Privacy Of Identity And Association Online

Channing Turner LAW 724: Information Privacy Law (Project Excellence: HON 494) December 4, 2009 Privacy of Identity and Association Online: A Look at Historic and Continuing Expectations of Anonymity and the Legal Realities of the Internet INTRODUCTION: Expressive Anonymity’s Necessity and Danger The right to free expression supports essential aspects of American policy and jurisprudence—a keystone in American political thought. Unambiguously accepted as fundamental by America’s founders, this right has morphed and expanded radically since its adoption. In the area of privacy law, American courts have come to interpret freedom of expression as including the right to anonymous expression and consumption of ideas— effectively creating, albeit limited, a right to anonymity. However, the right to anonymity faces serious challenges from emergent communication technology and, primarily, the Internet. The American legal system has never faced something so fundamentally disruptive as the Internet, which entangles vast areas of legal precedent by disrupting centuries of complex interest balancing. It provides a sweeping expansion of the way individuals share ideas, exchange information, and form associations. It also enables violation of privacy, identity theft, and anonymous defamation. Like any tool, the Internet seems only as good as those who use it; but regardless of intentions, the Internet offers all users the ability to mask their identity though screen names, pseudonyms, and anonymity—or so many believe. To hold criminals responsible for acts of otherwise anonymous cyber crime, law enforcement employs a variety of tracking and identification techniques to identify

Turner 2 individuals during investigation and legal proceedings. Most unlawful acts seem to clearly warrant unmasking; however, the line blurs in cases of questionable acts, particularly those that implicate First Amendment liberties to expression and association. Penetrating a person’s anonymity online can implicate entirely lawful uses of identity privacy protected by constitutional right. In such cases, the unmasker—whether a government agent or private individual—restricts a citizen’s right to First Amendment liberties, beginning with loss of anonymity—intersection of the First Amendment, Fourth Amendment, and privacy. I: THE RIGHT TO ANONYMITY A: Right To Anonymous Association The right to anonymity has roots in the recognition of its crucial role in First Amendment association, first recognized in 1958 with National Association for the Advancement of Colored People v. State of Alabama. At the time, Alabama law required all state-foreign corporations to file corporate charters and designate a place of business before doing business. The State enjoined the NAACP from conducting further activities after they failed to comply with the statute, and, pending litigation, moved to produce many of the Association’s records and papers, including records containing the names and addresses of all the Association’s Alabama members. The Association contested the production of such records. On appeal, the Supreme Court found “freedom to engage in association for the advancement of beliefs and ideas” indivisible from the fundamental rights secured by the Fourteenth Amendment’s guarantee to free speech. It further noted the “vital relationship” between freedom to associate and privacy in associations.1 Accordingly, the

Turner 3 Court found unconstitutional the compelled disclosure of group associations or membership lists.2 The Court also acknowledged “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility” that might result from compelled disclosure of associations with socially unpopular groups, substantiating the privacy interest behind group disclosure.3 B: The “Chilling Effect” The NAACP Court’s recognition of indirect harm resulting from identity disclosure planted the seeds for broader interpretations of anonymity’s role in association. The decisions of Keysihian v. Board of Regents (1967) and Baird v. State Bar of Arizona (1971) fully recognized that “governmental action may be subject to constitutional challenge even though it has only an indirect effect on the exercise of First Amendment rights.”4 As privacy law developed, a more complex understanding of decisional privacy —privacy regarding an individual’s right to make certain crucial life decisions—qualified the concept of indirect harm as a “chilling effect,” a concept that would expand the deference future courts pay to anonymity. In Laird v. Tatum, plaintiffs objected to the use of a post-civil-rights intelligencegathering program designed to track the associations of individuals with the “potential for civil disorder,” basing their assertion on the program’s indirect effect on the exercise of First Amendment association.5 They alleged that mere knowledge of their surveillance restricted their First Amendment liberty. While the Court dismissed plaintiffs’ complaints as too amorphous to constitute a showing of specific present harm, it did recognize the potential for governmental regulations that “fall short of a direct prohibition” to have a chilling effect.6 In dissent, Justices Douglas and Marshall defended the legitimacy of a

