The foolishness of state legislators when it comes to the Internet apparently knows no limits. After years of losing efforts to censor content online, a new evil has apparently been identified: anonymity. A Kentucky representative has filed a bill to make it illegal to post online without registering a real name, physical address, email address and including full name with all postings. The bill includes hefty fines for sites that permit anonymous speech. It would be easy to dismiss this bill as simply the uninformed effort of a not very Internet savvy legislator, but to do so misses the point. Anonymity on the Internet is under attack. Whether it was the provocative comment by Donald Kerr, the Principal Deputy Director of National Intelligence who famously declared last fall that “Protecting anonymity isn’t a fight that can be won,” or the zeal with which the nation’s state attorneys general have pursued age verification for social networking sites, the view that anonymous speech is dangerous speech has plainly taken hold.
There are of course times even on the Internet where establishment of identity maybe important, but we seem to have forgotten the value of anonymous speech to our constitutional democracy. As the Supreme Court has made clear, “Anonymity is a shield from the tyranny of the majority.” McIntyre V Ohio Elections Commission (1995). Anonymity is what protects people from expressing an unpopular political view in a community where the majority holds vastly different political views and allows people to safely provide information about government misconduct. And for those living in repressive societies, anonymous speech is an enabler of human rights and political reform. If it was good enough for Publius, it should be good enough for the Internet. The proposed Kentucky law is particularly dangerous because it not only requires the unmasking of all speakers in all circumstances, it exposes their personal information to potentially millions of people, putting privacy at risk. And since it is the website, rather than the individual, who is on the hook for fines, it puts all Internet sites in the role of gatekeeper, exactly what Section 230 of the Communications Decency Act, 47 USC § 230 was intended to prevent. It’s no small feat to draft a law that is unconstitutional, clearly preempted by federal law and unenforceable. But many state legislatures are in session and it’s only Tuesday.