Preserving Anonymity On The Internet - Critical Essay

USA Today (Society for the Advancement of Education), Nov, 2000 by Jonathan D. Wallace

"Legislators should be particularly wary of laws that require sweeping changes to communications technology in order to serve speech-restricting goals."

IN A 1997 DECISION, a Federal district court in Georgia invalidated a state law criminalizing anonymous and pseudonymous Internet communications. In so doing, the court issued a decision consistent with centuries of American tradition and jurisprudence. Throughout the history of the U.S., pseudonymous and anonymous authors have made a rich contribution to political discourse. Had the court held any other way, it would have fallen into the common trap of treating the Internet as being unique, unrelated to any prior communications media. Instead, the court recognized that there is no distinction to be drawn between anonymous communications on the Net and in a leaflet or book.

Controversial and thought-provoking speech has frequently been issued from under the cover of anonymity, by writers who feared prosecution or worse if their identities were known. The authors of Cato's Letters, an influential series of essays about freedom of speech and political liberty published from 1720 on, were two British men, John Trenchard and Thomas Gordon. Cato's Letters had a wide following in America.

In 1735, printer John Peter Zenger was arrested for seditious libel lot publishing pseudonymous essays by Lewis Morris, James Alexander, and others attacking New York Gov. William Cosby. Zenger also republished several of Cato's Letters. Andrew Hamilton defended Zenger. In his stirring oration to the jury, he asked them to lay "a foundation for securing to ourselves, our posterity, and our neighbors" the right of "exposing and opposing arbitrary power ... by speaking and writing truth." The jury's acquittal of Zenger helped to end prosecutions of American writers and publishers under British common law.

Thomas Paine's Common Sense, acclaimed as the work which sparked Americans to think about separating from Britain, was first published signed simply "An Englishman." Alexander Hamilton, John Jay, and James Madison wrote The Federalist Papers under the joint pseudonym "Publius."

Pseudonymity continued to play an important role in political speech in the 20th century. George Kennan, a high-ranking member of Gen. George Marshall and Pres. Harry Truman's staff, considered by many to be the architect of America's policy of "containment," signed his influential 1947 essay, "The Sources of Soviet Power," merely as "X." Politicians, including presidents, communicate anonymously with the media when they wish to express ideas or disseminate information without attribution, and press reports are full of quotes attributed to sources such as "a senior State Department official" or a "senior White House staff member." Pseudonymity has also protected people stigmatized by prior political speech or association; many blacklisted writers continued to work throughout the McCarthy era by using names other than their own.

The Supreme Court has consistently held that anonymous and pseudonymous speech is protected by the First Amendment. In 1995, in McIntyre v. Ohio Campaign Commission, the Court invalidated an Ohio ordinance requiring the authors of campaign leaflets to identify themselves. McIntyre had been fined for handing out anonymous leaflets during a local school board campaign. The Court repeated what it had said in a prior case: "Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind." It recognized that authors may have a variety of valid motives for shielding their identity, including fear of retaliation.

The Court placed McIntyre's leaflet in the context of centuries of anonymous political discourse: "Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority." Although the Supreme Court usually refers only to prior case law and scholarly legal writings in its holdings, the justices took the unusual measure of citing John Stuart Mill's On Liberty in support of the proposition that anonymity is a protection against the majority's tyranny.

The parallel between McIntyre's leaflet and an unsigned Web page or e-mail on a political topic is obvious. Nevertheless, people who fail to see the analogy between the Internet and print media continue to call for a ban on anonymity in cyberspace.

In 1996, the Georgia legislature passed H.B. 1630, an amendment to the state's Computer Systems Protection Act, making it a misdemeanor for one "knowingly to transmit any data through a computer network [using] any individual name ... to falsely identify the person ... transmitting such data.... "Immediately, a group of plaintiffs including the American Civil Liberties Union and the author of this article brought suit in Federal district court in Georgia challenging the constitutionality of the law. The district court granted a preliminary injunction against enforcement of the act, holding that "the statute's prohibition of Internet transmissions which `falsely identify' the sender constitutes a presumptively invalid content-based restriction" under McIntyre.