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By Stephanie Parker Stanford University, Class of 2011 Ethics in Society
May 9, 2011 Advisor: Howard Rheingold Second Readers: Larry Diamond, Vivek Srinivasan Post-Doc Advisor: Kieran Oberman
“I‟m ready to take this all the way to the Supreme Court. Our Founding Fathers wrote „The Federalist Papers‟ under pseudonyms. Inherent in the First Amendment is the right to speak anonymously. Shouldn‟t that right extend to the new public square of the Internet?” Salvatore Strazzullo, May 15, 2010
Salvatore Strazzullo is the attorney working on the case of Rosemary Port, a blogger who is suing Google for up to 15 million dollars after her identity was revealed to the public in a previous online defamation case. Port, under an online pseudonym, runs a fashion gossip blog called ―Skanks of NYC‖ and last year wrote negative remarks about a former supermodel named Liskula Cohen, calling her a ―psychotic, lying whore.‖ (Rush) The model saw the website and sued to have the identity of the anonymous blogger revealed by way of sending a subpoena to Google, claiming that the comments written about her were defamatory. A Manhattan Supreme Court judge approved the action, and Google was compelled to release Rosemary Port’s name for the defamation case. Port claims that her right to privacy and First Amendment right to anonymous free speech have been violated, now that her identity as the writer of all posts on ―Skanks of NYC‖ has been revealed to the public and the press. She plans to sue Google, accusing the conglomerate of having "breached its fiduciary duty to protect [Port’s] expectation of anonymity." While her particular case has little chance of success because Google was bound by a court order to release Port’s identity, the question of if and when an anonymous person’s identity should be unmasked is still relatively open. Her attorney, Strazzullo, asserts that a right to anonymous speech is ―inherent‖ in the First Amendment, and that the Internet is a new kind of ―public square‖ in which ideas should be able to flow freely. Balancing the right to anonymous
free speech against the right of a plaintiff (in a libel case, for example) to eliminate that anonymity through subpoena is one of the many ethical challenges facing the courts in recent years because of the Internet. The next few years will be critical in deciding what we as a society think the place of online anonymity should be in the future of American public discourse, as our speech and information become more public through new social networking trends. (Acquisti) The idea that the Web is a public resource, a space where people can speak freely and share their opinions is now coming into conflict with the fact that free speech is not absolute, and that people mostly turn to privately-owned social sites and blogging platforms to speak out. The companies that provide these spaces, such as Facebook and Google, have become the main actors in deciding who can speak anonymously, in what context, and what they can say; this changes the relationship between citizens, their speech, and the law in important ways that as of yet have not been spelled out for the public or the courts to understand. This is what I seek to address in my thesis, through a combination of empirical review, legal analysis, and ethical investigation into the protection of anonymity under the First Amendment. Because we are at such a crucial turning point in online regulatory policy and the formation of public opinion, it is important to take a step back and understand what the impacts of future legal action could be. The United States Supreme Court ruled in 1995 that an individual’s anonymity is protected under the First Amendment, meaning that any law requiring someone to provide their name before speaking or publishing their opinions would be deemed unconstitutional. (McIntyre v. Ohio Campaign Commission, 1995) For the United States in particular, anonymous speech has had an important role in historically significant events: the Federalist Papers and Thomas Paine's "Common Sense" were published and distributed under pseudonyms, and during the Civil Rights
Movement, progressives communicated anonymously to avoid persecution and arrest. In addition, whistle-blowers against government or corporate wrongdoing, abuse victims, and other types of individuals who fear retribution for speaking the truth have consistently used anonymous speech to achieve their aims. Above all, the ability of a person to hide his or her identity when speaking increases their autonomy and range of self-expression. For these reasons, anonymity can be said to hold some value in American society – and the Internet is the perfect medium in which to communicate anonymously. Anonymity online helps to advance the same values as freedom of speech, but many believe that it brings about more negative consequences than good – and therefore it should be discouraged or even restricted on the Internet. A law currently in place that protects the right to anonymous online speech is Section 230 of the Internet Communications Decency Act, which says that website owners cannot be held legally accountable for what people write on their sites. This law encourages web hosts to keep their anonymous discussion spaces and comment sections open, but certain scholars have recently come out in support of modifying or even repealing Section 230. Ian Kerr, Chair of Ethics, Law, & Technology Research at the University of Ottawa, writes in his book, Lessons from the Identity Trail, "anonymity basks in its association with good causes," referring to the narratives of the Founding Fathers and protesters for Civil Rights. (Kerr, 443) This association alone, Kerr believes, does not prove that anonymity is inherently valuable, nor does it absolve anonymity from its dark, harmful costs. The costs mainly come in the form of incendiary, hateful speech that pollutes many online discussion spaces and blogs where anonymity is allowed, because the authors of anonymous comments feel a certain lack of social inhibition as they write.
The same freedom in anonymity that allows a whistleblower to expose the truth also allows a normal person to transform into a ―troll,‖ or rude and disruptive poster. In order to curb this type of behavior, many websites have recently turned to commenting systems that require users to log in with their real name such as Facebook Connect, even though Section 230 protects them from being sued; this move largely eliminates the ability of a commenter to be anonymous by linking their words to their social networking profile. Farhad Manjoo, in his Slate Magazine article, ―Troll, Reveal Thyself‖ celebrates the fact that anonymous online discussion spaces are slowly disappearing. (Manjoo) ―Perhaps we'll miss some important comments that could only be posted anonymously,‖ he supposes; ―But I doubt that's a real loss.‖ He believes that ―In all but the most
Figure 1: Illustration for Slate: “Troll, Reveal Thyself” by Farhad Manjoo.
extreme scenarios, anonymity damages online communities‖ and that people who choose to write
anonymously are in general ―skittish‖ and ―jerks,‖ as shown in the illustration that accompanies the article above. As a blogger, he is frustrated by anonymous critics who write rude things about him and his work in the comment section provided below his articles; he wishes there were some way to eliminate that kind of inappropriate speech by introducing the etiquette of ―the offline world‖ to the Internet –repealing Section 230 of the CDA, or even mandating that everyone sign in with a third-party social networking site before commenting would take us in that direction. In this thesis, I disagree with the above authors and instead argue that the current move towards restricting anonymity online causes us to lose something of real value and importance. Critics like Farhad Manjoo and Ian Kerr are evaluating anonymity on a kind of utilitarian scale;
they observe that in many situations, allowing people to be anonymous online brings about a variety of insensitive, unsavory comments and decide, based on such observations, that anonymity is a net loss for the Internet. I argue that while utilitarian calculus is one way to determine the worth of online anonymity, it is not the only way. Taking that logic to its conclusion would bring the entire First Amendment into question; if the bar for deciding on a right to free speech depended upon whether the speech was civil and ―worth hearing‖ for the audience, much of the speech we hear every day would be outlawed for its irrelevance to democracy or intellectual pursuits. Thinking of the issue in terms of unconditional, constitutive values like autonomy and equality will help us understand the deep connection between anonymity and free speech, and the important place that both hold in today’s society. In this thesis, I will explain the current debate in terms of its technical, ethical, and legal dimensions, in order for us to understand the full scope and repercussions of restricting or protecting this kind of speech. In the first section, which contains four chapters, we will explore the affordances of the Internet that make online anonymous speech such a salient issue, separating it from other types of communication. It is important to know the technological parameters of anonymity, in addition to who can provide it or take it away in different situations. Moving on to the second section, we will look at the ethical arguments for the regulation and restriction of anonymous speech, and break down these arguments to their core components in free speech theory. This is where the relationship between anonymity, autonomy, equality and the marketplace of ideas will be mapped out. While I argue that anonymity helps to further the values of autonomy and equality in society, the relationship between anonymity and utility, or its benefits to the society and democracy is more complicated. Even so, many notable court cases turn to the utilitarian ―marketplace of ideas‖ to inform rulings on issues of anonymity, coming to
different conclusions every time. This will bring us to the third section, where we will revisit how the different normative arguments for or against anonymity have been presented in today’s legal landscape, and explore different policy solutions and their implications for the future of anonymous speech. With this new understanding of the technical, legal, and ethical aspects of anonymity, we will be able to determine the ways in which it can be better protected in the future.
Section 1: Anonymity in Today’s Society In Merriam-Webster’s dictionary, anonymity is defined as the property of being ―not named or identified; of unknown authorship or origin.‖ There are a number of reasons why a person would choose to speak anonymously instead of revealing their identity, even within a democratic society that protects a right to free speech. Despite having the legal right in place, there are still social restrictions that act on what a person says in the United States. For example, someone could be concerned that what they say about a person or corporation in power could bring wrongful retaliation such as the loss of a job – this type of speech is called whistleblowing, and has played a significant role in decreasing corruption. (Cotter, 39) A person might also fear retaliation if what they say turns out to be false; or if they have a previous reputation of speech on a certain topic, they would want to say their piece without carrying the reputation with them. Anonymity allows a person’s ideas to be heard, and gives them the feeling that they are free to speak in a world where their opinions might be unfairly discounted or ignored because of prejudice and other social factors. In this section, we will learn why the Internet has made being anonymous less difficult in some ways and more difficult in others, and how it fundamentally changes our relationship to speech and authorship today.
