Lessons Learned Too Well: Anonymity in a Time of Surveillance

It is no longer reasonable to assume that electronic communications can be kept private from governments or private-sector actors. In theory, encryption can protect the content of such communications, and anonymity can protect the communicator’s identity. But online anonymity—one of the two most important tools that protect online communicative freedom—is under practical and legal attack all over the world. Choke-point regulation, online identification requirements, and data-retention regulations combine to make anonymity very difficult as a practical matter and, in many countries, illegal. Moreover, key internet intermediaries further stifle anonymity by requiring users to disclose their real names.

This Article traces the global development of technologies and regulations hostile to online anonymity, beginning with the early days of the Internet. Offering normative and pragmatic arguments for why communicative anonymity is important, this Article argues that anonymity is the bedrock of online freedom, and it must be preserved. U.S. anti-anonymity policies not only enable repressive policies abroad but also place at risk the safety of anonymous communications that Americans may someday need. This Article, in addition to providing suggestions on how to save electronic anonymity, calls for proponents of antianonymity policies to provide stronger justifications for such policies and to consider alternatives less likely to destroy individual liberties. In a time where surveillance technology and laws demanding identification abound, protecting the right to speak freely without fear of official retribution is critical to protecting these liberties.