Privacy of Identity and Association Online

Channing Turner LAW 724: Information Privacy Law (Project Excellence: HON 494)December 4, 2009

Privacy of Identity and Association Online: A Look at Historic and ContinuingExpectations of Anonymity and the Legal Realities of the InternetINTRODUCTION: Expressive Anonymity’s Necessity and Danger

The right to free expression supports essential aspects of American policy and jurisprudence—a keystone in American political thought. Unambiguously accepted asfundamental by America’s founders, this right has morphed and expanded radically sinceits adoption. In the area of privacy law, American courts have come to interpret freedomof expression as including the right to anonymous expression and consumption of ideas— effectively creating, albeit limited, a right to anonymity.However, the right to anonymity faces serious challenges from emergentcommunication technology and, primarily, the Internet. The American legal system hasnever faced something so fundamentally disruptive as the Internet, which entangles vastareas of legal precedent by disrupting centuries of complex interest balancing. It providesa sweeping expansion of the way individuals share ideas, exchange information, and formassociations. It also enables violation of privacy, identity theft, and anonymousdefamation. Like any tool, the Internet seems only as good as those who use it; butregardless of intentions, the Internet offers all users the ability to mask their identitythough screen names, pseudonyms, and anonymity—or so many believe.To hold criminals responsible for acts of otherwise anonymous cyber crime, lawenforcement employs a variety of tracking and identification techniques to identify

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individuals during investigation and legal proceedings. Most unlawful acts seem toclearly warrant unmasking; however, the line blurs in cases of questionable acts, particularly those that implicate First Amendment liberties to expression and association.Penetrating a person’s anonymity online can implicate entirely lawful uses of identity privacy protected by constitutional right. In such cases, the unmasker—whether agovernment agent or private individual—restricts a citizen’s right to First Amendmentliberties, beginning with loss of anonymity—intersection of the First Amendment, FourthAmendment, and privacy.

I: THE RIGHT TO ANONYMITYA: Right To Anonymous Association

The right to anonymity has roots in the recognition of its crucial role in FirstAmendment association, first recognized in 1958 with

National Association for the Advancement of Colored People v. State of Alabama

. At the time, Alabama law requiredall state-foreign corporations to file corporate charters and designate a place of business before doing business. The State enjoined the NAACP from conducting further activitiesafter they failed to comply with the statute, and, pending litigation, moved to producemany of the Association’s records and papers, including records containing the namesand addresses of all the Association’s Alabama members. The Association contested the production of such records.On appeal, the Supreme Court found “freedom to engage in association for theadvancement of beliefs and ideas” indivisible from the fundamental rights secured by theFourteenth Amendment’s guarantee to free speech. It further noted the “vitalrelationship” between freedom to associate and privacy in associations.

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Accordingly, the

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Court found unconstitutional the compelled disclosure of group associations or membership lists.

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The Court also acknowledged “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility”that might result from compelled disclosure of associations with socially unpopular groups, substantiating the privacy interest behind group disclosure.

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B: The “Chilling Effect”

The

NAACP

Court’s recognition of indirect harm resulting from identitydisclosure planted the seeds for broader interpretations of anonymity’s role in association.The decisions of

Keysihian v. Board of Regents

(1967) and

Baird v. State Bar of Arizona

(1971) fully recognized that “governmental action may be subject to constitutionalchallenge even though it has only an indirect effect on the exercise of First Amendmentrights.”

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As privacy law developed, a more complex understanding of decisional privacy —privacy regarding an individual’s right to make certain crucial life decisions—qualifiedthe concept of indirect harm as a “chilling effect,” a concept that would expand thedeference future courts pay to anonymity.In

Laird v. Tatum

, plaintiffs objected to the use of a post-civil-rights intelligence-gathering program designed to track the associations of individuals with the “potential for civil disorder,” basing their assertion on the program’s indirect effect on the exercise of First Amendment association.

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They alleged that mere knowledge of their surveillancerestricted their First Amendment liberty. While the Court dismissed plaintiffs’ complaintsas too amorphous to constitute a showing of specific present harm, it did recognize the potential for governmental regulations that “fall short of a direct prohibition” to have achilling effect.

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In dissent, Justices Douglas and Marshall defended the legitimacy of a