DISQUS

Adam Thierer · 1 year ago

Great post, Ryan. I wasn't aware of that Kentucky bill, so thanks for pointing it out. I am trying to do a better job of keeping tabs of rising threats to online anonymity, especially on the social networking front. So perhaps we can keep working together to highlight these threats here while also making a concerted effort to discuss the many benefits of online anonymity. Politicians only tend to look at the downsides. To be sure, as Solove's book illustrates, there are some. But the benefits of anonymous speech far outweigh the cost. We need to do a better job of making that case to head off dangerous mandates like the Kentucky bill.

Adam Thierer · 1 year ago

Update: Eugene Volokh has a good discussion about the legality of the Kentucky measure over on his excellent blog, The Volokh Conspiracy. He notes that it is:

Pretty clearly unconstitutional, see McIntyre v. Ohio Elec. Comm'n (1995) and the cases on which it relies. Plus of course any such state law would likely violate the dormant Commerce Clause, because it would end up affecting speech throughout the whole nation (given that even national ISPs would have to implement such policies for all their users, because national ISPs "do[] business" in Kentucky).

Also, make sure to check out the comments over at Slashdot about all this. Some are quite entertaining.

Adam Thierer · 1 year ago

Sorry to keep adding comments, but I found another good piece on the subject here by my friend Leslie Harris of CDT. She argues:

It would be easy to dismiss this bill as simply the uninformed effort of a not very Internet savvy legislator, but to do so misses the point. Anonymity on the Internet is under attack. Whether it was the provocative comment by Donald Kerr, the Principal Deputy Director of National Intelligence who famously declared last fall that “Protecting anonymity isn’t a fight that can be won,” or the zeal with which the nation’s state attorneys general have pursued age verification for social networking sites, the view that anonymous speech is dangerous speech has plainly taken hold.

There are of course times even on the Internet where establishment of identity maybe important, but we seem to have forgotten the value of anonymous speech to our constitutional democracy. As the Supreme Court has made clear, “Anonymity is a shield from the tyranny of the majority.” McIntyre v. Ohio Elections Commission (1995). Anonymity is what protects people from expressing an unpopular political view in a community where the majority holds vastly different political views and allows people to safely provide information about government misconduct. And for those living in repressive societies, anonymous speech is an enabler of human rights and political reform. If it was good enough for Publius, it should be good enough for the Internet.

Amen.

Ryan Radia · 1 year ago

Leslie Harris correctly states that anonymity is under siege on many fronts, and calls will intensify for new restrictions on anonymity as online speech takes center stage.

As Leslie notes, there are many compelling reasons why anonymous speech merits legal protection. Defending anonymous speech will be a challenge in the online age, as the media constantly bombards us with examples of anonymity’s ugly side.

I mentioned the Talley case deals with anonymous speech. Eugene Volokh identifies another bedrock decision on anonymous speech, McIntyre v Ohio. This ruling overturned a ban on anonymous distribution of campaign literature. Fortunately for free speech, the court concluded in McIntyre that the importance of protecting anonymity outweighs the potential for defamation. So it's unlikely that blanket bans on anonymous speech like the Couch bill will pass Constitutional muster.

I'm worried the real threat to online anonymity will come from federal data retention laws like the SAFETY Act , which mandates ISPs and web operators retain IP logs for an extended time period. These laws create honeypots of sensitive data ripe for hackers or government agents, and are in essence a backdoor method of effectively abolishing anonymous speech on the Internet.

If you can't communicate online without multiple firms recording your identity, there can hardly be genuinely anonymous speech, despite whatever safeguards may exist. The virtue of the market is that it creates sanctuaries for anonymous speech, for better or worse. This can't happen if government mandates the aggregation of otherwise private data.