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How September 11 May Alter Our First Amendment Rights Online

Thursday, Nov. 29, 2001

The dramatic shift in legal and political sensibility that followed September 11's terrorist attacks has been manifested in myriad ways. One notable example has been the marked increase in Americans' willingness to give up their anonymity in the service of improved security.

Put another way, when the government goes after anonymous speech on the Internet in the name of security ö and there are signs it may have already done so ö what protection will the First Amendment afford? Unfortunately, it may not be as strong, or as unequivocal, as one might guess.

The Good and Evil Sides of Anonymity

Prior to September 11, anonymity endowed Internet users and websites with substantial power, and much of that power was used towards beneficial ends. As I discussed in another column, anonymity has allowed sites to post arguably confidential corporate information despite trade secret laws, and thus act as gadflies for corporate change. It also allowed users to speak about highly private topics, from sexuality to sexual orientation to financial worries to political and religious beliefs, without fear that the information they disclosed would ever be connected to them.

But after September 11, when it was discovered that terrorists involved in the attacks had communicated with one another via computers in Internet cafes, anonymous Internet communication began to bear a stigma. It was obvious that this had been the easiest way for the geographically separated terrorists to communicate with each other and plan their strikes, without fear of government interception of their messages. It was also obvious that unless something changed, the Internet could be used this way once again.

As early as September 13, the government began to require Internet Service Providers to help with the terror probe. Earthlink, for example, received a search warrant for electronic information relating to national security. And other well-known ISPs also agreed to work with the government ö though, ominously, they refused to give specifics about what form their cooperation might be taking.

It is entirely possible that ISPs may have disclosed users' information to law enforcement officials, in response to subpoenas that were not even copied to the users affected. After all, ISPs acted similarly when they were served with subpoenas in civil lawsuits before September 11, as I discussed in a prior column. Now that criminal charges ö and terrorism ö are at issue, the ISPs are likely to disregard user privacy even more readily.

Meanwhile, last week it was reported that the FBI plans to employ new Magic LanternM-d technology to read even encrypted Internet messages. The Magic LanternM-d technology would be installed on a computer without the user's knowledge ö through hacking methods or through the user's unwitting download of an seemingly unrelated attachment.

The Closure of Anonymity-Producing Sites

Just as the privacy offered by encryption software hangs in the balance, in the wake of September 11, anonymity for Web browsing is becoming increasingly harder to achieve. It came then as no surprise when in early October, Zero Knowledge, one of the most prominent anonymity-providing websites, shut down its Freedom Network,M-d which had provided encrypted pseudonyms and allowed anonymous web browsing.

Last week, SafeWeb closed down its free anonymous web browsing service, too. The site, which had been partially funded by the CIA and started by businessmen from Iran and China, had been intended to give foreign users a way to circumvent their countries' censors. Clearly the CIA now has other priorities ö and anonymity is not one of them.

Ironically, the CIA itself reportedly uses anonymizing sites to monitor websites that are under suspicion. But the ability of ordinary citizens to do so is becoming more and more limited. If goes under ö or drops its anonymous browsing service to concentrate on other products, as Zero Knowledge and SafeWeb have done ö anonymity on the Internet will be in serious jeopardy.

What the Government Might Do To Limit or Destroy Internet Anonymity

What if the government goes even further ö continuing the trend that the SafeWeb shutdown and the use of Magic Lantern together suggest? Will the First Amendment limit what our lawmakers can do?

It depends. An assault on anonymity could take a variety of forms. The government might try to create a general Internet registration requirement, with ID verification either every time someone wants to set up an account, or every time a user browses. With national identification cards still the subject of debate, the possibility that Internet users will someday be required to provide identifying information as a matter of course is far from merely dystopian.

Or the government may simply choose to broadly garner user information from ISPs, through subpoenas or voluntaryM-d compliance (as it likely already did post-September 11). After all, monitoring is more effective when its very presence is secret ö as the government's development of a way to install Magic Lantern unbeknownst to the user demonstrates.

