In this digital age when an iPhone app can scan and identify faces and your social profile epitomizes your wired existence, anonymous posting is a welcomed reprieve.
However, if New York State legislation dubbed the Internet Protection Act passes as planned, anonymous online speech will be banned on New York-based websites.
Wired noticed the bill on Tuesday after it was quietly introduced in both chambers of New York's legislature to combat cyberbullying.
The legislation requires that the web administrator of any New York-based site, including blogs, social networks, online publications and message boards, "remove any comments posted on his or her website by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post," upon request.
Bloggers jumped on the news, pointing to disparities between the text and the U.S. Constitution. The main argument is that under the First Amendment, we, as citizens of the U.S., are granted freedom of speech, so that Congress, and state legislatures by association, may not make any laws abridging this fundamental right.
Like a vast majority of the Constitution, the First Amendment is not overly broad and does not explicitly identify what constitutes free speech, so we are left wondering if anonymous online speech falls into the category.
Looking to the precedents set by the U.S. Supreme Court, the Electronic Frontier Foundation, a non-profit focused on defending free speech and privacy rights, notes that the nation's highest court has "ruled repeatedly that the right to anonymous free speech is protected by the First Amendment." The EFF cites the 1995 Supreme Court ruling in McIntyre v. Ohio Elections, which protects anonymous speech, referring specifically to printed pamphlets, but its holding does not cover online speech.
Time references an earlier case, Talley v. California, but that too involves anonymous printed speech. Opponents of the legislation will have very few constitutional cases to draw upon in order to support the assertion that the bills violate the First Amendment.
It's for this reason that anonymous online comments fall into a grey zone.
Anonymous comments came under scrutiny from news websites in 2010, as publications ushered in changes to their online comment moderation systems to weed out trolls, but publishers are not liable for the content anonymous commenters post under Section 230 of the Communications Decency Act. However, comments can be subpoenaed and websites may be forced to reveal the identities of the commenters.
Despite individual successes in exposing the identities of anonymous online commenters, no state has proposed an overarching piece of legislation that, if passed, would have such detrimental effect on anonymous online speech as this one; after all, New York City serves as a major hub for website headquarters, hosting numerous newspapers and blogs, including The Huffington Post.
Thus far, individual cases have varied based on jurisdiction, depending on a website's privacy policy and applicable state laws. Some states, such as Florida, Montana, Oregon and Texas, have even protected anonymous online speech under shield laws, which are usually reserved for reporters and their anonymous sources.
Although the legislation has not been voted on and is currently under review by committee, it still represents an immense threat to online anonymity. Either of the bills could be passed by the legislature and signed into law without much opposition. It's only in the aftermath that opponents could take the constitutional argument to court -- and even then it's not a strong one backed by specific precedent.
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