem child, we will be adding to email messages delivered from our postcard service, a disclaimer warning recipients that the ability to assume an identity is facilitated on annoy.com, and that all messages should be taken with a grain of salt or authenticated by the sender before acting upon or taking any of the messages seriously. Ziff-Davis may want to consider taking similar steps.
We do hope that the dialog that results from this issue does not become antagonistic, and that we can continue to direct our resources toward the construction of meaningful litigation impacting our speech as well as our industry, the purpose of which, ironically, will serve to benefit the commercial and social interests of Ziff-Davis, c|net and Softbank.
Leave us alone. Our size is irrelevant, and we're very busy.
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