Anonymity and the Law in the United States
LESSONS FROM THE IDENTITY TRAIL: ANONYMITY, PRIVACY AND IDENTITY IN A NETWORKED SOCIETY, New York: Oxford University Press, 2009
University of Miami Legal Studies Research Paper No. 2008-42
35 Pages Posted: 1 Dec 2008
Date Written: November 30, 2008
This book chapter for "Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society" (New York: Oxford University Press, 2009) - a forthcoming comparative examination of approaches to the regulation of anonymity edited by Ian Kerr - surveys the patchwork of U.S. laws regulating anonymity and concludes the overall U.S. policy towards anonymity remains primarily situational, largely reactive, and slowly evolving.
Anonymous speech, particularly on political or religious matters, enjoys a privileged position under the U.S. Constitution. Regulation of anonymous speech requires a particularly strong justification to survive judicial review but no form of speech is completely immune from regulation. Anonymity is presumptively disfavored for witnesses, defendants, and jurors during criminal trials; the regulation of anonymity in civil cases is more complex. Plaintiffs demonstrating sufficiently good cause may proceed anonymously; conversely, defendants with legitimate reasons may be able to shield their identities from discovery.
Despite growing public concern about privacy issues, the United States federal government has developed a number of post 9/11 initiatives designed to limit the scope of anonymous behavior and communication. Even so, the background norm that the government should not be able to compel individuals to reveal their identity without real cause retains force. On the other hand, legislatures and regulators seem reluctant to intervene to protect privacy, much less anonymity, from what are seen as market forces. Although the law imposes few if any legal obstacles to the domestic use of privacy-enhancing technology such as encryption it also requires little more than truth in advertising for most privacy destroying technologies.
Keywords: Anonymity, Privacy, Identity, Constitutional Law, Freedom of Speech, privacy enhancing technology
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