Computers, Privacy & the Constitution

The Value of Anonymity

Over the past couple of weeks, my alma mater has been embroiled in a bit of a conflict. It all began with a student-led protest aimed at bringing attention to sexual assault problems at the school. The protest happened during one of the school’s most popular admitted student programs. Reactions to the protest varied – some were supportive; others less so. Those who were angered by the protest and the protesters took to the school’s anonymous online discussion forum, which is restricted to those with valid school e-mail addresses. Within a matter of hours, the forum filled up with all forms of outrage – racial slurs, derogatory remarks towards the LGBT community, and even death threats. The website was temporarily disabled by the end of the day. Other than disgust, my immediate reaction was: who were these students? Whether these students are truly anonymous is a question I cannot answer without knowing more about the school’s system, but I have my doubts that they are. Surely, the school could match each anonymous pseudonym to an individual email account if it wanted to, but the question is should it? Despite its occurrence on a relatively isolated college campus, this incident implicates a much larger issue – the preservation of anonymity on the internet.

Anonymity is arguably one of the key characteristics of the internet, and some would even say that it is the most appealing one. To be sure, the issue of anonymous speech is not new – the Supreme Court has dealt with it many times before, dating back to the days of print pamphlets (McIntyre).

Why no link?

But the existence of the internet has not only increased the ease with which users could speak anonymously, it has also magnified the number of speakers who choose to take advantage of the option. Much like in the physical world, anonymity allows online speakers to promote unpopular ideas without the fear of retaliation, which is a particularly important requirement in the free exchange of ideas in political debates. In the same vein, unpopular speakers also benefit from having their identities concealed so that their messages could be judged on their merits and not be subject to preconceived notions about the source. Ideally, this would lead to an improvement in both the quantity and the quality of ideas in the marketplace. On the other hand, anonymity also reduces the risk of engaging in immoral, and perhaps even illegal, activities. Notable examples include potential copyright infringements, harassment through electronic stalking, libel and defamation, the circulation of child pornography, and the increasingly prevalent case of cyber-bullying (the tragic case of Megan Meier, who committed suicide after being taunted her friend’s mother under the guise of a fake MySpace? profile, is still fresh in the minds of many). Even though our legal system tries to distinguish between what types of speech should be protected by anonymity and what types should not be, the architecture of the internet does not – as long as anonymity is possible, it will be certainly be used as a shield for both thought-provoking political speech and potentially dangerous criminal speech.

In McIntyre, the Supreme Court held that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the contents of a publication, is an aspect of the freedom of speech protected by the First Amendment.” 514 U.S. 334, 342 (1995). Implicit within this line of reasoning is the recognition that there is some intrinsic value in remaining anonymous that is an integral part of one’s freedom to speak at all. In the digital age, the internet may look daunting as a boundless marketplace of potentially unverifiable and untraceable ideas, but I think that this general principle must be preserved as much as possible. For instance, a commonly litigated issue right now involves corporations which are trying to ferret out individuals who have spoken up against them in some online forum. The argument behind this is usually that the speaker is speaking falsely and has caused monetary damages to the corporation’s business. While it is true that false speech is neither valued nor protected by the First Amendment, the corporations in these cases usually have alternative solutions to deal with the problem (i.e. posting responses in the same forums or educating their consumer base through other means). Piercing the veil of anonymity in such cases would have much greater implications than simply holding the culpable individual responsible for his or her actions – it would imply that the intrinsic value of anonymous speech was worth less than commercial considerations. And that is not the direction that a democratic society such as ours, which was founded on the free exchange of ideas and the anonymously written Federalist Papers, should be going.

Reflecting on the situation at my alma mater, I am further convinced that more speech is better than less, even if it leads to the creation of more harmful speech. Even though I cannot agree with the words that were said, I can nevertheless appreciate that the anger and frustration behind the words needed to be expressed and heard. Perhaps the authors would have chosen to express themselves more eloquently (and with fewer expletives) had their identities been public; but the backlash it generated, and the discussions that followed, probably would have been more subdued and ineffective. Despite my own frustrations at not knowing whether an old friend is responsible for what is dangerously close to hate speech, this situation serves as yet another example of the importance of preserving anonymity even in the face of very harmful speech. At the end of the day, messages such these, as abhorrent as they may be, are the price that we must pay in our attempt to preserve a meaningful platform of discussion for all.

Word count: 951

-- AvaGuo - 02 May 2013

I don't understand the analysis. It would help if a question were more specifically defined. Are we asking whether the school should stop permitting anonymous posting? Or whether, having provided an anonymous forum, it should now "unmask" everyone who has participated in a recent ugly conversation? Or whether, if some court ordered disclosure of identities, the school should comply? They're all very different questions raising different issues and giving rise to different other thought-paths. It would be helpful to know which of these or another you are asking.

McIntyre v. Ohio Elections Commission concerns one of them, transposed to the public sphere: can the State require that certain forms of campaign literature be published with attribution? The analysis perforce addresses only that question, which is probably not even present here. It would be good to understand then, also, at what layer of substance we are actually directed: the ethics of anonymity, the degree of state respect for the right required of international human rights law, the duties of private universities, etc.



Webs Webs

r4 - 14 Jan 2015 - 22:44:49 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM