Anonymity, democracy, and cyberspace

Anonymity, democracy, and cyberspace – Part V: Democratic Process and Nonpublic Politics

Yaman Akdeniz

Introduction

THE Internet is a social, cultural, commercial, educational, and entertainment global communications system whose legitimate purpose is to benefit and empower online users by lowering the barriers to the creation and distribution of a variety of content throughout the world. The Internet boom in the 1990s created new opportunities for communications and for discussion. The Internet is now not only used for socially useful and commercial purposes by consumers but also used to publicize human rights abuses and preserve freedom of expression. Major concerns have arisen about the vehicle the Internet provides for personal snooping by commercial institutions and also (and more seriously) by governmental organizations and law enforcement bodies keeping track of individual usage of the Internet for the purposes of marketing, policing, or otherwise. (1)

With the rapid growth of the Internet as the newest medium for global communications and commerce comes the need to review the interaction of conflicting demands for respect for privacy, freedom of expression, and the detection and punishment of crime. Although the advancement of technology means that “privacy rights” are more and more in danger and open to abuse, the Internet does not create new privacy issues. Rather, it makes existing ones–such as confidentiality, authentication, and integrity of the personal information and correspondence circulated–difficult to control and secure. Political activists, human rights campaigners and organizations, and dissident movements in repressive regimes rely on anonymous communications to communicate human rights abuses in their countries or their views on the political state of their governments through the Internet. Furthermore, users can engage in whistle-blowing, receive counseling, or engage in all forms of discussion.

This article will describe anonymity on the Internet, how it can be achieved, and why it is an essential tool for free speech. The article will also describe proposals to outlaw anonymity over the Internet, since anonymity has been often tied to criminal activity over the Internet by law enforcement bodies.

Anonymity and the Internet

Anonymity is socially useful and has been a vital tool for the preservation of political speech and discourse throughout history. As a concept anonymity is closely related to free speech and privacy. Internet technology allows anonymous communications and this can be used for several purposes, including those that are socially useful and those that are criminal.

There are many organizations dealing with human rights abuses all around the world, such as Human Rights Watch and Amnesty International, and these organizations do use the Internet to communicate with their members or with dissident groups. Before governments can suppress the dissemination of critical writings and reports, authors can distribute their work through the Internet outside repressive regimes. It is well known that the Burmese dissidents or the Mexican Zapatistas use the Internet to communicate with the rest of the world. (2) The net is critical and vital to human rights activists, political dissidents, and whistle-blowers globally to facilitate confidential communications free from government or other intrusion. Anonymity and the use of strong encryption tools can help to preserve political discourse and dissemination of information related to human rights abuses in the Information Age.

Tools that provide and maintain anonymity are used by political and some special-subject interest groups, such as users of the Critical Path AIDS Project’s website, users of Stop Prisoner Rape (SPR) in the United States, and Samaritans in the United Kingdom. Readers of notices from groups that send out electronic alerts, such as Amnesty International, the American Civil Liberties Union, and the Tibetan Government-in-Exile, can ensure that the alerts have not been altered by people wishing to disrupt the group’s activities. Alternatively, many members of SPR’s mailing list have asked to remain anonymous due to the stigma of prisoner rape. It is important for this kind of user who seeks to access sensitive information to remain anonymous, and it should be his or her right to do so in this context.

Internet privacy activists have developed experimental anonymous re-mailer programs that address these concerns with respect to free speech and personal liberty. An anonymous remailer is simply a computer service that forwards e-mails or files to other addresses over the Internet. But the re-mailer also strips off the “header” part of the messages, which shows where they came from and who sent them. The most untraceable re-mailers (e.g., MixMaster) (3) use public key cryptography that allows unprecedented anonymity both to groups who wish to communicate in complete privacy and to whistle-blowers who have reason to fear persecution if their identity became known. According to Patrick Ball, true anonymous re-mailers maintain no database of addresses:

“When messages are resent from a truly anonymous remailer, the header

information is set either to a deliberately misleading address, or to

randomly generated characters. There is no record of the connection between

the sending address and the destination address. For greater security, many

users program messages to pass through five to twenty re-mailers before the

message arrives at its final destination. This technique, known as

chaining, assures greater security than sending through a single re-mailer.

Even if some remailers keep secret records of their transactions, a single

honest re-mailing system will protect the user. One disadvantage is that

unless the sender has identified herself in the body of the message, the

recipient has no way to reply to an anonymously sent message. (4)

One of the best-known anonymous re-mailers on the Internet, (anon.penet.fi), was available for more than three years from Johann Helsingius. However, the re-mailing service was closed in August 1996, in part because of allegations by the Observer newspaper in Britain that anon.penet.fi contributed to the distribution of child pornography. (5) Among its users were Amnesty International, the Samaritans, and, in England, the West Mercia police, who used it as the basis of their “Crimestoppers” scheme.

