Blogger’s Code of Conduct: a Dissection

Due to the recent ker­fun­kle over the Kathy Sierra affair, Tim O’Reilly has now pro­posed a “blogger’s code of con­duct” (cov­ered with no less than a front page arti­cle in today’s New York Times.) In this entry, I will dis­sect the code and high­light why I think such a code is a bad idea.

June 26th of this year will mark the 10th anniver­sary of the ACLU vs. Reno deci­sion in the supreme court, which struck down the com­mu­ni­ca­tion decency act and extended first amend­ment pro­tec­tion to the Internet:

The record demon­strates that the growth of the Inter­net has been and con­tin­ues to be phe­nom­e­nal. As a mat­ter of con­sti­tu­tional tra­di­tion, in the absence of evi­dence to the con­trary, we pre­sume that gov­ern­men­tal reg­u­la­tion of the con­tent of speech is more likely to inter­fere with the free exchange of ideas than to encour­age it. The inter­est in encour­ag­ing free­dom of expres­sion in a demo­c­ra­tic soci­ety out­weighs any the­o­ret­i­cal but unproven ben­e­fit of censorship.

It is based on that legal ground­ing that I believe that codes of con­ducts will gen­er­ally result in low­er­ing the value of inter­net speech. The last sen­tence, in par­tic­u­lar (“he inter­est in encour­ag­ing free­dom of expres­sion in a demo­c­ra­tic soci­ety out­weighs any the­o­ret­i­cal but unproven ben­e­fit of cen­sor­ship”) rep­re­sents what I believe to be the most out­stand­ing state­ment as to why Inter­net speech needs to be pro­tected. That said, let’s now go into a dissection.

We cel­e­brate the blo­gos­phere because it embraces frank and open con­ver­sa­tion. But frank­ness does not have to mean lack of civil­ity. We present this Blog­ger Code of Con­duct in hopes that it helps cre­ate a cul­ture that encour­ages both per­sonal expres­sion and con­struc­tive conversation.

I, too, believe in frank and open con­ver­sa­tion. The estab­lish­ment of rules (or codes) seems to act as a way to “close” con­ver­sa­tion, even if it is in a way that is lim­ited by cer­tain bound­aries and while I agree that frank­ness and lack of civil­ity are not equals, a ques­tion imme­di­ately arises as to who con­sid­ers what proper civil dis­course? Look­ing back at the cre­ation of the United States and the insti­tu­tion of the Fed­er­al­ist papers, civil­ity has gen­er­ally been seen as the enemy of open­ness. The dis­course between the US found­ing fathers was far from civil (even, in the cel­e­brated case of Hamil­ton vs. Burr, end­ing up in a dis­agree­ment on civil­ity end­ing up in a duel that greatly short­ened the life of one of America’s great­est genius.) So, from the open­ing state­ment, we are already faced with an inter­est­ing chal­lenge: how do we “encour­age both per­sonal expres­sion and con­struc­tive con­ver­sa­tion” while at the same time try­ing to clamp down on dis­agree­ment through that dan­ger­ous weapon called civility?

1. We take respon­si­bil­ity for our own words and for the com­ments we allow on our blog.

I gen­er­ally agree with that com­ment but the chal­lenge here is that it leads to imme­di­ate cen­sor­ship. If I dis­agree with a com­ment on my blog, this state­ment basi­cally puts me in a posi­tion to for­bid that com­ment as I do not want to take respon­si­bil­ity for it. So, at this point, I am being forced to decide that com­ments on my site will have to agree with my own view or I have to take respon­si­bil­ity for com­ments that I dis­agree with. How many blog­gers will be tempted to act as cen­sor in those cases?

We are com­mit­ted to the “Civil­ity Enforced” stan­dard: we will not post unac­cept­able con­tent, and we’ll delete com­ments that con­tain it.

Dele­tion works as active form of cen­sor­ship and also intro­duces an inter­est­ing legal ques­tion. As edi­tor of the com­ment sec­tion, one would then become liable for every other com­ment that made it through, increas­ing the pos­si­bil­ity of peo­ple being pros­e­cuted because of the com­ments on their sites. With­out cen­sor­ship, they could be seen more along the lines of com­mon car­ri­ers and would find them­selves faced with a greater chance of win­ning such case. By agree­ing to delete, they could face a tough battle.

We define unac­cept­able con­tent as any­thing included or linked to that:
– is being used to abuse, harass, stalk, or threaten others

Once again, let me harp on who gets to define those terms. What con­sti­tute abuse? Is say­ing that “I believe so and so is a dimwit for say­ing…” con­sid­ered a type of abuse?

- is libelous, know­ingly false, ad-hominem, or mis­rep­re­sents another person,

Libelous is a word with a lot of legal weight to it. This opens up a whole set of legal issues around how peo­ple talk online. The appear­ance of false­ness can be enough to trig­ger a law­suit (but not enough to win) and this por­tion seems to also fly in the face of a lot of estab­lished law (Zeran v Amer­i­can Online, for exam­ple). Another ques­tion about this sec­tion is “know­ingly false”: to whom? to the owner of the blog? to the writer of the com­ment? to the per­son the com­ment is made about? to other parties?

- infringes upon a copy­right or trademark

Google, Yahoo, Microsoft, O’Reilly, AOL, etc… are all trade­marks. I have not put a TM after every sin­gle one of those trade­marks in posts I write on TNL.net, which tech­ni­cally makes me in vio­la­tion of this effort, from a trade­mark standpoint.

