Mar 29, 2022
The Past & Future of Your Right to Remain Anonymous
Professor Jeff Kosseff on the Fascinating History of Anonymity in America
Anonymity is in our country’s DNA. The founders known as the federalists wrote a series of dozens of essays under the name New Yorker named “Publius.” Now known as The Federalist Papers, these pseudonymous op-eds changed the course of history.
The Federalist Papers were published to encourage New York’s 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 “antifederalists.” Incidentally, these anti-federalists — also writing under pseudonymous pen names like “Brutus” and “Centinel” — may have had the better argument regarding the weaknesses of the Constitution as it was written, although that’s a subject for another piece.
Professor Jeff Kosseff’s The United States of Anonymous offers a sweeping history of the longstanding American tradition of anonymous speech — from 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:
To start, Kosseff notes that the word “anonymity” 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.
“The 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,” Kosseff says. “Those 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.”
Without this tradition, it’s 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.
I’ve always wondered why these men chose to remain anonymous. I can’t imagine that they were afraid of losing their job or being shunned by the friends. Wouldn’t signing their names have added even more weight to their writing, I 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 “speech motive” — just 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 one’s speech.
“They wanted their arguments to be judged on the merits that they’re making, and not based on what people thought about these three individuals,” he says.
“They wanted their arguments to be judged on the merits that they’re making, and not based on what people thought about these three individuals.”
Thomas Paine likely had multiple motivations for not signing his pamphlet Common Sense, as did the author of the “Letters from a Farmer in Pennsylvania to the Inhabitants of the British Colonies,” who simply signed his influential series of 12 letters criticizing the Townshend Act as “A Farmer.” 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 “dangerous” 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.
“Right now we’re 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,” Kosseff 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 NAACP’s submission of an incorrect form to the state), and the Alabama AG’s 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 of 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 Alabama’s 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 Scalia — who typically sided with Thomas while he lived — strongly 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.
“The courts have developed pretty rigorous standards… [They’re] not going to say that none of these subpoenas can proceed, but you have to have a very strong case and you can’t just be filing this lawsuit because you’re a company and you want to unmask, fire, and maybe ruin the life of an employee who criticized you,” he says.
Interestingly, Justice Clarence Thomas has been one of the strongest supporters of a right to anonymous speech. However, despite the Supreme Court’s rulings in favor of a robust interpretation of the First Amendment, the latest threats to privacy and anonymity are coming from the private sector.
Kosseff notes: “There are things like facial recognition, and geolocation points that data brokers can basically sell to anyone in the public.”
Remember that the Constitution, to the extent that it protects privacy broadly, and anonymity specifically, only affects what government actors can and cannot do — not what private actors may do.
Police departments often use artificial intelligence that can identify a person’s face based on profile pictures scraped from social media, for example.
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 first place.
The Fourth Amendment’s 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 Amendment — such as San Francisco’s ban on facial recognition. Meanwhile other new technologies such as Tor, which hides an internet user’s IP address beneath multiple layers of diversion, can both enable the good kind of anonymity along with the bad.
Be sure to read the entire book, or subscribe to my libertarian book club for “Cliff-Notes” style summary.