As one commentator states, “I may have a good idea you will not consider if you know my name. Or I may individually fear retaliation if my identity is revealed. Anonymity is therefore good, because it encourages greater diversity of speech” (Wallace, 1997; 1999). A good example of this is the Anonymizer.com, an online project founded by Lance Cottrell, the author of world’s most secure anonymous re-mailer, Mixmaster. Anonymizer.com offers a forum for anonymous discussions apart from offering the possibility to surf the Internet anonymously. For example, in 1999 Anonymizer’s Kosovo Project allowed individuals to report on conditions and human rights violations from within the war zone without fear of government retaliation. Furthermore, Anonymizer launched the Chinese Population Control Survey at the instigation of Lord Alton (a member of the British House of Lords). The project will document the Chinese government’s population control policy through the use of an encrypted online questionnaire. (6)

Online anonymity is therefore important to free speech and privacy, just as anonymity and anonymous speech have been used for thousands of years in the larger society. It is important for people’s participation in online equivalents of Alcoholics Anonymous and similar groups; individuals have a right to this kind of privacy that should not be abridged for the pursuit of vaguely defined infractions.

Online Anonymity and Cyber-Crimes

While the Internet and other information technologies are bringing enormous benefits to society, they also provide new opportunities for criminal behavior.

–Former US Attorney General Janet Reno, January 10, 2000.

Although anonymity has extremely important benefits to human rights, anonymity is often tied with cybercrimes or it is claimed that anonymity would allow criminals to use the Internet without the possibility of detection. (7) Such law enforcement fears include the use of anonymous communications for hate mail, child pornography (Akdeniz, 2000), fraud, and for cyberstalking (Ellison and Akdeniz, 1998). The President’s Working Group on Unlawful Conduct on the Internet noted that,

by the same token, however, individuals who wish to use a computer as a

tool to facilitate unlawful activity may find that the Internet provides a

vast, inexpensive, and potentially anonymous way to commit unlawful acts,

such as fraud, the sale or distribution of child pornography, the sale of

guns or drugs or other regulated substances without regulatory protections,

and the unlawful distribution of computer software or other creative

material protected by intellectual property rights (The Electronic Frontier

2000).

According to this report, “law enforcement agencies are faced with the need to evaluate and to determine the source, typically on very short notice, of anonymous e-mails that contain bomb threats against a given building or threats to cause serious bodily injury.”

Although the report recognized the need for anonymity for the legitimate needs described earlier, it described anonymous e-mail accounts as “the proverbial double-edged sword” since “they add new complexities to identifying online lawbreakers” apart from protecting privacy. Similar concerns were raised by the report for anonymous re-mailers; the report states that “such services can plainly frustrate legitimate law enforcement efforts” despite providing privacy and encouraging freedom of expression. The report concluded that:

Internet-based activities should be treated consistently with physical

world activities and in a technology-neutral way to further important

societal goals (such as the deterrence and punishment of those who commit

money laundering). National policies concerning anonymity and

accountability on the Internet thus need to be developed in a way that

takes account of privacy, authentication, and public safety concerns.

However, it is not clear how the United States government plans to address the law enforcement needs while preserving the rights of individual Internet users. There were attempts to pass legislation that would bar anonymous communications in the past. In fact, the ACLU challenged a Georgia law restricting free speech on the Internet (American Civil Liberties Union of Georgia v. Miller, 977 F.Supp. 1228 (N.D. Ga. 1997)). The ACLU and others stated that the Georgia law was unconstitutionally vague and over-broad because it barred online users from using pseudonyms or communicating anonymously over the Internet in September 1996.

The ACLU responded to the above report by stating that, “anonymity on the Internet is not a thorny issue; it is a Constitutional right. The United States Supreme Court held that the Constitution grants citizens the right to speak anonymously” within the context of political speech. (8) Moreover, the ACLU warned in March 2000 that “an end to Internet anonymity would chill free expression in cyberspace and strip away one of the key structural privacy protections enjoyed by Internet users.” (9)

Anonymity and Freedom of Expression

Individual privacy cannot be considered in isolation. It must be weighed alongside freedom of speech and expression (Parliament, 1990: 7, para. 3.12). “Freedom of speech and privacy are frequently conceived as rights or interests of the individual, and as rights or interests of the community as a whole” (Wacks, 1997).

Those who call for the prohibition of anonymous re-mailers or other restrictions on online anonymity may, however, fail to recognize the cost of such action to the online community in terms of fundamental freedoms. Placing restrictions on anonymity online would have serious negative repercussions for freedom of expression and privacy on the Internet.

Fortunately, international conventions such as the European Convention on Human Rights (ECHR) do recognize freedom of expression as a right. Article 10 of the ECHR states that:

1. Everyone has the right to freedom of expression. This right should include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers….

