I wanted to expand upon a topic I mentioned in passing during my previous post: the right to anonymity. Anonymity as a legal right is something of a Catch-22; if you need to assert it, then you probably have no way of getting it back. Although this can be said of many legal remedies (the harm is irreparable so we compensate with monetary damages) with anonymity the harm is uniquely intangible, and often seems contrary to the common good. After all, the opposite of anonymity is transparency and freedom of information, two fundamental values to any free society. So while anonymity certainly has many benefits, its tendency to infringe upon other rights has relegated it to a lower tier on the hierarchy of American civil rights.
Anonymity is a deceptively complicated topic. The common perception is something akin to “they don’t know it’s me,” where the ambiguous pronouns hide a world of complexity. After all, “they” almost never refers to everyone. Most anonymous activity actually requires an intermediary who possesses more information than the remainder of the public, whether it is a magazine publisher, a journalist, or an internet service provider. Sometimes the “they” is only really one person, such as a teacher grading papers anonymously, or a scientist analyzing a double-blind trial.
And the “me” at issue is often more nuanced as well, as anonymous actors often utilize a consistent pseudonym, a theme mask, or even just a consistent style of writing and thought. Although a piece of writing may not have the author’s name attached, it nonetheless carries several indices of its author’s identity, making any “right” to anonymity difficult to articulate.
I should note that when I talk about rights I am overwhelming talking about Constitutional civil rights. Modern rhetoric throws around the word “right” frequently, but these represent little more than opinions about how the world should be. When I discuss rights, I am talking about rights that you can assert in a courtroom as a basis for legal redress: things like the right to free speech or the right to bear arms. And while there is no Constitutional Amendment granting every US citizen a right to anonymity, there are several court cases that have implied such a right, primarily from the First Amendment. As such, the legal right to anonymity emerges in a plethora of unusual and disjointed places.
And to clarify, anonymity alone is not the target of these rights. It is not the right to be unknown that is protected, it is the right to be unknown while doing something else. Therefore, cases that assert a right to anonymity typically occur where an individual does something without attribution through an intermediary, and a third party wants to compel that intermediary to divulge the name of the individual. The most common example is probably someone suing a newspaper to disclose the name of the author or source of a defamatory comment made anonymously.
As such, the most commonly discussed right to anonymity is that of anonymous publication. Newspapers and magazines have historically published controversial or dissident ideas under the protection of anonymity or the closely related pseudonymity. From the Federalist papers to George Eliot to Thomas Paine’s Common Sense (originally published anonymously), anonymity has historically facilitated free speech. Hiding or changing one’s name is considered just as much the “content” of the speech as the speech itself, and is therefore protected by the First Amendment. The Supreme Court frequently strikes down laws requiring political pamphleteers to identify themselves, invoking rhetoric touting anonymity as a necessary means for free and open debate. “Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” Talley v. California.
Although the right to anonymous publication is probably the most discussed, the most widely used is the right to anonymous voting. Often referred to as the “secret ballot,” this is the basic idea that voters should not be required to publicly state their political allegiances when voting. The reasons for this are many, but the general principle is that we don’t what the threat of public backlash or social stigma to influence how a person votes; we want them to vote for whomever they prefer. And this is not a trivial admission: there are numerous benefits that we would gain by having an identifiable list of all citizens and whom they voted for.
The final category of note would probably be the so-called right to anonymous reading, established in the Supreme Court case United States v. Rumely. Although the case is arguably more about the right to privacy, the Court said that a Congressional committee could not compel a bookseller to divulge a list of its subscribers, leading some to suggest we have a right to be anonymous as to what we read, at least from the government. Rumely was decided at the height of the Red Scare, and the case involved a book seller known for their “political tendentiousness,” suggesting the Court was reacting in part to a perceived threat to civil liberties by anti-Communist sentiment. While the case does not articulate a clear right, and has arguably been rendered obsolete by subsequent 4th Amendment jurisprudence, it is nonetheless indicative of a trend in American Constitutional Law towards the protection of anonymous thought and speech from direct government view.
Yet the breadth of these “rights” is surprisingly fleeting. Our right to anonymity amounts to little more than a right against government mandated author identification. Congress and the states cannot compel it, but that is not the same as saying you have a right for it not to be known. For instance, Congress could not pass a law that says that all newspapers must attach the real names of its authors. But the newspaper itself could choose to subsequently disclose these authors, and the authors would have no Constitutional right to object. They may have a claim for breach of contract (see Cohen v. Cowles Media Co.), but this exists only in a case-by-case situation, and does not reflect a broader civil right.
And perhaps more worryingly, there is no general right that prevents the compulsion of information held by others, often endangering our ability to remain anonymous. Privacy is typically a personal right, meaning that others cannot normally raise privacy objections on your behalf. Law enforcement can normally compel personal information held by corporations, and individuals may be held in contempt of court if they fail to answer questions under oath. We have a right against self-incrimination, but not against the incrimination of others. And while certain privileges do exist (lawyer-client, doctor-patient, spousal) these rarely protect a person’s anonymity, but rather specific things they disclosed in confidence.
