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 Continuing

Expectations of Anonymity and the Legal Realities of the Internet

INTRODUCTION: 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 as

fundamental by America’s founders, this right has morphed and expanded radically since

its adoption. In the area of privacy law, American courts have come to interpret freedom

of 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 emergent

communication technology and, primarily, the Internet. The American legal system has

never faced something so fundamentally disruptive as the Internet, which entangles vast

areas of legal precedent by disrupting centuries of complex interest balancing. It provides

a sweeping expansion of the way individuals share ideas, exchange information, and form

associations. It also enables violation of privacy, identity theft, and anonymous

defamation. Like any tool, the Internet seems only as good as those who use it; but

regardless of intentions, the Internet offers all users the ability to mask their identity

though screen names, pseudonyms, and anonymity—or so many believe.

To hold criminals responsible for acts of otherwise anonymous cyber crime, law

enforcement employs a variety of tracking and identification techniques to identify

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individuals during investigation and legal proceedings. Most unlawful acts seem to

clearly 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 a

government agent or private individual—restricts a citizen’s right to First Amendment

liberties, beginning with loss of anonymity—intersection of the First Amendment, Fourth

Amendment, and privacy.

I: THE RIGHT TO ANONYMITY

A: Right To Anonymous Association

The right to anonymity has roots in the recognition of its crucial role in First

Amendment association, first recognized in 1958 with National Association for the

Advancement of Colored People v. State of Alabama. At the time, Alabama law required

all state-foreign corporations to file corporate charters and designate a place of business

before doing business. The State enjoined the NAACP from conducting further activities

after they failed to comply with the statute, and, pending litigation, moved to produce

many of the Association’s records and papers, including records containing the names

and 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 the

advancement of beliefs and ideas” indivisible from the fundamental rights secured by the

Fourteenth Amendment’s guarantee to free speech. It further noted the “vital

relationship” between freedom to associate and privacy in associations.1 Accordingly, the

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Court found unconstitutional the compelled disclosure of group associations or

membership lists.2 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.3

B: The “Chilling Effect”

The NAACP Court’s recognition of indirect harm resulting from identity

disclosure 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 constitutional

challenge even though it has only an indirect effect on the exercise of First Amendment

rights.”4 As privacy law developed, a more complex understanding of decisional privacy

—privacy regarding an individual’s right to make certain crucial life decisions—qualified

the concept of indirect harm as a “chilling effect,” a concept that would expand the

deference 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.5 They alleged that mere knowledge of their surveillance

restricted their First Amendment liberty. While the Court dismissed plaintiffs’ complaints

as 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 a

chilling effect.6 In dissent, Justices Douglas and Marshall defended the legitimacy of a
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chilling-effect claim as actionable harm, saying that the practical effect of the

surveillance program was to “deter [the plaintiffs] from exercising their rights of political

expression, protest, and dissent…”7 The justices argued that the majority’s

acknowledgement of this effect in itself proved adequate standing, and “one need not

wait until he loses his job or until his reputation is defamed” to bring suit.8

Elements of the Douglas-Marshall opinion returned three years later in the

majority holding of Philadelphia Yearly Meeting of the Religious Society of Friends v.

Tate. Again, the court found complaints based on a “so-called subjective chill”

insufficient to show harm; however, the Court did acknowledge injury from the

collection and dissemination of information by government agents to non-governmental

third parties. Based on the harms articulated in NAACP, the Court concluded that

plaintiffs’ allegations of injury regarding non-governmental third parties “at a minimum,

show immediately threatened injury to plaintiffs by way of a chilling of their rights of

freedom of speech and associational privacy.”9 The anticipation of “strikingly apparent”

bodily, mental, and economic harms by a third party was recognized as adequate showing

of harm10—breathing life into the chilling effect’s role in anonymity.

C: Expansion Of Anonymity To The Content of First Amendment Speech

Recognition of an objective chilling effect justifies the protection of anonymity

over group associations, but the chilling effect also extends to First Amendment speech.

The first connection between anonymity and speech came in Talley v. State of California.

