2001:Introduction:
Anonymity, often considered a cornerstone of democracy and a First Amendment guarantee, is easier to attain than ever before due to the recent emergence of cyberspace. Cyberspace1 enables anyone to communicate, via text, sound, or video, to hundreds or thousands of other people, nearly instantaneously and at little or no cost. As of July 2000, more than 143 million adults had access to cyberspace in the United States,2 and over 359 million had access worldwide.3 Those numbers are growing rapidly. Due to the nature of the technology, identities in cyberspace are easily cloaked in anonymity. Once a message sender’s identity is anonymous, cyberspace provides to the masses the means to perpetrate widespread criminal activity4 with little chance of apprehension.
Debate rages about how, and by whom, cyberspace and cyberanonymity should be governed.5 In a report to former Vice President Al Gore, Attorney General Janet Reno found a need for greater control of anonymous communication in cyberspace.6 Reacting to several high-profile attacks on major e-commerce web sites,7 former President Clinton underscored the opinion that the government needs to maintain a watchful eye on cyberspace.8 On the other side of the debate, some scholars see cyberspace as something that requires, and is capable of creating, its own law and legal institutions.9 Many in cyberspace, with the help of some purists,10 have declared independence from all governmental control, and urge a regime of guidelines and self-governance.11 Some factions promote anarchy, and applaud when their anonymous Zorro figures commit acts considered criminal by mainstream society,12 while others attempt to provide controversial new services to the mainstream public.13
Despite the fact that no one sovereign controls cyberspace, it is not an ungoverned and lawless frontier; many actions in cyberspace have consequences in the real world.14 Some states have recently entered the fray and taken matters into their own hands, legislating against anonymity both in and out of cyberspace.15 Even though cyberspace does not fit neatly into existing constitutional categories,16 courts have found that these recent anti-anonymity statutes, regardless of whether they are aimed at cyberspace, are too broad and violate the First Amendment.17
The question of whether a state or the federal government can create a narrowly tailored restriction on cyberspace anonymity without violating the First Amendment remains unresolved, however.18 The Supreme Court has not directly addressed the issue, but it may soon consider the constitutionality of criminalizing certain kinds of cyber-anonymity in light of the unique nature of cyberspace. This comment explores the various forms of anonymity, examines the First Amendment status of anonymity in and outside of cyberspace, analyzes relevant scholarly commentary, and concludes that a narrowly tailored legislative restriction on “true” anonymity in cyberspace would not violate the First Amendment.
For the remainder of this paper: by George F. du Pont*
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