Hamilton’s Private Key: American Exceptionalism and the Right to Anonymity – Jeff Kosseff
In the Sixteenth Century, English Puritan preacher John Udal published a series of pamphlets criticizing the Anglican Church. He signed the pamphlets under a pseudonym, Martin Marprelate. The Bishops soon determined his identity, and Udal was sent to prison, where he died. Such prosecutions for political views were common throughout in England throughout the Sixteenth, Seventeenth, and Eighteenth centuries.
So it was not surprising that once the British colonies in America had achieved independence and were determining the future of their government, much of the debate occurred without real names. When Alexander Hamilton, James Madison, and John Jay published the Federalist Papers, they did so under a single pseudonym, Publius.
Although the First Amendment does not explicitly require anonymity, U.S. courts repeatedly have held that that its free speech protections guarantee a strong (but not absolute) right to speak anonymously. In 1960, the Supreme Court struck down a Los Angeles ordinance that prohibited the distribution of anonymous handbills, and it invalidated a similar Ohio law in 1995. Since the mid ’90s, state and federal courts have relied on this right to anonymity in rejecting defamation plaintiffs’ attempts to use the court discovery process to unmask the identities of anonymous Internet posters. Although the United States is not the only nation to protect anonymity, its anonymity protections are among the strongest in the world, and have helped establish the robust online debate that we know today.
Legal and policy debates surrounding encryption often focus on privacy rights and the Fourth Amendment. While these discussions are vital, that they too often overlook the free speech-based anonymity rights that have been fundamental to the United States since its founding. In this presentation, I present the research conducted to date for my book-in-progress, United States of Anonymity, tracing the history of this First Amendment-based right to speak anonymously. I explain how this strong history of ensuring the right to speak anonymously applies to the current encryption debates, as well as the distinct but related issue of anonymity tools such as Tor. I argue that encryption and anonymity are essential for Twenty-First Century free speech, and explain how the legal protection of pamphleteers extends to encryption and anonymity.
To be sure, some efforts to weaken encryption may not necessarily threaten an individual’s anonymity. And encryption is not the only protection for anonymity. However, there is significant overlap between the values underlying the First Amendment anonymity opinions and some justifications for encryption. Moreover, encryption has been an essential component of many of the most innovative anonymity tools (such as the techniques that newsrooms have adopted to receive anonymous tips).
Jeff Kosseff is an assistant professor of cybersecurity law at the U.S. Naval Academy. He is the author of Cybersecurity Law, a textbook, and his latest book, The Twenty-Six Words That Created the Internet, a history of Section 230 of the Communications Decency Act, will be published early next year by Cornell University Press. He previously practiced cybersecurity law at Covington & Burling, and clerked for Judges Milan Smith on the Ninth Circuit and Leonie Brinkema in the Eastern District of Virginia. Before becoming a lawyer, he was a technology journalist for The Oregonian and finalist for the Pulitzer Prize.