The case specifically addressed the anonymous distribution of handbills, an act prohibited

by a Los Angeles City ordinance. The Talley Court noted the role anonymous speech had

played in American political history by referencing examples where “anonymity has…

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been assumed for the most constructive purposes.”11 It cited specifically the use of

anonymity in the famous Federalist Papers, written by the founding fathers to advocate

for the adoption of the U.S. Constitution. Further, the Court feared that regulated

disclosure of identities would unfairly limit “persecuted groups and sects” that depend on

anonymity to avoid retribution.12 Similar to the ruling in NAACP, the Court concluded

that Los Angeles could not compel members of a group “engaged in the dissemination of

ideas” to identify themselves.13 This explicit connection to speech bridged the gap

between the right to anonymous association and the right to anonymous dissemination of

information.

Talley afforded anonymous speech cursory approval, but the full right to

anonymous expression was not solidified until the 1995 Supreme Court decision of

McIntyre v. Ohio Elections Commission. The case addressed an Ohio statute requiring

that authors print their identities on political pamphlets and flyers for distribution.

Building on Talley, the Court ruled that choice of identity disclosure is tantamount to the

content of political expression, and that the Ohio statute, in fact, regulated this content. 14

Again, the Court deferred to the historical significance of anonymous pamphleteering

—“an honorable tradition of advocacy and dissent”15—but further argued that individuals

might adopt anonymity believing their anonymous speech more persuasive than when

linked to their person and reputation. Without the choice to remain anonymous, voices

would be deterred from contributing to the marketplace of ideas. This concern

outweighed “any public interest in requiring disclosure as a condition of entry [to the

marketplace]”16—indelibly linking anonymity to the full exercise of First Amendment

speech.
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In dissent, Justices Scalia and Rehnquist objected to a broadly afforded right to

anonymity, asserting that it threatened the credibility and utility of political speech. They

accepted the majority’s conceptualization of identity as content, but contended that

instead of adversely affecting it, requiring authors to disclosure their identity improves

public discourse. Accordingly, protecting anonymous political speech “facilitates wrong

by eliminating accountability”17 while disclosure promotes truthfulness and responsibility.

The justices argue that the very utility of free speech in the political process depends on

its truthfulness, and that requiring disclosure would “promot[e] a civil and dignified level

of campaign debate”18—an uncontested state interest. From this view, restrictions on

speech might be justified if they promote accountably but limit their chilling effect to

only false or misleading speech.

D: Anonymity In Reception Of Ideas And Expressive Records

Seven years after McIntyre established a federal right to anonymous speech,

Colorado courts further extended anonymity to the reading and receiving of ideas in

Tattered Cover, Inc. v. City of Thornton. In particular, the case dealt with a Denver

bookstore that defied a court subpoena requesting customer records. The subpoena

requested records revealing the titles of books corresponding to a store invoice

discovered at the scene of a suspected methamphetamine lab. Tattered Cover owners

refused to supply the records to law enforcement, citing First Amendment protection.

The Colorado Supreme Court agreed that the subpoena did, in fact, request

information protected under the “right to read and receive ideas and information,” for

“when a person buys a book at a bookstore, he engages in activity protected by the First

Amendment.”19 Further, the court noted the undesirable chilling effect of government
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action that “interferes with the willingness of customers to purchase books, or booksellers

to sell books.”20 It ruled that seizing of records in question would interfere with First

Amendment liberty to “engage in expressive activities anonymously.”21 Thus, the court

recognized anonymity’s crucial role in the right to read and receive ideas and

information.

However, law enforcement’s role in Tattered Cover exemplifies a special tension

between enforcement, First Amendment, and Fourth Amendment interests. The court

noted this conflict was “enviable when law enforcement officials attempt to use search

warrants to obtain expressive materials.”22 Caught between interests, it referred to the

Supreme Court precedent set in Zurcher v. Stanford Daily, stipulating that, when

warrants seek expressive materials, they must conform to the Fourth Amendment’s

particularity requirements with “scrupulous exactitude.”23 Under this precedent,

expressive materials are not given immunity from seizure, but they are afforded greater

protection from overly vague warrants. In the case of Tattered Cover, however, the

Colorado Supreme Court thought even this protection insufficient. It relied on an even

higher standard of protection, elevating judicial review in the case to the level of strict

scrutiny.24 Moreover, it dictated that, in future cases, third-party bookstores must be

afforded the explicit opportunity to oppose any warrant seeking customer records.25 In

light of these expanded protections, the court found Colorado law enforcement’s interest

insufficient to request the records in question. Anonymity prevailed.

