CCR Symposium: The Right to Remain Anonymous Matters
Orin Kerr says he was brought in to be a mild dissenter. I fear I may have been set up to be the pig at the garden party.
So let me start by saying that Danielle Citron’s Cyber Civil Rights is a wonderful paper. It is right about many things, although I’d be prepared to wonder whether the expression-action distinction might not reflect something true, real, and valuable, or whether the current balance between libel and the ‘wild west’ of unregulated speech is really so bad. But never mind all that: for present purposes let’s stipulate that Cyber Civil Rights is right about all its facts — including (as I indeed have no doubt she is right) about the terrible harms being wreaked online by evil people at the expense of innocent victims who are (wildly) disproportionately female and minorities. And let’s further stipulate that the article is right about its novel and exciting statutory arguments concerning how existing civil rights law might be used to deal with that – stuff I had fun thinking about and enjoyed teaching too.
Nevertheless, I have deep, deep problems with the paper’s proposed remedy — because there’s something critical that the paper leaves out.
Prof. Citron begins her remedies discussion with the suggestion that ISPs be stripped of § 230 immunity for postings by others, in the hopes that this will force them to police their customers. She proposes that they be subject to distributor liability – that we move to the takedown regime we have come to know and love under the DMCA. To which one can only reply…huh?
But never mind that: The core proposal is to set the duty of care for ISPs seeking not to be held responsible for their customers’ writings at a level that will required them – by law – to keep records of users’ IP numbers. In short, in order to serve the goals of deterrence and enforcement, Prof. Citron proposes the complete elimination of anonymity on the US portion of the Internet in order to root out hateful speech.
Let me repeat: Professor Citron proposes the complete elimination of anonymity on the US portion of the Internet in order to root out hateful speech.
I’m convinced that even though Prof. Citron is attacking a significant social problem, the cure proposed is (1) worse than the disease, (2) deeply unconstitutional, and (3) would have pernicious global side-effects.
The claim that the cure is worse than the disease is a value judgment, and thus no doubt disputable. It is based, I’ll admit, more on instinct than data. We don’t have good data about the amount of socially valuable anonymous speech any more than we do about the real quantity of the hateful stuff. We’re left to imagine a world with much less of both – I think the long run consequences of turning the major communications medium of the future into the government’s fishbowl have too big a chance of being pretty lousy. Others might trade some civility now against the risk of another Bush/Cheney administration later, but not me.
The claim that the proposed remedy is deeply unconstitutional is not based on a value judgement. It is based on a line of cases not addressed in Cyber Civil Rights – for which I blame law review length limits rather than the author. Starting from Talley v California, 362 U.S. 60 (1960), then McIntyre v Ohio Elections Comm’n, 514 U.S. 334 (1995), running through Watchtower Bible and Tract Soc. of New York, Inc. v Village of Stratton, 536 U.S. 150 (2002), the Supreme Court has made it clear that there is a strong (some would even say sweeping) constitutional right to anonymous speech. At the very least, when wholesale bans on anonymous speech such as proposed in Cyber Civil Rights reach core First Amendment speech they are not allowed. (I’ve written about these cases here and here if anyone wants a little more detail.)
The third point flows from the second. Dissidents around the world rely on US servers to get out their message. It’s probably not a good idea to engineer our communications in a way that might tempt our government to cozy up to foreign bad guys by slipping them information about the dissidents (think Nixon or Kissinger) who after all don’t have First Amendment rights here when based abroad. It’s bad enough that the EU has taken a big step in this direction by requiring ISPs and telecoms to store traffic data for a year. They have a Privacy Directive (and don’t have a First Amendment). We shouldn’t attempt to follow suit.
Here’s the core of Prof. Citron’s response as I understand it:
[S]ome believe immunizing website operators is essential to preserve anonymity, which they view as vital to free expression on the Internet. They may invoke the role of websites such as Wikileaks.org to facilitate political dissidence against oppressive regimes or analogize to important roles played offline by “anonymous” persons, such as investigative journalists’ sources. These parallels, however, are inapt. In some instances, many “anonymous” actors are not, in fact, anonymous, but rather have undisclosed identities. No responsible newspaper publishes material based on sources whose identity it does not know. Similarly, although the Supreme Court has rejected thinly supported demands for the production of dissident groups’ membership lists, it has never suggested that authorities or private litigants could not obtain the identities of persons reasonably suspected of unlawful activities. Freedom of expression has never depended on the absolute ability of speakers to prevent themselves from being identified and held responsible for activities the state may properly prohibit. As Professor Tribe notes, “secrecy often seems the shield of dangerous and irresponsible designs.”
Count me among those “some”. Just because it is true that “authorities or private litigants could … obtain the identities of persons reasonably suspected of unlawful activities” without violating the First Amendment doesn’t mean in any way that it follows we can all be treated as suspects without doing great violence to the Bill of RIghts.
Prof. Citron argues that we’ll be OK so long as site operators and ISPs stand on principle and protect our identities from improper requests:
Traceable anonymity would not betray our commitment to anonymous speech if site operators and ISPs refuse to reveal a poster’s identity unless a court order demanded it. This would protect individuals for whom anonymity is most crucial, such as victims of domestic violence and political dissidents.
I suppose I have come to lack faith in big profit-oriented cable and telecoms companies – a lack of faith that is educated by events such as EFF’s campaign lawsuit over what appears to have been a lengthy project of illegal recording of internet traffic carried out by major telecoms at the US government’s request.
Freedom of expression does in some cases depend on people reasonably believing they can speak without being called to account for it. That may sometimes be disreputable, even evil. Sometimes it may help save a life, or the Republic.