Chapter 1: Why Online Anonymous Speech is Different Online, having anonymity means that you can visit and post content on websites without your audience being able to link your words to who you are in the real world. According to the Electronic Frontier Foundation, a political organization dedicated to defending civil liberties on the Internet, ―Speech thrives online, freed of limitations inherent in other media and created by traditional gatekeepers,‖ and ―the free exchange of ideas on the Internet is driven in large part by the ability of Internet users to communicate anonymously." (EFF.org) This means that online anonymous speech is essentially different from its offline counterpart in a few significant ways. First, anonymous speech is more permanent on the Web, because remarks made online are routinely archived and cached instead of ―cleaned up‖ or otherwise removed from public view. (Leiter, 157) An offensive comment written anonymously on the side of a building would probably go through no such archiving process, and would be erased to save the reputation of the establishment or public area where the comment can be seen by others. Millions of anonymous comments are added to the greater online collection of information and ideas every day; their being anonymous does not stop them from being indexed, retrievable, and proven useful (or harmful) to someone at a later date. Connected to the permanence of online speech is the ability to reach a wide audience of people. (Cate, 85) The fact that the millions of pages of the Internet are organized and indexed in relation to one another, and the ease with which people share the things they find online makes it much easier for anonymous messages to spread across the Web. A culture of ―virality‖ online, or the tendency for certain content to be passed from user to user as rapidly as a biological virus does through the body, is essential to understanding the new level of power that anonymous speech is afforded on the Internet. If an anonymous comment ―goes viral,‖ or is viewed by a
large enough number of users, that message can rise to the top of Google Search results about the topic (or person) discussed. (Leiter, 158) With the Internet, the government and the mainstream media are no longer the only origin points for widely-disseminated information; even anonymously-produced content can eventually reach the same size of audience. When the EFF refers to ―limitations‖ and ―traditional gatekeepers,‖ they mean the editors who have produced the media we usually consume, and have generally followed laws and professional codes of ethics to determine what is relevant and worthy of publication before its release. Now, search engine results have become the measure of which websites are most relevant when a user is looking for information on a subject; nearly everyone, including academics and professionals rely on search engines to index and rank the most important material on the Internet for them. An anonymous message can therefore reach a greater variety of listeners on the Internet than in the real world, where our personal experiences, conversations, and exposure to less interactive media like newspapers and television help us create our own index.
Changing Attitudes towards Speech Online One of the criticisms of online anonymous speech is that people can spread false ideas (unknowingly or on purpose) and never be held accountable for what they said or what they influenced other people to do. (Leiter, 163) But with the introduction of the online medium for speech, it is important to recognize that new social norms and expectations have formed around speech, and in particular anonymous speech. In spaces online that encourage anonymous commenting or discussion, we can sometimes observe a high amount of hyperbolic, offensive, antagonistic, and irrelevant or unrelated phrases; therefore, in the future when we encounter
these types of websites or commenting sections, we can expect to see similar content. The reasonable reader of online speech, with an adequate amount of experience using the Internet, knows that much of the anonymous comments should not be taken ―seriously‖ or as assertions of fact; they are opinion, and many times written for the specific purpose of making readers upset (or, ironically, to make them laugh). Being able to distinguish this type of speech and behavior is an aspect of ―media literacy,‖ which also includes the ability to discern which websites are credible sources of information, which ones are satirical, and which ones might harm their computer. The more experience people have with the Internet, the more able they are to make reasonable judgments about the anonymous speech they encounter. Spaces online where anonymous speech is allowed can be viewed as an outlet for larger social trends in speech and language; this is a very different way of looking at the Internet from what Farhad Manjoo or Ian Kerr were describing earlier.
Chapter 2: A Look Behind the Curtain: How Anonymity Functions Online Another concept that experienced Internet users come to understand is the existence of many ―levels‖ of anonymity, the degrees with which a person’s identity can be hidden (or how easily it can be uncovered) online. (Daza, 194) What most inexperienced users do not realize about anonymous speech online is that, in many circumstances, it is relatively easy for website administrators to gain access to an author’s identity information, such as name, e-mail address, or physical location. In other words, the anonymity that most online commenters have is not absolute – it is only effective insofar as it hides their identity from peers in the online discussion space. Website administrators, the people who provide the space for communication, often have the technical ability to view and track the IP address, or computer location of an anonymous
poster – this allows them to enforce rules on or even ban individual members from participating in the future. (Lampe, 543) In these settings, community behavior is regulated by a team of moderators, who determine when certain comments violate a website’s rules and take disciplinary action in the form of warnings, suspensions, or bans. Anonymity in this case is not absolute in that violators of website policies can be caught and held accountable for their actions; website administrators retain the ability to check a person’s location or search for their other online profiles to help them determine how to approach a situation. This can be considered the first level of anonymity, because a person’s actions online can still be traced back to their real life presence by an administrator. A slight variation on this type of anonymity, or the second level, is when a website automatically records information about its users such as IP address, but the identifiable location information is rendered unreadable to the website operator (changed into a series of random numbers) or logs of such information might even be deleted on a regular basis. (―Who are the moderators?‖) This practice was established in order to respect the privacy of users if they choose to be anonymous. One of the largest and most well-known online communities, 4chan.org operates completely anonymously in this way. What the previous two kinds of anonymity have in common is that they are ―provided‖ to an individual Internet user by the technology built into the website they choose to use. The web administrator or ISP is in full control of who can see a user’s information, as the user has probably entered into a terms of service agreement with that provider to abide by the rules. Anonymity is provided to an individual either by the owner of the website they are visiting at the time, or by self-installed encryption software, which represents the third level of anonymity. Encryption offers a special kind of anonymity that not only hides identifiable
information from other people in the discussion forum with you, but from site administrators and sometimes even law enforcement. It is the technology used to protect private data like e-mail and credit card numbers from retrieval by third parties online as they travel through the Internet; government agencies encrypt their information using particularly strong and always-changing software. There are an abundance of more common software options available for Internet users who wish to remain anonymous in their online activities. One of these programs is called Tor, which is free and open source; this means that anyone can download, use, and edit the code of the software to make their own adjustments. The brief description of the software on Tor’s homepage says that it ―helps you defend against a form of network surveillance that threatens personal freedom and privacy known as traffic analysis.‖ (―About Tor‖) The basic idea of Tor is that instead of connecting your computer’s unique address to every site you visit or every comment you write, the communication signals you send to that website are bounced across a distributed global network of volunteers, whose own computers relay that signal to the desired website from a different location for every message. This idea is not new, as it was developed by people from the first distributed network and message board, UseNet in the 1980’s. This network was designed as a distributed news-sharing bulletin board, where anyone could post articles and read what others had posted. More important than what was being shared on UseNet was the fact that it required no personal registration to participate, and did not collect information about its users. Anonymity is only effective insofar as certain groups of people are unable to connect an individual’s real life and online identities, and open source encryption software like Tor make it possible to communicate online without leaving a trace. This is where tensions can arise between citizens and the government, because the process of law enforcement is made more difficult when criminal suspects use encryption technology to hide their activities. On Tor’s
website, one can find deep concern about the direction of the courts concerning anonymous speech and privacy: ―Ongoing trends in law, policy, and technology threaten anonymity as never before, undermining our ability to speak and read freely online.‖ (―About Tor‖) This concern will be addressed in the next chapter, which focuses on the courts and their approach to dealing with anonymous speech.
Chapter 3: Anonymity’s Protections Under the Law The landmark Supreme Court case, McIntyre v. Ohio Elections Commission (1995) guaranteed anonymous speech protection under the First Amendment. Margaret McIntyre distributed pamphlets in her local community, signing them ―Concerned Parents and Taxpayers‖ instead of using her own name. The Ohio Campaign Commission saw her choice as disingenuous and a violation of their elections protocol, and took her to the Ohio Supreme Court. McIntyre lost the case, but appealed to the United States Supreme Court one year later. Supreme Court Justice Scalia expressed his worry about anonymity in his dissent: ―Ordinarily, the very purpose of anonymity is to facilitate wrong by eliminating accountability.‖ (McIntyre v. Ohio Elections Commission, 1995) However, the Supreme Court overturned the prior ruling, saying that McIntyre being anonymous helped her participate politically in the marketplace of ideas. Justice Stevens wrote in the majority opinion, ―The author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content, is an aspect of freedom of speech protected by the First Amendment.‖ This last statement is important because an author’s identity at that point became a piece of the ―content‖ of a document, as opposed to a separate and
required element for entry into public debate. As content, the author’s absent name is no longer assumed to be a cover for dishonesty or wrongdoing, but is more neutral or even positive. Two years after McIntyre, the Supreme Court expanded its prior ruling on anonymous political speech to include online, non-political speech in Reno v. ACLU (1997). Justice Stevens again delivered the majority opinion, in which he said, ―Our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium (the Internet).‖ (EFF.org) Classifying online anonymous speech under First Amendment protection was just one of the many accomplishments of the Reno case: the ACLU was suing the U.S. Government (the Attorney General at the time was Janet Reno) to remove clauses from the newly introduced Communications Decency Act, which was poised to institute regulations on the Internet experience of children on a national scale. The Supreme Court shared the ACLU’s concerns about content regulation and the First Amendment rights of online posters. This case also set the foundation for one of the most influential pieces of legislation on the Internet – Section 230 of the CDA (Communications Decency Act), which states that Internet Service Providers and website owners cannot be held legally accountable for the user-generated content posted on their sites, even if the material is offensive or defamatory. Not originally part of the Communications Decency Act, Section 230 was introduced separately in the House of Representatives and added to the Act. Section 230 is involved in nearly every contemporary case of Internet libel, because plaintiffs try to have offensive comments about them removed from a website and from their reputations by threatening to sue the site owner. Such action has been made illegal by Section 230, but that does not mean that today’s Internet libel plaintiffs are not finding other ways to defend their reputations.
