Index: [thread] [date] [subject] [author]
  From: <>
  To  : <>
  Date: Tue, 09 May 2006 17:30:39 -0400

CPC Paper Two: Wikipedia's Future in the Courts

The Role of Wikipedia in the Courts:  Can Anonymous Editors Be
Rewriting History?

--Patrick Ferguson--

Citations to Wikipedia now surface in court opinions, law reviews,
and legal blogs with increased frequency. Many of these citations
are judicial recognition of a fact or definition that would often
require the testimony of an expert witness. The 11th Circuit for
instance recently relied on Wiki’s definition of “Homeland Security
Advisory System” [1] Thus, the Wiki slightly reduce trial cost and
save time, a significant issue for public interest advocates and
judges alike.

However, the Academy is also very critical of the use of such
citations. In February, The Court of Federal Claims scolded a
special master for supplementing the record in a medical
malpractice suit with the Wiki definition of “febrile seizures.”
[2] The court critically assessed the accuracy of such a citation,
lambasting the anonymity of Wiki editors, the ever-changing nature
of Internet sites, and the lack of central control over Wiki.

Wiki skepticism is not only the product of a citation-obsessed legal
culture. [3] Professors in all disciplines are highly critical of
their student’s citations to Wiki definitions. However, this
criticism is often directed at students who rely solely on Wiki for
information rather than as a starting point for research. A free,
widely accessible encyclopedia is a great place to start research
and with 2.5 billion page views per day, a tremendously important
asset to our culture. While Wiki articles may contain errors, they
are often the best easily-findable source on the web for technical
definitions. [4] Interestingly, a study by Nature found that
Wikipedia has only marginally-higher error rates than Encyclopedia
Britannica. [5]

The Wiki debate exploded last December from the flapping of former
journalist John Seigenthaler, who published his accusations of
libel in USA Today. [6] The controversy intensified with the
announcement in February that numerous Capitol Hill staffers were
abusing their Wiki editing ability to assassinate the character of
competing politicians. (My favorite edit was to the biography of
Sen. Tom Coburn, R-Oklahoma. "Coburn was voted the most annoying
Senator by his peers in Congress. This was due to Senator Coburn
being a huge douche-bag.”) The editors at Wikipedia took immediate
action, blocking edits from certain IP addresses and developing a
category of “featured entries” which the general public was not
allowed to modify.

Despite this action, Wiki was the subject of a March 12th New York
Times ‘Fear the Internet’ feature. [7] Apparently, the characters
of our beloved politicians rank with women and children as groups
who must be protected from the bogey men lurking anonymously on the
Internet. The NYT’s argument was much the same as the court’s
opinion, but proposed a more far reaching solution: abolishing
anonymous posting on Wiki altogether.

Focusing on the dangers of anonymity misses the real problem. First,
no posting on Wiki is anonymous as an IP address is linked with
every entry. Anonymous posters do not have the right to create new
entries without oversite and anyone who is ignorant enough to
vandalize existing entries is blocked by the administrator. While
it is has not yet happened, the defamed party could sue the IP
address, asking the court to compel production of the poster’s
information. There is a heightened pleading standard for learning
the identity of an anonymous speaker, but the burden is almost
always met. (If I decided to tweak the RIAA’s definition, I bet the
burden would be entirely forgotten)

Secondly, there is a genuine democratic gain from the ability to
anonymously edit. Wiki pages are edited by so many parties
independently that the true information has a tendency to rise to
the surface. Information never leaves the Net and editing profiles
would quickly end up in the hands of data miners. For the same
reason that I don’t want my choice for city councilman cached on
the Net, maybe I don’t want my choice for the definition of the
Patriot Act cached.

Another proposal to deal with Wiki inaccuracies is the creation of a
site that can only be edited by qualified members. This has been
tried before in various forms and not been terribly successful. [8]
If the site is to remain free and ad-less, it is difficult to pay
editor’s salaries. The funding could come from a university, much
like the model of the Legal Information Institute. [9] However,
these closed systems are not much different than the current
Encyclopedia and “Wikipedia is not just an encyclopedia; it is also
an immense community of active contributors.”

Two legal solutions also bear mentioning: the first was attempted
recently by a German court. The court ordered the German Wikipedia
site to shut down completely to protect someone’s identity. [10] It
doesn’t take much knowledge of the Internet to understand how
ineffective this approach would be; the court of appeals in fact

The second legal solution is more realistic. If accountability is
more of a problem than accuracy, courts could construe § 230 of the
Communications and Decency Act, which provides immunity for ISPs who
host defamatory or offensive material, to hold Wiki editors liable
for the content of their site when they “knowingly” host such
material. [11] However, this would contradict Congress’ expressed
goals for the CDA; encouraging free speech and encouraging ISPs to
monitor their sites without fear of liability.

The better solution to the Wiki accountability/accuracy problem is
two fold: better education and more traffic. [12] Students learn as
early as middle school that they cannot rely solely on an
encyclopedia for information. Users should also learn early never
to trust anything they read on the Internet, especially if they
don’t know who the source is. At the same time, as more people use
Wiki the definitions will only improve; hopefully confirming
Linus’s Laws. [13] Collective knowledge only improves with page

While lawyers are hesitant to cite to anything that is not static,
it is the fluidity of Wiki knowledge that helps to improve
definitions and remove offensive postings. Lawyers should be
careful with Wiki citations to politically or technically
contentious definitions. Knee jerk policy solutions that attack
Wiki anonymity will not expose any man behind the curtain, but do
risk setting bad precedent for the future of anonymity on the Net.

[1] Bourgeois v. Peters, 387 F.3d 1303, (11th Cir., October 15,
2004) – definition of "Homeland Security Advisory System"; See
Also: Allegheny Defense Project, Inc. v. U.S. Forest Service, 423
F.3d 215, (3rd Cir., September 15, 2005) -- "Understory"; U.S. v.
Krueger, 415 F.3d 766, (7th Cir., July 28, 2005) -- "Shake"; Amco
Ukrservice & Prompriladamco v. American Meter Co., 2005 WL 1541029,
(E.D.Pa., Jun 29, 2005) -- "Sea of Okhotsk"; Patel v. Shah, 2004 WL
2930914, (Nonpublished/Noncitable) (Cal.App. 4 Dist., Dec 17, 2004)
-- "Simple majority"

[2] in th.html#more

[3] psych.

[4] 3-5981119.html

[5] averages .html

[6] x.htm#

[7] –  Digital Domain; Anonymous Is Not the Same as Open Source; New
York Times 3/12/06, Author: Randall Stross.

[8] 3-5999200.html
The creators of Wikipedia already experimented with this model


[10] This
decision was quickly reversed:


[12] disclaimer

[13]'s law

Computers, Privacy, and the Constitution mailing list

Index: [thread] [date] [subject] [author]