Turner 4 chilling-effect claim as actionable harm, saying that the practical effect of the surveillance program was to “deter [the plaintiffs] from exercising their rights of political expression, protest, and dissent…”7 The justices argued that the majority’s acknowledgement of this effect in itself proved adequate standing, and “one need not wait until he loses his job or until his reputation is defamed” to bring suit.8 Elements of the Douglas-Marshall opinion returned three years later in the majority holding of Philadelphia Yearly Meeting of the Religious Society of Friends v. Tate. Again, the court found complaints based on a “so-called subjective chill” insufficient to show harm; however, the Court did acknowledge injury from the collection and dissemination of information by government agents to non-governmental third parties. Based on the harms articulated in NAACP, the Court concluded that plaintiffs’ allegations of injury regarding non-governmental third parties “at a minimum, show immediately threatened injury to plaintiffs by way of a chilling of their rights of freedom of speech and associational privacy.”9 The anticipation of “strikingly apparent” bodily, mental, and economic harms by a third party was recognized as adequate showing of harm10—breathing life into the chilling effect’s role in anonymity. C: Expansion Of Anonymity To The Content of First Amendment Speech Recognition of an objective chilling effect justifies the protection of anonymity over group associations, but the chilling effect also extends to First Amendment speech. The first connection between anonymity and speech came in Talley v. State of California. The case specifically addressed the anonymous distribution of handbills, an act prohibited by a Los Angeles City ordinance. The Talley Court noted the role anonymous speech had played in American political history by referencing examples where “anonymity has…

Turner 5 been assumed for the most constructive purposes.”11 It cited specifically the use of anonymity in the famous Federalist Papers, written by the founding fathers to advocate for the adoption of the U.S. Constitution. Further, the Court feared that regulated disclosure of identities would unfairly limit “persecuted groups and sects” that depend on anonymity to avoid retribution.12 Similar to the ruling in NAACP, the Court concluded that Los Angeles could not compel members of a group “engaged in the dissemination of ideas” to identify themselves.13 This explicit connection to speech bridged the gap between the right to anonymous association and the right to anonymous dissemination of information. Talley afforded anonymous speech cursory approval, but the full right to anonymous expression was not solidified until the 1995 Supreme Court decision of McIntyre v. Ohio Elections Commission. The case addressed an Ohio statute requiring that authors print their identities on political pamphlets and flyers for distribution. Building on Talley, the Court ruled that choice of identity disclosure is tantamount to the content of political expression, and that the Ohio statute, in fact, regulated this content. 14 Again, the Court deferred to the historical significance of anonymous pamphleteering —“an honorable tradition of advocacy and dissent”15—but further argued that individuals might adopt anonymity believing their anonymous speech more persuasive than when linked to their person and reputation. Without the choice to remain anonymous, voices would be deterred from contributing to the marketplace of ideas. This concern outweighed “any public interest in requiring disclosure as a condition of entry [to the marketplace]”16—indelibly linking anonymity to the full exercise of First Amendment speech.

Turner 6 In dissent, Justices Scalia and Rehnquist objected to a broadly afforded right to anonymity, asserting that it threatened the credibility and utility of political speech. They accepted the majority’s conceptualization of identity as content, but contended that instead of adversely affecting it, requiring authors to disclosure their identity improves public discourse. Accordingly, protecting anonymous political speech “facilitates wrong by eliminating accountability”17 while disclosure promotes truthfulness and responsibility. The justices argue that the very utility of free speech in the political process depends on its truthfulness, and that requiring disclosure would “promot[e] a civil and dignified level of campaign debate”18—an uncontested state interest. From this view, restrictions on speech might be justified if they promote accountably but limit their chilling effect to only false or misleading speech. D: Anonymity In Reception Of Ideas And Expressive Records Seven years after McIntyre established a federal right to anonymous speech, Colorado courts further extended anonymity to the reading and receiving of ideas in Tattered Cover, Inc. v. City of Thornton. In particular, the case dealt with a Denver bookstore that defied a court subpoena requesting customer records. The subpoena requested records revealing the titles of books corresponding to a store invoice discovered at the scene of a suspected methamphetamine lab. Tattered Cover owners refused to supply the records to law enforcement, citing First Amendment protection. The Colorado Supreme Court agreed that the subpoena did, in fact, request information protected under the “right to read and receive ideas and information,” for “when a person buys a book at a bookstore, he engages in activity protected by the First Amendment.”19 Further, the court noted the undesirable chilling effect of government

