Now that the turkey is digested, here’s a conundrum for you to chew on over your long holiday weekend.
Should online anonymity be illegal?
Online anonymity is something we all take for granted. We call it privacy. Even if we accept the idea of using cookies, we don’t want those cookies attached to “personally identifiable information.” This year, DoubleClick and America Online were forced to back away from launching software that tracked consumer behavior.
Under U.S. law, the border between your right to anonymity and the power of the state lies along the line of speech and action. Anonymous speech is OK. The Federalist Papers, written to promote passage of the Constitution, were originally written anonymously. Anyone with a controversial axe to grind has since used anonymity to spread the word with minimal personal risk. Courts have protected this right.
On the other hand, anonymity can license wrongdoing and provide a cover for terrorism. Actions prohibited by law are no less unlawful for being committed anonymously. When illegal actions are being discussed, police can investigate what you said and even jail you for it if your speech furthers a conspiracy.
But there is no clear line between speech and action when you go online. Right now, Sega is trying to shut down web sites it says promote discussions that might compromise games for its upcoming Dreamcast game system. Is that clear? A site might allow speech that a private company feels violates its rights, so the site must shut down.
The same arguments are used against all anonymous speech online. For the last few years, corporations have worked hard to squelch critics with what are called “John Doe” suits. Suits are filed against online services or ISPs, seeking the names of anonymous critics. Those people can then be slapped with libel suits, or if they are internal whistleblowers, they can be fired.
In a story on the “John Doe” suits, David Sobel, general counsel at the Electronic Privacy Information Center, put the issue bluntly. “What we’re seeing is an all-out assault on anonymity on the Internet,” he is quoted as saying.
He’s right, but in a medium in which there is no difference between speech and action, in which all actions can be called speech and all speech can be called action, is freedom possible? We’re accustomed to thinking of software as a form of speech, but it isn’t, according to Judge Lewis Kaplan.
“Computer code is not purely expressive any more than the assassination of a political figure is purely a political statement,” Judge Kaplan wrote in his decision on the DeCSS case. Even a song in which this code was spoken was banned from MP3.com.
If all speech can be enjoined as action and anonymity can be broken at the drop of a legal paper, then maybe Kris Kristofferson is right. Freedom is just another word for nothing left to lose.