Privacy & Anonymity on the Net
Don't I know you? - Anonymity on the Net
Rick Shera is a Partner in the law firm of Lowndes Jordan in Auckland (www.lojo.co.nz) and is Vice-President, InternetNZ
Nowhere do individual freedoms of association and speech vs the abuse of those freedoms (and the ability to stop the abusers) come into sharper focus than in the debate surrounding a right to anonymity (or pseudonymity) on the internet. Should those who send email or post information on the Internet be required to say who they are? Or should they be entitled to be and remain anonymous even in the face of prosecution? Conversely, should we, and our children in particular, be able to avail ourselves of an express right to remain anonymous? These issues are being hotly debated worldwide. I wanted to briefly review some of those overseas developments and look at how the issues might be dealt with under New Zealand privacy laws.
The use of anonymity might be argued to be the ultimate expression of a right to privacy. There will however always be a tension between anonymity as a privacy right and its use to purposefully hide identity in order to engage in anti-social or criminal behaviour. 1
Identified, pseudonymous, anonymous
To see how this tension is or might dealt with, it might be helpful to first note that identification is not necessarily an all or nothing choice. At one end of the scale there is what we can refer to as identified contact where the email, webpage or other data can easily be identified as originating from a particular person.
At the other end we have the types of contact where there is complete anonymity - anonymous contact. Even with a court order, the identity of the alleged originator would not be able to be revealed since no record of it ever existed.
Between these two extremes there is however an option which might go some way to addressing the tension referred to above. That is where a person using a pseudonym makes the contact. The pseudonym has been allocated to that person by a third party who retains sufficient information to relate the pseudonym to the person in question - pseudonymous contact. Release of the information necessary to connect the pseudonym with his or her real identity is almost always resisted by the third party unless subjected to a court order. Even the obtaining of court orders to reveal the information can be difficult, as we shall see later in this paper.
Legitimate reasons for concealing identity
It is also important at this stage (and in the context of the often emotive topic of internet safety for children) to highlight the fact that anonymity or pseudonymity is not just the recourse of those "with something [sinister] to hide". There are many and varied reasons why someone might want to conceal their identity.
In one of the leading US cases, America Online, Inc., one of the world's largest connectors of people to the internet, argued in its amicus brief:
The extensive use of screen names and other online pseudonyms is critical to the development of the Internet as a vehicle for individual expression. Users may wish to speak anonymously online for a variety of reasons: to criticize the activities of public officials or corporations without fear of retaliation, to "blow the whistle" on an employer who is engaging in unlawful or otherwise improper activity, to voice unpopular opinions on topical issues, to avoid harassment or even stalking by other online users, or to obtain advice or counseling on difficult problems or medical conditions. See, e.g., ACLU v. Reno, 929 F. Supp. 824, 849(E.D. Pa. 1996) ("Anonymity is important to Internet users who seek to access sensitive information . . . ."), aff'd, 521 U.S. 844 (1997). As one commentator has explained, anonymity not only allows speakers to experiment with unconventional or unpopular ideas without fear of ridicule or retaliation, but also "promises to make public debate in cyberspace less hierarchical and discriminatory than real world debate to the extent that it disguises status indicators such as race, class, gender, ethnicity and age which allow elite speakers to dominate real-world discourse." Silencing John Doe, 49 Duke L.J. at 896. 2
To that list we can add another reason which is relevant to Internet safety - the ability to interact anonymously/pseudonymously can be used to protect children. If a child is able to interact with others anonymously or behind the safety of a pseudonym then there must be less chance of persons that they come into contact with associating their online presence with the real world presence - with the potential physical peril that that can bring.
Of course the very pseudonymity that could assist in limiting the amount of personal information that children make available when they go online will also assist a potential predator in hiding not only their age but also possibly their sex. 3
Uncovering true identity
Clearly if the contact which is being investigated is truly an anonymous contact then resort will have to be made to more traditional forms of investigation. No details will be available to directly link the online persona to the real person.
However, if the contact is pseudonymous (ie the third party provider has retained details of the pseudonym's real identity), then the next step will be to obtain these. In the US in particular this has caused some difficulty since the right to privacy is a First Amendment constitutional one, not easily brushed aside.
It would appear that the position which has been reached in civil cases at least is that a complainant wishing to obtain details from the third party against the wishes of the person using the pseudonym will need to first show a strong prima facie case in respect of the alleged wrongdoing and have tried to notify the defendant first. 4
New Zealand
New Zealand is currently reviewing its position in this area (see http://www.privacy.org.nz.
Conclusion
It is always likely to be difficult to achieve a balance between the protection of children online and general privacy rights. Pseudonymity where anonymity is accorded until a court determines otherwise and orders identifying information released appears to strike some sort of balance.
1 It should be noted that the problems of anonymity on the net extend further than just criminal behaviour. Other challenging areas where this problem arise for example, are enforcement action against copyright infringers and in respect to domain name cybersquatters.
2 Brief Amicus Curiae of America Online, Inc. in Joan Melvin v. John Doe et al, Superior Court of Pennsylvania - Pittsburgh District, 24 February 2001
3 Note that The Net Generation: Internet Safety Issues for Young New Zealanders published by The Internet Safety Group on 4 February 2002 indicates a suspicion amongst some respondents that they were given incorrect gender details by people they came in contact with online.
4 Dendrite International Inc. v. John Doe No 3 No. MRS C-129-00 (N.J. Super. Ct. Div 23 Nov 2000). For comment see Techlaw Journal Daily E-mail Alert, 12 July 2001, Alert No 225 at p1; Mary P Gallagher New Jersey Court Erects Roadblocks to flagging cyberspammers, 18 July 2001, http://www.law.com
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