Turner 7 action that “interferes with the willingness of customers to purchase books, or booksellers to sell books.”20 It ruled that seizing of records in question would interfere with First Amendment liberty to “engage in expressive activities anonymously.”21 Thus, the court recognized anonymity’s crucial role in the right to read and receive ideas and information. However, law enforcement’s role in Tattered Cover exemplifies a special tension between enforcement, First Amendment, and Fourth Amendment interests. The court noted this conflict was “enviable when law enforcement officials attempt to use search warrants to obtain expressive materials.”22 Caught between interests, it referred to the Supreme Court precedent set in Zurcher v. Stanford Daily, stipulating that, when warrants seek expressive materials, they must conform to the Fourth Amendment’s particularity requirements with “scrupulous exactitude.”23 Under this precedent, expressive materials are not given immunity from seizure, but they are afforded greater protection from overly vague warrants. In the case of Tattered Cover, however, the Colorado Supreme Court thought even this protection insufficient. It relied on an even higher standard of protection, elevating judicial review in the case to the level of strict scrutiny.24 Moreover, it dictated that, in future cases, third-party bookstores must be afforded the explicit opportunity to oppose any warrant seeking customer records.25 In light of these expanded protections, the court found Colorado law enforcement’s interest insufficient to request the records in question. Anonymity prevailed. E: Balancing Law Enforcement With Constitutional Anonymity In cases of anonymous expression, law enforcement implicates the exercise of constitutional rights. The court in Tattered Cover clearly favored constitutional

Turner 8 protection; and, in addition to the court-supplied rationale, legal commentator Julie Cohen offers expanded reasoning behind a right to expressive anonymity. Cohen contends that anonymity in reading and accessing information actually improves political debate by fostering informed commentary.26 She conceptualizes speech as a sort of linked chain, in which “all speech responds to prior speech of some sort.”27 Her theory proposes that, before speaking, people survey a variety of existing opinions, and through a series of “intellectual transactions,”28 ultimately form the opinions they express. Therefore, the protection afforded anonymous expression should logically extend to the basis on which people form their expression, particularly when the material may be controversial or unpopular. America has long upheld the importance of free political expression and access to the marketplace of ideas, regardless of popularity. Many unpopular ideas historically gain acceptance to the mainstream with time. However, current stigmas attached to unpopular ideas may deter readers from investigating them when forced to disclose access, restricting a time-honored First Amendment value. Additionally, Cohen argues that, based on historical use, the freedom to read anonymously may even be a more fundamental liberty than freedom of expression. While anonymous expression has been controversial throughout American history, anonymous reading has been taken for granted.30 Furthermore, records detailing a person’s reading habits implicate crucial privacy concerns. Records contain valuable information about personal tastes, preferences, interests and beliefs—information the reader “should have a constitutionally protected interest in refusing to share.”31 Records shed light on an individual’s private life and therefore should be afforded the same protection as other elements of informational privacy.

Turner 9 In this vein of reasoning, 48 states have enacted laws protected the privacy of library records,32 though most allow for the disclosure of records pursuant to a court order or subpoena. While not yet recognized at the federal level, the right to read anonymously has been overwhelmingly recognized by the states. II: ANONYMITY AND EMERGING COMMUNICATIONS TECHNOLOGY A: The Realities Of Anonymity On The Internet Case law clearly establishes a right to anonymous expression and reception of ideas, but the realities of Internet and electronic communications call into question the feasibility of exercising that right. The Internet facilitates rapid, wide-spread dissemination of information, but poses a particular quandary for those seeking anonymity. Internet Service Providers (ISPs) facilitate access to the Internet by assigning individualized tracking numbers to users called Internet Protocol (IP) addresses. These addresses link users’ activities online to all the information retained in an ISP’s records— they link actions to actual people. Accordingly, law enforcement frequently turns to ISPs and IP address records to identify individuals during investigations. Beyond ISP records, individual web sites can employ techniques to track visitors as well. One technique involves the use of “cookies,” or small text files that are downloaded to the user’s computer when they visit a web page. Cookies can be tagged with identifying information and used to track a variety of actions online, including the duration of stay at a site, other sites visited, and information entered into a web page. “Web bugs” or “clear Gifs” provide another way to track user behavior. These invisible images, usually only a single pixel in size, are placed on a site and downloaded onto a visitor’s computer each time they visit. By recording when and who downloads the image

