64 Pages Posted: 24 Sep 2011 Last revised: 20 Nov 2016
Date Written: November 18, 2016
It is no longer reasonable to assume that one’s electronic communications can be kept private from either governments or certain private-sector actors. In theory, individuals can turn to encryption to protect the content of their communications, and to anonymity to protect their identity. Today, however, online anonymity, one of the two most important tools that protect online communicative freedom, is under practical and legal attack all over the world from identification technologies and from rules and regulations requiring users to disclose their identity. The seeds of these developments go back to the early days of the Internet. They grew more quickly after the year 2000, as private incentives and public initiatives led to the deployment of technologies hostile to online anonymity. Today, government regulation, in the form of chokepoint regulation, online identification requirements, and data retention, combine to make anonymity very difficult as a practical matter and actually illegal in many countries. Even where anonymity is legal, the policies of key internet intermediaries require the use of real names. Governments have learned from their early reverses in internet regulation and now leverage internet technologies, and the private interests of some internet actors, to make surveillance easier.
This Article traces the process by which online anonymity became difficult and outlines the global efforts to limit or prohibit it. The Article offers normative and pragmatic arguments why communicative anonymity is important and offers suggestions for how to save it. It argues that anonymity is a bedrock of online freedom that needs to be preserved in the face of identification technologies and identification law and policies. To an important extent anti-anonymity policies in the U.S. enable repressive policies abroad. There is also always the risk that we may need the safety of anonymous communications here at home. Before we give in to anti-anonymity arguments, whether these are based on concerns about copyright abuse, sedition, terrorism, or libel, we should demand that proponents of limits on anonymous online speech provide stronger justifications and consider alternatives less likely to prove destructive to liberty. Protecting the right to speak freely without fear of official retribution in the face of surveillance technology and despite laws demanding identification continues to be critical to protecting liberty
Keywords: Anonymity, Surveillance, Privacy, Free Speech, Internet
Suggested Citation: Suggested Citation
Froomkin, A. Michael, Lessons Learned Too Well: Anonymity in a Time of Surveillance (November 18, 2016). Arizona Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1930017 or http://dx.doi.org/10.2139/ssrn.1930017