I have spent time contemplating limitations on anonymous free speech after having the opportunity to consider and reflect upon several more class lectures and related readings. I think the most important anonymity to maintain is that related to discussing the government. As decided by the Supreme Court in McIntyre v. Ohio Elections Com'n (1995) and related cases, the right to anonymously pamphleteer is an honorable tradition of advocacy and dissent, and provides an important shield to the majority. The same logic would presumably apply to discussions through other mediums, including the internet. While this is an admirable sentiment, I believe its practical application in today’s society is unfortunately very limited.

I also find the current stance of the government to be at odds with the Federalist Papers. Widely considered to be the most influential analysis of the U.S. Constitution ever written, the Federalist Papers were published anonymously by the author “Publius.” This is a strong argument that the three eventually-revealed authors of the Federalist Papers, the first Supreme Court Justice John Jay, the lead promoter of a strong federal government Alexander Hamilton, and the master builder of the Constitution James Madison, viewed the right to anonymously discuss matters pertaining to the government as fundamental. In fact, the press of their day was heavy with anonymous postings discussing the proposed Constitution. Of course, these conversations occurred before the ratification of the Constitution, and in a very different world than the one existing today.

The reason Web of Lies was interesting to me, especially in light of the recent talk in class about the current state of the First Amendment in India, is that the right to remain anonymous in today’s world seems to be more lip service than anything else despite its often-obvious importance for the perpetuation of freedom. Technically, even a very limited right to remain anonymous could have far-reaching implications, as it may require the government to not take any action that could lead to the discovery of the identity of a Constitutionally-protected anonymous speaker. This may be interpreted to restrict the government from inspecting the records of any email account without just cause, and limiting the government's ability to inspect any communication. I would similarly be very interested in hearing the Supreme Court discuss Professor Moglen's characterization of encrypted communication as a new language protected under the right to free speech, just as the government cannot prevent communication in foreign languages. This calls to mind the notion that those wishing to exercise the ability to speak anonymously could use anonymity networks such as Tor. While I know very little about the technological structure of these networks, I think I know enough to question their effectiveness. The opt-in structure, which requires some level of technological sophistication, is suboptimal, and raises question as to what type of information is being sent across them. This has the unfortunate consequence of materially increasing the government’s interest in cracking the anonymity.

Instead, the right of “anonymity” appears to have diminished to practical non-existence, as it cannot be said to even include a right to not have the government take action to learn the identity of the anonymous speaker, as the government likely already has enough information to identify the speaker. Whether the identity is determined from the use of financial records to track the speaker through purchases, the use of abundant cameras and facial recognition technology, the location of the person’s phone at a given time, or through reading emails, the government has enough information in its possession to make any purported right to anonymity seem like a sad joke.

-- SamuelDostart - 15 Apr 2013