Lawsuits over defamatory remarks posted online have become commonplace in recent years; the defendants are often anonymous, so the plaintiffs must obtain a subpoena against a website owner or Internet Service Provider to release the desired identity information. (Ardia, Poynter Institute) Across the country, there is no clear consensus on how to handle cases involving online anonymity, but a few trends have emerged. Most significantly, a standard for determining when to unmask an anonymous online defendant’s identity has risen out of these cases: Dendrite Int’l, Inc v. Doe No. 3 (2001) and Doe v. Cahill (2005). The five-part test established as a result of the Dendrite case has influenced the rulings of other courts around the country, but they do not always reach the same conclusion when presented with similar legal situations. The test procedure should be followed in this order: (1) the plaintiff must make efforts to notify the anonymous poster and allow a reasonable time for him/her to respond; (2) the plaintiff must identify the exact statements made by the poster; (3) the complaint must set forth a prima facie cause of action; (4) the plaintiff must bring forth sufficient evidence for each element of its claim; and (5) the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity. As mentioned earlier, different courts arrive at different conclusions about how closely the test has been adhered to, and this is one area where there is more room for improvement in legally protecting anonymous speech. In 2008, two Yale Law students, Brittan Heller and Heide Iravani discovered humiliating remarks written about them on an anonymous college gossip website called AutoAdmit. (Margolick) They sued 28 anonymous commenters in federal court in New Haven for various crimes including invasion of privacy, defamation, and infliction of emotional distress. However, they were only able to convict a small number of the defendants for the remarks posted. Before
going after the anonymous commenters themselves, Heller had contacted both Google and the owners of AutoAdmit, asking them to take down the offensive content; neither one responded to her request. Jaret Ciolli, who owns AutoAdmit, was named as a defendant in the case, even though Section 230 clears him of legal liability; his identity was released to the press and the public before it was removed from the case name a few months later; Ciolli believes this was an example of a plaintiff using the court to ―retaliate‖ by ruining his public reputation before any guilt is proven. (Portfolio.com interview) Matt Zimmerman, attorney for the Electronic Frontier Foundation, agrees that Heller and Iravani’s argument is ―weak and wrongheaded, using liability by association‖ to pull too many anonymous defendants into the spotlight. This past year, a model named Liskula Cohen took up a very similar case against an anonymous fashion gossip blogger, Rosemary Port. As we went over in the introduction, Rosemary Port was posting rude blog entries on her website, ―Skanks of NYC‖ about Ms. Cohen, who claimed Port’s remarks were libelous so she could get a court order to retrieve Port’s identity from Google. The Manhattan Supreme Court granted the subpoena, and Google provided Cohen with Port’s identity information; Cohen went to the press, explaining what Port had said about her, and this past summer, dropped the libel lawsuit against Port. The circumstances of this case are similar to those in the AutoAdmit case, in which the unmasking of an anonymous defendant’s identity might sometimes seem like ―enough‖ of a punishment to repay the damage done to the plaintiff’s own online reputation. Matt Zimmerman from EFF also commented on the Cohen v. Port case: ―The notion that you can use the court as your personal private investigator to out anonymous critics is a dangerous precedent to set.‖ (SFGate) If the Dendrite procedure (the five-point test for the legitimacy of a plaintiff’s request to unmask a defendant) had been strictly followed, such a dangerous new precedent would not have been set.
Cohen would have had to essentially prove that the remarks written about her had a direct effect on her reputation in the real world before getting access to Port’s name. However, Rosemary Port would be unlikely to win her case against Cohen, given that her anonymous remarks fall into the category of speech ―with intent to annoy‖ covered by the Violence Against Women and Reauthorization of the Department of Justice Act. (Library of Congress) Signed into federal law by President Bush in 2006, this law has a tiny section that states,
―Whoever...utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet... without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person...who receives the communications...shall be fined under title 18 or imprisoned not more than two years, or both.‖ (Thomas.loc.gov)
In other words, annoying someone on the Internet is a federal crime if you do it anonymously. This double standard for both online and anonymous communication deserves much more scrutiny under the First Amendment, and is currently being challenged in the state of Arizona. Immediate repeal of this law would be one step forward in recognizing the value of anonymous speech for the future of online and offline discourse. Only by strengthening the ethical value of online anonymity in general can the court function in the way it was originally intended to.
Chapter 4: Why Anonymity is Being Eroded Many activist groups, civilians, and lawmakers agree that the Internet provides a uniquely valuable arena for free uninhibited discussion because of the technological affordance of anonymity it provides. (EFF.org) Precisely for this reason, anonymity on the Internet does not receive full protection from being restricted or eliminated in a number of circumstances. In the defamation lawsuits previously described, corporations and private individuals could effectively
use the system of the court to unmask, shame, and silence anonymous online critics. There is also the issue of the United States government (specifically, the Department of Justice) not following proper legal notification procedures when inquiring about the identities of anonymous web posters from Internet Service Providers and social networking sites such as Twitter in the case of WikiLeaks. (Singel) The Department of Justice requested that Twitter hand over information about the owners of the official WikiLeaks Twitter account and others, without allowing Twitter to notify the owners of the accounts first. Twitter decided to tell the individuals they were being investigated and challenge the request in court, but they lost the case. Now, it is uncertain under which exact circumstances the government can silently investigate into the online activities of people who believe they are anonymous. On the international level, protests happening worldwide, in countries such as Egypt, Libya, and Iran call into question the ability of the Internet to provide autonomy to individual users or restrict it under authoritarian governments. As we can see, online anonymous speech includes many different dimensions, and it is necessary to understand each one of them in order to move forward in preserving democratic values of free expression in the 21st century. While the American government has laws that protect anonymous speech, Internet companies like Facebook create their own laws and policies that apply to millions of users and do not necessarily protect First Amendment rights. In Facebook’s Terms of Service, one can find this explicit reminder: ―Facebook users provide their real names and information; You will not provide any false personal information on Facebook.‖ (―Statement of Rights and Responsibilities‖) As the most frequently used website in the world, Facebook can spread its set of values about speech and privacy around the world. The creators of Facebook and other websites like it believe that individuals should be their authentic selves on the web, that they
should share their interests, photos, and information with an ever-expanding global social network. Any attempts to hide the reality of who you are is considered being unauthentic, and any contributions to the Web owned by Facebook that are unauthentic no longer carry value; administrators do their best to remove and ban accounts that appear to have false names or photos. There is no place for anonymous speech on Facebook, whether it is ―authentic‖ or not. Anonymity is seen as just a cover that a person can use to spread falsehood, derail discussion, commit offensive acts, or impersonate someone else. If we look at many anonymous chat rooms or message boards we will probably observe that some comments are offensive; a prime example of this is the large anonymous community, 4chan.org. Sometimes these ―discussions‖ live in the comment section of a news article, or on a celebrity’s home page – Law Professor Brian Leiter at the University of Chicago refers to them as "cyber cesspools." According to Leiter, the quality of the speech we see in these cyber cesspools is nowhere near the level of dignity or even comprehension to be ―useful‖ to anyone or to any discussion, and in fact often proves harmful and defamatory to certain individuals. Because of this, Professor Leiter recommends that owners of these online spaces should be held legally accountable for the speech that appears on their websites; in other words, Section 230 of the CDA should be repealed immediately. This would mean that if an anonymous poster spreads hurtful lies about someone on a site, the owner of that site could be sued for defamation. The website owner would have to either closely moderate all of the text present on their site, or simply take away the ability of users to post anything anonymously. That way, a great deal of unwanted speech will disappear all on its own – in the eyes of Professor Leiter, the Internet and the world would be a much better place without anonymity.
Brian Leiter’s essays about cyber cesspools and what should be done about them take particular interest in the college gossip site, AutoAdmit. The website, Leiter argues, is filled with hateful language that is nothing but an ―amalgamation of tortious harms and dignitary harms.‖ (Leiter, 155) So when Heller and Iravani decided to sue AutoAdmit after finding out people were posting offensive things about them on the gossip site, Leiter and other anonymity critics saw an opportunity to expose to the public all anonymous online communities that had the potential to grow into cyber cesspools, and fight to have them shut down. (Heller v. AutoAdmit, 2005) Leiter dismisses the idea that the vulgar offensive speech in cyber cesspools is of any value at all, and concludes that it should never be produced online; the harms from online anonymous speech in his view are ―permanent, divorced from context, and available to anyone.‖ (Leiter, 156)
Section 2: How Much Does Anonymity Further the Goals of Free Speech? Following Leiter’s suggestion, the question of what we are losing if we choose to restrict people’s ability to post anonymously online rises to the forefront. What is the ethical value of online anonymous speech, especially when a great deal of it is offensive? In the following chapter, we will evaluate this kind of speech on three different scales of value that are considered fundamental to freedom of speech. First, we will look at the utility of anonymous speech, following John Stuart Mill’s notion of the ―marketplace of ideas‖ to determine whether anonymity helps or hinders our search for truth and the improvement of society. Second, we will explore the relationship between anonymity and autonomy in expression; I argue that this relationship is important to proving the value of online anonymous speech because it is not dependent upon consequential or conditional factors. Third, we will see how adding anonymity
to a group discussion can promote equality and lessen prejudice. Bringing together elements of all three arguments, we will be able to map out a much clearer picture of the strong ethical value of online anonymous speech and answer people like Leiter, Kerr, and Manjoo, who ask whether there is any value at all.