E: Balancing Law Enforcement With Constitutional Anonymity

In cases of anonymous expression, law enforcement implicates the exercise of

constitutional rights. The court in Tattered Cover clearly favored constitutional

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protection; and, in addition to the court-supplied rationale, legal commentator Julie

Cohen offers expanded reasoning behind a right to expressive anonymity. Cohen

contends that anonymity in reading and accessing information actually improves political

debate by fostering informed commentary.26 She conceptualizes speech as a sort of linked

chain, in which “all speech responds to prior speech of some sort.”27 Her theory proposes

that, before speaking, people survey a variety of existing opinions, and through a series of

“intellectual transactions,”28 ultimately form the opinions they express. Therefore, the

protection afforded anonymous expression should logically extend to the basis on which

people form their expression, particularly when the material may be controversial or

unpopular. America has long upheld the importance of free political expression and

access to the marketplace of ideas, regardless of popularity. Many unpopular ideas

historically gain acceptance to the mainstream with time. However, current stigmas

attached to unpopular ideas may deter readers from investigating them when forced to

disclose access, restricting a time-honored First Amendment value.

Additionally, Cohen argues that, based on historical use, the freedom to read

anonymously may even be a more fundamental liberty than freedom of expression. While

anonymous expression has been controversial throughout American history, anonymous

reading has been taken for granted.30 Furthermore, records detailing a person’s reading

habits implicate crucial privacy concerns. Records contain valuable information about

personal tastes, preferences, interests and beliefs—information the reader “should have a

constitutionally protected interest in refusing to share.”31 Records shed light on an

individual’s private life and therefore should be afforded the same protection as other

elements of informational privacy.

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In this vein of reasoning, 48 states have enacted laws protected the privacy of

library records,32 though most allow for the disclosure of records pursuant to a court order

or subpoena. While not yet recognized at the federal level, the right to read anonymously

has been overwhelmingly recognized by the states.

II: ANONYMITY AND EMERGING COMMUNICATIONS TECHNOLOGY

A: The Realities Of Anonymity On The Internet

Case law clearly establishes a right to anonymous expression and reception of

ideas, but the realities of Internet and electronic communications call into question the

feasibility of exercising that right. The Internet facilitates rapid, wide-spread

dissemination of information, but poses a particular quandary for those seeking

anonymity. Internet Service Providers (ISPs) facilitate access to the Internet by assigning

individualized tracking numbers to users called Internet Protocol (IP) addresses. These

addresses link users’ activities online to all the information retained in an ISP’s records—

they link actions to actual people. Accordingly, law enforcement frequently turns to ISPs

and IP address records to identify individuals during investigations.

Beyond ISP records, individual web sites can employ techniques to track visitors

as well. One technique involves the use of “cookies,” or small text files that are

downloaded to the user’s computer when they visit a web page. Cookies can be tagged

with identifying information and used to track a variety of actions online, including the

duration of stay at a site, other sites visited, and information entered into a web page.

“Web bugs” or “clear Gifs” provide another way to track user behavior. These invisible

images, usually only a single pixel in size, are placed on a site and downloaded onto a

visitor’s computer each time they visit. By recording when and who downloads the image
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file, site owners can gather information on who accesses the site and how frequently. All

these techniques make the Web a zone of quasi-anonymity—a labyrinth of IDs, records,

and tracking techniques.

B: Expectations Of Privacy And Privacy’s Role In Electronic Communication

Court-recognized expectation of privacy plays a crucial role in protection of

online anonymity. The standard for evaluating expectation of privacy was first

established in Katz v. United States, and held far-reaching consequences for web

anonymity for two reasons: use of technology to convey information and the recognition

of a “subjective expectation of privacy.”33

First, Katz clarifies the protections afforded persons under the Fourth amendment

to include “people not places.”34 This distinction shifted privacy protection to individual

actions rather than only actions done in certain settings. Thus, the Court recognized

privacy in wired communications, which despite their capacity to broadcast information

over vast distances, play a “vital role…in private communications.” 35 This interpretation

anticipated the even greater role digital technologies now play in private and expressive

communication nearly half a century later.

Second, Justice Harland’s concurrence provides a test to measure the expectation

of privacy afforded individuals and whether society recognizes that expectation as valid.

