A newly designed Internet Protocol, restricting communication source autonomy, is being quietly drafted with detailed technical standards that “define methods of tracing the original source of Internet communications and potentially curbing the ability of users to remain anonymous” by a United Nations agency. The “IP Traceback” drafting group, which has declined to release key documents or allow their meetings to be open to the public, includes, among others, the United States National Security Agency. While the traceback proposal is not scheduled to be released or finished until 2009, concerns are already being raised by privacy advocates that should the US adopt this or a similar proposal, the right to Internet anonymity would disappear, a right they claim is guaranteed by the Constitution. There is also concern that IP traceback would be abused, under the guise of public protection in light of current suspected terrorist activities, and become yet another method for the government to become Big Brother.
In 1995, the Supreme Court decided McIntyre v. Ohio Elections Commission, ruling that the Constitution does not permit the punishing of an author of political handbills who failed to include her identity on those publications. Specifically, the majority states:
“The right to remain anonymous may be abused when it shields fraudulent conduct. But… our society accords greater weight to the value of free speech than to the dangers of its misuses.”
This case is routinely used by privacy advocates to support the concept that a right to anonymity exists and that it is protected under the First Amendment’s right to free speech and expression. Further evidence is claimed from U.S. legal history, which has a long tradition of protecting anonymous speech, beginning with the Federalist papers written by Alexander Hamilton, John Jay, and James Madison under a pseudonym. However, the Supreme Court has never completely addressed or resolved the scope of protection the First Amendment affords to the disclosure of one’s identity. So, the question remains, would the IP traceback proposal, which essentially eliminates Internet anonymity, be a violation of the First Amendment?
Anonymity has been considered an absolute guarantee of free expression by many, especially in this age of blogging and social networks. For the most part, courts have protected anonymity, equating it with a First Amendment right. However, in the face of increasing global terrorism and usage of the Internet by such factions, many are reconsidering their positions on the importance of Internet anonymity in exchange for feelings of security and protection. It is rational to consider that as public opinions sway towards permitting the government to “traceback” Internet users in the pursuit of public security and protection, the courts are more likely to adopt an opinion similar to Justice Scalia in the dissent of McIntyre v. Ohio Elections Commission. Justice Scalia felt that the issue at hand was not the freedom of expression, for the idea can be expressed as long as the speaker is identifiable; he felt instead that the issue was whether certain cases qualify for an exemption from otherwise valid disclosure requirements. Nevertheless, should Internet anonymity be eliminated in effort to increase security, the question then becomes: What will be the limitations placed on the government and what protections will be afforded to make sure that the IP traceback remains a security tool, not a surveillance tool?
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