Chapter 5: The Marketplace of Ideas in Free Speech Theory
The most popular defense for why free speech should be protected is that it contributes to the free flow of information in the marketplace of ideas; in other words, it encourages more participants and more ideas in society’s public discourse. Supreme Court Justice Oliver Wendell Holmes in the landmark Abrams v. United States case delivered this opinion: ―The best test of truth is the power of the thought to get itself accepted in the competition of the market.‖ (250 U.S. 616, 630 (1919) Holmes, dissenting) The term comes from John Stuart Mill, whose utilitarian philosophy has had a significant impact on the formation of the American democracy and Constitution especially. This philosophy says that something is as good as its total benefits to the collective society; the benefit is called ―utility,‖ a measure of pleasure associated with actions, objects, and laws among other things. If the principle of utility is applied to free speech, then the increase in discussion mentioned earlier is considered valuable because it brings society closer to finding the truth, and therefore improves the rate at which society progresses. According to the majority opinion in McIntyre, the Supreme Court case that determined anonymity should be protected under the First Amendment, anonymous writers have contributed to the ―progress of mankind.‖ (Cotter, 7) The individual right to free speech is good because it encourages more people to speak their minds, and the ―marketplace of ideas‖ is created. At its core, this argument is consequentialist, meaning it focuses on the tangible future impacts of implementing a right to
free speech. The metaphor of the marketplace of ideas is attractive to democratic theorists and normal citizens alike; it is plausible that when more people have the right to speak freely, they will come to the right consensus on moral and political issues more quickly. John Stuart Mill’s defense of freedom of speech represents one of his most dynamic and complex arguments. His essay, On Liberty, lays out the justifications for providing the citizens of the ideal society with various liberties; free speech, Mill declares, is the rule that brings about the greatest quantity of the highest level of utility for all. The opposite of this freedom is tyranny, either by an absolute ruler or by majority public opinion. Mill’s argument came in the 18th century as a controversial attack on government censorship of speech, but he also goes one step further to say that a government-established right to free speech is not enough to ensure creation of the marketplace of ideas. The ―tyranny of the majority,‖ or the dominating, silencing nature of a majority public opinion can be a product of civilized societies in which ideas are free to be contested. (Mill, 7) Here, we see that John Stuart Mill not only acknowledges but explicitly warns that even with a right to free speech legally in place, there are certain social constraints that influence how freely we express our ideas.
One way to mitigate the possible effects of social constraints and the tyranny of the majority is to allow people to speak anonymously. Justice Thomas’ opinion in McIntyre suggests this same solution, concluding that ―anonymity is a shield from the tyranny of the majority.‖ (McIntyre) The majority cannot exercise social or physical pressure on an individual in an anonymous discussion space because the participants in the discussion cannot identify who the individual is. Therefore, the establishment and preservation of anonymous discussion spaces could possibly address Mill’s concern about social constraints. Mill realized even before the
establishment of a democracy that the legal right to free speech is not enough to achieve the marketplace of ideas he wrote about in On Liberty. Returning to the arguments of Law Professor Brian Leiter and Slate blogger Farhad Manjoo, who believe that social as well as legal restraints should be placed on speech online, we see that their conception of speech’s utility is narrower in scope than Mill’s. Manjoo suggests that more social constraints on Internet speech (in the form of eliminating anonymous comments) would, ―introduce to the Web one of the most important offline rules for etiquette: Don't say anything that you'd be ashamed to say in front of your mom.‖ (Manjoo, 2) This opinion calls into question the relationship between anonymity and the marketplace of ideas: if anonymity helps people speak more freely, but a great deal of their speech turns out to be offensive or does not carry much intellectual merit, does the marketplace of ideas achieve its purpose of advancing society through the pursuit of truth?
While Mill claims that free uninhibited speech contributes to the marketplace of ideas, critics like Manjoo, Leiter, and Kerr point to the ―trolling‖ phenomenon as an example of how anonymity does not in fact promote free and valuable discussion. To help understand where both sides are coming from, we will introduce a number of social psychological research studies about anonymous group discussion, and use the findings to determine anonymity’s effects on discourse. Scientific research on anonymous behavior can be conducted far more easily because of the advent of Internet technology, which is an element in all of the following studies.
University of Arizona Professor Leonard M. Jessup and Cornell Professor Poppy McLeod conducted research in 1993 on Group Support Systems, a type of technology built to give people an anonymous online space to discuss more effectively and efficiently. In order to measure the impact of GSS on discussion, these researchers compared face-to-face discussion
groups with online anonymous ones, measuring for a variety of different factors. They found that anonymous participation in GSS increased the number of ideas generated in the discussion, and decreased the amount of conformance pressure felt by the participants, compared to in a real-life meeting. (Klein, 1) In addition, studies conducted by Jessup and fellow Arizona Professor Terry Connolly in the early 1990’s found that interactions in the anonymous GSS setting produced more ―critical and probing‖ comments in the absence of social constraints existent in real life. (Jessup, 689) According to these findings, anonymity can be a very valuable tool for gauging group opinion, facilitating a wider range of creative and critical ideas, and improving efficiency in work and educational contexts. The effects of anonymity recorded in the studies match well with the features of Mill’s marketplace of ideas. Certain other studies have shown that anonymity can also have negative effects on discussion, problem-solving, and individual reasoning ability. At certain times, anonymous group discussion yields more honest and interesting ideas from a larger amount of participants; at other times, a ―troll‖ will emerge to sour the experience and discourage others from speaking. This makes it more difficult to properly determine what value anonymity has outside of largely unpredictable contexts. Dr. Esther E. Klein, Professor of Computer Information Systems at Hofstra University, refers to anonymity as a two-faced coin: on one side, it can promote the free exchange of ideas by stripping away social constraints and fear of the tyranny of the majority; on the other, it seems to give license to the type of unwanted and harmful speech that discourages others from participating in discussion at all. (Klein, 3.2.1) In her literature review about the ethical and social implications of anonymity online, Dr. Klein marked a pattern of studies in which discussions were derailed or the ―atmosphere was poisoned‖ by anonymous individuals who chose to divert attention from the task at hand. She likened this scenario to Plato’s ―Ring of
Gyges,‖ in which a magical ring allows a man to become invisible and he takes advantage of the situation to commit evil acts he would have never done otherwise. ―Even when the initial primary purpose [of anonymity] is to protect [the anonymous individual] from harmful actions by others or to promote positively valued activity, anonymity also provides space for action with impunity, and hence, the Ring of Gyges scenario.‖ This is where the fears expressed by Professor Leiter about ―cyber cesspools‖ originate – it is the tendency of some individuals to unleash invective and distracting speech across the Internet, because with anonymity, they feel absolutely unrestrained. If we look at the value of anonymous online speech based purely on how close it is to the truth or how concretely beneficial it is to the betterment of society, then calculating these factors would prove very difficult if not impossible. As the previous psychological research shows, there is no clear answer to whether online anonymous speech ―helps‖ or ―hinders‖ group discussion. Even if Professor Leiter suggests that we rid the world of cyber cesspools because the kind of speech in them is not valuable, he would have to contend with the first half of research studies that say the speech is valuable in a number of important ways.