Turner 10 file, site owners can gather information on who accesses the site and how frequently. All these techniques make the Web a zone of quasi-anonymity—a labyrinth of IDs, records, and tracking techniques. B: Expectations Of Privacy And Privacy’s Role In Electronic Communication Court-recognized expectation of privacy plays a crucial role in protection of online anonymity. The standard for evaluating expectation of privacy was first established in Katz v. United States, and held far-reaching consequences for web anonymity for two reasons: use of technology to convey information and the recognition of a “subjective expectation of privacy.”33 First, Katz clarifies the protections afforded persons under the Fourth amendment to include “people not places.”34 This distinction shifted privacy protection to individual actions rather than only actions done in certain settings. Thus, the Court recognized privacy in wired communications, which despite their capacity to broadcast information over vast distances, play a “vital role…in private communications.” 35 This interpretation anticipated the even greater role digital technologies now play in private and expressive communication nearly half a century later. Second, Justice Harland’s concurrence provides a test to measure the expectation of privacy afforded individuals and whether society recognizes that expectation as valid. The two-pronged Katz test measures privacy interest by determining whether an individual “exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”36 Applied at the time, the Katz Court reasoned a person calling from a public telephone—a public place— still retained an expectation of privacy. In shutting the telephone booth door, the caller

Turner 11 created a “temporarily privacy place whose momentary occupants’ expectations of freedom from intrusion are recognized as reasonable.”37 Thus, Katz established the basis for judicial protection on individual and social perceptions of privacy, notwithstanding the technologies or methods used to convey private information. C: Third Party Doctrine The test for expectation of privacy established in Katz continues to play a pivotal role in privacy cases, but its protection for anonymity has been severely eroded by subsequent rulings involving information given to third parties. Cases involving law enforcement seizures of electronic records are frequently justified by a line of privacy exceptions know as third party doctrine. Third party doctrine began with United States v. Miller, which analyzed a depositor’s privacy expectation on banking records. Miller noted a second emphasis in Katz: “[w]hat a person knowingly exposes to the public…is not a subject of Fourth Amendment protection.”38 Accordingly, the Miller Court rejected all expectation of privacy on the depositor’s records because, while they contained personal information, they were not, in fact, “respondent’s ‘private papers.’”39 In giving information to a third party, the Court reasoned the depositor took “the risk…that information will be conveyed by that person to the Government,”40 even when revealed in confidence or for a “limited purpose.”41 The language of Miller firmly establishes third party doctrine in privacy, stripping the privacy expectation from information knowingly conveyed to a third party. Accordingly, law enforcement may seize records and information revealing personal or identifying information so long as they are first revealed to a third party. D: The Smith v. Maryland Demarcation of Content

Turner 12 Application of third party doctrine in communications establishes sharp delineations between information sent to a third party for purposes of establishing communication and the content of the communication itself. This distinction first manifested itself in Smith v. Maryland, where law enforcement officers intercepted dialed telephone numbers without a warrant using a specialized device known as a “pen register.” Pen registers collects only numbers dialed as “a means of establishing communication,”42 not the entirety of the call. Thus, the Smith Court sought to determine the expectation of privacy on information transmitted from a person to the telephone company—namely, the dialed numbers—ultimately finding no such expectation. According to the Court, subscribers must know that the “phone company has facilities for making permanent records of the number they dial, for they see a list of their longdistance (toll) calls on their monthly bills.”43 This knowledge combined with third party doctrine’s exception for law enforcement eliminated plaintiff’s expectation of privacy on dialed numbers. Further, should a subjective expectation exist on the part of the caller, this expectation “is not ‘one that society is prepared to recognize as reasonable.’”44 Smith ruled law enforcement could freely obtain information given to the telephone company prior to the connection of private communication between callers without a warrant— opening information gathering to the possibilities of third party doctrine. In dissent of Smith, Justice Stewart disagreed with the majority’s separation of connecting information and content. He argued that “numbers dialed from a private telephone…are not without ‘content’… [and] could easily reveal the identities of the persons and places called.”45 The crux of his dissent centers on the idea that, regardless of medium, the act of connecting with certain people implicates private information—the

