The anonymity tool.

• Jurisdiction: United States
• Author: Levmore, Saul
• Date: 01 May 1996

Table of Contents

Introduction

I Explaining Conventions Governing Anonymity

1. Chilling and Reliability

   1. Anonymity to Encourage Communication

   2. Identifiability to Encourage Reliability

   3. The Tradeoff Between Reliability

   and Communication

2. The Limited Role of Consent

3. Intermediation

   1. Filtration As an Alternative to Anonymity

   2. Evaluations

   3. Intermediation and Consent

   4. Pseudonyms

   1. Publishers As Intermediaries

   2. Signalling

   3. Signalling and Intermediation

   2. Legal and Social Norms

1. Law's Reluctance Regarding Intermediation

2. Voting Rules, Anonymity, and Intermediation

3. Legal Intermediation

   1. Judges and Secrets

   2. Judicial Evaluation of Anonymous Information

   3. Criminal Law and Intermediation

      1. Investigation Versus Adjudication

      2. Government As Intermediary D. Blending Law and Norms

   1. Legal Regulation of "Normal" Intermediaries 2. Intermediation in the Shadow of the Law Conclusion

      Introduction

      Anonymous communications may be exalted or discouraged by both legal and social norms. Most democracies sanctify the secret ballot, most law schools encourage anonymity as to the identity of students in both the grading of examinations and the evaluation of courses, most charities and ethicists welcome and even idealize anonymous philanthropy, and few readers object to pen-named novels. In contrast, voting by elected representatives (and by American judges) is public, juror votes are normally discoverable after a verdict is in, and anonymous telephone calls as well as unsigned, critical interpersonal notes are strongly discouraged by social norms.

      Such lists and comparisons suggest a number of lines of inquiry. One puzzle is suggested by the title of this Article. If anonymity encourages some communications, so that it can be a useful tool, then why do many social conventions discourage anonymity? It is, for example, mysterious that so many businesses solicit anonymous criticism through suggestion boxes and customer evaluation forms but that so few people think that anonymous notes, containing constructive criticisms with comparable probability, are welcome by friends and neighbors. There is also the obvious positive puzzle of why and when anonymity is acceptable. I will suggest that social norms go beyond formal legal rules in anticipating alternative methods of communication through intermediaries with certain characteristics. These alternatives may be desirable because they are more reliable than anonymous communications and yet unlikely to be easily chilled. Legal rules governing anonymity, as we will see, are less amenable to case-by-case application and are, therefore, less compromising than social norms.

      1. Explaining Conventions Governing Anonymity

1. Chilling and Reliability

   1. Anonymity to Encourage Communication

      Anonymity implicates two countervailing forces. If parties with valuable information can choose between making anonymous and nonanonymous communications, it is likely that they will convey more (or simply more accurate) information than they would in a world where anonymous communications are effectively barred by social conventions or enforceable legal rules. Anonymity allows communication without retribution. This straightforward intuition is reflected in the business practice of asking customers for information but indicating that a respondent can remain unidentified. The business, or potential recipient, recognizes that more information will be forthcoming if communicators can choose whether to be anonymous or not. Some respondents may think that their communications will be rewarded, but others may fear unwanted requests for additional information or even confrontations with the subjects of their criticisms. This intuition about the gain associated with anonymity is also found in the practice of offering rewards for the return of missing items with "no questions asked."

      The institution of the secret ballot and the convention of unsigned student evaluations of teachers may serve as additional examples of anonymity designed to encourage communication. One is compelled by legal rules and the other by common practice, or social norms, but in both cases identification might chill responses because communicators might fear retaliation or confrontation. Note that these practices are explained (ex post) rather than predicted; if anonymity were barred or abhorred in these settings, it would be easy to say that identifiability discouraged corruption or improper motives. Anonymity may encourage honest communication, but (even in the same settings) it may also stimulate dishonest, corrupt, or simply socially undesirable decisionmaking or communications. I return to these matters, and to all these examples, below. For the present, I consider only simpler cases where it appears to be unambiguously desirable, both privately and socially, to encourage communication.

