The debate over anonymity on the Internet is heating up again. Courts increasingly encounter the question of when to order the unmasking of anonymous online speakers; websites grapple with whether to allow anonymous commenting or to push their users toward speaking under their real names; legislators contemplate kids' privacy bills that could end up requiring every Internet user to identify themselves; and a spate of articles and opinion pieces this year have called for an end to anonymous Internet speech altogether.
As plaintiffs sue John and Jane Does who have allegedly defamed them, courts are making decisions about the limits of legal protection for anonymous online speech. In some jurisdictions, at least, the developing body of law is treating anonymous speech with the consideration it deserves. But some websites seek to circumvent the issue by ruling anonymous comments out entirely.
And Congress is, perhaps inadvertently, adding to the debate with bills like the proposed Do Not Track Kids Act of 2011, which aims to protect minors' personal information but would, ironically, require every user to hand over more personal information about themselves, as cautious website operators demand users' age or date of birth to tell which of their users are adults or children. Courts have struck down other bills that would have required widespread online age-verification, in part because of their chilling effect on anonymous speech.
Anti-anonymity advocates tend to point to the abhorrent behavior of some individuals and argue that website operators should stop allowing anonymous comments in order to promote more accountable online activity. Stanley Fish's New York Times op-ed review of "The Offensive Internet" commended certain "free speech advocates" for having "second thoughts" about free speech on the Internet and applauded the idea of holding website operators legally responsible for the content posted on their sites by others. (Most free speech advocates I know, however, would not agree.) But, as the editors of TechCrunch discovered when they implemented Facebook's comment system, with its emphasis on real-name commenting, revoking users' ability to speak anonymously can have a stultifying effect on their conversation.
To be sure, anonymity is a double-edged sword. It can enable unethical behavior, but it can also enable a much richer discourse. Anonymity allows speakers to express unpopular and dissenting views without fear of retribution, and permits individuals to participate in different online communities on their own terms. The ability to seek out information safely and explore a wider world should not be taken for granted. For example, were online participation to require users to bind their comments and activity to their real names, the online activities of gay and lesbian teens seeking support on sites like itgetsbetter.org could lead to very serious consequences (if these activities took place at all). Stories abound of teenagers kicked out of their homes -- or worse -- when their sexual identities were disclosed accidentally or without their consent.
Critics of online anonymity give short shrift to the important role of anonymous speech in our American political heritage. Anonymous speech was far from a rare thing before the Internet. Alexander Hamilton, James Madison, and John Jay would surely disagree; they published their Federalist Papers pseudonymously to prevent their celebrity from overshadowing their arguments, and the identity of their opponent – the "Federal Farmer" – has still not been conclusively established. The revolutionary pamphlet Common Sense was published anonymously, permitting Thomas Paine to engage in essential political discourse without facing charges of treason. Should we nominate Paine for the title of "First American Troll"?