Chapter 6: Autonomy as an Alternative Framework When evaluating anonymous speech on the basis of utility, its value becomes contingent upon the type of speech produced and the consequences it has on a group or on society at large. Lyrissa Lidsky and Thomas Cotter write in ―Anonymity, Authorship, and Audiences‖ that, ―From a purely utilitarian point of view, a State might reasonably choose to prohibit anonymous speech or at least force speakers to reveal their identities any time their conduct is called into question. Whatever the merits of this approach, an analysis of First Amendment first principles
counsels against it.‖ (Cotter, 53) Having shown that utilitarian calculus is more complex and not wholly convincing in defining the value of anonymous online speech, it is important to look at other defenses for anonymity and for free speech in general. ―Lawmakers who rely just on a cost-benefit analysis might rationally decide that anonymous speech was more trouble than it is worth, despite its many benefits. But the First Amendment analysis tips the balance.‖ (Cotter, 61) We can look at the literature on free speech theory and find that ―instrumental‖ arguments such as the utility of the marketplace of ideas are not the only ones in play. The principles Cotter and Lidsky mean in this context pertain to individual autonomy, which they believe is the strongest pillar of free speech theory. Before delving fully into the relationship between autonomy and anonymity, we will take a step back and look at the whole argument for freedom of speech on the basis of autonomy as a defining value, using the work of prominent contemporary philosophers Ronald Dworkin and Joshua Cohen to inform our analysis. We will call this section of the thesis the autonomy argument. Autonomy here means self-rule, taken from its Greek etymological origins auto (self) and nomos (law). (MerriamWebster) In terms of free speech specifically, autonomy is the ability of an individual both to express his or herself, and to hear the expression of others. (Brison, 324) At its core, autonomy is exercising your own judgment; speaking out and listening to the thoughts of others, particularly without ―government’s controlling interference‖ helps you come to your own conclusions and lead a self-fulfilling life. (324) The autonomy argument for freedom of speech and against government censorship says that a right to free speech is valuable because it protects an individual’s ability to decide how to live his/her own life through discussion with other people. Ronald Dworkin makes a strong distinction between this and the traditional ―instrumental‖ argument for free speech, which connects the value of free speech to the improvement of the
democratic process and society. (Dworkin, 201) Similar to the utilitarian argument, the instrumental defense is more fragile and limited in its application to speech. Dworkin asks in his book, Freedom’s Law, if we would be ―in a worse situation to choose our leaders or policies if we allowed neo-Nazis or Klansmen to be censored?‖ (Dworkin, 204) His point here is that instrumental justifications for free speech leave open the possibility for censoring entire groups of people based on the content of their opinions, and this prior restraint is far from the intent of the First Amendment. Dworkin instead argues that government should treat its citizens as responsible moral agents, giving us the respect we are due as rational beings; censoring speech because of its false or offensive content would be akin to treating us like irrational people who cannot process and evaluate the speech on our own. In this sense, autonomy is a kind of status given to us by the government in the form of freedom of speech, from both the listener’s and speaker’s perspective. If there is a problem with the content of speech, then it should be up to the people who read it to decide whether it is acceptable to their tastes, not the government. With this understanding, speech should not be banned or restricted in order to protect people from hearing it, even if it is false, offensive, or even harmful. This explains the strength of the protection given to free speech by the First Amendment to the U.S. Constitution. For the speaker, it is his or her responsibility to express opinions to others; people have an obligation to speak out about what they believe in, under the autonomy argument. This idea is taken up in more detail by Joshua Cohen, who explains in his essay, ―Freedom of Expression,‖ that individuals are guided by a number of interests related to speech and information. According to Cohen, people have an expressive interest in ―articulating thoughts, attitudes, and feelings on matters of personal or broader human concern, and perhaps through that articulation influencing
the thought and conduct of others.‖ (Cohen, 224) The information they spread or seek is not always correct, useful, or agreeable to others; but the fact that they can exercise their own free will to speak is good in and of itself. Cohen is careful to point out that his theory of interests does not imply that the interest people have in expressing themselves freely should trump all other values. But Cohen’s main argument still maintains some of the same themes of Dworkin’s defense of free speech as a means to achieve individual autonomy. It should be the listener and speaker’s decision to determine what speech is valuable to their own lives and what is not. Both Dworkin and Cohen’s frameworks stand apart from the utilitarian view, because even if what people are saying and listening to turns out to be false or not valuable to anyone, those people always have the ability to make up their own minds with autonomy. Now, it is important to bring the discussion back to the question of anonymous speech, this time looking at its value in terms of autonomy. Can anonymity further the value of autonomy for an individual speaker or listener? Cotter and Lidsky write that, ―Anonymous speech is sometimes said to promote individual autonomy and self-fulfillment by enabling individuals to explore new ideas, new means of expression, and even new identities.‖ (Cotter, 39) Anonymity in this context increases autonomy because it removes certain social constraints from an individual speaker or listener. The removal of social constraints makes the individual feel as if they have a wider range of ideas they can express, from the deeply personal thoughts to the controversial opinions that would get them ostracized if their identity were attached. In his column for Wired Magazine, Professor Nicholas Negroponte, co-founder of the MIT Media Laboratory and chairman of the nonprofit organization One Laptop Per Child, describes what he sees as the power of digital anonymity in a discussion context: ―It first struck me watching an electronic community for people worried that their spouse might have
Alzheimer's. Because of the anonymity afforded by the chat room, people were willing to ask questions they would never have addressed under other conditions - and to become part of the community.‖ (―Being Anonymous,‖ Wired 1998) Online, you can move around without other people being able to connect your words and actions to who you are or what you look like in the real world. In this way, the Internet can encourage a type of intimate, supportive interaction between individuals of different groups. Certain websites, like the popular PostSecret.com, were created so that people could anonymously share their most private secrets with the world in the form of a postcard, without the fear of social ostracizing or disapproval. At the bottom of the
Figure 2: An anonymous postcard on PostSecret.com
webpage, a small line of white text reads, ―PostSecret is the largest advertisement-free Blog in the world. Visitor Count: 437,180,622‖ (PostSecret.com) Founder Frank Warren argues that the postcards reach people around the world who identify with and are inspired by the secrets they read; this creates an anonymous community of acceptance for people who would have never connected otherwise. (Warren, My Secret) The anonymity that comes with online communication acts as a kind of shield against people feeling vulnerable or ashamed of who they are and what they say. The fact that people can access the Internet usually from a safe and comfortable place such as their home can also make people feel less anxious and apprehensive about sharing their feelings and opinions with the public. This is exactly the kind of feeling that critics of anonymity, like Professor Leiter
Farhad Manjoo believe causes more harm than good on the Internet. When Leiter writes about ―cyber cesspools,‖ he asserts that most if not all of the speech contained in anonymous websites is harmful, false, offensive, and should never appear in the first place. (Leiter, 155) By shutting down these websites (―cleaning out the cyber cesspools‖) and removing the ability to write anonymously, Leiter is essentially suggesting a social constraint solution to a problem he has with freedom of speech. Dworkin’s argument that citizens should be given the autonomy to speak freely and make moral decisions based on the speech they hear (because this is part of treating them as responsible moral agents) is not addressed by Leiter’s proposed solutions. Instead of allowing a listener to decide for themselves whether the speech they read online is truthful or valuable, Leiter believes they should never have to be exposed to the material in the first place – if this were passed as a law, it would be referred to as ―prior restraint,‖ which has repeatedly been ruled unconstitutional in the United States. To achieve his goal of prior restraint of anonymous speech through law, Leiter advocates the repeal of Section 230, which would hold website owners legally accountable for what people write on their sites. This would effectively reintroduce a strong set of social constraints to the anonymous online world, as site administrators would begin to act as the paternalistic government Dworkin and Mill warn against in their texts.
The value of free speech to individuals as autonomous rational beings is unconditional and fundamental, since they have an interest and desire in exercising their reasoning capabilities. (Soutphomassane, 203) Judges, legislators, corporations, website owners, and individual web users struggle with defining conditions of anonymity based on how well it can advance values of utility, but such struggle is not necessary when speaking in terms of autonomy. Autonomy encourages all kinds of speech from all types of authors for no other reason than they deserve to
express themselves as independent rational beings. In fact, utilitarian philosopher John Stuart Mill defended both instrumental and autonomy-based justifications for a right to free speech, and argued they were not mutually exclusive in his famous text, On Liberty. (Mill, 201) Tim Soutphommasane writes in his analysis of On Liberty that,
―any restriction of people’s speech will violate their right to moral independence as self-governing agents. [The individual] gives up the right to hear his fellow citizens’ arguments, he is denied the chance to speak either for or against it, and most importantly he can no longer be sovereign in deciding what to believe and in evaluating the weight of reasons for action.‖ (Soutphommasane, 3)
These statements echo almost exactly the ―interests‖ argument of Cohen and the ―autonomy‖ argument of Dworkin; and anonymity helps to advance all of these values by removing social constraints from speech.
Chapter 7: Anonymity as a Tool to Advance Social Equality So far, we have shown that the right to free speech rests on a number of different principles, and that anonymity tends to further the values we touched upon previously, utility and autonomy. While anonymity can lead people to better and more useful discussions in one situation, it can discourage honest and agreeable comments in the other; this makes determining the ethical value of anonymous speech extremely difficult for critics like Professor Leiter. But what we have also seen is that by taking away social constraints and allowing people to speak more freely than they normally do, anonymity advances autonomy (Dworkin) and the individual’s interest in expression. (Cohen) Now, we will bring in a final ethical value system on which we can judge the worth of anonymous speech: equality. This chapter will show that
anonymity promotes equality, especially by encouraging traditionally-silenced groups to speak; and online anonymity specifically provides a space where this effect can be spread globally.
Along with autonomy and utility, equality has played an extremely important role in American democratic theory. From the Declaration of Independence (―All men are created equal‖) to the Civil Rights movements of the 1960’s, fighting for equality has been a focal point of American societal progress. Protecting the right of all people to speak out on the issues they care about has proven key to increasing equality between groups. In today’s society, it can be argued that substantial advances in civil rights and liberties have made citizens more equal, but forms of social inequality and prejudice still exist, particularly in relation to speech. When someone’s opinion is consistently under-valued because of certain factors of their identity (including race, gender, orientation and socio-economic status), they are not fully equal with other members of society. Even in professional or educational contexts, social status exists and motivates certain privileged people to speak while discouraging others in minority positions from doing the same. This results in two kinds of inequality: first, not all speakers feel they have the same opportunity to express their views; second, the benefits of group discussion are not equally distributed amongst the members.
