Anonymity in On‐line Communication

The current Internet architecture allows most on-line communications to be traced back to the author’s computer. That tracing process depends on the cooperation of Internet Service Providers (ISPs). Changes in the Internet architecture, however, could someday end the debate over on-line anonymity, by evolving to a state of perfect identification or perfect anonymity.

Today, however, most legal challenges involving on-line anonymity involve identity seekers who demand, usually through a subpoena, that ISPs disclose identifying information about their customers. Some statutes and judicial decisions require little more than the identity seeker’s signature to support its subpoena. Authors have challenged the constitutionality of such subpoenas in a variety of contexts, and a few courts have required the identity seeker to establish the merits of its claim before ordering disclosure.

Legislatures and courts considering whether to protect on-line anonymity must balance competing interests. On-line anonymity fosters free speech and association and allows authors to maintain their privacy. The Supreme Court has recognized the traditional value of anonymous speech in the United States. On the other hand, on-line anonymity can immunize authors from civil or criminal liability and can allow criminals and terrorists to communicate secretly.

Much of the justification for protecting on-line anonymity in the United States derives from the First Amendment. Other countries, however, may have different views on the value of on-line anonymity. International organizations may eventually debate whether to recognize protection for on-line anonymity, just as the United Nations and the European Union have recognized protection of privacy rights.

SHAUN B. SPENCER

References and Further Reading

• Nicoll, Chris et al., eds. Digital Anonymity and the Law: Tensions and Dimensions. The Hague: T. M. C. Asser Press, 2003
• Sobel, David L., The Process That ‘‘John Doe’’ Is Due: Addressing the Legal Challenge to Internet Anonymity, Virginia Journal of Law & Technology 5 (2000): 3, https://www.vjolt.net/vol5/symposium/v5i1a3-Sobel.html
• Spencer, Shaun B., CyberSLAPP Suits and John Doe Subpoenas: Balancing Anonymity and Accountability in Cyberspace, John Marshall Journal of Computer & Information Law (2001): 493–521.