First Amendment Law Letter ~ Summer 2000

A dissident wants to send an e-mail with information aimed at exposing human rights abuses by her country's government. An unscrupulous "financial advisor" uses his website to manipulate the stock prices of individual companies by providing false information about alleged insider trading. A victim of sexual assault goes into a "chat room" to share her story with other victims. A hacker seeks to send an e-mail virus aimed at crippling computers world-wide. Each of these individuals has at least one thing in common. They all wish to remain anonymous.

Throughout history, anonymity has helped shield speakers of all kinds and has served both noble and nefarious goals. As technology makes communication easier, anonymity's power, to do both good and ill, likewise has increased. Moreover, while technology has in some ways reduced individuals' privacy by facilitating the sharing of information, recent technological advances - in particular, the use of powerful encryption - may lead to the day when anyone can communicate to a vast audience anonymously. These technologies will bring to the legal forefront the age-old dilemma of how to encourage and preserve anonymity for those with legitimate reasons while simultaneously ensuring the accountability necessary to enforce laws.

There are many valid reasons why one may wish to communicate without revealing one's identity, and society can benefit from permitting such communications.

Recognizing some of these benefits, the United States Supreme Court in 1960 invalidated, on First Amendment overbreadth grounds, a Los Angeles ordinance that required all handbills to contain the author's name and address. Talley v. California, 362 U.S. 60 (1960). "It is plain," the Court observed, "that anonymity has sometimes been assumed for the most constructive purpose." Id. at 65.

One group of legitimate justifications falls broadly under the rubric of avoiding the stigma or group pressure associated with self-revelation. An on-line "chat room" for victims of sexual crimes is a good example of this. Being able to share intimate stories without disclosing one's identity makes it easier to express oneself fearlessly. Speaking anonymously, one can also take on different roles and/or hide one's physical attributes. No one has to know the speaker's race or gender, or whether one is physically disabled. The benefits of such identity-hiding have been documented by psychologists. See Anne Wells Branscomb, Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces, 104 YALE L.J. 1639, 1642 (1995).

In some circumstances, the stigma or group pressure associated with holding certain views or disclosing certain information can have serious repercussions, including reprisals. Potential whistleblowers may be fired and, in some countries, human rights activists risk jail – or worse – if their identity is discovered. In fact, those on the margins of society whose speech might threaten the status quo historically have needed the veil of anonymity for protection. As the Supreme Court noted in Talley, "[p]ersecuted 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, 362 U.S. at 64.

A second way in which society benefits from preserving a right to communicate anonymously is the egalitarian goal of ensuring that ideas are judged by their content, not by the identity of their expositor. Social status is a powerful component in the persuasive power of certain ideas, and for those from the lower rungs of social stratification, being able to conceal one's identity can sometimes give one's ideas greater resonance and power.

But, permitting anonymity has costs as well as benefits, and the costs are based primarily on the very lack of accountability that makes anonymity attractive. One effect of anonymity is that readers or listeners will have reduced confidence in the accuracy of the information they receive, in much the same way that not knowing the origin of a consumer good (a car, a prescription drug, a can of soda) reduces confidence about it. Moreover, in some circumstances, the identity of the speaker is an important component of the content of the message. As the Supreme Court once noted, "An espousal of socialism may carry different implications when displayed on the grounds of a stately mansion than when posted on a factory wall or an ambulatory sandwich board." City of Ladue v. Gilleo, 512 U.S. 43, 56-57 (1994). By itself, though, this is hardly a reason to curtail anonymous speech. Readers and listeners can easily discount the value of such speech if they so choose.

The more important concern about anonymous speech is that it makes enforcing legitimate laws more difficult. A company seeking to determine who is divulging its trade secrets, an individual trying to determine who is defaming her, the government investigating the origins of an email-generated virus; all of these attempts to enforce necessary laws become extraordinarily difficult when one cannot easily determine the identity of the source. Related to the enforcement problem is the concomitant "moral-hazard" concern. By reducing the likelihood that wrong-doers will be detected, the possibility of anonymity may lead to an increase in harmful behavior. See David Post, Pooling Intellectual Capital: Thoughts on Anonymity, Pseudonymity, and Limited Liability in Cyberspace, 1996 U. CHI. LEGAL F. 139, 142.

New and interesting legal issues that highlight the tension between anonymity and accountability have come to the fore in cyberspace. To participate in most on-line "chat rooms," for example, all one needs is a "screen name," and the screen name need not reveal one's true identity. This has led to problems with many chat rooms including, for example, those devoted to specific publicly-traded companies: An anonymous participant will make a derogatory comment about the company or its management, and the company will take offense. The company may respond by bringing suit against an unnamed party - which is possible in most states simply by naming "John Doe" as a defendant - and then obtaining subpoenas against the chat-room provider or other entity that might have information about the true identity of the anonymous poster.