The two-pronged Katz test measures privacy interest by determining whether an

individual “exhibited an actual (subjective) expectation of privacy and, second, that the

expectation be one that society is prepared to recognize as ‘reasonable.’”36 Applied at the

time, the Katz Court reasoned a person calling from a public telephone—a public place—

still retained an expectation of privacy. In shutting the telephone booth door, the caller
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created a “temporarily privacy place whose momentary occupants’ expectations of

freedom from intrusion are recognized as reasonable.”37 Thus, Katz established the basis

for judicial protection on individual and social perceptions of privacy, notwithstanding

the technologies or methods used to convey private information.

C: Third Party Doctrine

The test for expectation of privacy established in Katz continues to play a pivotal

role in privacy cases, but its protection for anonymity has been severely eroded by

subsequent rulings involving information given to third parties. Cases involving law

enforcement seizures of electronic records are frequently justified by a line of privacy

exceptions know as third party doctrine.

Third party doctrine began with United States v. Miller, which analyzed a

depositor’s privacy expectation on banking records. Miller noted a second emphasis in

Katz: “[w]hat a person knowingly exposes to the public…is not a subject of Fourth

Amendment protection.”38 Accordingly, the Miller Court rejected all expectation of

privacy on the depositor’s records because, while they contained personal information,

they were not, in fact, “respondent’s ‘private papers.’”39 In giving information to a third

party, the Court reasoned the depositor took “the risk…that information will be conveyed

by that person to the Government,”40 even when revealed in confidence or for a “limited

purpose.”41 The language of Miller firmly establishes third party doctrine in privacy,

stripping the privacy expectation from information knowingly conveyed to a third party.

Accordingly, law enforcement may seize records and information revealing personal or

identifying information so long as they are first revealed to a third party.

D: The Smith v. Maryland Demarcation of Content

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Application of third party doctrine in communications establishes sharp

delineations between information sent to a third party for purposes of establishing

communication and the content of the communication itself. This distinction first

manifested itself in Smith v. Maryland, where law enforcement officers intercepted dialed

telephone numbers without a warrant using a specialized device known as a “pen

register.” Pen registers collects only numbers dialed as “a means of establishing

communication,”42 not the entirety of the call. Thus, the Smith Court sought to determine

the expectation of privacy on information transmitted from a person to the telephone

company—namely, the dialed numbers—ultimately finding no such expectation.

According to the Court, subscribers must know that the “phone company has facilities for

making permanent records of the number they dial, for they see a list of their long-

distance (toll) calls on their monthly bills.”43 This knowledge combined with third party

doctrine’s exception for law enforcement eliminated plaintiff’s expectation of privacy on

dialed numbers. Further, should a subjective expectation exist on the part of the caller,

this expectation “is not ‘one that society is prepared to recognize as reasonable.’”44 Smith

ruled law enforcement could freely obtain information given to the telephone company

prior to the connection of private communication between callers without a warrant—

opening information gathering to the possibilities of third party doctrine.

In dissent of Smith, Justice Stewart disagreed with the majority’s separation of

connecting information and content. He argued that “numbers dialed from a private

telephone…are not without ‘content’… [and] could easily reveal the identities of the

persons and places called.”45 The crux of his dissent centers on the idea that, regardless of

medium, the act of connecting with certain people implicates private information—the
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very reason law enforcement uses it. Accordingly, connecting information can “reveal the

most intimate details of person’s life”—details surely protected by an interest in

privacy.46 While it did not carry the case in Smith, this fear becomes an even greater

threat to privacy as technology enables more sophisticated inferential techniques and

pattern recognition.

Steward’s dissent focused narrowly on numbers dialed from private telephones,

but the conceptualization of connecting information as private has gained support among

many advocates for anonymity and associational liberty. Legal commentators David Cole

and Daniel Solove agree with Stewart’s characterization of connecting information,

particularly in modern society where associations often occur solely by electronic means

such as telephone or e-mail. Solove proposes that surveillance of phone logs or e-mail

headers can easily reveal “that an individual contacted particular organizations that the

individual wants to keep private.”47 Thus, surveillance of contact information seems to

overtly infringe on the First Amendment right to anonymous association upheld in

NAACP and Laird. The ability to identify group associations deters individuals from

associating with certain groups, and thus, the ruling in Smith ignores the fact that “pen

register information…implicates First Amendment values.”48 Continuing protection of

personal information and anonymity from surveillance and inferential technology would

require the extension of privacy protection to connecting information.

