The Right to Internet Anonymity and Legal Implications

Thursday, June 28, 2012

Pierluigi Paganini

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(Translated from the original Italian)

Everyday, all our web activities leave traces of ourselves and of our way of life through the storing of massive amounts of personal information in databases on the Internet, and all this information composes our digital identity - our representation in the cyber space.

Users are "entities" in cyberspace, built upon the correlation of data that increasingly escapes the control of the owner; anyone can theoretically "expropriate" our digital identities.

Not only that, in fact, certain personal information, even potentially socially harmful information, may be available to anyone beyond the time limits dictated by the principle of finality of the data. Even if such data were deleted, it may still be accessible through mechanisms of storage such as "caching".

Today, tracking user activity on the Internet is one of the primary interests of private companies and governments, as business and political motivations are pushing for the development of monitoring and surveillance systems.

Let’s consider that monitoring implemented by many governments in situations of political dissent have had serious consequences for dissidents who have been tracked and persecuted.

In response to rise in monitoring, it has been observed the increasing of the demand for anonymity on the web, but anonymity is a concept that induces fear in our mind because we tend to associate it to illicit activities and cybercrime.

This consideration is profoundly wrong, as the anonymity of the user’s participation on the Internet could also be motivated by a civil right argument, such as human right to liberty of expression, avoidance of censorship, and the liberal promotion and circulation of thought.

The implementation of Internet filters and anonymity are closely related, whereas the filters are applied at the network level in a stringent and pervasive manner, and the possibility of being able to use an anonymous network becomes, first and foremost, a matter exercise of fundamental rights.

Anonymous communications have an important place in our political and social discourse, as many individuals desire to hide their identities because they may be concerned about political or economic retribution, harassment or even threats to their lives.

Anonymity is derived from the Greek word anonymia, meaning "without a name". In the common usage, the term refers to the state of an individual's personal identity, or personally identifiable information, being publicly unknown.

On the Internet, anonymity is guaranteed when IP addresses cannot be tracked, and due to this reason it has been the creation of Anonymizing services such as I2P - The Anonymous Network, or Tor address.

These anonymizing services are based on the concept of distribution of routing information during a transmission. In fact, it is not known prior what the path between a source and destination is taking and every node of the network manages minimal information to route the packets to the next hop without preserving history on the path. The introduction of encryption algorithms make impossible the wiretapping of the information and the recomposition of the original messages.

Right to anonymity – Legal implications

The Supreme Court of the United States has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment. A much-cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reads:

"Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views ... Anonymity is a shield from the tyranny of the majority... It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation... at the hand of an intolerant society."

Many institutions and organizations, such as The Electronic Frontier Foundation, are spending a great effort to protect the right to on line anonymity.  As one court observed in a case handled by EFF along with the ACLU of Washington:

"[T]he free exchange of ideas on the Internet is driven in large part by the ability of Internet users to communicate anonymously."

These organizations have challenged many efforts by providing financial support to the development and deployment of Internet communications systems to preserve anonymous communications, a valid example is the TOR network.

The First Amendment asserts the right to speak anonymously, and the Supreme Court has held that:

“Anonymity is a shield from the tyranny of the majority,” that “exemplifies the purpose” of the First Amendment: “to protect unpopular individuals from retaliation...at the hand of an intolerant society.”

Court pronunciations establish the duty of government to guard against undue hindrances to political conversations and the exchange of ideas, a vigilant review that:

“must be undertaken and analyzed on a case-by-case basis”.

US laws establish the right to Speak Anonymously on the Internet and also right to Read Anonymously on the Internet, ensuring the principle of a free Internet and the right to free movement of information:

 “People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one’s mind without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate.”

The technological developments of recent years have brought attention to the legal and technological possibility to maintain online anonymity, especially in the face of the multiplication of resources  for Internet monitoring.

The right to internet anonymity is also covered by European legislation that recognizes the fundamental right to data protection, freedom of expression, and freedom of impression. The European Union Charter of Fundamental Rights recognizes in Article. 8 (Title II: "Freedoms") the right of everyone to protection of personal data concerning them.

The right to privacy is now essentially the individual's right to have and to maintain control over information about him.

Would It be helpful to abolish anonymity?

In most cases not. The offenses do not become more serious for the mere fact of being committed or planned online, and therefore, there seems to be no real need to violate the right to anonymity online.

Cross-posted from Security Affairs

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