   2. Identifiability to Encourage Reliability

      Anonymity may encourage communication, but nonanonymity, or identifiability, will often raise the value of a communication to its recipient. Identification can be a useful signal, and it may promote accountability; but it may also be sufficient simply to say that the information contained in the identification of the source of a communication is itself of value to the recipient. In some contexts, the value (to the recipient) of identification has more to do with marketing or other forms of adaptation than with intrinsic value or reliability. Thus, a firm may seek information about the preferences, income, or residence of retail customers, but this information is most often relevant when making decisions regarding future business locations, advertising strategies, sales of mailing lists, and the like. It is the fact (and volume) of sales that provides feedback as to quality, price, and past marketing decisions, and these sales rarely lose much value if they are unidentifiable. In other settings, however, identification is critical to the value of a communication. Generally speaking, the value of identification (of the source of information) is greater the more costly it is for the recipient independently to evaluate the accuracy of the communication. Thus, the value of communications about the commission of a crime or about another country's military secrets often increase enormously with identification of the source of the communication.(1)

   3. The Tradeoff Between Reliability and Communication

      Anonymity may induce communicative activity, but, for a given communication, anonymity is also likely to reduce its value to the recipient. This tradeoff suggests why norms favoring, discouraging, or making optional the use of anonymity might develop. Consider the case where G, a guest in host H's home or a patron of H's business, observes another guest or customer, P, pilfer an item belonging to H. Especially where G is a social guest, G may feel some moral obligation to confront P or inform H.(2) On the other hand, G may choose to remain uncomfortably silent. A purely self-interested G may even choose to blackmail P or extort from H; a somewhat better behaved or more risk-averse G may choose to intervene, if only because H, after discovering the theft, may be suspicious of G (and other guests or patrons who were present around the time of the now-discovered theft).(3) There are of course costs associated with confronting P or informing H. If P has some innocent explanation ("H had given me permission to take that item, and I slipped it in my pocket because I had no other way to carry it home"), P may take great offense at G's inquiry. And where P is a wrongdoer, there are of course costs borne by G whether or not G succeeds in causing P to right the wrong. Informing H may be ideal, because H may be grateful and may cause P to return what has been taken. But there is the danger that H will resent G, accuse C, or announce G's accusation of P in a way that harms G.

      Our host, H, may welcome a social norm against anonymity if H attaches substantial value to identification and if H thinks that guests such as G will not choose inaction when offered a stark choice between full disclosure and no disclosure. But a different host could either place less value on (source) identification or fear a more substantial chilling effect from an anti-anonymity norm. Relying only on the preceding analysis, I think we would expect no strong social norm against anonymity. Alternatively, we might expect some variety as to this norm across communities or in somewhat different circumstances. I must return therefore to the task of "explaining" the nearly universal anti-anonymity norm governing this kind of situation.(4)

2. The Limited Role of Consent

   The relevance of the host's preferences in the previous example suggests that anonymity may follow hypothetical consent by the recipient. Indeed, consent (whether implied or explicit) can easily explain the acceptability of anonymous communications that are entirely positive in substance. Valentine's Day cards are often anonymous, as are some notes and apples received by teachers. The positive nature of these communications (that is, so long as they do not go so far as to raise the fear of unwanted behavior) allows us to imply consent. Most of us prefer flattery in some volume. The social convention can be seen as providing an out1et for or even a limit on such positive feelings, and the convention reassures both sender and recipient. In the case of Valentine's Day, the social norm may even serve the purpose of encouraging these communications in a way that increases private and social utility.(5)

   Consent may also have something to do with occasions for applause or, less pleasantly, for hisses and jeers. A performer implicitly "consents" to applause, though it be anonymous, but it is interesting that arising out of this convention are such things as vocal exclamations ("Bravo!") and standing ovations, which might be seen as attempts by some communicators to escape anonymity...