E: Assumption of Risk in Privacy Expectation

Key to the majority opinion in Smith was the idea that subscribers assume a risk

of disclosure by using telephone services and therefore relinquish any expectation of

privacy. Relying on Miller, the Smith Court concluded that telephone subscribers
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“’assumed the risk’ of disclosure.”49 Based on the workings of modern electronic and

Internet communications, this exception to privacy expectation seems to obliterate all

hope for anonymity on the Web; the mere act of connecting to the Internet, in most cases,

requires users to give identifying information to a third party ISP. In essence, individuals

have no alternative but to accept loss of anonymity, and forced disclosure in modern

communications has revived controversy over the rationale behind Smith.

In the second dissent of Smith, Justice Marshall challenges the majority’s

rationale behind “assumed risk” by proposing that evolving technology creates social

expectations that eliminate the reasonable exercise of choice. He argues that telephone

communication has become such a necessary that society expects individuals to use it for

vital personal and business relations—less a choice than a social obligation. Accordingly,

“unless a person is prepared to forgo use of what for many has become a personal or

professional necessity, he cannot help but accept the risk of surveillance,” and “it is idle

to speak of ‘assuming’ risks in contexts where…individuals have no realistic

alternative.”50 As society comes to rely heavily on electronic communications as an

essential form of information transfer and association, Justice Marshall’s concern

becomes more and more a reality.

Using Marshall’s dissent, commentator Laurence Tribe expands the idea of

unavoidable consent to argue that the notion of assumed risk predisposes privacy as a all-

or-nothing characteristic of information, when, in fact, expectation of privacy may

depend on information’s intended recipient. He argues that the “assumption of broadcast”

touted by the Smith Court ignores the more commonplace notion that privacy allows the

“individual to measure out information…selectively”51 Tribe believes the spirit of privacy

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affords individuals a choice concerning who receives information, and expanding beyond

the intended parties violates the expectations attached to the communicated information.

Under Tribe’s conception of selectivity, expectations of privacy do not wholly disappear

when transmitted to a third party; they are influenced by the individual’s purposeful

selection of involved parties.

Other commentators such as Patricia Bellia find confliction between Katz and

Smith. Bellia believes the Court in Smith “ignored the lesson of Katz: We do not lose

privacy in communications simply because they may be intercepted.”52 By installing a

pen register, government agents intercepted communications intended solely for the

telephone company. Bellia argues that the possibility of interception by the government

or a private party should have no bearing on expectations of privacy53—one need not

assume their communication will be intercepted. Deirdre Mulligan distinguishes Smith

from Katz by offering the perspective that, in Smith, the limited information that “can be

gleaned from a phone number” does not intrude on the personal information protected in

Katz.54 However, this reasoning fails to appear in the stated rationale of Smith, and

further, seems to ignore the objections raised by Justice Stewart: that information gleaned

from a phone number may be all a person cares about.

III: FEDERAL LEGISLATION’S ROLE IN ANONYMITY

Advocates for protection of anonymity commonly go beyond evaluating current

standards of protection to address how much privacy the law should grant. This question

could readily fall to the responsibility of legislators; however, legislation thus far has

provided only tepid support for digital privacy and anonymity—particularly against law

enforcement. Most legislation follows a trend of increasing protection against private-

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sector intrusion on records and identifying information but easy access for law

enforcement—a gaping hole for government abuse.

A: The Stored Communications Act

In light of emerging communications technology, Congress took steps to protect

privacy with the passage of The Electronic Communications Privacy Act (ECPA) of

1986. It remains the most comprehensive attempt to secure telecommunications and

digital privacy interest. The Act addresses various types and states of electronic

communications: information in-transit, stored communications, and connecting

information. However, the most significant section of the ECPA to electronic anonymity

comes under Title II: The Stored Communications Act (SCA). The SCA prohibits access

to subscriber records kept in storage by a communications service provider, such as an

ISP. Specifically, it pertains to “any storage of such communications by an electronic

communications service for purposes of backup protection of such communications,” 55

which include communications records, stored communications, and identifying

information. The SCA allows only “the persons or entity providing a wire or electronic

communication service” or the “user of that service”56 access to stored records, limiting

access of information to the two parties.

