Going too far: Two proposed laws want to punish online 'bad-talkers' by revealing their identities to anyone who finds them offensive.
Our lives are led increasingly online. According to the Pew Internet and American Life study, "the web has become the "new normal" in the American way of life." We buy and sell online, date, discuss and post credit card and social security numbers online. Private information, including photos, biographies, and zip codes are displayed in online profiles.
These are worlds in which identity theft by anonymous users happens frequently and can be personally devastating. "Someone hacked in my profile, and now it's saying "you are gay" all the time when you view my profile. How do I get it out?" asks one distressed user on a Topix.net forum.
The right to remain anonymous online seems to be the thorn in the side of parents, government and the average internet personality. Slashdot.org posters who don't reveal their identities are often referred to as "cowards." Many message boards do not allow users to post at all without a verifiable email address. As the internet becomes less and less anonymous, who is left to protect our privacy? And does anyone still care about anonymity online?
Blogger Seth Goodin views anonymity as a beast that needs to be tamed, "Virus writers are always anonymous. Vicious political lies (with faked Photoshop photos of political leaders, or false innuendo about personal lives) are always anonymous as well. Spam is anonymous. E-Bay fraudsters are anonymous too. It seems as though virtually all of the problems of the Net stem from this one flaw ... If we eliminate anonymity online, we can create a far more civil place."
Lawmakers in New Jersey seem to agree. Two new recent bills -- A1327 and A2623 -- introduced to the state assembly require Internet Service Providers (ISPs) to disclose user information in any claim of defamation. If these bills were to pass, individuals who are accused of online bad-talk in New Jersey would face instant disclosure of their identities to their accusers.
While it may seem that having one's identity revealed may not be that serious, Paul Levy, an attorney who deals with cases of online defamation for the Public Citizen Litigation Group has seen just how serious it can be. Levy is currently representing one person who was identified as having criticized another person in his community. After his identity was fully revealed, he was forced to move out of his hometown.
Levy says that in other cases, "If you criticized a public official, you are worried about the various things public officials can do to you that are hard to prove ... or if you criticized a mobster, you are worried about very nasty things that could get done to somebody ... "
However being identified doesn't just mean you suffer humiliation or threats, being identified also means a formal lawsuit may be brought against you, costing time and money.
To make matters worse, the other New Jersey bill A2623 would require ISPs to remove any "inappropriate" content when notified by a user of material that is defamatory or offensive. This means that ISPs, who will not have time, resources or legal expertise to determine if something is or is not defamatory, will erase anything that may be considered offensive or illegal.
Threat to freedom of speech?
In addition to enabling countless futile law suits, these bills would violate the right to free speech and anonymity, something some may call the very essence of the internet. While these bills would only apply to cases brought to courts in New Jersey, if passed they could effect legislation in other states, and even around the world, legitimizing internet censorship.
It is free speech -- often contingent upon anonymity -- that leads people to speak openly about politics in countries where media is controlled by the state, such as Iran. Largely anonymous communities like Weblogistan provide a place for free expression that does not exist elsewhere in the Iranian media. Even in America, where free speech is protected by law, members of the military have resorted to using anonymous blogs to criticize Donald Rumsfeld, for example, or to write about their personal experiences at war, without giving away classified information.
The Supreme Court has ruled repeatedly that the First Amendment protects the right to anonymous free speech, with a 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reading:
"Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views ... Anonymity is a shield from the tyranny of the majority ... It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation ... at the hand of an intolerant society "
As Kurt Opsahl of the Electronic Frontier Foundation points out, our country was founded by pamphleteers, "the Federalist Papers, some of the founding documents on which our constitution was based, were published under pseudonyms. It is vital to having a public discourse that people be able to participate without having to reveal their identity."
Levy points out that standards of identity protection offered in the real world are also offered online. However, he notes, the internet does not offer the same type of anonymity that may be found offline. After all, in the real world one may participate in a protest anonymously by wearing a costume, one may write a novel using a pen name or hand out unsigned leaflets or be quoted as an anonymous source for a news article. In each of these instances, an individual may be able to gauge how many people pose threats to the disclosure of her identity. Online this variable is unknown.
Levy goes even further and says that anonymity "is an illusion, because most things you do online are trackable because you leave footprints. You leave internet protocol numbers that can be tracked back to you unless you are pretty sophisticated about using anonymizers which may or may not work."
