Law in the Internet Society

Anonymity in the Tracking Age

-- By AlexPadilla

Innocent Until Proven Guilty

One of the most frequent rebuttals to those who decry the lack of respect for anonymity is that “only criminals care about remaining anonymous.” This is an interesting statement considering its applicability to many of the same activities that are protected by the right to privacy. When considered through a lens of anonymity, the right to privacy clearly reflects the right to anonymity of action. As a result, it is clear that anonymity of identity easily fits within the confines of what is traditionally considered a protected sphere of privacy. Those who would decry such an approach should remember even the right to privacy tolerates the fact that criminal activities take place within the protection of the home.

The right to privacy provides one of the most fundamental protections in the United States, the comfort of knowing that one is shielded from the public eye within the confines of their own home. Inherent in this proposition is that bad actors will use this protection in order to protect illicit activities from prying eyes. However, American society has determined that there is greater danger in the arbitrary invasion of an innocent individual’s home than the reasonable, but unsubstantiated, search of a malicious actor. Implicit in this acceptance of possible protection for criminal activity is the value judgment that not all individuals who seek some form of privacy are up to no good.

The right to privacy is not as simple as a prohibition against searches and seizures of a person, or a place deemed protected by a reasonable expectation of privacy. In many ways the right to privacy is better understood as a right to anonymity. First the right, as much as it applies to items, applies to actions. For example, illicit drugs, as innate items, are not themselves illegal, rather it is the possessing, using, and distributing of these items which itself constitutes an illegal act. When searches and seizures are conducted, they reveal these illicit items which carry an inference that the individual has committed an illegal act. The revelation of an illicit item is enough to infer the simple illegal act of possession. But in cases where more than mere possession is required more intrusive investigation into an individual’s actions may be required.

A Modern Right to Privacy

Understanding the right to privacy in this manner allows for a simple premise, the right to privacy is not an abstract and hard to define concept, rather it is the protection of anonymity for actions. As a protection for anonymity, the right to privacy shields individuals’ actions regardless of whether they are criminal. The primary reason for this protection is that there are more actions which may be deemed socially repugnant or undesirable although not necessarily illegal. One could argue that implicit in the fundamental right to privacy is a collective acknowledgment that everyone in society takes actions they would prefer remain out of public scrutiny. Underlying this assumption is that those individuals who really wish for their actions to remain private will take sufficient action to ensure those actions remain so.

Considering the right to privacy as a right to the protection of anonymity of action demonstrates that anonymity of identity is a natural outgrowth of existing constitutional protections. Although critics may claim that only guilty individuals wish to remain anonymous, it is clear that ordinary citizens have their own legal reasons for wishing to remain anonymous. Anonymity of identity has been harder to protect because traditionally it has been difficult for an individual to hide their persona when they step outside the confines of their home. However, anonymous online personas have essentially flipped the privacy equation on its head. Instead of easily hiding one’s private actions, individuals can now easily hide their identity, or at least establish their desire to remain anonymous, while their actions online have become increasingly difficult to shield from prying eyes. This is where understanding that the right to privacy as the right to anonymity helps to properly balance the privacy equation in the modern age.

The right to privacy is better understood and adapted to the modern age as a right to anonymity. First, as a right to anonymity of action when traditional constraints allowed for such protection. Now, with the advent of newer technologies, as a foundation for adapting current protections in response to the degradation of anonymity through non-existent differentiation between actions and identities. By focusing on the right to privacy as a desire for actions to remain anonymous, the doctrine allows flexibility to protect anonymity of action through anonymity of identity when actions are no longer plausibly anonymized.

Individual Anonymity or Democratic Autonomy

Anonymity, either of identity or action, provides the unencumbered freedom of expression and thought necessary to sustain a flourishing democratic society. Individuals without anonymity focus on whether their everyday ideas, words, or acts, are worthy of scrutiny under the public light. This type of litmus testing of actions paralyzes the ability of individuals, and society as a whole, to maintain and progress critical thoughts and actions. The conscious and sub-conscious recognition of a lack of protection for anonymity threatens to seep into the very autonomy of thought and expression responsible for the development of the technologies responsible for the modern degradation of anonymity.

The need to adapt the right to privacy is urgent when considering that individuals lose their sense of autonomy once anonymity ceases to exist. Present generations will continue to expand their own autonomy by selling the autonomy of future generations without the expansion of existing constitutional protections. Overtime the free flow of thought and expression will wane and the diversity of development of new thoughts and expression will cease to exist along with it. Such an environment threatens the dynamic environment necessary to the maintenance and progression of a flourishing democracy adaptable to the problems of its times. Nothing short of the continued existence of democratic society is at stake when individuals assert that “only criminals care about remaining anonymous.”

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r3 - 04 Jan 2021 - 11:45:55 - AlexPadilla
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