Anonymity in Cyberspace

Constitutional Protection. The right to anonymous speech has been protected in the United States as a corollary to the freedom of speech provision of the First Amendment. As interpreted by the US Supreme Court, the right to speak freely includes the right to not reveal one's identity.

• For example, the Supreme Court protected anonymous speech in Talley v. California (optional), and in
• McIntyre v. Ohio (read sections I, II, and VI and skim the rest)

Application of Anonymity Rights to the Internet. Some scholars argue that the right to speak anonymously should be extended to speech on the internet.  Others argue that, due to risks inherent in the internet, anonymity should be more limited in cyberspace than in realspace. Read the arguments below. Which side do you find more compelling?

• Wikipedia’s Anonymity Discussion— Focus on the background section and the ‘Anonymity on the Internet’ section
• Gayle Horn’s arguments against extrapolating the right (read pages 771 to 773), 60 N.Y.U. Ann. Surv. Am. L. 771 (2004-2005)
• Read a justification for anonymity in Anonymity in Cyberspace: Finding the Balance (read Section 2 only)

A Right to Read Anonymously? If there is a right to speak anonymously on the internet, is there a corresponding right to read anonymously as well?  What about using search engines anonymously?

• Read Julie Cohen’s arguments for this right in A Right to Read Anonymously: A Closer Look at Copyright Management in Cyberspace (Read pages 1003 to the middle of 1008), 28 Conn. L. Rev. 1003 (1995-1996)
  • Also available here

Anonymity-Preserving Technology. There are technologies available that attempt to ensure users’ anonymity while surfing the web.  What do you think of the availability of these devices and their potential for use and misuse? Do you think there should be legislation surrounding the development of anonymity technologies— should they be regulated? Tor— Electronic Frontier Foundation’s technology for anonymous surfing (optional) For more information on the mechanism behind Tor, which stands for: The Onion Router, see this wikipedia article. Another site for anonymity-conscious surfers is scroogle.org. Read the description of how the service works to hide the user’s identity from Google while still returning Google’s search results Read this USA Today article about Anonymity Software Limits to Anonymity. What are the limits to anonymity in cyberspace? What showing should an individual or the government, wishing to unveil an anonymous person, have to put forth?  Here is a current civil controversy Read this article about a case that was filed, and later dropped after EFF intervened. The plaintiff attempted to uncover anonymous members of an embroidery discussion group— even those members who never posted to the board - and subject them to liability What do you think of this poster's comments, titled 'My rape fantasy' (warning, extremely graphic material): I recommend you read *only* the first couple of sentences to get an idea of the content. You'll have to scroll down once you click on the link to see the post. Should the poster forfeit his anonymity? Is what he did illegal? Read about how AOL accidentally released the search histories of some of their users - with enough search detail to identify some individuals Read Gonzales v. Google, Inc. (skim to get an idea of what the case is about and Google’s arguments but then carefully read Section D starting on page 18), about the government’s subpoena for some of Google’s search records.  Do you find it interesting that the court raised the privacy concerns sua sponte?  What questions does this leave open regarding anonymity on the internet?

Cartoon by John Morris (www.cartoonstock.com)

Is an e-annoyance enough to warrant loss of anonymity? (optional) If you have time, read these articles about the Violence Against Women and Department of Justice Reauthorization Act and their impact on anonymity. Is there a requirement that a user actually do something illegal before his or her identity can be unmasked?

• The Erosion of Anonymous Internet Speech (optional)
• Lawsuit Challenges New E-Annoyance Law (optional)

Are there any viable solutions?

• One blogger proposed a ‘Google Data Privacy Manager’
• For a surprising look at what one other country is doing about the problem, see this article about Korea
• Read this article discussing US and UK/EU proposals for requiring ISP data retention. More recently, the Attorney General has called for (optional) even longer data retention timeframes and quicker action by Congress.
  • Shouldn’t we worry about the potential for AOL-like slip-ups (see article above) when search records and web surfing trails may be retained for 1 to 7 years?
  • Many scholars have argued against data retention policies like these because of the risks inherent in the collection and retention of private data
• How would you balance anonymity rights on the internet with other public policy interests?

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