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The right to anonymity on Internet and legal implications

by Pierluigi Paganini on June 14th, 2012

Everyday, all our web actions leave traces of ourselves and of our way of life through the storing of massive amounts of personal data in databases in internet, all these information compose our digital identity, our representation in the cyber space.

Users are “entities” in the cyberspace, built also with the correlation of data that increasingly escapes the control of the owner, anyone can theoretically “expropriate” of our digital identity.

Not only that, in fact, certain personal information, even socially harmful, may be available to anyone beyond the time limits dictated by the principle of finality of the data, but, even if such data were deleted, they may still be accessible through mechanisms storage such as “cached”.

Today tracking user activities on internet are one of the primary interests for private companies and Governments, business and political motivations are pushing on the development of monitoring and surveillance systems. Let’s consider that monitoring implemented by many governments in situation of political dissent have has serious consequences for dissidents that have been tracked and persecuted thanks to the censorship.

In response to rising of monitoring of the networks it has been observed the increasing of the demand of anonymity on the web, but the anonymity is a concept that induces fear in our mind because we tend to associate it to illicit activities and cybercrimes. This consideration is profoundly wrong, the anonymity of the user’s participation on internet could be also motivated by right arguments, such as the fight for human right to liberty of expression, avoidance of censorship, liberal promotion and circulation of the thought.

The implementation of internet filters and anonymity are closely related, whereas the filters are applied at the network in a stringent and pervasive censorship, the possibility of being able to look out on an anonymous network becomes, first and foremost, a matter exercise of fundamental rights.

Anonymous communications have an important place in our political and social discourse, many individuals desire to hide their identities because they may be concerned about political or economic retribution harassment or even threats to their lives.

Anonymity is derived from the Greek word anonymia, meaning “without a name”, in the common usage the term refers to the state of an individual’s personal identity, or personally identifiable information, being publicly unknown.

In internet the anonymity is guaranteed when IP addresses cannot be tracked, due this reason it has been assisted to the creation of Anonymizing services such as I2P – The Anonymous Network or Tor address. The anonymizing services are based on the concept of distribution of routing information, during a transmission in fact is not known prior the path between source and destination and every node of the network manage minimal information to route the packets to the next hop without conserving history on the path, the introduction of encryption algorithms make impossible the wiretapping of the information and the recomposition of the original messages.

Right to anonymity – Legal implications

The Supreme Court of the United States has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment. A much-cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reads:

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.

Many institutions and foundations, such as The Electronic Frontier Foundation, are spending a great effort to protect the rights to on line anonymity.  As one court observed in a case handled by EFF along with the ACLU of Washington:

“[T]he free exchange of ideas on the Internet is driven in large part by the ability of Internet users to communicate anonymously.”

These organizations have challenged many efforts providing financial support to the development and deployment of Internet communications system to preserve anonymous communications, a valid example is the TOR network.

US First Amendment settled that the right to speak anonymously, the Supreme Court has held,

“Anonymity is a shield from the tyranny of the majority,” that “exemplifies the purpose” of the First Amendment: “to protect unpopular individuals from retaliation…at the hand of an intolerant society.”

Court pronunciations establish the duty for government to guard against undue hindrances to political conversations and the exchange of ideas, a vigilant review that

“must be undertaken and analyzed on a case-by-case basis”.

US laws establish right to Speak Anonymously on the Internet and also right to Read Anonymously on the Internet ensuring the principle of free internet ideological confrontation and the right to free movement of information.

 “People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one’s mind without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate.”

The technological developments of recent years caused high attention to the legal and technological possibility to maintain the on line anonymity especially in the face of the multiplication of resources internet monitoring.

The right to internet anonymity is also covered by European legislation that recognizes the fundamental right to data protection, freedom of expression, freedom of impression. The European Union Charter of Fundamental Rights recognizes in Article. 8 (Title II: “Freedoms”) the right of everyone to protection of personal data concerning him.

The right to privacy is now essentially the individual’s right to have and to maintain control over information about him.

It may be helpful to abolish the anonymity?

In most cases not. The offenses do not become more serious for the mere fact of being committed or planned online, and therefore, there seems no real need to violate the right to anonymity online.

Pierluigi Paganini