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Proposed S.D. law would require websites to collect information on anonymous sources for libel and slander lawsuits

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MITCHELL, S.D. - A South Dakota lawmaker wants to require bloggers and operators of other Web sites to collect information about the source of anonymously posted content so the information can be used in libel and slander lawsuits.

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Republican Rep. Noel Hamiel, who represents Aurora and Davison counties, introduced the legislation as a two-bill package last week in the state House of Representatives.

"The purpose of the bills," Hamiel, of Mitchell, said in an interview with The Daily Republic, "is to provide some recourse for people who are defamed anonymously online."

One of the measures, House Bill 1278, requires any person who allows Internet posts to "keep a record of the internet-protocol logs adequate to provide identification and location of otherwise unknown, anonymous, or pseudonymous persons who leave or upload content." The logs could be used, for example, to trace an anonymously posted blog comment to a particular Internet account or even a specific computer.

The other measure, House Bill 1277, would allow a person who is suing for libel or slander to name the blogger or other "online content provider" as a co-defendant, but only for the limited purpose of obtaining information about the source of the anonymously posted content. The main defendant would be the person who posted the content anonymously or under a pseudonym.

Hamiel said he hopes his legislation will start a conversation about what he considers to be a "serious problem in cyberspace."

"Here's the problem: A person -- or even a company, but certainly a person -- can have his or her name defamed anonymously online, and I think that's wrong," Hamiel said. "That's outside of the protection of the First Amendment. And I'm just trying to bring some accountability to that process that other media have had to adhere to for decades."

Those other media include television, print and radio, said Hamiel, who was formerly the publisher of The Daily Republic and held various other positions in the newspaper industry before becoming a legislator.

"This is borne out of my experience in the media and what I consider to be a need for fair play and accountability in all media forms," Hamiel said. "Why should the Internet be excluded from those standards?"

Pat Powers, a Brookings man who runs the political blog South Dakota War College, said the Internet is not excluded from those standards. Libel and slander lawsuits can already be filed against people who make anonymous comments online, he said, and information about the source of those comments can already be sought as part of the legal process. He called Hamiel's legislative effort a "solution in search of a problem."

Hamiel acknowledged that information about the source of anonymously posted comments can probably be sought under existing laws, but he sees a need to provide a "clear process" for obtaining and using the information in court.

Powers, who has published seven blog posts critical of Hamiel's legislation since it was introduced Thursday, has other criticisms. He said HB 1278 is "draconian" because it would require even the most obscure and harmless blogs to maintain information about anonymously posted content. The software needed to log such information is sometimes fee-based, Powers said, and can require a level of technical know-how that many bloggers lack.

"My 13-year-old would have to pay a monthly fee to put site-tracking software on her unicorn Web site," Powers said, citing a hypothetical scenario.

HB 1278 is also "ridiculously wide-sweeping," Powers alleged, because it would affect far more than just blogs. As examples, he said the proposed law would affect funeral homes that allow anonymous condolences on their Web sites, and online hospital guestbooks that allow well-wishers to post comments about people undergoing medical care.

Another point of disagreement is about the potential impact of Hamiel's legislation on the Constitution's guarantee of the right to freedom of speech. Hamiel does not think his legislation would infringe on that First Amendment right.

"If the bills are passed, they would not in any way prevent anonymous posts to Web sites," Hamiel said. "Anonymous speech would continue to be protected under the First Amendment. What isn't protected is libel."

An opposing viewpoint is found in a news release from the American Civil Liberties Union of South Dakota, which Powers posted on his blog.

"These bills seek to address issues of defamation on Internet Web sites but do so in a way that is so excessively broad that it suppresses South Dakotans' rights to freedom of expression and infringes on their right to privacy," Robert Doody, executive director of the ACLU of South Dakota, was quoted as saying. "Placing burdensome requirements on bloggers, Web site owners and others who operate Internet-based sites that accept anonymous comments chills freedom of expression to its very core."

Both bills have been assigned to the House State Affairs Committee but, as of Monday, had not been scheduled for a hearing. In addition to Hamiel, who is the first sponsor listed on both bills, HB 1278 has 26 sponsors in the House and four in the Senate. HB 1277 has 24 sponsors besides Hamiel in the House and four in the Senate.

The other two legislators representing Aurora and Davison counties, Rep. Lance Carson and Sen. Mike Vehle, are both sponsors of each bill.

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