Turner 13 very reason law enforcement uses it. Accordingly, connecting information can “reveal the most intimate details of person’s life”—details surely protected by an interest in privacy.46 While it did not carry the case in Smith, this fear becomes an even greater threat to privacy as technology enables more sophisticated inferential techniques and pattern recognition. Steward’s dissent focused narrowly on numbers dialed from private telephones, but the conceptualization of connecting information as private has gained support among many advocates for anonymity and associational liberty. Legal commentators David Cole and Daniel Solove agree with Stewart’s characterization of connecting information, particularly in modern society where associations often occur solely by electronic means such as telephone or e-mail. Solove proposes that surveillance of phone logs or e-mail headers can easily reveal “that an individual contacted particular organizations that the individual wants to keep private.”47 Thus, surveillance of contact information seems to overtly infringe on the First Amendment right to anonymous association upheld in NAACP and Laird. The ability to identify group associations deters individuals from associating with certain groups, and thus, the ruling in Smith ignores the fact that “pen register information…implicates First Amendment values.”48 Continuing protection of personal information and anonymity from surveillance and inferential technology would require the extension of privacy protection to connecting information. E: Assumption of Risk in Privacy Expectation Key to the majority opinion in Smith was the idea that subscribers assume a risk of disclosure by using telephone services and therefore relinquish any expectation of privacy. Relying on Miller, the Smith Court concluded that telephone subscribers

Turner 14 “’assumed the risk’ of disclosure.”49 Based on the workings of modern electronic and Internet communications, this exception to privacy expectation seems to obliterate all hope for anonymity on the Web; the mere act of connecting to the Internet, in most cases, requires users to give identifying information to a third party ISP. In essence, individuals have no alternative but to accept loss of anonymity, and forced disclosure in modern communications has revived controversy over the rationale behind Smith. In the second dissent of Smith, Justice Marshall challenges the majority’s rationale behind “assumed risk” by proposing that evolving technology creates social expectations that eliminate the reasonable exercise of choice. He argues that telephone communication has become such a necessary that society expects individuals to use it for vital personal and business relations—less a choice than a social obligation. Accordingly, “unless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance,” and “it is idle to speak of ‘assuming’ risks in contexts where…individuals have no realistic alternative.”50 As society comes to rely heavily on electronic communications as an essential form of information transfer and association, Justice Marshall’s concern becomes more and more a reality. Using Marshall’s dissent, commentator Laurence Tribe expands the idea of unavoidable consent to argue that the notion of assumed risk predisposes privacy as a allor-nothing characteristic of information, when, in fact, expectation of privacy may depend on information’s intended recipient. He argues that the “assumption of broadcast” touted by the Smith Court ignores the more commonplace notion that privacy allows the “individual to measure out information…selectively”51 Tribe believes the spirit of privacy

Turner 15 affords individuals a choice concerning who receives information, and expanding beyond the intended parties violates the expectations attached to the communicated information. Under Tribe’s conception of selectivity, expectations of privacy do not wholly disappear when transmitted to a third party; they are influenced by the individual’s purposeful selection of involved parties. Other commentators such as Patricia Bellia find confliction between Katz and Smith. Bellia believes the Court in Smith “ignored the lesson of Katz: We do not lose privacy in communications simply because they may be intercepted.”52 By installing a pen register, government agents intercepted communications intended solely for the telephone company. Bellia argues that the possibility of interception by the government or a private party should have no bearing on expectations of privacy53—one need not assume their communication will be intercepted. Deirdre Mulligan distinguishes Smith from Katz by offering the perspective that, in Smith, the limited information that “can be gleaned from a phone number” does not intrude on the personal information protected in Katz.54 However, this reasoning fails to appear in the stated rationale of Smith, and further, seems to ignore the objections raised by Justice Stewart: that information gleaned from a phone number may be all a person cares about. III: FEDERAL LEGISLATION’S ROLE IN ANONYMITY Advocates for protection of anonymity commonly go beyond evaluating current standards of protection to address how much privacy the law should grant. This question could readily fall to the responsibility of legislators; however, legislation thus far has provided only tepid support for digital privacy and anonymity—particularly against law enforcement. Most legislation follows a trend of increasing protection against private-