However, what protection the SCA provides from private interests with one hand,

it takes away with the other when dealing with law enforcement. Section 2703(c)(1)(B)

obliges communications service providers to disclose subscriber information—

identifying information, addresses, phone numbers, etc.—to law enforcement with either

a warrant, court order, or the consent of the subscriber.57

Moreover, the judicial process for obtaining permission to access stored

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communications depends largely on the amount of time information has remained in

storage. Information stored for less than 180 days requires a warrant supported by

probable cause.58 Access to older information merely requires a subpoena or court order

and prior notice given to the subscriber.59 In this case, agents must show only “specific

and articulable facts showing that there are reasonable grounds” to believe the

information is relevant to a criminal investigation.60 Subscriber notification may also be

delayed up to 90 days for older information if agents obtain a warrant.61

This raises the question: Does privacy interest diminish over time as the SCA

seems to suggest? Records kept in storage may still have privacy value notwithstanding

their age. Furthermore, should law enforcement fail to obtain information lawfully under

the proper procedure of the SCA, the Act does not provide for an exclusionary rule,

meaning any evidence improperly gathered by law enforcement agents cannot be

suppressed during trial.

B: The Communications Assistance for Law Enforcement Act

The Communications Assistance for Law Enforcement Act (CALEA) of 1994

further decreases protection for telecommunications privacy. Also known as the “Digital

Telephony Act,” CALEA regulates digital communications technology by requiring that

all telecommunications providers have the ability to “isolate and intercept electronic

communications and be able to deliver them to law enforcement personnel.” 62 It obligates

telecommunications companies to “help facilitate the government in executing legally

authorized surveillance” by providing “access to call-identifying information.”63

At its enactment, the Act only applied to telecommunications, not information

services such as e-mail and Internet access; however, the Federal Communications
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Commission has taken steps to expand the Act’s regulation to ISPs as

telecommunications move online. Using a technology known as voice over Internet

protocol (VoIP), individuals can communicate using the Internet in much the same way

as over the phone. In response, the Federal Communications Commission expanded

CALEA in 2004 to any “facilities-based providers of any type of broadband internet

access service…and to managed or mediated VoIP services.”64 These services were

thought of as “a replacement for a substantial portion of the local telephone service” and

therefore fall under CALEA’s regulation.65 This expansion illustrates that as Internet

communications continue to replace twentieth century technologies, existing standards

for telecommunications regulation will follow suit.

C: The USA PATRIOT Act

Finally, the “Uniting and Strengthening America By Providing Appropriate Tools

Required to Intercept and Obstruct Terrorism Act,” or USA PATRIOT Act, further

expands government authority to intercept connecting information. As regulated by Title

III of the ECPA, also know as The Pen Register Act, law enforcement can use “tap and

trace devices,” such as a pen registers, after obtaining a court order that certifies that

information is “likely to be obtained by such installation and use is relevant to an ongoing

investigation”66—a relatively low standard. The USA PATRIOT Act expands the

definition of pen registers to include devices that access information attached to “…

dialing, routing, addressing, or signaling information transmitted by an instrument or

facility from which a wire or electronic communications is transmitted…”67 This

expansion effectively allows government agents access to the addressing information on

electronic communications—the same controversial information debated in Smith. If

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address information does implicate personal information, as Justice Marshall believes, or

First Amendment values, as Daniel Solove believes, the PATRIOT Act provides the

government easy access to that information.

IV: INTERNET ANONYMITY PROTECTION

A: Protection In Civil Court: Doe v. Cahill

As telecommunications increasingly moves online, the Internet will become the

next frontier for battles over First-Amendment anonymity and law enforcement;

however, protecting anonymous political speech from private parties has already reached

state courts. In the Delaware case of Doe v. Cahill, local councilman Patrick Cahill sued

an anonymous Web writer, posting under the alias “Proud Citizen,” for allegedly

defamatory statements. Cahill sought to unmask his defamer with the help of the poster’s

ISP. Before he could discover the poster’s identity, however, poster obtained an

Emergency Motion for a Protective Order to prevent disclosure and appeal the case.