While most people are not tech savvy enough to know what to do with IP numbers, internet programmers and government agencies are often able to decipher and use this information.
Dave Del Torto, founder of Crypto Rights Foundation -- an organization that uses encryption to provide security to human rights activists and journalists -- champions Levy's point, saying, "I'm not one of those people who has to wash their hands 30 times a day, but when I am out there on the Electronic Frontier, I drag a branch behind me." Del Torto believes the more technology is used, the less secure we are.
To protect messages Crypto Rights uses so-called Onion Routing, taking messages on a series of hops that are designed to disguise the path they take from one user to another through the internet to your inbox. Once such steps are taken to encrypt a message, the message will become "computationally infeasible."
While methods of encryption are widely available, most users do not use them. Hushmail -- an encrypted email service -- is not nearly as popular as Gmail, an email service that spies so obviously on user activity, that sidebar advertisements are often related to message subjects.
Online anonymity loves company
People bank online, typing their pin numbers and social security numbers onto sites that they often have no real way of verifying. As this virtual space becomes more real than the real world it seeks to replicate, why are people so ready to shed the protective armor they wear in the real world? I would not walk around wearing a name-tag inscribed with my home address, date of birth and sexual preference yet online this type of identification seems somehow acceptable.
Perhaps it is because the internet offers a space that is vast enough to give a feeling of solitude. Sitting in front of a computer screen we imagine ourselves alone behind the darkened side of a two-way mirr
or. All we hear on our journey across the Electronic Frontier we assume to be an echo of our ourselves.
As we assume the role of omniscient viewer with google-searching interests and friends, few of us feel the need to take precautions to hide our own identities from prying eyes. We will not stop downloading music, looking at adult material if we are underage, posting graphic pictures on Craigslist or stop engaging in highly personal message board wars. Most of us firmly believe our online behavior has no consequences in real life.
After all, who has ever encountered a cyber cop? Many individuals commit crimes online on a daily basis, and for every individual that is caught downloading music or participating in other illegal activity there are probably a million more who get away.
Kids have started to bully each other online at alarming rates, using My Space as a device of social terrorism. Online where there are no grownups, no rules and no accountability, the fattest kid in Mrs. Smith's 6th grade class may find an entire website devoted to his or her thighs. A group called Cyber Bully is working to stop this type of behavior, but efforts to police such a giant arena are often fruitless. However there have been a few cases where kids who defamed others online have been kicked out of school, perhaps a poor way of dealing with the situation, but a sign that something does need to be done to promote more responsible behavior online.
Scotch tape for a bullet hole
In the midst of all this is the proposed New Jersey assembly bill, a law that would have ISP providers erasing content online because they don't have time to go through every post, a law that is thought to be -- by both Paul Levy and Kurt Opsahl -- an unconstitutional solution for a problem that already has a legal way of being dealt with using current defamation and decency laws. Current laws protect a user's identity unless the court deems their statement defamatory. The New Jersey law would reveal a user's identity if they were merely accused of defamation.
Del Torto and other critics of the law believe that the proposed bills are a poor solution; a scotch tape for a bullet hole shot at the heart of internet security that can only be truly patched if the internet is reinvented. Individuals should not be held accountable for actions online until internet providers are also accountable for their service, Del Torto believes. "The internet is an extraordinarily insecure medium for communications, and all the operating systems that are essentially generating all the traffic are like Swiss cheese, full of holes. The real research that should be pointed at solving these problems will probably never happen in the private sector and in the public sector groups like ours ... have a terrible time finding funding."
Why is that? Del Torto believes that the large companies that are "liable" for having presented your personal data in an insecure manner, the insurance companies that handle their liability, and the governments that increasingly wants to know what everybody is doing and saying, simply are not that intersted in seeing this fixed in the most effective way.
Del Torto believes the closest one can get online to anonymity is what he refers to as "secure, persistent pseudonymity" with accountability to the community. In that case, maybe the movement from anonymous chatting to My Space, Friendster and Craigslist can be seen as a move toward greater responsibility, toward an internet where our relationships to each other are emphasized in ways that make us more accountable for our behavior online and more aware of the fact that our identity -- though often pseudonymous -- is real and known if only by virtue of whom we are connected to.
Elizabeth Daley is a writer based in San Francisco.