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The Concealed I
Ottawa, Canada
March 5, 2005
A. Michael Froomkin
U.Miami School of Law
Anonymity Law in the USA:Latest Developments, Familiar
Problems
2
Outline• Foundations of the debate• Regulation of anonymity (identity) is contextual
– Political speech– Police / state investigations– Private civil actions– Regulatory schemes (e.g. elections, banking, DRM)– Patriot Act
• Access to communicative anonymizing technology (cryptography)
• Destabilizing effects of new technology
3
The Fundamental Problem
• The United States lacks a legal consensus on the virtue/vice of anonymity -- both strands have resonance
• The legal approach is predominantly pragmatic– “Rights talk” in the realm of purest political speech
– Protection for dissidents, whistleblowers
– Lip service to “rights talk” elsewhere, but interests balance
• Keen awareness of harms as well as benefits
4
The Light Side
• Core part of traditional political activism• First Amendment tradition
– Speaking AND (probably) reading anonymously
• Fifth Amendment tradition• Also arguably Fourth Amendment • and even prohibition on “quartering” of
troops (3rd Amendment, peacetime)
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The Dark Side
• Anonymity is dishonorable because it “facilitates wrong by eliminating accountability” (Scalia, J. dissenting in McIntyre)
• Anonymity Money Laundering• Anonymity File Sharing “Piracy”• Anonymity Conspiracy
Criminals/Terrorists
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Context: Political Speech• The most protected category• Older cases protect dissidents, group membership
lists• Several recent major cases extol the importance of
anonymity: Talley, McIntyre, Watchtower– Leaflets can’t be required to have names
• "anonymous pampleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent.“ – Stevens, J.
– Canvassers can’t be required to have nametags– There is a ‘right to speak anonymously’ and (we think)
a right to read anonymously (but, § 215 of Patriot Act)• That’s almost the end of the good news
• “the anonymity of an author is not ordinarily a sufficient reason to exclude her work product from the protections of the First Amendment” - Stevens, J. in McIntyre
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Context: Regulating Elections
• Strict scrutiny for speech-related regulation• Note that principle is fundamentally
pragmatic – is there a compelling state interest? Is scheme narrowly tailored?
• Some rules meet this test, e.g. campaign finance disclosure– Differences between candidate related (more disclosure) and
initiative related (courts vary)– Some rules don’t as rule isn’t ‘narrowly tailored’ e.g. compelled
speech in pamphlet/ads
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Regulating Other Parts of Life– More tolerance for compelled disclosure of
identity– Banking
• Know your customer• Anti-money laundering rules
– What’s next? • Mandatory DRM or other compelled mechanical
identifiers?
– Rays of sunshine: • ‘Bork Bill’ (video rental records) • HIPPA debate
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Context: Police Investigations• Hiibel case – how had a loss?
– Facts involved response to report of altercation
– Court holds state law requiring that citizen state name to investigating officer is constitutional -- in Terry stop context
– Court doesn’t actually require you show ID
– Explicitly avoids 5th Amendment of ID = incrimination issue as not presented in case
• Subsequent lower courts are all over the map as to what’s sufficient suspicion, holding time, and cops are demanding ID on minimal suspicion
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Context: Private Civil Actions• Plaintiff wants ISP to disclose name of customer
– Libel (personal, corporate – Dendrite suggests judicial caution on ordering disclosure of corporate critics’ identities); 2TheMart (federal version of test)
– P2P / file sharing
• Courts tend to read DMCA subpoena narrowly, some reluctance esp. in mass discover cases – want specific showing– Many courts read DMCA to exclude ISP ‘conduit’
cases
– Discovery often will be ordered as courts believe ‘privacy interest low’ in file sharing
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Context: Patriot Act• Not as ghastly as it could have been: E.g. Didn’t
limit right to cryptographic tools• Doe v. Ashcroft, 334 F.Supp.2d 471 (SDNY
2004) on “National Security Letters”– 18 USC §2709 authorizes FBI to compel ISPs and
telephone companies to produce customer records whenever the FBI says records are "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."
• NSLs are secret, can’t be discussed• Held, 4th Amend & 1st Amend problems• Appeals to follow…
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Access to Communicative Anonymizing Technology
• Key communicative technology is cryptography– Related issues: wiretaps, access to libraries, web cafes
• Regulation of cryptography has reached a plateau– Freedom to import software, hardware– Freedom to use software, hardware
• Send encrypted data• Receive encrypted data
– Export control remains (including ‘technical assistance’)…but with slightly lighter hand
• Cryptography is not built into Windows
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Destabilizing Effects of New Technology
• Massive databases (a Terry stop now has vast consequences)
• Facial recognition – who needs ID? Or even a Terry stop – Plain sight is older than ‘plain sniff’
• Making the world safe for copyright– DRM– ‘Trusted Computing’
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What Is To Be Done (1)• Critical political arena in the short and
medium run is legislative (e.g. Patriot act amend/renew)
• This administration doesn’t care about privacy
• The courts will police the grossest abuses, but little more -- outside the context of core political speech
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What Is To Be Done (2)• Most important arena might be non-legal:
– Standard-setting for new technologies • “building in privacy” or • “not building in Big Brother”
– unTrusted Computing– [MAC address issue]
– Deploying tools• Cryptography in the OS• New identity-free communications networks
(“neighborhood clouds”)
• Legal challenge may be preventing legislatures from banning/slowing these developments