Turner 16 sector intrusion on records and identifying information but easy access for law enforcement—a gaping hole for government abuse. A: The Stored Communications Act In light of emerging communications technology, Congress took steps to protect privacy with the passage of The Electronic Communications Privacy Act (ECPA) of 1986. It remains the most comprehensive attempt to secure telecommunications and digital privacy interest. The Act addresses various types and states of electronic communications: information in-transit, stored communications, and connecting information. However, the most significant section of the ECPA to electronic anonymity comes under Title II: The Stored Communications Act (SCA). The SCA prohibits access to subscriber records kept in storage by a communications service provider, such as an ISP. Specifically, it pertains to “any storage of such communications by an electronic communications service for purposes of backup protection of such communications,” 55 which include communications records, stored communications, and identifying information. The SCA allows only “the persons or entity providing a wire or electronic communication service” or the “user of that service”56 access to stored records, limiting access of information to the two parties. However, what protection the SCA provides from private interests with one hand, it takes away with the other when dealing with law enforcement. Section 2703(c)(1)(B) obliges communications service providers to disclose subscriber information— identifying information, addresses, phone numbers, etc.—to law enforcement with either a warrant, court order, or the consent of the subscriber.57 Moreover, the judicial process for obtaining permission to access stored

Turner 17 communications depends largely on the amount of time information has remained in storage. Information stored for less than 180 days requires a warrant supported by probable cause.58 Access to older information merely requires a subpoena or court order and prior notice given to the subscriber.59 In this case, agents must show only “specific and articulable facts showing that there are reasonable grounds” to believe the information is relevant to a criminal investigation.60 Subscriber notification may also be delayed up to 90 days for older information if agents obtain a warrant.61 This raises the question: Does privacy interest diminish over time as the SCA seems to suggest? Records kept in storage may still have privacy value notwithstanding their age. Furthermore, should law enforcement fail to obtain information lawfully under the proper procedure of the SCA, the Act does not provide for an exclusionary rule, meaning any evidence improperly gathered by law enforcement agents cannot be suppressed during trial. B: The Communications Assistance for Law Enforcement Act The Communications Assistance for Law Enforcement Act (CALEA) of 1994 further decreases protection for telecommunications privacy. Also known as the “Digital Telephony Act,” CALEA regulates digital communications technology by requiring that all telecommunications providers have the ability to “isolate and intercept electronic communications and be able to deliver them to law enforcement personnel.” 62 It obligates telecommunications companies to “help facilitate the government in executing legally authorized surveillance” by providing “access to call-identifying information.”63 At its enactment, the Act only applied to telecommunications, not information services such as e-mail and Internet access; however, the Federal Communications

Turner 18 Commission has taken steps to expand the Act’s regulation

to ISPs as

telecommunications move online. Using a technology known as voice over Internet protocol (VoIP), individuals can communicate using the Internet in much the same way as over the phone. In response, the Federal Communications Commission expanded CALEA in 2004 to any “facilities-based providers of any type of broadband internet access service…and to managed or mediated VoIP services.”64 These services were thought of as “a replacement for a substantial portion of the local telephone service” and therefore fall under CALEA’s regulation.65 This expansion illustrates that as Internet communications continue to replace twentieth century technologies, existing standards for telecommunications regulation will follow suit. C: The USA PATRIOT Act Finally, the “Uniting and Strengthening America By Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act,” or USA PATRIOT Act, further expands government authority to intercept connecting information. As regulated by Title III of the ECPA, also know as The Pen Register Act, law enforcement can use “tap and trace devices,” such as a pen registers, after obtaining a court order that certifies that information is “likely to be obtained by such installation and use is relevant to an ongoing investigation”66—a relatively low standard. The USA PATRIOT Act expands the definition of pen registers to include devices that access information attached to “… dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communications is transmitted…”67 This expansion effectively allows government agents access to the addressing information on electronic communications—the same controversial information debated in Smith. If