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, … for the prevention of disorder or crime, … for the protection of the reputation or rights of others, …

Though freedom of expression is not an absolute right under the ECHR and it may be restricted under paragraph 2, the importance of anonymity as a facilitator of free speech has been affirmed by the European Court of Human Rights in the case of Goodwin v. UK (22 EHRR 123 (1996)). The court recognized that the press has a vital watchdog role in a healthy democratic society and that this function could be undermined if journalists are not reasonably allowed to keep confidential the sources of their information. (10) In this case, the court concluded that the application of the law of contempt to a recalcitrant journalist was not necessary where the subject of the damaging story had already obtained an injunction against publication. It is not clear that the same level of protection of anonymity would be afforded by the European Court to the idle gossip of nonpress speakers such as is common on the Internet, but anonymous “political speech” would deserve higher protection as in the United States Supreme Court case of McIntyre v. Ohio Elections Commission (514 U.S. 334 (1995)). Moreover, there may also be instances where Internet postings may lead to persecution if the identity of the individual is known. The Supreme Court in NAACP v. Alabama ex rel. Patterson (357 U.S. 449 (1958)) stated that “inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association.”

Anonymity and Privacy

The boundaries of privacy have been stated in international law by article 8(1) of the European Convention on Human Rights and Fundamental Freedoms (1950) (11) as comprising a right “to respect for … private and family life, … home and … correspondence,” though subject, under article 8(2), to interferences such as might be necessary in a democratic society: “in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The monitoring of communications can constitute an interference with the right to respect for private life and correspondence–in breach of Article 8(2)–unless it is carried out in accordance with a legal provision capable of protecting against arbitrary interference by the state with the rights guaranteed. (12) The exceptions provided for in Article 8(2) are to be interpreted narrowly, (13) and the need for them in a given case must be convincingly established. Furthermore, the relevant provisions of domestic law must be both accessible and their consequences foreseeable; the conditions and circumstances in which the state was empowered to take secret measures such as telephone monitoring were clearly indicated, as the European Court of Human Rights held. (14) In particular, the avoidance of abuse demanded certain minimum safeguards, including the conditions regarding the definition of categories of persons liable to have their telephones tapped, and the nature of offenses that could give rise to such an order.

One should note the Council of Europe’s CyberCrime Convention, the first coordinated approach at an international level to fight cyber-crimes and develop common approaches to law enforcement practices on the Internet. (15) The CyberCrime Convention includes provisions related to interception of communications, preservation and disclosure of traffic data, production orders, search and seizure of stored computer data, real-time collection of traffic data, interception of content data, and mutual assistance between the law enforcement agencies of the state signatories to the convention. However, the provisions of Council of Europe’s CyberCrime Convention seems incompatible with Article 8(2) and the conditions and safeguards provided within the convention are not clearly defined. The provisions of the Cyber Crime Convention will certainly have a negative impact on privacy of communications and privacy over the Internet. (16)

A Proportionate and Effective Response?

The new media historically face suspicion and are liable to excessive regulation. (17) The implication is that the Internet may be at a similar stage when the natural reaction of the state is try to regulate, but the possibility of successfully doing so is debatable. I recognize and support the need to counter criminal use of the Internet. I also recognize that in countering such use it may sometimes be necessary to infringe the rights of honest Internet users in order to secure the prosecution and conviction of guilty parties. But in considering such action, it is necessary to apply the following tests to any proposals that are made: (18)

1) They must provide clear net benefit for society. The benefits should be stated and achievable by the measures proposed, with a detrimental impact on the rights of honest citizens that is as small as possible and one that is widely accepted as tolerable in the light of the gains secured.

2) That the measures proposed discriminate effectively between criminals and honest, law-abiding citizens. They should be balanced and should not, in an impetuous desire to counter crime, expose all honest Internet users to such risks as government access to encryption keys.

3) That of all the options available, they are the best in the sense that they are the most effective in countering criminals while having the least impact on honest citizens and the lowest costs for taxpayers and businesses.

4) They should be based on clearly defined policy objectives that citizens understand and that command widespread public support.

5) They should be enforceable, transparent, and accountable.

Privacy and freedom of expression are fundamental human rights recognized in all major international and regional agreements and treaties such as the Universal Declaration of Human Rights (Articles 12 and 19); the International Covenant on Civil and Political Rights (Articles 17 and 19); and, as noted earlier, the European Convention on Human Rights (Articles 8 and 10). These important international documents should be taken into account by governments and regional and international organizations when developing policies against cybercrimes. Any coordinated policy initiative at a supranational level (e.g., the European Union or within the Council of Europe in relation to the adoption of the Convention on CyberCrime), or at an international level (e.g., within the OECD or the G8) should also offer the best protection for individual rights and liberties.

