Anonymity Is a Problem and an American Tradition

By Larry Seltzer  |  Posted 2008-12-21

Anonymity Is a Problem and an American Tradition

It didn't take long for anonymity on the Internet to become a contentious issue, and for good reason. Anonymity is problematic.

It is usually possible, even easy, for users on the Internet to hide their true identities to a degree. Most Internet protocols have weak or no authentication in them and it's usually not too hard to keep your real name from other services, like social networking sites or blog comments.

There are all manner of good and bad reasons for doing this. The good reasons, expounded well in the EFF's (Electronic Freedom Foundation) brief on anonymity include protecting the identity of those engaging in controversial political speech.

The founding fathers were serial anonymists. They wrote constantly for public consumption under pseudonyms, I suspect because personal attack in public debate was an even greater problem then than it is now. Taking one's name off an argument leaves just the argument.

Any student of American history knows of The Federalist Papers, essays written in 1788 and 1789 in support of the proposed US constitution, and especially for the ratification debate in New York. They were written by Alexander Hamilton, James Madison and John Jay under the name Publius. Anti-Federalists wrote their own anonymous arguments under the names Cato and Brutus.

Unlike speech, anonymity on the Internet isn't free. Not everyone's Publius these days, so a lot of speech isn't just free, it's cheap. And while Hamilton must have paid for the publication of the Federalist Papers, When you write something anonymously on Blogger or MySpace you are doing so as a user on their system and you have agreed to follow their rules. As our Jim Rapoza has pointed out, violating these terms, even just by providing a fake e-mail address, can put you in legal jeopardy, as it did the defendant in the MySpace suicide case who was convicted for creating a fake profile.

Unlike Jim, I'm not comfortable saying that we have a right to violate Internet services' terms of service. I say that if you don't like the terms of service, don't use the service. Abusive people often hide behind anonymity to intrude on the privacy and rights of others, so services often need to insist in real identities. That's one thing, and it's another to say that violating those terms violates a Federal law.

As a policy matter it's reasonable to be concerned about anonymity. As Esther Dyson said in a recent interview " turns out anonymity really encourages bad behavior." She sees it as a right, but a corrosive force, at least in many cases. She's right. I would also point out that to me, anonymity is somewhat synonymous with weak authentication, and that weak authentication is comorbid with pretty much the full range of Internet security problems, from spam to botnets.

Anonymity and the Law

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

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