Turner 19 address information does implicate personal information, as Justice Marshall believes, or First Amendment values, as Daniel Solove believes, the PATRIOT Act provides the government easy access to that information. IV: INTERNET ANONYMITY PROTECTION A: Protection In Civil Court: Doe v. Cahill As telecommunications increasingly moves online, the Internet will become the next frontier for battles over First-Amendment anonymity and law enforcement; however, protecting anonymous political speech from private parties has already reached state courts. In the Delaware case of Doe v. Cahill, local councilman Patrick Cahill sued an anonymous Web writer, posting under the alias “Proud Citizen,” for allegedly defamatory statements. Cahill sought to unmask his defamer with the help of the poster’s ISP. Before he could discover the poster’s identity, however, poster obtained an Emergency Motion for a Protective Order to prevent disclosure and appeal the case. On appeal, the Cahill court determined that plaintiffs seeking to unmask anonymous speakers must prove, through summary judgment, they seek to rightfully pursue restoration for truly defamatory statements.68 Noting that “speech over the Internet is entitled to First Amendment protection,” the court further recognized protection to identity when speech is undertaken anonymously.69 The court reasoned that defendants could remain anonymous so long as their status does not unreasonably interfere with plaintiff’s ability to perform discovery.70 On the other hand, it also recognized that “the right to remain anonymous may be abused when it shields fraudulent conduct.”71 Ultimately, the decision to preserve anonymity hinged on concerns that setting too low a standard would “chill potential protesters from exercising their First Amendment

Turner 20 rights,”72 and that plaintiffs with no intention of fulfilling the requirements for defamation would utilize the judicial system to unmask defendants, subsequently pursuing the “extrajudicial self-help remedies” of revenge or retribution. 73 Summary judgment offered an appropriate burden of proof to deter “trivial defamation lawsuits” that sought merely to harass and unmask critics.74 In addition, the court required that all plaintiffs notify anonymous posters that they are subject to subpoena or application for order of disclosure on the same message board where the initial remarks took place.75 Despite the anonymous condition of the defendant, the plaintiff must still fulfill the basic burdens of defamation, proving that statements were defamatory, concerned the plaintiff, were published, a third party would understand the communications as defamatory, and the statements were false. In the case of public figures such as Cahill, the court considered the burden of actual malice too difficult under conditions of defendant anonymity, and so waived it.76 Ultimately, the court found Cahill’s allegations of defamation insufficient and ruled that discovery of the defendant’s identity was not warranted.77 While only decided at the state level, the Cahill ruling illustrates an expectation of high deference in cases involving anonymous speech on the Internet. It strikes a balance between the interests of the allegedly defamed plaintiff and defendant’s privacy by allowing the suit to continue while preserving anonymity. However, Cahill deals exclusively with state, civil defamation cases, a small dent in the challenges facing anonymity at the federal level. B: Appropriate Standards For Government Unmasking Cases like Cahill indicate a baseline of high protection for anonymous speech, but

Turner 21 the government continues to adhere to a much lower standard. Government law enforcement agents legally employ information-gathering practices ruled inimical to First and Fourth Amendment values by nearly half a century of case law. To correct this imbalance, commentator Daniel Solove believes “the First Amendment must be considered alongside the Fourth and Fifth Amendments as a source of criminal procedures” to ensure that constitutional values remain intact while continuing to uphold national security and law enforcement.78 Particularly on the Internet, First Amendment rights are implicated by nearly every act of law enforcement information gathering— searching or seizing computers, reading e-mail, obtaining ISP records and IP address information.79 Solove maintains that requiring stricter judicial scrutiny in these cases would promote a better balance between competing interests and increase constitutional protection by ensuring only cases of truly compelling state interest pass judicial tests. 80 Tougher procedures don’t necessarily mean law enforcement will be barred from information; they merely ensures a greater level of oversight to prevent abuses.81 Solove believes Fourth Amendment procedural constraints could provide a suitable template for law enforcement information-gathering standards. They would require demonstration of “(1) a significant interest in gathering the information and (2) that the manner of collection is narrowly tailored to achieving that interest.”82 Cases that implicate First Amendment rights would require procedures similar to those for obtaining a warrant. CONCLUSION: Looking Forward The Internet provides a unique platform for the convergence of privacy and law enforcement interests, enabling unprecedented acts of anonymous expression and

