By Paul Rosenzweig, The George Washington University Law School
In a world of ever more pervasive surveillance systems and decreasing public capacity to control them, it is no wonder that some people want to live off the grid. However, people’s concepts of identity are based not upon absolute privacy expectations, but rather that any government infringement of liberty can only happen with good cause.
Capturing Information and Data
Around the globe, we have new and innovative ways of capturing information and data. These systems range from license plate readers and closed-circuit TV cameras to drones, biometric identification, and other novel ways of collecting data. Beyond the physical world, big data has magnified our ability to collect information in the digital world so that governments and commercial data aggregators are able to create detailed pictures of us.
This proliferation of sensor platforms is compounded by two other related phenomena. One is the increased power of data analytics to perform correlation analysis of disparate data streams. Today’s algorithms can find patterns in billions, if not trillions, of data points. The corresponding phenomenon is the ever-decreasing costs of data storage.
Learn more about the three types of surveillance.
Moreover, the legal structures put in place in the 1970s are proving to be less adaptable or effective than they need to be under the pressure of technological change. Meanwhile, legislative and executive systems are too hierarchical to be effective.
This leaves us at the mercy of the captains of technology, and their economic incentives are skewed by their own understandable self-interests.
Faced with this challenge, many people want to simply cloak themselves in the veil of anonymity and become invisible. They are at a precipice, uncertain whether democracy and surveillance can continue to coexist.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
Importance of Identity
Why is identity important? The reason for that lies in the idea of attribution. Once having established your identity, we can attribute to you corresponding characteristics and responsibilities. The idea of attribution lies at the heart of our system for maintaining social order. We want to identify wrongdoers so that they might be punished, and thereby deter bad actors from even considering the possibility of engaging in malicious behavior.
So, although we sometimes talk about the issue of surveillance as one of privacy, or even liberty; in some ways, government’s oversight is essentially tied to identity. Without verifiable identities, we’d have a world of irresponsible actors. But, of course, with verified identities, we run into the problem of identity as a means of control. The tension between this concept of security and control is palpable.
In the United States, mandatory participation in a universal identification system would be politically unfeasible. In China, by contrast, those types of identification systems are becoming mandatory.
The American tradition, in fact, sometimes even encourages the ability of citizens to maintain their anonymity as they participate in civil society. Indeed, the absolute right to anonymity, at least in the context of political speech, is alive and well today.
The proof is found in the Supreme Court case McIntyre v. Ohio Elections Commission.
McIntyre v. Ohio Elections Commission
Ohio had a problem in the proliferation of anonymous campaign leaflets, stuck in doors during election campaigns.
Sometimes, and perhaps with increasing frequency these days, the pamphlets are quite negative; and when anonymous, they sometimes even become scurrilous. Often the allegations are simple falsehoods.
Fearful of this result, Ohio passed a law requiring anyone who distributed a pamphlet to put a name and attribution on it.
Margaret McIntyre was an Ohio taxpayer who passed out pamphlets opposing a proposed increase in school tax.
The state Elections Commission found her guilty of violating the Ohio statute that forbade “the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature”. But when the commission fined her, McIntyre challenged the identification requirement.
Learn more about the tension between surveillance and the rule of law.
The Two Sides of the Argument
One can probably see both sides of the argument. The case for anonymity is that it facilitates the expression of unpopular views. As the Supreme Court said: “Anonymity provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.”
The court also noted that one’s choice to seek anonymity might be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.
On the other hand, as the state of Ohio argued, anonymity can be a cloak for malicious speech. The balance is not ineluctably set in either direction, and the Supreme Court was called upon to resolve the conflict.
Relying on American history, and on the values underlying the marketplace of ideas, the Ohio law was struck down, recognizing a First Amendment right to anonymous political speech.
Though the context of the case is important—politics and elections may represent only a subset of free speech and anonymity rules—many see the Supreme Court’s decision as stating a broader principle that, in general, the judiciary will disfavor a legislated identity requirement. That can’t be absolute, of course. However, it does mean that there is, at the core of American society, a respect for privacy in the form of anonymity.
Common Questions about Anonymity
Around the globe, there are new and innovative ways of capturing information and data. These systems range from license plate readers and closed-circuit TV cameras to drones and biometric identification.
The Ohio statute forbade “the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature”.
One’s choice to seek anonymity might be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.