70 Pages Posted: 10 Mar 2012 Last revised: 21 Aug 2014
Date Written: 2013
This Article argues in favor of regulating online anonymity, not from the standpoint that doing so will prevent harmful abuses or improve security, but instead that refusing to do so will ultimately harm other liberty interests. One principle that has emerged from cyberlaw scholarship is that we should safeguard the Internet’s "generativity" — a key attribute representing the latitude and plasticity with which a technology (like the Internet) can be adapted to perform new, unanticipated uses — because generativity is the root source of the Internet’s unique vitality. Yet, if we want regulators to leave generativity alone, we must offer them another point of leverage with which to regulate abusive behavior. It is not enough to recommend simply that regulators should exercise restraint to minimize loss to generative potential.
The descriptive claim here is that the desire to regulate the Internet can manifest itself either as restrictions on anonymity or as restrictions on generativity, and that one can be traded for the other. The normative claim that follows is that we should favor the generative Internet over the anonymous Internet for at least two reasons. First, generativity is the engine that ignites the Internet’s most essential and electrifying function, as a platform that perpetuates technological innovation and output. Second, restrictions on generativity impose restraints further upstream and are therefore more troubling than restrictions on anonymity. Third, anonymity is a value held in only modest esteem — the so-called constitutional “right to anonymity” is a narrow protection that does not contemplate the unbridled use of anonymizing technologies. Thus, where regulatory goals are being pursued, we should encourage Internet regulators to look to limitations on anonymity as a means of averting more onerous limitations on generativity.
Keywords: internet, anonymity, generativity, privacy, free speech, First Amendment, cyberlaw
Suggested Citation: Suggested Citation
Choi, Bryan H., The Anonymous Internet (2013). 72 Maryland Law Review 501. Available at SSRN: https://ssrn.com/abstract=2005941
By Peter Swire