Turner 22 consumption while simultaneously allowing for unprecedented abuse. Clearly, these liberties require balancing with state interests of public good and national security. However, insufficient regulation and oversight expose constitutional liberties to unlawful or unnecessary government interference. The result of such abuses could have farreaching effects on American society, preventing the dissemination or consumption of important ideas for fear of identification. Even the subjective threat of interference can chill protected behavior. Federal legislation in most cases provides only limited protection from government interference, setting low levels of judicial oversight and even compelling ISPs to aid in law enforcement investigations. Further, the justifications of third party doctrine allow law enforcement to gain access to identifying information surrendered by Internet users as a prerequisite for connecting. The validity of these procedures appears justified in cases of clear wrongdoing; yet, they provide only narrow protection in controversial cases involving constitutional liberty. As challenges arise, the destabilizing nature of the Internet will inevitably yield to more concrete levels of regulation and protection. Future protection, however, rests on current conceptions of anonymity’s role in the exercise of constitutional rights online. Cases of anonymity offline seem to indicate high respect for an individual’s choice concerning identity disclosure, but current federal legislation sets low standards regarding law enforcement and government information gathering. Ultimately, the competing interests of anonymity and law enforcement will find resolution in the future actions of policy makers and the legal system.

Turner 23 End Notes: 1. National Association For The Advancement Of Colored People v. State of Alabama, 357 U.S. 449 (1958). 2. Id. 3. Id. 4. Laird v. Tatum, 408 U.S. 1 (1972). 5. Id. 6. Id. 7. Id. 8. Id. 9. Philadelphia Yearly Meeting Of The Religious Society Of Friends v. Tate, 519 F.2d 1335 (3d Cir. 1975) (Emphasis Added). 10. Id. 11. Talley v. State Of California, 362 U.S. 60 (1960). 12. Id. 13. Id. 14. McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). 15. Id. 16. Id. 17. Id. 18. Id. 19. Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002). 20. Id. 21. Id.

Turner 24 22. Id. 23. Zurcher v. Stanford Daily, 436 U.S. 547 (1978). 24. Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002). 25. Id. 26. Julie E. Cohen, A Right to Read Anonymously: A Closer Look at “Copyright Management” in Cyberspace, 28 Conn. L. Rev. 981 (1996). 27. Id. 28. Id 29. Id. 30. Id. 31. Id. 32. Solove, Daniel J. Information privacy law. 3rd ed. New York, NY: Aspen, 2008. Print. 573. 33. Katz v. United States, 389 U.S. 347 (1967). 34. Id. 35. Id. 36. Id. 37. Id. 38. United States v. Miller, 425 U.S. 435 (1976). 39. Id. 40. Id. 41. Id. 42. Smith v. Maryland, 442 U.S. 735 (1979). 43. Id.

Turner 25 44. Id. 45. Id. 46. Id. 47. Daniel J. Solove, The First Amendment as Criminal Procedure, 82 N.Y.U. L. Rev. 112, 169 (2007). 48. Id. 49. Smith v. Maryland, 442 U.S. 735 (1979). 50. Id. 51. Laurence Tribe, American Constitutional Law 1391 (2d ed. 1988). 52. Patricia Bellia, Surveillance Law Through Cyberlaw’s Lens, 72 Geo. Wash. L. Rev. 1375, 1405 (2004). 53. Id. 54. Deirdre K. Mulligan, Reasonable Expectations in Electronic Communications: A Critical Perspective on the Electronic Communications Privacy Act, 72 Geo. Wash. L. Rev. 1557, 1581 (2004). 55. The Electronic Communications Privacy Act, 18 U.S.C. § 2510(17) (1986). 56. Id. § 2701(a). 57. Id. § 2703(c)(1)(B). 58. Id. § 2703(a). 59. Id. § 2703(b). 60. Id. § 2703(d). 61. Id. §§ 2703(b), 2705. 62. The Communications Assistance For Law Enforcement Act, 47 U.S.C. § 1006(a)(2) (1994). 63. Id. §§ 1001(8)(C)(i), 1002(b)(2)(A). 64. In the Matter of Communications Assistance for Law Enforcement Act and

Turner 26 Broadband Access and Services, FCC 04-187 (Aug. 4, 2004) (emphasis added). 65. The Communications Assistance For Law Enforcement Act, 47 U.S.C. § 1001(8)(B) (ii) (1994). 66. The Electronic Communications Privacy Act, 18 U.S.C. § 3127(3) (1986). 67. The Uniting and Strengthening America By Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, 115 Stat. 272 § 216 (2001). 68. Doe v. Cahill, 884 A.2d 451 (Del. 2005). 69. Id. 70. Id. 71. Id. 72. Id. 73. Id. 74. Id. 75. Id. 76. Id. 77. Id. 78. Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. Cal. L. Rev. 1083 (2002). 79. Id. 80. Id. 81. Id. 82. Id.