The Past & Future of Your Right to Remain Anonymous
Professor Jeff Kosseff on the Fascinating History of Anonymity inĀ America
Anonymity is in our countryās DNA. The founders known as the federalists wrote a series of dozens of essays under the name New Yorker named āPublius.ā Now known as The Federalist Papers, these pseudonymous op-eds changed the course ofĀ history.
The Federalist Papers were published to encourage New Yorkās ratification of the recently-drafted Constitution. Without these anonymous writings of Madison, Hamilton, and John Jay, the Constitution may never have been ratified, due to the strong concerns of the āantifederalists.ā Incidentally, these anti-federalistsāāāalso writing under pseudonymous pen names like āBrutusā and āCentinelāāāāmay have had the better argument regarding the weaknesses of the Constitution as it was written, although thatās a subject for anotherĀ piece.
Professor Jeff Kosseffās The United States of Anonymous offers a sweeping history of the longstanding American tradition of anonymous speechāāāfrom Common Sense and the Federalist Papers, to the cases before the Supreme Court that further defined our rights in the modern era. I recently spoke with Jeff for the full hour on my program (subscribe here) to distill his monumental 300-page book down to its core ideas. Below the audio is a condensed transcript:
<a href="https://medium.com/media/f68f6625c57ca53945997ce045cd4eda/href">https://medium.com/media/f68f6625c57ca53945997ce045cd4eda/href</a>
To start, Kosseff notes that the word āanonymityā does not appear anywhere in the Constitution, and yet we have some of the strongest protections of any country in the world when it comes to anonymous speech.
āThe right [to conceal your identity in certain circumstances] is basically found through Supreme Court and lower court opinions that interpret the First Amendment going back to the 1950s,ā Kosseff says. āThose rights are derived from the longstanding history and tradition of anonymous speech that go back to the founding of our country, and the colonial calls for independence, which were mostly written under pseudonyms for a variety of very good reasons.ā
Without this tradition, itās unclear whether the courts would have ever included the right to anonymity as an essential ingredient in our rights to free speech and press and association.
Iāve always wondered why these men chose to remain anonymous. I canāt imagine that they were afraid of losing their job or being shunned by the friends. Wouldnāt signing their names have added even more weight to their writing, IĀ asked?
Kosseff, while not wanting to speak for any of these men, speculates that decision to remain anonymous had more to do with what he calls the āspeech motiveāāāājust one among several possible rationales for anonymity, including the fear of reprisal, criminal charges, or economic loss. The speech motive, rather than being about fear, is about enhancing the impact of oneāsĀ speech.
āThey wanted their arguments to be judged on the merits that theyāre making, and not based on what people thought about these three individuals,ā heĀ says.
āThey wanted their arguments to be judged on the merits that theyāre making, and not based on what people thought about these three individuals.ā
Thomas Paine likely had multiple motivations for not signing his pamphlet Common Sense, as did the author of the āLetters from a Farmer in Pennsylvania to the Inhabitants of the British Colonies,ā who simply signed his influential series of 12 letters criticizing the Townshend Act as āA Farmer.ā Whatever rhetorical advantage there may have been to such a parochial signature, there is also no doubt that there was a legitimate reason for the farmer to fear persecution by the British government.
When looking back on the early writers of the American Revolution, it becomes clear that fear of persecution (or prosecution) does not necessarily mean someone has done something wrong. Since the founding era, many Americans have been arrested and tried, despite having not broken the law, for merely expressing unpopular or ādangerousā opinions.
The challenge in modern times is separating those who use anonymity as a shield for wrongdoing from those who use it to protect their rights to legitimate expression. Whereas other countries have laws requiring internet posters to use their real name, the United States is broadly protective of anonymity and sets a high bar for unmasking people accused of wrongdoing.
āRight now weāre doing a pretty good job under the First Amendment of striking the right balance between having a strong right to anonymity as well as recognizing the extraordinary cases where we might need government assistance and unmasking people,ā KosseffĀ says.
The seminal cases in the 20th century have usually involved the government attempting to unmask individuals or organizations. The State of Alabama came up against the NAACP in the Supreme Court after a case in which the state attorney general had required the organization to submit a full member list to the state. The demand had little to do with the underlying issue that brought the case to court (the NAACPās submission of an incorrect form to the state), and the Alabama AGās true intent was to drive the organization out of the state altogether through a combination of intimidation and steep fines for every day that they failed to produce a list ofĀ members.
Fearing retaliation against their members, the NAACP refused to surrender the names or pay the fines, and took the case all the way to the Supreme Court, which found that the State of Alabamaās demands constituted a violation of the freedom of association inherent to the first amendment. Citing early historical documents like Common Sense and The Federalist Papers, the Court traced the right to anonymity back to the climate of the founding era. Justice Thomas, an Originalist, believed that the original intent of the Framers of the Bill of Rights must have included freedom of the press to publish anonymous pieces, as was common at the time of its ratification. Interestingly, Justice Scaliaāāāwho typically sided with Thomas while he livedāāāstrongly disagreed with his assessment of the right to anonymity.
Confronting the Challenges of New Technologies
The most common anonymity cases today involve anonymous criticisms of corporations online, where the company suspects that an employee might be guilty of defamation or breach of contract and seeks a subpoena to unmask their IP address, and related identifying information.
āThe courts have developed pretty rigorous standardsā¦ [Theyāre] not going to say that none of these subpoenas can proceed, but you have to have a very strong case and you canāt just be filing this lawsuit because youāre a company and you want to unmask, fire, and maybe ruin the life of an employee who criticized you,ā heĀ says.
Interestingly, Justice Clarence Thomas has been one of the strongest supporters of a right to anonymous speech. However, despite the Supreme Courtās rulings in favor of a robust interpretation of the First Amendment, the latest threats to privacy and anonymity are coming from the privateĀ sector.
Kosseff notes: āThere are things like facial recognition, and geolocation points that data brokers can basically sell to anyone in theĀ public.ā
Remember that the Constitution, to the extent that it protects privacy broadly, and anonymity specifically, only affects what government actors can and cannot doāāānot what private actors mayĀ do.
Police departments often use artificial intelligence that can identify a personās face based on profile pictures scraped from social media, forĀ example.
The Secretive Company That Might End Privacy as We Know It (Published 2020)
This worries Kosseff, who believes we need privacy laws that grapple with the challenges that private data poses to the ability to remain anonymous.
Of course, we willingly relinquish some of our privacy when we post online, or even go outside in public, but these new surveillance tools are worrisome to the extent that the data is being aggregated and sold without people knowing what information about them is being gathered in the firstĀ place.
The Fourth Amendmentās privacy guarantees are not sufficient, Kosseff argues, and even though the United States has some of the strongest privacy protections in the world, the current laws do not go far enough towards meeting the challenges posed by new technologies.
Because of the murkiness of Constitutional protections of our private data where the private sector is concerned, Kosseff calls for new legislation to bolster the First and Fourth Amendmentāāāsuch as San Franciscoās ban on facial recognition. Meanwhile other new technologies such as Tor, which hides an internet userās IP address beneath multiple layers of diversion, can both enable the good kind of anonymity along with theĀ bad.
Be sure to read the entire book, or subscribe to my libertarian book club for āCliff-Notesā styleĀ summary.
The Past & Future of Your Right to Remain Anonymous was originally published in Liberation Day on Medium, where people are continuing the conversation by highlighting and responding to this story.