Essay: The Two Faces of Anonymity

• Author: Alex Kozinski
• Position: Judge, of the United States Court of Appeals for the Ninth Circuit.
• Pages: 1-17

ESSAY: THE TWO FACES OF ANONYMITY

ALEX KOZINSKI *

The Urban Dictionary defines “conscience” as “[t]he little voice in the

back of your head that tells you somebody is watching.”1 As abundant

psychological experiments bear out, the feeling of being watched is a

significant restraint on our impulses.2 Even a picture of watching eyes can

alter our behavior and make us more likely to conform to prevailing social

norms.3 While anonymity has many liberating aspects that can be quite

positive from a personal perspective, it’s also true that from a societal

perspective anonymity has many negative implications.4 People who

believe themselves to be undetectable are apt to do things that society

doesn’t approve of.5 That’s why bank robbers wear masks and

pickpockets don’t leave calling cards.

Anonymity is an artifact of modern society. When our lives were lived

out in small communities, anonymity was very difficult or even impossible

to achieve. As hard as it is to imagine today, most people throughout

history never had the experience of feeling anonymous. My guess is most

of them did not even fully comprehend the concept.6 The emergence of

Copyright © 2015, Alex Kozinski.

* Judge, of the United States Court of Appeals for the Ninth Circuit.

1 LRS, Post defining Conscience, URBAN DIC TIONARY (Feb. 21, 2007),

http://www.urbandictionary.com/define.php?term=conscience&defid=2266167.

2 See, e.g., Terence C. Burnham, Engineering Altruism: A Theoretical and

Experimental Investigation of Anonymity and Gift Giving, 50 J. ECON. BEHAV. & ORG. 133,

139–41, Figures 2 & 3 (2003) (demonstrating the tested effects of anonymity on one’s

character).

3 See Max Ernest-Jones et al., Effects of Eye Images on Everyday Cooperative

Behavior: A Field Experiment, 32 EVOLUTION & HUM. BEHAV. 172, 175–76 (2011).

4 Kimberly M. Christopherson, The Positive and Negative Implications of Anonymity in

Internet Social Interactions: “On the Internet, Nobody Knows You’re a Dog,” 23

COMPUTERS IN HUM. BEHAV. 3038, 3040 (2007).

5 Id. at 3041.

6 Lest I be misunderstood, I should add that the related concept of privacy was not

unknown. It has long been understood that certain activities, like sex, bathing, sleeping,

and defecation could best be enjoyed in private. Privacy and anonymity are closely related

concepts, often mistaken for each other. Jed Rubenfeld, We Need a New Jurisprudence of

Anonymity, WASH. PO ST, Jan. 13, 2014, at A17. But they are, in fact, quite different. It is

possible to have privacy without anonymity. For example, you know exactly who’s living

in the house across the street, but you don’t know what they do inside the house. And it’s

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2 CAPITAL UNIVERSITY LAW REVIEW [43:1

the Internet is central to today’s modern conception of anonymity, as many

millions of people believe (often wrongly) themselves to be undetectable.7

Sitting alone in front of a computer screen, it’s easy to imagine that your

identity is unknown and untraceable because you choose not to reveal who

you are.

I remember a few years ago when blogger David Lat first made his

appearance as “Article III Groupie” (A3G).8 The conceit was that he was a

woman working for a “large law firm in a major city” who blogged

adoringly about federal judges but also gave fashion advice.9 In fact, Lat

was an Assistant U.S. Attorney in the District of New Jersey, working

under then U.S. Attorney Chris Christie.10 There was quite a bit of

speculation as to who Article III Groupie might be, based on information

revealed in the blog.11 Right about that time, I got a call from my former

law clerk, Steve Engel, who suggested that the blogger might be his

classmate David Lat. He deduced this from A3G’s frequent references to

Yale,12 and the fact that the blogger claimed to have had three unsuccessful

Supreme Court clerkship interviews.13 But speculating about someone’s

identity is not the same as knowing for sure, so we came up with a scheme

to unmask Article III Groupie: we sent simultaneous emails—me to A3G

and Engel to Lat—and we got back answers within 10 minutes of each

other. When we opened up the headers on the two e–mails we

possible to have anonymity without privacy: You are in a throng of people in the middle of

Times Square on New Year’s Eve but no one recogn izes you.

7 See Kate Murphy, How to Muddy Your Tracks on the Internet, N.Y. TIMES, May 3,

2012, at B7.

8 Adam Liptak, Mystery of Gossipy Blog on the Judiciary is Solved, N.Y. TIMES, Nov.

16, 2005, at A14.

9 Article III Groupie, About Me, UNDERNEATH THEIR ROBES ,

http://underneaththeirrobes.blogs.com/about.html (last visited Sept. 5, 2014).

10 Jonathan Miller, He Fought the Law. They Both Won: The Double Life of a

Prosecutor Who Preferred Cheeky Blogging , N.Y. TIMES, Jan. 22, 2006, at A14.

11 Liptak, supra note 8.

12 See, e.g., Article III Groupie, Judicial SIGHT-ations: SDO Watching B-Ball,

UNDERNEATH THEIR ROBES (Dec. 28, 2004), http://underneaththeirrobes.blogs.com

/main/2004/12/judicial_sighta_1.html; Article III Groupie, Judicial SIGHT-ations:

Thanksgiving Special Issue, UNDERNEATH THEIR ROBES (Nov. 24, 2004),

http://underneaththeirrobes.blogs.com/main/2004/11/judicial_sighta_1.html (providing blog

entries with multiple references to Yale Law School).

13 About, supra note 9.