There are some situations where states specifically protect anonymity, however. Reporter shield laws have been enacted in most states to protect reporters from being required to reveal anonymous sources, and most federal courts recognize a qualified reporter’s privilege. Although there is no federal reporter shield law, these protections typically allow for reporters to maintain their source’s anonymity.
There are also rape shield laws designed to protect the privacy of alleged victims in sexual assault cases by allowing them to remain anonymous during the trial. These are accompanied by rules of evidence preventing the admission of character evidence about past sexual behavior on behalf of the victim, as well as press outlet standards that discourage publishing the names of victims in sexual assault cases. Yet despite these laws, they provide little in the way of redress should the name of the victim emerge. The Supreme Court has repeatedly held unconstitutional state laws that attempt to penalize news outlets for publishing the names of rape-victims. As long as the information is truthful, newspapers have a protected First Amendment right to publish it.
This identifies perhaps the fundamental difficulty with anonymity: we are almost never completely anonymous, and anyone who knows our identity has a First Amendment right to disclose your identity, breaking the anonymity. When I began working on this post, I had envisioned identifying the underlying criteria that informed the various cases where we have a right to anonymity, and from that attempting to extrapolate where else such a right might be logical or necessary. But upon closer inspection, I began to realize just how ephemeral this right really is. The problem is that anonymity has always been subject to the stronger right of free speech, and while historically we’ve been able to exercise some control over the flow of information about ourselves, modern life makes monitoring data flows practically impossible, empowering untold others with free speech rights that trump our claims to anonymity.
I think the fundamental underlying problem is that people do not understand the technology they use. Most of our societal norms are based upon a certain degree of individual autonomy; we assume that people can take care of themselves, and require them to accept the consequences of their decisions. But expecting the lay consumer to understand the nuances of technology is disingenuous, and crafting norms based upon consumer’s misunderstanding of technology leads to the creation of assumptions that are not reflected by reality. The internet provides the illusion of complete anonymity, because the user conflates the privacy of their home to the privacy of their online actions. So based upon this illusion, most people engage in behavior where they expect to be anonymous, not realizing that their identity is either readily apparent or easily deducible by those they interact with. If they understood exactly how the system worked, they would be better empowered to take steps to ensure their anonymity.
This is particularly relevant because of what I like to call the “Sherlock Holmes Rule”: if someone else can figure out who you are through legal means, their free speech rights trump your right to anonymity. This is common sense for physical interaction: if you put on a mask, but someone recognizes your voice, you do not have a right to force them to pretend they don’t know who you are, nor can you force them not to tell others. Similarly, if you pen an essay under a nom de plume, you are not immunized from others recognizing your literary style and attributing it to you. These situations make sense to us because we understand all or at least most of the metrics by which we may be identified. Yet when we apply these same standards to technology, we get outcomes that don’t comport with our sense of justice, because most internet users don’t understand the metrics that go into internet identification. And perhaps more importantly, technology empowers us to track metrics that we never before considered, fundamentally altering how we can think about privacy and anonymity.
There’s a Supreme Court case called Kyllo v. United States where the Court was confronted head on with this problem. Kyllo involved the police use of thermal imaging to essentially look into a defendant’s home. While this strikes most people as blatantly unconstitutional, it is difficult to craft a principled reason why. The police were in a public area, looking at the heat that was emanating from the house. Is looking at heat all that different from looking at reflected light? To get around this difficulty, the Court crafted a rule that says information gathered with technology not “readily available to the public” requires a warrant. (For those who are interested, there is currently a smartphone app that allows for thermal imaging with a small camera enhancement. Whether this is “readily available to the public” is an open question.)
The ruling in Kyllo is odd, but it reflects this problem of metrics. We craft our expectation of privacy around sight, smell, sound, etc., because those are the things we can naturally track and have developed ways of obfuscating when we need to. We wear masks to cover our faces; we talk quietly to avoid being overhead. When confronted with a new metric, however, we are left at a loss. How do we control how much heat our house emits? This is a question that is not normally considered (outside of the Predator franchise) and it reveals information that we had thought to be private, albeit in a manner that we would consider public. And while we may craft houses that mask our heat emissions, what happens when we discover a metric that we cannot control?
At least in the short term, I am not too worried about the diminishing potential for or right to anonymity. Much like security, the idea has never been to allow for complete nonidentifiability; the point of anonymity is to obfuscate information such that it won’t be common knowledge, and that possibility will remain, at least for the foreseeable future. There will always be a Sherlock Holmes who can deduce your identity if need be, and that is probably a good thing. And while this does mean that activity we wish to remain anonymous can always be made public, we are not alone in that situation, and the accumulated deanonymized information of the entire world will provide a new type of anonymity through obscurity. If everything everyone does is known by everyone, the private details of our lives will just get lost in the crowd.