Madisonian co-blogger Frank Pasquale reports at Concurring Opinions on a case of online impersonation involving Frank Pasquale. Bill McGeveran extends the commentary by pondering various legal claims available to the victims of the scam.
I’ll ask the cyberlaw question: How is this little episode in the blogosphere different from an equivalent episode offline, or elsewhere in cyberspace? Same question, expressed differently: Do blogosphere posters, commenters, and readers lack access to truth-worthy signifiers of identity that they have elsewhere? Is this just an amusing extension of an age-old problem, or something qualitatively new?
Some of both, of course. I know Frank Pasquale, and Frank Pasquale is a friend of mine, so it’s easy for me to say that the “Frank Pasquale” of The Paris Site (locale of the impersonation) is no Frank Pasquale. I can match Frank’s speech patterns and his writing patterns (in email and in scholarship) to what I read here at Madisonian and what I read at Co-Op and elsewhere, and the pieces fit. This Frank is not that “Frank.” (For those with long memories in the academic side of intellectual property law, some of this reminds me of the “We hate ML” confusion of five or six years ago.)
But if I didn’t know Frank and didn’t know where to look to do some pattern matching, then I’d be out of luck, and I’d have no reason to presume that the Paris Site “Frank” either is or is not this Frank. I suspect that the psychology of trust would push us towards accepting the (false) representation that the two are one. I would read the posts ignorant of the “true” identity of the writer.
What does cyberlaw tell us then, given that the same sort of thing can happen offline or elsewhere (email spoofing) online? The Internet, as always, is a double-edged sword. The impersonating blogposting Frank could do much more damage in a networked world than s/he could do by sending a malicious letter as FP to a newspaper editor; reputation-harming information would spread vastly more quickly, and would be much more difficult to erase. On the other hand, easy access to information actually makes this problem potentially easier to deal with, rather than more difficult: With the click of a mouse, a cautious reader might trust — but verify. The hospital victim of The Paris Site have pursued precisely this approach: They checked the “real” Frank Pasquale, accepted his plausible denial of responsibility, and have now sued to uncover the identity of the “real” Paris Site writer. Shades of the double-sided impact of digital networks on copyright law! Or, to coin a phrase, cheap speech, and what it will do.
And the final cyberlaw lesson may be that the episode tells us less about the right structure of the law and more about how other social and technical structures can be manipulated for good as well as for ill. Frank gets cleared here, and rightly, at least in part because he is a widely-known and recognized figure in the blogosphere. Perhaps not for identity protecting reasons, he has a well-crafted and reasonably well-integrated online/offline persona. Really impersonating him would be difficult. Self-googling, the remedy that Frank and Bill both refer to, need not be a purely defensive tactic. As in some other contexts, the best defense is sometimes a good offense.