For the pur­pose of this post, I am quot­ing the sub­stan­tial major­ity of the post by tim O’Reilly, which would tech­ni­cally put me in vio­la­tion of his copy­right. How­ever, Tim has a Cre­ative Com­mons License so he’s grant­ing me some rights. Unfor­tu­nately, the rights granted by the CC license also say that you can’t reuse the con­tent for com­mer­cial pur­pose: I run adsense ads on this site, which could be con­sid­ered a com­mer­cial effort so, as such, I would tech­ni­cally be in vio­la­tion of Tim’s copy­right AND CC license. Under the terms of this, quot­ing sub­stan­tial por­tion of copy­righted con­tent would be a vio­la­tion of the code. This means that blogs now have a choice: write only orig­i­nal con­tent with­out exten­sive quot­ing or don’t run ads. It’s a tough choice for many bloggers.

- vio­lates an oblig­a­tion of confidentiality

Enron, the Pen­ta­gon Papers, and Water­gate are only a few high level cases in the United States that involved a vio­la­tion of con­fi­den­tial­ity. Recent such vio­la­tions could include the rev­e­la­tions about Abu Ghraib prison and Wal­ter Reed. None of these sto­ries could exist with­out such vio­la­tion. Would it be a good thing to purge them?

- vio­lates the pri­vacy of others

This is a higher stan­dard than what is cur­rently given in any other media. Pub­lic per­sona are not given pri­vacy pro­tec­tion in tra­di­tional media. Should it be dif­fer­ent online?

We define and deter­mine what is “unac­cept­able con­tent” on a case-by-case basis, and our def­i­n­i­tions are not lim­ited to this list. If we delete a com­ment or link, we will say so and explain why. [We reserve the right to change these stan­dards at any time with no notice.]

Who is we here? And why a “case by case” basis? This seems very dan­ger­ous to me, espe­cially with the express notion of those stan­dards chang­ing at any time with no notice.

2. We won’t say any­thing online that we wouldn’t say in person.

I gen­er­ally agree with that but what about peo­ple using the anonymity of the Inter­net in order to avoid reprisal. If that stan­dard is held, then it will do a lot to clamp down on infor­ma­tion that could have been use­ful but, because it is about pow­er­ful peo­ple, can’t be dis­closed with­out fear of reprisal.

3. We con­nect pri­vately before we respond publicly.

Does that mean that every per­son that’s talked about it con­tactable? If the pres­i­dent of the United States makes a com­ment, how do I con­nect pri­vately to him before respond­ing pub­licly? Does my send­ing him a let­ter con­sti­tute such pri­vate com­mu­ni­ca­tion or do I need to wait for an acknowl­edg­ment of receipt?

When we encounter con­flicts and mis­rep­re­sen­ta­tion in the blo­gos­phere, we make every effort to talk pri­vately and directly to the person(s) involved–or find an inter­me­di­ary who can do so–before we pub­lish any posts or com­ments about the issue.

Same as above. What if the attempt is not answered? Does that make it OK? Do we need to vet every com­ment before­hand? Should I send this to Tim and wait for his com­ment before I pub­lish it? What if he sits on it: does that quash the story altogether?

4. When we believe some­one is unfairly attack­ing another, we take action.

What type of action? What con­sti­tutes an unfair attack?

When some­one who is pub­lish­ing com­ments or blog post­ings that are offen­sive, we’ll tell them so (pri­vately, if possible–see above) and ask them to pub­licly make amends.

Once again, how do we con­tact them? What if they don’t respond?

If those pub­lished com­ments could be con­strued as a threat, and the per­pe­tra­tor doesn’t with­draw them and apol­o­gize, we will coöper­ate with law enforce­ment to pro­tect the tar­get of the threat.

Isn’t that already cod­i­fied by exist­ing law? Why does a code of con­duct need to cod­ify this? It’s already a given that such thing must hap­pen (lack of coöper­a­tion with law enforce­ment can carry heavy fines and impris­on­ment). Which law enforce­ment author­i­ties should we coöper­ate with: all of them? Only some? For exam­ple, if the Chi­nese gov­ern­ment, Syr­ian gov­ern­ment, Iran­ian gov­ern­ment, South Korean gov­ern­ment or other type of gov­ern­ment where free­dom of expres­sion is not as expres­sively granted as it is in the United States con­tacts us, should we com­ply? I say no, but this code appears to say yes.

5. We do not allow anony­mous comments.

Going back to my exam­ples regard­ing the pen­ta­gon papers, Water­gate, Enron and oth­ers: those would not have existed with­out anony­mous com­ments. How does this code deal with that?

We require com­menters to sup­ply a valid email address before they can post, though we allow com­menters to iden­tify them­selves with an alias, rather than their real name.

What hap­pens if they hide behind a free email ser­vice? Is that OK? If so, what is the value of this statement?

6. We ignore the trolls.

This seems to be in vio­la­tion of the rest of the code as ignor­ing them means giv­ing them a free pass? If we delete their com­ments, we’re not ignor­ing them.

We pre­fer not to respond to nasty com­ments about us or our blog, as long as they don’t veer into abuse or libel. We believe that feed­ing the trolls only encour­ages them–“Never wres­tle with a pig. You both get dirty, but the pig likes it.” Ignor­ing pub­lic attacks is often the best way to con­tain them.

If that’s the case, why should they be deleted then? This last sec­tion seems to con­tra­dict the rest of the code…

Because of such lapses and because I believe that “the inter­est in encour­ag­ing free­dom of expres­sion in a demo­c­ra­tic soci­ety out­weighs any the­o­ret­i­cal but unproven ben­e­fit of cen­sor­ship,” I have to say that this code is not only a bad idea but one that should stren­u­ously be rejected by mem­bers of the blogosphere.