A way to end this type of inequality is to take away the social status cues that separate discussion participants from one another – in other words, placing over them a ―veil of ignorance.‖ The veil promotes equality and lessens prejudice between groups because people are not able to see or hear one another; the markers of race, gender, socioeconomic status, orientation or others are removed from one’s image of the people they are interacting with. These markers can be referred to as ―morally arbitrary factors,‖ in that most of the time they are only
used by a listener to form discriminatory judgments about the person speaking, unrelated to what the person is saying. A discussion space characterized by anonymity helps to control for the effects of morally arbitrary factors upon debate. Without these factors in place for us to see, we tend to focus on the content of people’s ideas and try to build a picture of their character; this type of exchange promotes the creation of spaces for inclusion and free dialogue. In such a space, everyone can participate without feeling inhibited, and everyone’s views can be taken seriously and fairly by their audience without the interference of morally arbitrary factors. The veil of ignorance mentioned earlier, which removes social status from group interaction, can be somewhat achieved in real life through anonymity, and on the Internet, it is even easier. A fair amount of social psychological research has been conducted on the topic of anonymity in order to find out what happens to group dynamics and individual behavior in anonymous contexts. Jessup & Tansik found in their 1991 study that anonymous mixed gender groups produce more comments, details, and higher quality ideas than mixed gender groups in a face-to-face setting. Confirming the ―expectation states theory,‖ women spoke less and equal participation was never reached for groups that met in person. Eliminating gender cues, race, and social status symbols with technology has the effect of leveling the playing field for systematically underrepresented groups. According to Lee & Spears, ―technological features of electronic communication trigger psychological states and processes that result in less normative influences on individuals and groups and more deregulated behavior.‖ This points to the value in equality that I previously advocated for: people in underprivileged positions, including women, minorities, or the disabled feel less restricted by their social position and express themselves more freely in an anonymous setting.
Dr. Klein’s research on anonymity actually provides an insight into how the veil of ignorance specifically might work as a social experiment. She writes in her conclusions that the ―veil of ignorance that furthers justice also advances autonomy‖ (2.3); these were some of her findings related to equality between genders:
The masking of gender cues, made possible by the anonymity feature, promotes women's complete participation by inhibiting the underrating of the contributions of women group members. Thus, through anonymity, women are given voice and are encouraged to fully express their ideas with the expectation that their ideas will be evaluated on their inherent worth and not on the gender of their proposer. Moreover— and just as importantly, anonymity fosters the autonomy of those group members who are judging the contributions of other members by making certain that the assessments are not affected by anti-women prejudices.
Klein’s repeated linking of autonomy and equality in her research findings suggests that with anonymity, both these values can be pursued simultaneously; and with the Internet as a platform, real results showing the concrete manifestations of these values can be attained.
Fred H. Cate, Law Professor at Indiana University writes in his book, The Internet and the First Amendment, that ―The Internet gives a voice and the opportunity to access a larger audience of people who otherwise would effectively have neither… [It] is open, in a way that TV and newspapers are not. It is also egalitarian: the real test of expression and ideas is their own value, not the status or affiliation of their source.‖ (Cate, 85) In large part, the egalitarian nature of the Internet is possible because of the ability to write and distribute speech anonymously. Comments on the Internet that are not attributable to a specific author can be judged solely by their content and merit. It is important to remember that traditional criteria for judging the credibility of anonymous statements have been somewhat transferred online; readers are more
likely to assume the author of a comment is civil and knowledgeable if their vocabulary is advanced, and grammar & spelling errors are kept to a minimum. But the fact that people’s anonymous speech is actually read by new audiences that might not look at it if the author’s identity and social status were attached is a step in the direction of more equality for all. In this chapter, we have found that anonymity and equality are connected in two unique ways: by removing social constraints from discussion, anonymity allows individuals to participate more than they usually do, and provides an opportunity for their ideas to be taken more seriously in the discussion space. In the years to follow, it would promote equality to not only preserve anonymous discussion spaces, but open more of them, providing more of a voice for the underprivileged using technology. Through this digital medium, which more people are able to access every day, we might be able to promote other forms of social progress and equality in the future.
Section 3: Anonymity’s Place in the Future Web In the previous two sections we have examined the technical conditions and effects of anonymity, and laid out the ethical relationship between anonymity and free speech. Online anonymous speech holds unique value in our society because the Internet has become the new platform for general public discussion, allowing many more kinds of people to participate than before. We have now come to understand the ethical foundations behind the arguments in favor of and against preserving anonymous discussion spaces (or as one critic refers to them, "cyber cesspools"). At this point, it is time to revisit the debates over policy and power that currently surround the topic of online anonymity, applying the ethical principles and empirical analysis of the previous chapters to the situation of today. This section will have four chapters, addressing
political activism for online free speech, proposed specific legislative and judicial action on behalf of that speech, and the future role of large Internet corporations in preserving the online public sphere. Chapter 8 explains the unique ideology of Cyber-libertarianism, which was born during the 1960’s Counterculture and has produced much of the technology, legislation, and social behaviors of the Web we are familiar with today. In Chapter 9, we will explore the current state of freedom on the Internet, and look at just how much the Web has changed from the ―frontier‖ ideal of the Cyber-libertarians. The fact that private agencies set the rules of privacy and anonymity in today’s Internet has ethical implications that will be visited in Chapter 10. Finally, Chapter 11 will contain suggestions for more enhanced protection of online civil liberties like free anonymous speech. These suggestions will take the ethical foundation formed in the second section of the thesis and add knowledge of the modern technological landscape described in the first section; they will serve to take technology policy one step closer to becoming media-literate.
Chapter 8: The History & Future of the Cyber-libertarian Movement In order to understand the social implications of protecting or restricting online anonymous speech, we must closely examine the political ideologies that have informed this choice since the first uses of the computer as a communication device. When looking at the organizations that defend civil liberties online and largely support anonymity such as the Electronic Frontier Foundation, it is important to know their political roots and motivations. These motivations actually stem from a unique combination of liberal progressive values and libertarian resistance to traditional authority that developed during the 1960’s Countercultural
movement. (Turner, 224) According to Cliff Figallo, the second director of the WELL online community, ―Principles of tolerance and inclusion, fair resource allocation, distributed responsibility, management be example and influence, a flat organizational hierarchy, cooperative policy formulation and acceptance of a libertarian-bordering-on-anarchic ethos were all carryovers from our communal living experience.‖ (Turner, 148) Living in a commune was an essential part of the Counterculture, leaving behind notions of state and corporate control in exchange for unrestricted autonomy and self-sufficient living. Stanford University Digital Media Communication Professor Fred Turner wrote a book on the origins of online communities and ―digital utopianism‖ called From Counterculture to Cyberculture, in which he followed the main figures of the movement to build a free and open Internet. In terms of establishing the first technology-related legislation, he discovered that Internet communication technologies were viewed by these figures as ―models of open markets and an open political sphere... [and that] the interests of the marketplace and those of the public were fundamentally synonymous.‖ (230) This is referred to as the ―cyber-libertarian‖ ideology. Langdon Winner, one of the first scholars to publish the term ―cyber-libertarianism,‖ defined it as "a collection of ideas that links ecstatic enthusiasm for electronically mediated forms of living with radical, right wing libertarian ideas about the proper definition of freedom, social life, economics, and politics in the years to come.‖ (Winner) With this set of beliefs, the earliest online communities were established around 1980; among the first of these ―communities‖ was UseNet. This network was designed as a distributed news-sharing bulletin board, where anyone could post articles and read what others had posted. More important than what was being shared on UseNet was the fact that it required no personal registration to participate, and did not collect information about its users – it was essentially the first large anonymous community.
Lueg and Fisher write in From UseNet to CoWebs about a particularly important event in the history of UseNet, involving a legal conflict with the Church of Scientology. UseNet was sued for releasing secret documents from the Church online for all to see; this was controversial because part of the Scientology religion requires that the texts remain secret. The posters of the information were revealed through retrieval of their IP addresses and the messages were removed after a court order. This case prompted UseNet to alter the technology of its network, to protect the anonymity of its users:
―The fact that all messages had to travel through a single system, where the message originators’ true email addresses were stored made the system too vulnerable. The solution lay in a distributed network of anonymous remailers, which function so that investigators cannot trace a given message to any single person; moreover, the network assures true anonymity in that no permanent record is made of a message sender’s true identity.‖ (Fisher, 37)
After the implementation of this strong encryption feature, investigators could not connect messages to a particular server or person, and thus could not prosecute anyone for things they said or posted on UseNet. Full anonymity only became a ―necessary‖ part of the Internet after certain users experienced what they felt was unwarranted censorship of their speech by the state. The leaders of UseNet were staunch advocates of free speech; they believed that on the Internet, messages should not be removed by third parties no matter how offensive or even unethical they are. Thus, in a kind of retaliation against what they felt was unjust persecution of their free speech by the government, a team of hackers and network developers created the first truly anonymous online exchange network. Building in the capability to be completely anonymous and untraceable on the Internet was a conscious decision made by the UseNet creators in order to reduce the power of the nation-state in interfering with their online activities.
Along with the technical advances in this realm came a wave of political speech about the values of the new, free Internet.
―Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.‖(Barlow, 1996)
John Perry Barlow’s ―Declaration of the Independence of Cyberspace,‖ the first paragraph of which appears above, was published in 1996 and embodies the defiant spirit of Cyber-libertarian Internet pioneers. (projects.eff.org) The message to the American government is clear: there will be no controlling or policing the open realm of the Internet, because the people who interact online are not ―connected‖ to earthly bodies that can be tracked, arrested and jailed. Another part of the famous declaration reads, ―We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.‖ An echo of John Stuart Mill, this statement declaring the absolute freedom of speech online describes a world where the tyranny of the majority is a technologically impossible concept. For Barlow and the rest of the founders of cyberspace, social constraints could have become a thing of the past if people on the Internet had the option of browsing and communicating anonymously. Online, they believed that you could build relationships through connections of the intellect, without regard to geography, physical appearance, or other morally arbitrary factors. The technological affordances of the Internet offered this particular opportunity to experiment with different concepts of identity and anonymity; these affordances still exist today, but have lost much of the sense of wonder and imagination they once carried. Today, the pioneers of technology that enabled anonymity and the early members of communities like UseNet and The WELL are the leaders of organizations that seek to spread
awareness of current online civil liberties issues. John Perry Barlow, for example, went on to become co-founder of the Electronic Frontier Foundation. In the realm of free speech, the EFF believes that,
―Preserving the Internet's open architecture is critical to sustaining free speech. But this technological capacity means little without sufficient legal protections. If laws can censor you, limit access to certain information, or restrict use of communication tools, then the Internet's incredible potential will go unrealized.‖ (EFF.org)
The attorneys of the EFF work to bring awareness to and challenge in court any laws or lawsuits that threaten to close the naturally open state of the Internet. The language referring to the ―Internet’s incredible potential‖ recreates the powerful optimism of the 1980’s, when anonymous discussion spaces were considered much more appealing and valuable to the preservation of free speech than they are today. In the last chapter, we learned about the political roots of the current movement to protect online civil liberties and free speech; next, we will see how the Internet has fundamentally changed from the digital utopian ideal, and uncover the forces that now stand to lessen the degree of free speech Internet users can exercise through the re-implementation of social constraints.
Chapter 9: Speech in the New Digital Landscape Michael Hirschorn writes in an article for The Atlantic Magazine titled ―Closing the Digital Frontier‖ that,
―The era of the web browser’s dominance is coming to a close. And the Internet’s founding ideology that information wants to be free, and that attempts to constrain it are not only hopeless but immoral—suddenly seems naïve and stale in the new age of apps, smart phones, and pricing plans.‖ (TheAtlantic.com)
The illustration that accompanies the article shows a Western frontier, with a fenced off town in the center which includes buildings owned by the social networks and websites that American Internet users are most familiar with and visit regularly: Facebook, Twitter, iTunes, and Google. As the Web becomes more like a gated community of private agencies and the spaces they provide on their own terms, one of the most significant changes will be
Figure 3: Illustration for The Atlantic: Closing the Digital Frontier. Image Credit to Jason Schneider
how these agencies approach the issue of anonymous speech; most
of them seem to take the lead of Facebook (even by installing Facebook’s commenting feature) and do not encourage anonymity at all. This is because the Internet corporations make revenue from collecting, analyzing, and selling data about their users’ behavior; in the age of data, allowing anonymity is not a decision that would yield profit for the websites people use every day. Entire sub-industries of marketing and advertising have been created around analyzing user data from Facebook, Twitter, and Google. In addition, social recommendation services, which are growing more popular every day, encourage people to join discussions, interact with content, and make purchase decisions based on the input of their social circle. As we have found with Dr. Klein’s empirical studies earlier, anonymity has the potential to increase participation in discussion; but it also by nature encourages less inhibited and sometimes more offensive
behavior. Taking these research findings into account, and the fact that anonymous people cannot be compiled and indexed by their demographic or behavioral data, a cost-benefit analysis for a corporation like Facebook would spell the end of anonymous speech on the website. Facebook’s terms of service agreement shows a strong ideology that representing yourself online as anything other than your real life identity (with all your traits, habits, and connections) is unauthentic and even dangerous – the reasoning for this becomes easier now to understand than ever before. Just seven years ago before Facebook was founded, the norm online was not to release your full name, e-mail address or location on the Internet – such behavior was seen as careless and dangerous. In that sense, people had more control over their identifiable information and how it could be used; when commenting on news articles, chatting in game environments or discussing politics in forums, people more often than not selected pseudonyms that could not be traced back to their real lives. Now, our behaviors have completely changed because of the introduction of social networking sites like Facebook, which seek to blend our online and physical world identities into one, leaving little to no room for free expression without the social restrictions put on by our real life network. As was demonstrated in the previous arguments by Slate.com blogger Farhad Manjoo and Professor Brian Leiter, some believe that there is no longer any valid reason why a good person would ―hide behind‖ anonymity, or why social constraints should not exist online as they do in real life.
Indeed, we shouldn’t stop at comments. Web sites should move toward requiring people to reveal their real names when engaging in all online behavior that's understood to be public. In almost all cases, the Web would be much better off if everyone told the world who they really are.‖ (Manjoo, Slate.com)
The private corporations that now set the norms and laws of cyberspace have decided that instead of having an Internet that is free for expression and experimentation, we should have one
that reflects the physical world and its networks completely – this is because the physical world is where people consume and buy goods. The data of these consumers is tangibly and monetarily valuable in a way that anonymity and by extension free speech and other civil rights are not. Recognizing the fundamental differences in value between the Internet of yesterday and the Internet of today is imperative to understanding how the ethical value of anonymous speech has come to be misperceived.
Chapter 10: Private Agencies in Control of Modern Anonymity Renowned Digital Media scholar Lawrence Lessig writes in his book, Code and Other Laws of Cyberspace about how private Internet corporations (which he refers to as ―trusted systems‖ because we trust them with handling our personal data) structure our behavior online through computer code and corresponding website policies. Contrary to the informationgathering mission of the trusted systems, Lessig would prefer to not have his name or e-mail connected to his activity on the Web; he would rather be assigned a random codename to protect his anonymity. ―If the code is going to monitor just what I do, then at least it should not know that it is ―I‖ that it is monitoring. I am less troubled if it knows that ―14AH342BD7‖ read such and such; I am deeply troubled if that number is tied back to my name.‖ (Lessig, 140) His opinion is based partly on the theorem by Julie E. Cohen, Professor of Law at Georgetown University, that there is a certain value in being able to seek information and communicate freely. The argument states: ―Whatever its source, it is a value in this world that we can explore intellectually on our own. It is a value that we can read anonymously, without fear that others will know or watch or change their behavior based on what we read. This is an element of freedom. It is a part of what makes us as we are.‖ (Lessig, 139) Here we are reminded of the
other J. Cohen, Joshua: in addition to the expressive interest he argued was a strong justification for our right to free speech, he also wrote that we have an innate ―informative‖ interest, which leads us to seek out new information on our own. (Cohen, 224) This element of freedom associated with the informative interest, Lessig argues, is potentially done away with by trusted systems, the large websites inside of which we conduct most of our online activities and trust with our information. How can we preserve the value of the freedom to explore intellectually, when the main websites we visit have chosen to monitor us? Julie E. Cohen believes that as part of the right to pursue information freely and anonymously, people should be able to ―hack‖ or devise alternate means to realize the goal of anonymity. (Lessig, 139) This is where personal encryption software like Tor becomes involved. For ―trusted systems,‖ the websites with hundreds of millions of users a day where Americans spend most of their time online, the value of free and anonymous expression can be superseded by other values: such as the acquisition of more users, financial incentives, and website image or reputation. Now more than ever, trusted systems use code and social pressure to control how we represent ourselves online, and they largely do not share a commitment to using the Internet’s technology to enhance anonymity or freedom of speech. A recent example of a trusted system in conflict with values of anonymity and free speech is the case of Facebook and the anti-Mubarak protesters in Egypt. (McCarthy, CNET: ―Amid Unrest, a Hard New Look at Online Anonymity‖) Facebook and other social media have proven to be an essential tool for those in Egypt who wanted to bring awareness to the situation in their country and organize in protest against the dictator, Mubarak. But Facebook’s emphasis on ―real name identity‖ made it easier than ever for the Egyptian government or counter-protest forces to track the protesters’ movements and online activities. A nonprofit organization called
Access Now has started a petition online to ―encourage Facebook to rethink its policy‖ towards anonymous accounts. Currently, if Facebook suspects that a user is not who they are claiming to be, they can restrict or even ban the profile from using the site’s capabilities, such as creating events or adding friends. Access Now hopes to change this policy, by arguing that political activists under risk of some kind of retaliation should be allowed to run anonymous Facebook accounts under a more secure HTTPS protocol; Facebook offers the more unsecure HTTP service to these users, which is easy to track or hack into for the Egyptian government. Facebook is a private actor in the arena of online anonymity and is not bound by any legal obligation to provide spaces for anonymous speech. As Lawrence Lessig refers to in Code, ―trusted systems‖ like Facebook are able to create and enforce their own laws through code, which is different from but in some ways reflects the ―threat of the law and the push of norms‖ in American democracy. In his description of the Cohen Theorem, Lessig reminds us that, ―there is a right to resist, or ―hack‖ trusted systems to the extent that they infringe on traditional fair use.‖ (Lessig, 139) Who controls identifiable information of Internet users is therefore an extremely important component of understanding how anonymity online is fundamentally different from other kinds of anonymity, and how it is now becoming less difficult to eliminate for private actors and even governments through technological means.
