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

[Ruchika Agrawal <agrawal@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

------------

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. [7]   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).

[7] Marc Rotenberg, The Privacy Law Sourcebook:  United States Law,
International Law, and Recent Developments 431 (EPIC 2002) (“European
Union Directive on Privacy and Electronic Communications