Anonymity, autonomy, and accountability: challenges to the First Amendment in cyberspaces.

Author:Branscomb, Anne Wells
Position:Emerging Media Technology and the First Amendment

    Principles underlying the First Amendment favor an information agora(1) promoting and embodying democratic ideals.(2) The pioneers of what is often called cyberspace,(3) the electronic environment through which the computer literati engage interactively, anticipate that this new frontier promises the opportunity for full participation in the electoral process as well as development of a flourishing computer-mediated information marketplace. The experiences of these computer-competent citizens (sometimes called "netizens"(4)) using the Internet,(5) a backbone for interconnecting computer-mediated communications globally, suggest that we now have within our grasp a technology designed to bring together like-minded individuals, regardless of where they live, work, or play, to engage in the creation of a new type of democratic community: a community unbounded by geographical, temporal, or other physical barriers.

    These new experiments in democracy do not simply represent a futuristic vision. On the contrary, they pervade the electronic environment. Observers of online activity have recognized inclinations to preserve individual and group autonomy without governmental intrusion or authoritarian censorship. These inclinations are fully in accord with the motivations that brought the early pioneers to the new continent to preserve their religious independence, develop new frontiers, and exert self-determination in their systems of governance. Many of these new experiments have led to the development of user groups that look upon themselves as "virtual communities" entitled to deal with problems arising in the electronic environment as they find appropriate. Such virtual communities can be said to occupy separate and diverse cyberspaces, essentially carving out domains of their own over which they choose to exert jurisdiction. Therefore, the generic term "cyberspace" does not aptly describe these evolving communities. For the purpose of this Essay, I shall refer to the varying electronic domains as cyberspaces and refer to the whole as the "Networld."(6)

    The unique quality of being able to post messages to and from everyone with an electronic address without editorial control or the intervention of elected representatives promises to become one of the most powerful democratic tools ever devised. Because these cyberspaces in the Networld ignore space, time, and physical circumstances, they remove the visual cues that often inhibit or facilitate communication. Furthermore, the marvels of digital communication have erased many of the prejudices that arise from these culturally specific visual cues. Therefore, the encounter becomes a true meeting of the minds, where the power of persuasion resides in what is said--that which is protected from governmental interference by the First Amendment--rather than what is seen.

    In this Essay, I examine some of the ways in which cultural behavior developing in cyberspaces is challenging the First Amendment. In addition, I explore the manner in which intrusion by real-world communities may inhibit the free flow of information in cybercommunities and threaten not only the independence of such communities but also the value of electronic communication as a vehicle for democratic discourse. Given the development of new cybercommunities seeking to engage in self-governance, there is a very real possibility that the nation-state as a mediator or determinant of socially and legally acceptable behavior may be displaced by smaller "virtual communities" online that create their own behavioral norms. If so, then the First Amendment may have little effect on the practices and procedures employed within the Networld.

    "Netizens," however, do assert what they call a First Amendment right of unencumbered access to whatever information they deem personally useful or desirable, and deplore intervention by outsiders or even the proscriptions of their own institutions. Although it is not accurate to describe this claim as a First Amendment right, clearly many Internet users' developing expectation of freely flowing channels of information without censorship by outsiders cannot be ignored. Many of the users of the commercial information services share this expectation. Thus, there is no reason why something akin to the First Amendment may not be asserted vis-a-vis transport providers offering services in autonomous domains.

    In order to examine the conflicts and questions that the First Amendment will provoke in cyberspaces, I focus upon three areas of controversy: anonymity, autonomy, and accountability. These three subjects represent interlocking and competing forces. The elevation of one of these forces has important implications for the other two. For example, a right of absolute anonymity may foreclose accountability, whereas full accountability of users may mean the prohibition of anonymity. Similarly, full autonomy and control over the flow of information may isolate one from access to information upon which democratic discourse and a healthy exercise of the functions of self-governance in a democratic society depend. Therefore, it is necessary to explore how these forces interact in the context of actual cyberconflicts. In order to ensure that we are exploring these forces with a common understanding, I briefly define the forces of anonymity, autonomy, and accountability in the following Sections.

    1. Anonymity

      True anonymity in the Networld would mean that no one could trace the source of an electronic message. The First Amendment prevents the outlawing of true anonymity, although it only prevents governmental interference with anonymous messages. For this reason, the new cybercommunities as well as commercial providers of electronic environments must grapple with the propriety of anonymity. The possibility of genuine anonymity implicates both the positive value in protecting the sources of certain information as well as the danger inherent in allowing individuals to speak and write without detection. For some computer users, anonymity is merely fun and games. For other anonymous posters, however, the ability to remain unknown removes many of the layers of civilized behavior as they realize that they can escape responsibility for negligent or abusive postings.

      There are numerous situations in which anonymity seems entirely appropriate and even desirable. Psychologists and sociologists point out that people benefit from being able to assume different personae.(7) It is therefore natural that individuals use electronic communication to disguise themselves, as in costume balls in the multiuser dungeons (MUDs) that Howard Rheingold describes.(8) As one student admitted, "It's my hallucinogen of choice.... I love being able to slip into another body, another persona, another world."(9)

      There are many other valid justifications for preserving a limited right to anonymity. The media often cite "a prominent source" who does not wish to be identified, and pseudonymous authors have long been with us, sometimes in the past to prevent disclosure that the writer was female for fear her work would not be published were her gender known. Usually, in these cases, the publisher or journalist knows the source and vouches for its integrity. Anonymity has also been protected in cases in which actual retaliation or harm may ensue if the source of the writing is known, as in the case of whistle-blowers or political dissidents under authoritarian regimes.

      Yet, there are also many valid reasons supporting prohibition of anonymity. Disguising the sources of messages or postings relieves their authors from responsibility for any harm that may ensue. This often encourages outrageous behavior without any opportunity for recourse to the law for redress of grievances. Law enforcement officials or lawyers seeking to file a civil suit might not be able to identify an individual to hold responsible.(10)

      Many providers of computer-mediated facilities do not permit genuine anonymity. They keep records of the real identity of pseudonymous traffic so that abusers can be identified and reprimanded.(11) Recent years, however, have witnessed the development of a trend towards the establishment of "anonymous remailers" who provide a guarantee that messages cannot be traced back to their sources; diverting traffic through several of these remailers can effectively render an audit trail impossible, once again raising the specter of true anonymity.(12)

    2. Autonomy

      Autonomy means the right to exert some modicum of control over one's electronic environment. Efforts to devise some rules to preserve autonomy must include consideration of several challenging questions. First, is there a right to prevent access to, or control the timing and terms of disclosure of, information about oneself, one's corporation, or one's institutional entity? Second, may certain cyberspaces be maintained as private spaces in which the users themselves determine the governing rules? Third, how can one ensure the confidentiality of messages posted to trusted colleagues? Such issues of autonomy over communications present difficult challenges in the cyberspaces.

      These questions are often clustered within the area of law called privacy. Privacy law is a fairly recent arrival on the horizon, but it, too, derives at least some of its virtues from First Amendment principles. At a minimum, privacy can be translated into some sanctuary to which one may retreat--a personal space and the ability to screen out unwanted or offensive messages. Although there may be a First Amendment right to speak, there is no comparable right to be heard.(13) Furthermore, privacy must mean some degree of autonomy over personal information and how it is obtained and deployed by others, including governmental entities that may have a compelling interest in obtaining the information.(14)

      Control over personal information may appear to be the flip side of freedom of...

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