[nc-whois] Fwd: Privacy Issues Report: Section on Privacy, Free Speech and Anonymity

[Ruchika Agrawal <agrawal@epic.org>]

Woops, I erred on one of the references.  It's fixed 
below.

Sorry,
Ruchika

Date: Tue, 11 Mar 2003 14:14:17 -0500
To: "Cade,Marilyn S - LGCRP" <mcade@att.com>, "NC-WHOIS (E-mail)" <nc-whois@dnso.org>
From: Ruchika  Agrawal <agrawal@epic.org>
Subject: Privacy Issues Report:  Section on Privacy, Free Speech and Anonymity
Bcc: Marc Rotenberg <rotenberg@epic.org>

Dear All:

Included below are the paragraphs -- excerpted from the privacy issues report submitted by the non-commercial constituency (see http://www.dnso.org/clubpublic/nc-whois/Arc00/msg01003.html for the full report) -- on the critical relationship among privacy, free speech and anonymity. 

For your convenience, the other contributions I've submitted to the WHOIS Task Force are:
  -  paragraphs on OECD Privacy Guidelines available via http://www.dnso.org/clubpublic/nc-whois/Arc00/msg00984.html
  -  paragraphs on Contribution Of Globally, Publicly Accessible WHOIS Information To Identity Theft And Other Fraud available via http://www.dnso.org/clubpublic/nc-whois/Arc00/msg00985.html

Sincerely,
Ruchika

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4  Free Speech, Privacy and Anonymity  [1]

        On December 10, 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights, which enumerates a list of rights to which all people are entitled.  [2]  This list includes free speech:

ARTICLE  19.  Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

It is well understood that the Internet – including chat rooms, email, newsgroups, websites, and domain names – is an unprecedented media through which many people exercise their free speech, including controversial religious and political speech.

4.1  The pinnacle of privacy is anonymity.

        In the context of the OECD Privacy Guidelines, privacy may be understood as control of your own personal information, control over what others (other people, private organizations, and the government) know about you, and control over how others may use or exploit your personal information.  Furthermore, policies and practices that respect privacy aim at minimizing the collection of personally identifiable information.  Then intuitively, the starting point of privacy is anonymity, where no personally identifiable information is collected.  Compelling the disclosure of personally identifiable information, as current WHOIS policies dictate, directly undermines privacy.

4.2  The critical relationship between privacy, anonymity, free speech, and Internet free speech should not be disregarded. [1]

        Privacy is critical to free speech.  As a simplified explanation, if speakers are compelled to disclose their identity, speakers are reluctant to fully express their speech for fear of persecution.  We established that the pinnacle of privacy is anonymity; hence, as a corollary, anonymity is critical for individuals to achieve their fullest ability to exercise free speech.

        The United States courts in particular have recognized the importance of Internet free speech and the right of anonymity.  [3] The Supreme Court's decision in Reno v. ACLU offers an opinion on why individuals and organizations would want to display material through the World Wide Web:

Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.   [4]

For the purposes of political, artistic or controversial speech, the Internet is an unprecedented opportunity to reach a large audience at a relatively small cost. [5] 

        The one-to-many characteristics of the Internet through which an individual's speech can reach a global audience are further enhanced by the protection of anonymity.  [5]  In McIntyre v. Ohio Elections Commission, the Supreme Court upheld individuals’ ability to distribute anonymous political leaflets and found:

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; and their ideas from suppression; at the hand of an intolerant society. [6]

Hence, the Supreme Court upheld the importance of anonymity for individuals to achieve their fullest ability to exercise free speech.

4.3 Requiring WHOIS data and then publicly disclosing the data have serious implications on free speech.
        
        Under current WHOIS policies and practices, an individual who wants to create her own website must publicly disclose personal information and cannot remain anonymous. [3]   ICANN’s Registrar Accreditation Agreement, which requires registrants to supply accurate WHOIS data or otherwise forgo their domain name registration, places an unacceptable burden on the ability of individuals to maintain their anonymity and thus their fullest ability to exercise free speech on the Internet. [1]

4.4  Anonymizing proxy servers are not an adequate alternative. [1]

        The establishment of an intermediary between the operator of a website and the general public may avoid short-term identification of the actual user of a particular domain name.  However, for the most controversial artistic, political and religious speech, it will be difficult for an online speaker to find an intermediary that will offer to have her own identity made public in lieu of the actual speaker.  In addition, the third-party licensing provision is unambiguous in stating that the intermediary will be directly liable for use of the domain name by the actual user.

REFERENCES

[1]  Comments of the Public Interest Registry, the not-for-profit corporation that manages the .ORG registry, on the Final Report on Whois Accuracy and Bulk Access of the Whois Task Force of the Generic Names Supporting Organization (hereinafter “PIR Comments on WHOIS”) accessible via http://gnso.icann.org/dnso/dnsocomments/comments-whois/Arc03/pdf00000.pdf.

[2]  Marc Rotenberg, The Privacy Law Sourcebook:  United States Law, International Law, and Recent Developments 367-394 (EPIC 2002) (“Universal Declaration of Human Rights (1948)”)

[3]  Daniel J. Solove and Marc Rotenberg, Information Privacy Law 427-37 (Aspen Publishers2003) (“Anonymity in Cyberspace”).

[4]  ACLU v. Reno, 521 U.S. 844, 896-97 (1997).

[5]  Letter submitted by EPIC  to U.S. House of Representatives Committee on the Judiciary Subcommittee on Courts, the Internet and Intellectual Property, July 12, 2001,  http://www.epic.org/privacy/internet/whois_0701.html.

[6]  McIntyre v. Ohio Elections Commission, 514 U.S. 334, 357 (1995).