The Download of the Week is Anonymity and the Law in the United States by A. Michael Froomkin.
Here is the abstract:
his
book chapter for "Lessons from the Identity Trail: Anonymity, Privacy
and Identity in a Networked Society" (New York: Oxford University
Press, 2009) — a forthcoming comparative examination of approaches to
the regulation of anonymity edited by Ian Kerr — surveys the patchwork
of U.S. laws regulating anonymity and concludes the overall U.S. policy
towards anonymity remains primarily situational, largely reactive, and
slowly evolving.Anonymous speech, particularly on political or religious matters,
enjoys a privileged position under the U.S. Constitution. Regulation of
anonymous speech requires a particularly strong justification to
survive judicial review but no form of speech is completely immune from
regulation. Anonymity is presumptively disfavored for witnesses,
defendants, and jurors during criminal trials; the regulation of
anonymity in civil cases is more complex. Plaintiffs demonstrating
sufficiently good cause may proceed anonymously; conversely, defendants
with legitimate reasons may be able to shield their identities from
discovery.Despite growing public concern about privacy issues, the United
States federal government has developed a number of post 9/11
initiatives designed to limit the scope of anonymous behavior and
communication. Even so, the background norm that the government should
not be able to compel individuals to reveal their identity without real
cause retains force. On the other hand, legislatures and regulators
seem reluctant to intervene to protect privacy, much less anonymity,
from what are seen as market forces. Although the law imposes few if
any legal obstacles to the domestic use of privacy-enhancing technology
such as encryption it also requires little more than truth in
advertising for most privacy destroying technologies.
Helpful work on an important issue. Recommended.