The government might also institute an ID check system for Internet cafes, libraries, and other places where a user can access the Internet without giving any validated personal information ö and where the government has little hope of tracing users who have committed crimes via e-mail after the fact.

Finally, to consider some more dramatic possibilities, the government could launch a denial of service attack on any remaining anonymous remailers, which guarantee the privacy of both the sender and receiver of e-mail. It could also simply shut down, purportedly in the interest of national security, or legislate any similar services away.

If any or all of these things were to happen, there is some reason to think the Supreme Court would step in. As my FindLaw colleague Michael Dorf pointed out in a recent column, the Supreme Court has in the past rejected legislation that would, in effect, have required that Internet users provide proof of age, in the form of credit card numbers and the like, before accessing pornographic materials. But as Professor Dorf also notes, after September 11, the Court is likely to have a renewed appreciation for the dangers of anonymity and the need for government monitoring of the Internet.

One important and relatively recent Court precedent, McIntyre v. Ohio Elections Commission, which was decided in 1995, suggests that in these instances, anonymous speech might still be shielded by the First Amendment. But that precedent could also be distinguished relatively easily.

The McIntyre case arose when a woman was subject to a fine for distributing anonymous pamphlets opposing a proposed school tax. The woman's actions violated an Ohio statute that required campaign literature to bear the issuer's name and address, purportedly to prevent false statements from being disseminated. But the Court held that the statute violated the First Amendment by penalizing anonymous speech. Thus, it struck down the provision requiring that the issuer identify himself or herself.

The speech at issue was, of course, political speech, which the Court views as being at the core of the First Amendment. It was also speech relating to an election, which is perhaps the most important kind of political speech there is, as the Court noted in its opinion. Finally, it was a relatively unusual kind of anonymous speech in that it was anonymous but not secret or even private. Rather, it was made public through leaflets that anyone could pick up, and try to refute, perhaps by counter-leafleting.

Accordingly, the Court could have written a very narrow opinion had it chosen to do so. But, significantly, it did not. Instead, six of the majority Justices ö including moderate-to-conservative Justices Sandra Day O'Connor and Anthony Kennedy ö joined an opinion, penned by Justice Stevens, that not only protected but applauded anonymous speech.

The opinion proclaimed (as had an earlier case) that [a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind,M-d and cited numerous examples of the positive uses of anonymity ö in, for example, the Federalist Papers ö while taking little notice of anonymity's bad side.

Will The Court Cut Back On McIntyre's Protection of Anonymous Speech?

In retrospect, after September 11, the description of anonymous speech in the Court's opinion appears Pollyanna-ish at best. The Court's depiction of anonymity, though accurate, was seriously incomplete. Now that the Court has seen the dark face of anonymity, will it remember the brighter one too?

There is no guarantee. McIntyre could easily be limited to the context of publicly disseminated political speech relating to elections, despite its broader pronouncements about anonymity. Significantly, most trial judges have so far been reluctant to apply McIntyre to protect anonymous Internet users from identity subpoenas. These judges' willingness, even before September 11, to effectively ignore a broadly-written Supreme Court case that seems to create a broad First Amendment right to anonymity bodes ill for anonymity's fate now, after we have seen what harm it can wreak.

Finally, even if the Court did recognize a First Amendment right to anonymity that extended to private Internet communications, it is important to remember that First Amendment-protected speech can be curtailed, given a compelling government interest and a sufficiently narrowly tailored government measure. And the compelling quality of the interest in fighting terror is a given.

FindLaw columnist Julie Hilden is a freelance writer. A graduate of Yale Law School, she practiced First Amendment law at the D.C. firm of Williams & Connolly from 1996-99. Her memoir, The Bad Daughter, was published by Algonquin Books in 1998, and she is currently working on a novel.

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