Do Courts Back Google and Facebook's View of Anonymity?

Big Brother is watching you

Internet users who want to remain anonymous online have been pushing back against media companies’ efforts to strip them of their pseudonyms. The issue has fanned a debate over whether people are entitled to have hidden identities or only a single real one. Meanwhile, courts have been ruling on the question in another context — and advocates for anonymous speech may not like what they’re saying.

Last Monday, a Supreme Court majority declined an emergency petition to prevent activists from obtaining and publishing the names and addresses of gay rights opponents. In practice, the court’s refusal means that thousands of Washington state residents will soon see their names posted alongside the likes of Joan Aalto (9 Brigham St, Hubbston, MA) and Grzegorz Zyzdryn (3116 Contego Lane, Palmbeach, FL) — individuals in other states who the group, KnowThyNeighbor, has already identified online.

The case in question began two years ago and led the Supreme Court to declare in 2010 that Americans have no right to anonymous speech, except in the case of vulnerable groups. Examples of vulnerable groups over the years have included the NAACP as well as 60 members of the Socialist Workers Party who had been subjected to violence and police harassment.

The gay marriage opponents in Washington claimed they too were a vulnerable group who deserved this protection of anonymity. They cited evidence of harassment that included being mooned, “flipped off”, and glared at by two women who said “we have feelings too.” A district judge, however, ruled these incidents were not enough to let the “John Does” remain anonymous and said in October the names should be released. On an emergency appeal, a divided 9th Circuit refused to stay the ruling and last Monday the Supreme Court did the same (Justice Alito disagreed). This means the names and the addresses of the Washington voters will be revealed in short order.

Does this case, which comes at a time of growing debate over online anonymity, carry any lessons for Google (NSDQ: GOOG) and Facebook users? Recall that the companies have ignited controversy by forcing people to use their real identities when signing up for new products — see this excellent piece by Time (NYSE: TWX) magazine’s Harry McCracken on the consequences for political dissidents and others of being “unmasked” online.

The debate has even set off disputes within the tech community. Facebook’s marketing director, Randi Zuckerberg, said this summer that “I think anonymity on the Internet has to go away” and Google’s former CEO Eric Scmidt has taken to calling online anonymity “dangerous.” People like 4chan founder Christopher Poole disagree, however. Poole told a recent Mashable summit that the companies “do identity wrong” and that our online self should not be conceived as a mirror but instead as a diamond — a series of changing images that reflect the various parts of who we are. Privacy activists like the Electronic Frontier Foundation have also weighed in, claiming that our society guarantees “the right to remain anonymous.”

From the Supreme Court’s point of view, however, this right may not exist. The majority of the judges in the Washington gay rights case said there was no “freewheeling right” to be anonymous and that the Constitution protects the “right to speak, not … the right to speak anonymously.” Conservative Justice Antonin Scalia went even further, citing a series of historical studies to argue that American democracy has always demanded very public forms of participation:

Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously […] This does not resemble the Home of the Brave.

For now, in the absence of any law about online anonymity, Google and Facebook will not be the subject of Constitutional scrutiny. This means they will still get to decide themselves about whether the need to promote open public discourse (and obtain marketing data) outweighs the need to give anonymous online protection to vulnerable groups like dissidents and gay teenagers.

Until the companies or Congress weigh in, perhaps the last word is best left to Emily Dickinson, one of America’s greatest poets who chose to remain anonymous her entire life:

I’m nobody! Who are you?
Are you nobody, too?
Then there’s a pair of us — don’t tell!
They’d banish us, you know.

How dreary to be somebody!
How public, like a frog
To tell your name the livelong day
To an admiring bog!


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