Imagine combining free speech with your right to privacy.
Last February, Finnish police served a warrant on Johan Helsingius, calling for the search and seizure of his anonymous remailer, anon.penet.fi. The police wanted to identify someone who had allegedly stolen confidential information off a Church of Scientology computer and then used the remailer to publish the data anonymously. Faced with the alternative of revealing anon.penet.fi's entire user list, Helsingius coughed up the suspect's name.
Could this happen in the US? It depends on how US courts interpret your right to anonymous speech, which depends, in turn, on how hard you fight for that right. Establishing a broad right to anonymous speech will call for some potent intellectual ammo.
Who says?
Imagine combining your right to free speech with your right to privacy. You would end up with the right to communicate with others without communicating your identity. You would end up, that is, with a robust right to anonymous speech.
In times past, anonymous speech sheltered the Founding Fathers' revolutionary arguments and emboldened commentators such as Mark Twain (aka Samuel Langhorne Clemens) to criticize common ignorance. Today, e-mail pseudonyms and anonymous remailers provide cover, albeit thin, to millions of correspondents and independent publishers. Tomorrow, public key cryptography could finally upload onto the Net a real right to anonymous speech. We could then enjoy digital anonymous speech at least as secure as the anonymous speech that we already enjoy in hard copy.
Last April, in MacIntyre v. Ohio Elections Commission, the US Supreme Court reaffirmed that the First Amendment protects the right to anonymous speech. Anonymity, the court reasoned, helps speech stay free. Focusing on political speech - the sort of speech that lies at the core of the First Amendment - the MacIntyre ruling stipulated that restrictions on anonymous political speech must be narrowly tailored and serve an over-riding state interest.
Earlier cases had already guaranteed that the right to anonymity reaches beyond political speech. In Talley v. California, the Supreme Court shot down a Los Angeles ordinance banning all types of anonymous pamphlets - political, commercial, or otherwise. The court explained that the "identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression."
Both of these cases, MacIntyre and Talley, based the right to anonymous speech on First Amendment grounds. Though the constitutional right to privacy is admittedly unpopular with the current Supreme Court, it could be used to provide anonymity with yet another layer of protection.
Who cares?
A robust right to anonymity covers more than unsigned notes; it covers your right to send and receive anonymous messages, to use a pseudonym, and, arguably, to engage in cash transactions. You probably already do these things in realspace. You'll definitely want to do them on the Net.
Who benefits from digital anonymity? Whistle-blowers, victims of abuse, and troubled people seeking counseling. Political insiders, the politically incorrect, and insurrectionists. Gays, lesbians, and bored straights. Bad poets. People trying the fit of another skin. Virtually everyone. You.You deserve at least as much anonymity on the Net as you have when you cast a vote, post an anonymous tract, or buy a newspaper from a coin-operated rack.
In fact, you should demand a stronger right on the Net. Otherwise, authorities will find it easy to track, sort, and record your digital behavior. You should thus demand the right to use the most powerful encryption available.
Uploading a robust right to anonymity calls for public key cryptography, such as that found in Phil Zimmerman's Pretty Good Privacy freeware. (See )David Chaum and other cryptographers have designed public key systems that provide anonymous two-way messages, digital signatures, secure and fraud-resistant pseudonyms, and electronic cash. Together, these tools combine the convenience and security of realspace with the speed and interconnectivity of dataspace.
Who knows?
The Supreme Court's call for narrowly tailored restrictions that leave speech as free as possible should prevent an outright ban on anonymous remailers. US police, like their Finnish counterparts, can issue warrants against anonymous remailers. Unlike Finnish police, however, US authorities cannot issue warrants so broad as to unnecessarily threaten the anonymity of third parties.
But what happens when a constitutional search for a criminal's identity runs up against a Chaum-style public key system? Police get virtually indecipherable gibberish. Politicians get mad. The Su-preme Court, perhaps, gets an interesting new case. But the criminal does not necessarily get away. The right to anonymous speech would not protect illegal speech, of course. Police have already learned to cope with untraceable calls, disguises, and aliases. They can likewise learn to cope with digital anonymity. But authorities must not wound our fundamental liberties in targeting illegal speech.
The availability of less intrusive means of enforcing information regulations, combined with anonymity's vital role in protecting free speech and privacy, would make it difficult for the Supreme Court to excuse an outright ban on public key systems. Don't regard this as a virtual certainty, though, and let down your guard. Whether your right to anonymity survives an upload into dataspace will depend not only on what the Supreme Court says to us, but on what we say to it.