According to some commentators, the ease with which a subpoena may be obtained has led some companies to use the tactic to silence critics and chill free speech even when they do not have a legitimate claim against the putative defendant. Consider the example of Raytheon, a Massachusetts-based defense contractor. It suspected that some employees were divulging company secrets on a Yahoo! site and brought suit against 21 "John Does." It then served subpoenas on Yahoo! and eventually learned all 21 names. Yet as soon as it discovered the identities of its defendants, it dropped the suit, leading David Sobel, general counsel for the Electronic Privacy Information Center (EPIC), a privacy watchdog group, to accuse Raytheon of misusing the subpoena power: "It seems that the sole objective of Raytheon was to identify those individuals," Sobel said. Raytheon Drops Suite Over Internet Chat, N.Y. Times, May 22, 1999.

Or, consider Itex, an online bartering company that brought suit against a John Doe who turned out to be a former executive, Les French. When French decided to continue the fight after being unmasked, Itex lost its appetite for litigation. Itex ended up paying French $45,000 in the resulting settlement (of which $40,000 went to an organization that French set up to help cyberspeech defendants, the John Does Anonymous Foundation, ), in exchange simply for a promise by French not to file a countersuit for malicious prosecution.

Despite the fact that providers of interactive online services are immune from liability in most circumstances, 47 U.S.C. § 230(c), the Raytheon and Itex examples illustrate one important issue facing chat-room hosts. On the one hand, they want to maintain lively sites that encourage a wide range of comments, both good and bad, about companies; to do that, anonymity is a valuable tool. Yet, at the same time, they do not want to get involved in every legal battle involving statements made on their sites. What most online hosts have done is to include in their Terms of Service agreement a provision that permits disclosure of the user's identity if the host has a good-faith belief that such disclosure is required by law. Though one chat room participant has brought suit against Yahoo! for disclosing his identity, courts will likely consider the receipt of a subpoena to be sufficient grounds for a good faith belief that the law required disclosure. See John Doe Fights Back by Suing Yahoo! for Privacy Infringement, .

Many hosts have also instituted a policy of providing notice to the chat-room participant before disclosing any information in response to a subpoena, so as to give the user the opportunity to quash the subpoena. As long as courts are willing to quash subpoenas in meritless suits, this may be an appropriate solution, since it allows cyberspeech defendants to try to protect their own identity. If John Doe can preclude the unmasking of his identity until after a court rules on a motion to dismiss, this may be the fairest way to balance John Doe's right to remain anonymous with a plaintiff's right to prosecute a legitimate lawsuit. This approach, however, likely will raise interesting questions about service of process and jurisdiction.

The risk of cyberspeech lawsuits may lead those seeking anonymity to look for new technologies to help cloak their identity. Several companies recently have begun offering sophisticated methods for preserving anonymity using encryption. A Canadian company, Zero-Knowledge, has introduced a software program called "Freedom 1.0" that combines three separate components -"nyms," encryption and what the company calls its "Freedom Network." "Nyms" are pseudonyms a person chooses. Once the software program is activated, it automatically encrypts all of a customer's Internet traffic within multiple layers of cryptography. The "Freedom Network," which is a group of servers Zero-Knowledge maintains, then further encrypts the data so that the only information left is the chosen "nym." Zero-Knowledge claims that its system even strips out all information about a user's ISP and that the most one can recover from their servers is an encrypted stream of data. The company also claims that, although it does collect a credit card number before letting you download its software, it cannot link the credit card number to any particular nym. See Patrick Norton, Freedom 1.0., ZDNet/PC Magazine (Dec. 23, 1999), . So, Zero-Knowledge claims that, even if issued a subpoena, it would not have any information to give.

Another new system of maintaining anonymity online was recently unveiled by researchers at AT&T Labs. Named "Publius," after the pseudonym used by Alexander Hamilton, John Jay and James Madison to publish the Federalist Papers, the AT&T system also uses sophisticated encryption and has the additional advantage of being hosted by a system of volunteer servers throughout the world. The result, say the system's developers, is that there is no central repository of the information necessary to track an author.

Whether any of the attempts to create perfect anonymity succeeds remains to be seen. In the meantime, society and the courts will continue to have to grapple with the important question of how to protect legitimate anonymity while ensuring that the legal system can expose those who use the cover of anonymity to break laws.