Chapter 11: Enhanced Protection for Anonymous Speech Certain efforts made by Web users to protect their behavior from being tracked online involve installing strong encryption technology that makes it nearly impossible for even the government to trace their IP address back to a single location. For reasons pertaining to national
security and the upholding of the law in the United States, the use of this technology to provide someone with absolute anonymity is not advocated in this thesis. However, legal protections for people who choose to write anonymously online should be improved upon, especially in the realm of free speech and libel reform. 1. Online anonymous defamation - An anonymous defendant in an online libel case should retain the right to keep their name a secret throughout their trial – this way, a plaintiff cannot simply use the court proceeding to retrieve an anonymous commenter’s name and release it to the press without following through with the entire case and getting back a ruling. This kind of action by a libel plaintiff, like Liskula Cohen in her case against blogger Rosemary Port or Iravani & Keller against the AutoAdmit founders shows that instead of allowing everyone to express their opinions freely, they hope to bring social constraints to the online environment. Allowing a defendant to remain anonymous until their speech is found to actually be libelous under current law would protect individual autonomy online and prevent this kind of situation. Even a small, simple change in procedure would be a significant step in the direction of empowering Internet users and their right to free speech. 2. Subpoenas for Identity Information - Private agencies and ISP’s who are called upon by the courts to provide identifiable information about someone anonymous on their website should be required to inform that person when their information is being asked for. This is already a part of the Dendrite procedure for unmasking anonymous defendants, and should be strictly followed in all states to ensure proper protection of online civil liberties. (Dendrite, 2001) In addition, such agencies, like Google or Facebook for example, should, along with notifying the person in question let them know
that they have the option to file a motion to quash the subpoena for their information. This could be a forwarded message or form created by the government and distributed through the website’s communication channel to a new defendant. Anonymous posters, many of whom are unaware of how well their right to anonymity is protected under the Constitution, can be intimidated into silence or into an expensive and publicized court hearing because they did not file a motion to quash the subpoena for their name. (EFF.org) In the future, all online commenters should be made aware of their right to challenge a court order for their identity to be unmasked. 3. “Intent to Annoy” Law – There is a clause in the Violence Against Women and Department of Justice Reauthorization Act that makes the act of anonymously writing something online with ―intent to annoy‖ a federal crime worth up to 2 years in jail; this should be struck down in court as soon as possible. While the intent to ―threaten‖ or ―harass‖ has longstanding meaning in criminal law, ―annoy‖ is more subjective, and can be used by a potential plaintiff to silence their online anonymous critics. One of the ―risks‖ of participating in online activity, especially activities in which you create and publish your own content is that some people will be very critical and insensitive to your work. They might even make a comment that is meant to annoy or offend you, either as a joke for the rest of the online audience or as a real insult. This type of ―annoying‖ behavior is commonplace online and is characteristic of how many people interact with one another in settings like online games, chat rooms, or YouTube. Taking any one of those comments and suing for the ―intent to annoy‖ is dangerous for the future of anonymous speech online and in general.
The type of lawsuit mentioned in the examples above, in which a plaintiff claims that anonymously-posted online comments are libelous and harmful solely for the purpose of unmasking the author is called a cyber-SLAPP, or Strategic Lawsuit Against Public Participation. (cyberSLAPP.org) While there are anti-cyber-SLAPP laws in place, anonymous defendants are still largely unaware that there is an option for them to keep their identity a secret or deny a request for their information. In her essay, ―Educate, Not Legislate,‖ Dr. Pamela Routledge, Director of the Media Psychology Research Center, warns against the government instituting ―media-illiterate legislation‖ to address new issues that have arisen with the Internet (such as an increase in offensive speech). She suggests that the government invest in the idea of ―media citizenship,‖ giving people guidance on how to use the Internet effectively and within the law. It will take an increase in media literacy initiatives and incremental improvements to the currently ―mediailliterate‖ legislation to truly preserve the modern anonymous public sphere online. Currently, ―a patchwork quilt of nonprofit advocacy groups, for-profit providers of curricular materials, and assorted state and local initiatives‖ are leading the movement for increased media literacy in the United States. (Heins) Many of these initiatives are directed towards children, since they now spend more time with media and specifically the Internet than any other generation before. (―CommonSense Media‖) Teaching children how to think critically about what they read and post online, especially in anonymous discussion or comment settings will be essential in the effort to make a more informed and respectful online community. CommonSense Media is one of the nonprofit organizations whose mission is to increase media literacy for children and families. They believe in ―teaching our kids to be savvy, respectful and responsible media interpreters, creators, and communicators,‖ as opposed to censoring the material they are
exposed to through media. (―Our Mission‖) These initiatives could help young people realize their autonomy by encouraging them to think twice about the consequences of what they say when they are anonymous online, without restraining them from saying anything at all. Finally, Internet companies that promote discussion on their websites, and especially those whose main product is discussion and content have a role to play in the future of anonymous free speech. By enabling users to post anonymously, and by developing innovative strategies for moderating and resolving conflicts, these websites have a unique opportunity to expand their community and range of content. Quora.com, a question & answer website that was launched almost two years ago, is an example of a new online community that has found ways to maintain a strict set of community guidelines but still experience the benefits of anonymous speech. On their site, a user can post a question about any topic, or answer a question that someone else has asked; they always have the option of attaching their real name or posting anonymously. The community selects the best answers by voting them up or down; a post that does not fit community standards could be ―collapsed‖ or removed from view. Quora encourages people to post responses to the questions that they know the answer to; some questions about what it is like to work at a certain company, for example, might be best and most honestly answered by a current employee who chooses not to reveal her name. More sensitive questions, such as ―How do I know if my significant other is an alcoholic?‖ are asked anonymously as well. A final example of innovative strategies for handling anonymous speech online is Slashdot, a technology news website and community. (Lampe, 543) According to University of Michigan Professors Cliff Lampe and Paul Resnick, who conducted research on the Slashdot community in 2004, ―Part of the ethos of Slashdot is that posts are not deleted from the database; the site creators mandated that anonymous posting be allowed.‖ When certain behavioral problems arose,
Slashdot handed over moderation to its userbase for a more ―democratic solution.‖ (543) Like on Quora, Slashdot users can vote on other users’ posts and through this rating convey to other readers how valuable they believe the posts are. These solutions take much of the burden off of website owners and administrators, and avoid the problems of censorship and prior restraint that come with government legislative action.
Conclusion: Preserving the Anonymous Public Sphere When the Internet provides a free and open environment in which millions of people can cast aside their social differences, discuss issues they care about and reach their own conclusions about moral, political, and other truths, it serves as a public sphere. "Social differences" in this context refer to gender, race, class, nationality, and a range of other characteristics -- all of which can potentially be hidden by anonymity. While it is true that on the Internet, anonymous discussion spaces have the potential to become a space for sharing offensive material, they also have the potential to promote connections across borders, communities for private issues, accountability of those in power, or political support in areas where it would be impossible to organize in real life. For Americans who are already given the constitutional right to free speech, the Internet enhances their ability to speak freely outside of social restrictions and inhibitions. In doing so, the online public sphere promotes equality between individuals of different groups at a level American society has not yet reached. The Internet is where much of American public opinion is formed, where people deliberate on political issues and enter into debate with others; the fact that on some websites people can comment anonymously widens the variety of opinions that a reader can experience. In this situation, certain legal changes, like the repeal of Section
230 or enacting a law against comments ―with intent to annoy‖ can serve to destroy the online public sphere for all. But online anonymity is not only a contested issue for democracies, for highly developed countries with a strong commitment to open technology and freedom of speech. And it is not only contested for reasons pertaining to the offensiveness and vulgarity of that speech. For political dissidents, activists, and whistleblowers living under authoritarian governments, online anonymity can become the defining factor separating freedom from immediate capture and arrest. In March of this year, Tor Project was recognized with the Award for Projects of Social Benefit from the Free Software Foundation for its role in assisting protesters during recent revolutions in the Middle East and North Africa. (Sullivan) The FSF wrote, ―Tor has enabled roughly 36 million people around the world to experience freedom of access and expression on the Internet while keeping them in control of their privacy and anonymity. Its network has proved pivotal in dissident movements in both Iran and more recently Egypt.‖ For countries where the government can censor online content, take down protester’s websites and track user activity through law enforcement, technological tools like the encryption of Tor can protect a protester’s safety and increase the chances that their message is heard around the world. The Web, and more than anywhere else the anonymous spaces on the Web serve as the arena in which people everywhere can share their opinions and feelings. These anonymous online spaces represent the modern conception of the public sphere, in which Internet users feel completely free to air their concerns about issues that are harmless or taboo through whatever way they choose: name-calling, art, crude humor, blogging or satire. The existence of a medium in which people can enjoy enhanced autonomy through anonymous speech is a gift to be celebrated, not an unfortunate side effect of technology. The vulgarity and offensiveness of some
anonymous online content is only one superficial layer of what people online think about deeper issues, and should not be thought to spoil the entire experience for other users. Looking deeper than face value of anonymous comments at the larger exercise of autonomy and equality as values on the Internet is the best way to determine the place of online anonymity in today’s changing world.
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