On appeal, the Cahill court determined that plaintiffs seeking to unmask

anonymous speakers must prove, through summary judgment, they seek to rightfully

pursue restoration for truly defamatory statements.68 Noting that “speech over the Internet

is entitled to First Amendment protection,” the court further recognized protection to

identity when speech is undertaken anonymously.69 The court reasoned that defendants

could remain anonymous so long as their status does not unreasonably interfere with

plaintiff’s ability to perform discovery.70 On the other hand, it also recognized that “the

right to remain anonymous may be abused when it shields fraudulent conduct.”71

Ultimately, the decision to preserve anonymity hinged on concerns that setting too low a

standard would “chill potential protesters from exercising their First Amendment
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rights,”72 and that plaintiffs with no intention of fulfilling the requirements for defamation

would utilize the judicial system to unmask defendants, subsequently pursuing the “extra-

judicial self-help remedies” of revenge or retribution. 73 Summary judgment offered an

appropriate burden of proof to deter “trivial defamation lawsuits” that sought merely to

harass and unmask critics.74 In addition, the court required that all plaintiffs notify

anonymous posters that they are subject to subpoena or application for order of disclosure

on the same message board where the initial remarks took place.75

Despite the anonymous condition of the defendant, the plaintiff must still fulfill

the basic burdens of defamation, proving that statements were defamatory, concerned the

plaintiff, were published, a third party would understand the communications as

defamatory, and the statements were false. In the case of public figures such as Cahill, the

court considered the burden of actual malice too difficult under conditions of defendant

anonymity, and so waived it.76 Ultimately, the court found Cahill’s allegations of

defamation insufficient and ruled that discovery of the defendant’s identity was not

warranted.77

While only decided at the state level, the Cahill ruling illustrates an expectation of

high deference in cases involving anonymous speech on the Internet. It strikes a balance

between the interests of the allegedly defamed plaintiff and defendant’s privacy by

allowing the suit to continue while preserving anonymity. However, Cahill deals

exclusively with state, civil defamation cases, a small dent in the challenges facing

anonymity at the federal level.

B: Appropriate Standards For Government Unmasking

Cases like Cahill indicate a baseline of high protection for anonymous speech, but
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the government continues to adhere to a much lower standard. Government law

enforcement agents legally employ information-gathering practices ruled inimical to First

and Fourth Amendment values by nearly half a century of case law. To correct this

imbalance, commentator Daniel Solove believes “the First Amendment must be

considered alongside the Fourth and Fifth Amendments as a source of criminal

procedures” to ensure that constitutional values remain intact while continuing to uphold

national security and law enforcement.78 Particularly on the Internet, First Amendment

rights are implicated by nearly every act of law enforcement information gathering—

searching or seizing computers, reading e-mail, obtaining ISP records and IP address

information.79 Solove maintains that requiring stricter judicial scrutiny in these cases

would promote a better balance between competing interests and increase constitutional

protection by ensuring only cases of truly compelling state interest pass judicial tests. 80

Tougher procedures don’t necessarily mean law enforcement will be barred from

information; they merely ensures a greater level of oversight to prevent abuses.81

Solove believes Fourth Amendment procedural constraints could provide a

suitable template for law enforcement information-gathering standards. They would

require demonstration of “(1) a significant interest in gathering the information and (2)

that the manner of collection is narrowly tailored to achieving that interest.”82 Cases that

implicate First Amendment rights would require procedures similar to those for obtaining

a warrant.

CONCLUSION: Looking Forward

The Internet provides a unique platform for the convergence of privacy and law

enforcement interests, enabling unprecedented acts of anonymous expression and

 Turner 22

consumption while simultaneously allowing for unprecedented abuse. Clearly, these

liberties require balancing with state interests of public good and national security.

However, insufficient regulation and oversight expose constitutional liberties to unlawful

or unnecessary government interference. The result of such abuses could have far-

reaching effects on American society, preventing the dissemination or consumption of

important ideas for fear of identification. Even the subjective threat of interference can

chill protected behavior. Federal legislation in most cases provides only limited

protection from government interference, setting low levels of judicial oversight and even

compelling ISPs to aid in law enforcement investigations. Further, the justifications of

third party doctrine allow law enforcement to gain access to identifying information

surrendered by Internet users as a prerequisite for connecting. The validity of these

procedures appears justified in cases of clear wrongdoing; yet, they provide only narrow

protection in controversial cases involving constitutional liberty.