Conclusion

Apart from facilitating freedom of expression, anonymity enables users to prevent surveillance and monitoring of their activities on the Internet from commercial companies and from the government. Total anonymity may be possible by the use of such privacy-enhancing technologies such as those offered by Anonymizer.com. Another good example is Freenet, which does not have any form of centralized control or administration over information published on its server. (19) Freenet allows both authors and readers of information stored on this system to remain anonymous if they wish.

It is also worth noting the Cyber-Rights.Net project developed by Cyber-Rights and Cyber-Liberties in Britain in conjunction with Hush Communications, which offers Internet users a free encrypted e-mail solution based on the Hush Encryption Engine. (20) Both the website and the project promote privacy of communications and hope to raise awareness of security on the Internet, especially in the absence of clearly defined conditions and safeguards protecting the privacy of communications in homes and in work environments. (21) Cyber-Rights.Net is an additional tool for concerned Internet users when securing their communications. The development of such tools should be encouraged and future technologies should be privacy friendly for the preservation of basic human rights, despite law enforcement worries.

Governments should recognize the economic and cultural value of global communications networks and the benefits they provide for individual freedom and collective democracy. They should cooperate to respect fundamental human rights such as freedom of expression and privacy and should encourage rather than limit usage of the Internet through excessive regulation, even in the aftermath of the horrific terrorist attacks on America on September 11. (22) The impact of Internet technology has raised many privacy issues, and it will be one of the greatest civil liberty concerns of the new millennium. However, whether the importance of anonymity on the Internet both to free speech and to privacy will ultimately be recognized and, in turn, influence the shape of future regulatory initiatives, remains to be seen.

Notes

(1) On snooping by commercial institutions, see “E-mail” (2000); for concerns about snooping by governmental organizations, see Campbell (1999).

(2) The “Free Burma” dissidents’ website can be found at (http://freeburma.org/>. On the Zapatistas’ use of the Internet, see Akdeniz (1998); Cleaver (n.d.)

(3) See Cottrel (1996).

(4) See “Affidavit of Witness Patrick Ball” (1997).

(5) Another reason was a Finnish court’s decision in favor of the Scientologists that Helsingius had to provide some of the users’ names. For more information and the full press release, see http://www.penet.fi/.

(6) See the Anonymous Communications on the Internet project of the American Association for the Advancement of Science at (http://www.aaas.org/spp/anon/>.

(7) See Denning and Baugh (2000).

(8) See McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) ; and Branscomb (1995).

(9) See .

(10) See further Council of Europe (2000).

(11) Council of Europe, 87 UNTS 103, ETS 5. Strasbourg, 1950.

(12) Malone v. United Kingdom (A/82) (1985) 7 E.H.R.R. 14; Valenzuela Contreras v Spain, Application No. 27671/95, (1999) 28 EHRR 483.

(13) See Klass and Others v. Germany (A/28): (1978) 2 E.H.R.R. 214, para. 42.

(14) Kruslin v France (A/176-B) (1990) 12 E.H.R.R. 547; Huvig v France, A/176-B, (1990) 12 EHHR 528; Halford v. United Kingdom, (Application No. 20605/92), Judgment of June 25, 1997, 24 E.H.R.R. 523; Valenzuela Contreras v Spain, Application No. 27671/95, (1999) 28 EHRR 483.

(15) See Council of Europe, Convention on CyberCrime (2001). See also Council of Europe, Explanatory Report for the Convention on CyberCrime (2001).

(16) One could argue that this is already happening within the United Kingdom with the Regulation of Investigatory Powers Act 2000. See generally Akdeniz, Taylor, and Walker (2001).

(17) See, for example, Official Secrets Act 1920, Section 4: Power to intercept foreign telegrams despatched to or from any private cable company in the UK and section 5 which compels a person in the business of receiving postal packets, to register his business; and Thomas (1991: 17).

(18) See further Cyber-Rights & Cyber-Liberties (UK) (2000, 2001).

(19) See . Note also the Free Haven project at , which aims to deploy a system for distributed, anonymous, persistent data storage that is robust against attempts by powerful adversaries to find and destroy any stored data and the WannaFree project at .

(20) See .

(21) See the privacy policy of Cyber-Rights. Net at , which states that Cyber-Rights. Net does not collect personal data associated to individuals for the provision of Cyber-Rights. Net accounts.

(22) See Electronic Frontier Foundation (n.d.); Cyber-Rights & Cyber-Liberties, “Internet-Related Policy Issues” (2001).

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Yaman Akdeniz is Founder and Director of Cyber-Rights & Cyber-Liberties (lawya@leeds.ac.uk) and Lecturer at the University of Leeds Faculty of Law, where he is a member of the Cyber-Law Research Unit. His publications include Internet, Law, and Society (coeditor, 2000).

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