Anonymity and the Law

By Larry Seltzer  |  Posted 2008-12-21 Print this article Print

So the legal situation is fuzzy. I asked Steven W. Teppler, Senior Counsel at KamberEdelson, LLC about the law of anonymity on the Internet. He says that the question is simple, but the answer is complex: "There is no uniform, bright line legal authority holding that on-line anonymity is protected." Whether anonymity is protected and to what degree depends greatly on the circumstances. Teppler:

If commercial, there is good authority that anonymity rights can be waived by well crafted legislation. If the speech in question is non-commercial, a good argument may be made that anonymity should be preserved. If the non-commercial speech crosses the line into a defamation action, it would depend first upon whether the subject of the speech was a 'public' type of figure, and whether certain degrees of malice are present. If the non-commercial speech crosses the line into advocating criminal or terrorist oriented activities, a myriad of other concerns might come into play to dilute or result in a waiver of the anonymity preservation argument. Without question, the issue will hinge as much on the facts of each case as applied to the law as the law itself.
For those who want to dig deeper into this, Teppler recommends two important cases on this subject: McIntyre v. Ohio Elections Commission (1995) is often cited case for the argument in favor of speech-anonymity. The argument that there is 1st Amendment anonymity protection for non-commercial on-line speech may be made on the basis of a 2002 Supreme Court decision in Watchtower v. Stratton. I see a consensus of sorts here, You have a right to anonymous political speech, less of a right to anonymous commercial speech, and no right to hide behind anonymity to commit crimes. Laws to implement this have to be well-crafted, but that's reasonable; there is the potential for those laws to violate real rights. Personally I probably believe more strongly in freedom of commercial speech anonymously than the law allows, but I'll allow that there's a balancing act there and that there are considerations that aren't present for political speech.

Not everyone's so classically liberal about this; Eugene Kaspersky (who believes in eponymy, if not anonymity) recently said he wished that identity (and legal jurisdiction) on the Internet were far more concretely defined. To be sure, he doesn't think this is really possible, just desirable: "I would start by ensuring that every user has a sort of Internet passport: basically, a means of verifying identity, just like in the real world, with driver's licenses and passports and so on."

Yes, it's true that anonymity is dangerous, but as an American I have to say that Kaspersky's vision is scary. Kaspersky is thinking of security problems like malware and denial of service attacks, not political speech, but at some level a virus and an essay are both just content. You can't protect the anonymity of one without protecting the other. I'd like to be able to track down malicious actors on the Internet better, but I don't like where Kaspersky is going with this.

The temptation to call anonymous speakers, especially in politics, dangerous or cowards is great. Sometimes I think it's warranted. But the answer to it is not to violate their privacy, it's to call to attention their anonymity, as it often does diminish their argument. Anonymous arguments can still have great weight, as did those of Publius. It is a shame that, as a technical matter, anonymity on the Internet also facilitates impersonation and perhaps other crimes, but those have always had their old world analogs.

It would be perverted indeed for us to limit a freedom that helped to found our republic through peaceful debate. Let people put out their information and let the people decide, well or badly, what they think of it.

Security Center Editor Larry Seltzer has worked in and written about the computer industry since 1983.

For insights on security coverage around the Web, take a look at Security Center Editor Larry Seltzer's blog Cheap Hack

Larry Seltzer has been writing software for and English about computers ever since—,much to his own amazement—,he graduated from the University of Pennsylvania in 1983.

He was one of the authors of NPL and NPL-R, fourth-generation languages for microcomputers by the now-defunct DeskTop Software Corporation. (Larry is sad to find absolutely no hits on any of these +products on Google.) His work at Desktop Software included programming the UCSD p-System, a virtual machine-based operating system with portable binaries that pre-dated Java by more than 10 years.

For several years, he wrote corporate software for Mathematica Policy Research (they're still in business!) and Chase Econometrics (not so lucky) before being forcibly thrown into the consulting market. He bummed around the Philadelphia consulting and contract-programming scenes for a year or two before taking a job at NSTL (National Software Testing Labs) developing product tests and managing contract testing for the computer industry, governments and publication.

In 1991 Larry moved to Massachusetts to become Technical Director of PC Week Labs (now eWeek Labs). He moved within Ziff Davis to New York in 1994 to run testing at Windows Sources. In 1995, he became Technical Director for Internet product testing at PC Magazine and stayed there till 1998.

Since then, he has been writing for numerous other publications, including Fortune Small Business, Windows 2000 Magazine (now Windows and .NET Magazine), ZDNet and Sam Whitmore's Media Survey.

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