As challenges arise, the destabilizing nature of the Internet will inevitably yield to

more concrete levels of regulation and protection. Future protection, however, rests on

current conceptions of anonymity’s role in the exercise of constitutional rights online.

Cases of anonymity offline seem to indicate high respect for an individual’s choice

concerning identity disclosure, but current federal legislation sets low standards regarding

law enforcement and government information gathering. Ultimately, the competing

interests of anonymity and law enforcement will find resolution in the future actions of

policy makers and the legal system.

 Turner 23

End Notes:

1. National Association For The Advancement Of Colored People v. State of Alabama,

357 U.S. 449 (1958).

2. Id.

3. Id.

4. Laird v. Tatum, 408 U.S. 1 (1972).

5. Id.

6. Id.

7. Id.

8. Id.

9. Philadelphia Yearly Meeting Of The Religious Society Of Friends v. Tate, 519 F.2d
1335 (3d Cir. 1975) (Emphasis Added).

10. Id.

11. Talley v. State Of California, 362 U.S. 60 (1960).

12. Id.

13. Id.

14. McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).

15. Id.

16. Id.

17. Id.

18. Id.

19. Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002).

20. Id.

21. Id.
 Turner 24

22. Id.

23. Zurcher v. Stanford Daily, 436 U.S. 547 (1978).

24. Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002).

25. Id.

26. Julie E. Cohen, A Right to Read Anonymously: A Closer Look at “Copyright

Management” in Cyberspace, 28 Conn. L. Rev. 981 (1996).

27. Id.

28. Id

29. Id.

30. Id.

31. Id.

32. Solove, Daniel J. Information privacy law. 3rd ed. New York, NY: Aspen, 2008.
Print. 573.

33. Katz v. United States, 389 U.S. 347 (1967).

34. Id.

35. Id.

36. Id.

37. Id.

38. United States v. Miller, 425 U.S. 435 (1976).

39. Id.

40. Id.

41. Id.

42. Smith v. Maryland, 442 U.S. 735 (1979).

43. Id.
 Turner 25

44. Id.

45. Id.

46. Id.

47. Daniel J. Solove, The First Amendment as Criminal Procedure, 82 N.Y.U. L. Rev.
112, 169 (2007).

48. Id.

49. Smith v. Maryland, 442 U.S. 735 (1979).

50. Id.

51. Laurence Tribe, American Constitutional Law 1391 (2d ed. 1988).

52. Patricia Bellia, Surveillance Law Through Cyberlaw’s Lens, 72 Geo. Wash. L. Rev.
1375, 1405 (2004).

53. Id.

54. Deirdre K. Mulligan, Reasonable Expectations in Electronic Communications: A

Critical Perspective on the Electronic Communications Privacy Act, 72 Geo. Wash. L.
Rev. 1557, 1581 (2004).

55. The Electronic Communications Privacy Act, 18 U.S.C. § 2510(17) (1986).

56. Id. § 2701(a).

57. Id. § 2703(c)(1)(B).

58. Id. § 2703(a).

59. Id. § 2703(b).

60. Id. § 2703(d).

61. Id. §§ 2703(b), 2705.

62. The Communications Assistance For Law Enforcement Act, 47 U.S.C. § 1006(a)(2)
(1994).

63. Id. §§ 1001(8)(C)(i), 1002(b)(2)(A).

64. In the Matter of Communications Assistance for Law Enforcement Act and
 Turner 26

Broadband Access and Services, FCC 04-187 (Aug. 4, 2004) (emphasis added).

65. The Communications Assistance For Law Enforcement Act, 47 U.S.C. § 1001(8)(B)
(ii) (1994).

66. The Electronic Communications Privacy Act, 18 U.S.C. § 3127(3) (1986).

67. The Uniting and Strengthening America By Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act, 115 Stat. 272 § 216 (2001).

68. Doe v. Cahill, 884 A.2d 451 (Del. 2005).

69. Id.

70. Id.

71. Id.

72. Id.

73. Id.

74. Id.

75. Id.

76. Id.

77. Id.

78. Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy,
75 S. Cal. L. Rev. 1083 (2002).

79. Id.

80. Id.

81. Id.

82. Id.