Legal Commentary

Abbreviated Survey of US Anonymity Law

By Professor University of Miami School of Law

Over the weekend, I posted drafts of two chapters I wrote for a forthcoming book on anonymity and privacy around the world. Here’s the back story on Anonymity and the Law in the United States.

I had originally agreed to write one piece — Identity Cards and Identity Romanticism — and then the book’s editor, the incomparably wonderful Ian Kerr, asked me to write a survey of US law on anonymity. I thought it would be do-able, and I very much wanted to repay Ian for all his many kindnesses over the years.

But it wasn’t easy. The problem wasn’t so much that the US law in the area is chaotic, I’m used to that. Nor was it mainly that (after I’d agreed) they sent me an outline of the topic they hoped I would cover, a list which went well outside my comfort zone into areas like criminal procedure and juries, because I’m up for learning new things. No, the problem was the @#$@# word limit. I had to compress everything into tiny little spaces. I hated doing that. I found it excruciating, in fact. And it results in generalizations which while not, I hope, erroneous are on occasion not as precise as I’d ideally like.

Anonymity and the Law in the United States

This book chapter for “Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society” (New York: Oxford University Press, 2009) — a forthcoming comparative examination of approaches to the regulation of anonymity edited by Ian Kerr — surveys the patchwork of U.S. laws regulating anonymity and concludes the overall U.S. policy towards anonymity remains primarily situational, largely reactive, and slowly evolving.

Anonymous speech, particularly on political or religious matters, enjoys a privileged position under the U.S. Constitution. Regulation of anonymous speech requires a particularly strong justification to survive judicial review but no form of speech is completely immune from regulation. Anonymity is presumptively disfavored for witnesses, defendants, and jurors during criminal trials; the regulation of anonymity in civil cases is more complex. Plaintiffs demonstrating sufficiently good cause may proceed anonymously; conversely, defendants with legitimate reasons may be able to shield their identities from discovery.

Despite growing public concern about privacy issues, the United States federal government has developed a number of post 9/11 initiatives designed to limit the scope of anonymous behavior and communication. Even so, the background norm that the government should not be able to compel individuals to reveal their identity without real cause retains force. On the other hand, legislatures and regulators seem reluctant to intervene to protect privacy, much less anonymity, from what are seen as market forces. Although the law imposes few if any legal obstacles to the domestic use of privacy-enhancing technology such as encryption it also requires little more than truth in advertising for most privacy destroying technologies.

I do think there’s some value to a survey like this, especially in a collection where it will appear right next to similar surveys from lawyers in other countries. So I’m not sorry to have done it. But it’s a little more of a laundry list than my usual work.

Full post as published by Discourse.net on December 02, 2008 (boomark / email).