It was reported last week that Donald Kerr, the Principal Deputy Director of National Intelligence, made the controversial proclamation: “Protecting anonymity isn’t a fight that can be won.”

At an October conference, Kerr, in advocating for greater information sharing between intelligence agencies responsible for national security, stated that “in our interconnected and wireless world, anonymity – or the appearance of anonymity – is quickly becoming a thing of the past.”

Kerr urged that we “move beyond the construct that equates anonymity with privacy and focus more on how we can protect essential privacy in this interconnected environment.” By “essential privacy” he appears to mean – albeit oxymoronically – that the government, particularly the intelligence community, knows who you are and has information about you, but must work within “a system of laws, rules, and customs with an infrastructure of Inspectors General, oversight committees, and privacy boards” that govern the use of personal information.

Kerr backed up his thesis by pointing out his “willing[ness] to share my credit card number and expiration date with a person I have never seen,” and his ability “to get past being anonymous in” such online transactions. He also highlighted the fact that many young people freely provide all sorts of personal information on websites like MySpace, Facebook and YouTube.

There are two problems with these statements. First, Kerr completely dismisses the value of anonymous speech in a free, democratic society. He tried to soften the blow by stating, “We have always been a free people who can defend ourselves without giving up the liberties that animate us to action.” But by asserting that “[p]rotecting anonymity isn’t a fight that can be won,” Kerr seems to be expecting some sacrifice of fundamental liberty.

The value of anonymous speech goes back to the founding of our country. Many anonymous “pamphleteers” advocated for one political position or another. Both the “Federalists” and “Anti-Federalists” wrote under pseudonyms. And anonymous political speech is a recognized right under the First Amendment. The Supreme Court wrote in McIntyre v. Ohio Elections Commission (1995):

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.

Thus Kerr spoke dangerously when he dismissed the value of anonymous speech. He was right to acknowledge the need for “a system of laws, rules, and customs with an infrastructure of Inspectors General, oversight committees, and privacy boards” that govern use of personal information held by the government. But sometimes the privacy priority is preventing the government – or anyone else – from knowing who you are or any other information about you in the first place, particularly when what you’re saying is politically unpopular.

Second, Kerr conflates the voluntary disclosure of limited personal information for a discrete purpose to a private entity with the government’s acquisition and use of vast amounts of personal information without an individual’s knowledge or consent, and for a multitude of undisclosed purposes. When someone shares a credit card number to buy an item online, there is an assumption that the number will only be used for the discrete and mutually agreed upon purpose of purchasing the item. Or if someone reveals personal tidbits on Facebook, such disclosure is completely voluntary.

Additionally, more and more privacy features are popping up in the online world. For example, PayPal enables the shielding of credit card information from a vendor, and MySpace, Facebook and YouTube all enable users to limit who can see their profiles. Individuals may also create pseudonymous online handles or email addresses, and services like Tor enable anonymous Internet communications. The key is that the individual Internet user is in control of what personal information is disclosed and to whom.

By basically arguing that there is no value in anonymous speech – and by implying that the online world makes anonymity a moot point – Kerr has made a dangerous assertion. The right to anonymous speech is not only a fundamental right under the First Amendment, it also has practical value in a free and democratic society by encouraging the sharing of valuable ideas and information that might otherwise go unexpressed. And anonymity can be practically achieved if the right technologies and the right laws exist. Such reckless statements, made in the name of national security, undermine the very liberties our country has been fighting to uphold.

This entry was posted on Sunday, November 18th, 2007 at 5:30 pm and is filed under CDT, Free Expression. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.