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59 Ariz. L. Rev. 95 (2017)
Lessons Learned Too Well: Anonymity in a Time of Surveillance

handle is hein.journals/arz59 and id is 102 raw text is: 















            LESSONS LEARNED Too WELL:

   ANONYMITY IN A TIME OF SURVEILLANCE





                         A.  Michael   Froonikin*





It is no longer reasonable to assume that electronic communications can be kept
private from  governments  or private-sector actors. In theory, encryption can
protect the content of  such communications,  and  anonymity  can protect  the
communicator's  identity. But online anonymity-one  of the two most important
tools that protect online communicative freedom-is  under  practical and legal
attack  all over   the world.   Choke-point  regulation, online  identification
requirements, and  data-retention regulations combine to make  anonymity very
difficult as a practical matter and, in many countries, illegal. Moreover, key
internet intermediaries further stifle anonymity by requiring users to disclose their
real names.
This Article traces the global development of technologies and regulations hostile
to online anonymity,  beginning with  the early days of the Internet. Offering
normative  and  pragmatic   arguments  for why   communicative   anonymity  is
important, this Article argues that anonymity is the bedrock of online freedom, and
it must be preserved.  U.S. anti-anonymity policies not only enable repressive
policies abroad but also place at risk the safety of anonymous communications
that Americans   may  someday   need.  This Article, in addition to providing
suggestions on how  to save electronic anonymity, calls for proponents of anti-
anonymity  policies to provide stronger justifications for such policies and to
consider alternatives less likely to destroy individual liberties. In a time where


        *    Laurie Silvers & Mitchell Rubenstein Distinguished Professor University of
Miami School of Law. This paper has gone through a number of iterations. Earlier versions
benefitted from feedback at A Decade in Internet Time: Symposium on the Dynamics of
the Internet and Society at the Oxford Internet Institute in 2011, the 5th Annual Privacy
Law  Scholars Conference in 2012, and the Freedom of Expression Scholars Conference at
Yale Law School 2015, as well as at workshops organized by the Yale ISP, and by New
York Law  School. I would like to thank Caroline Bradley for years of patience, Chase
Smith and  Steven Strickland for research assistance, and Jose Ponce for assistance,
especially with developments in Latin America and translations from Spanish. I also owe an
enormous debt to the University of Miami Law School's excellent reference librarians.
Errors remaining despite all this assistance, and that of many other faculty colleagues as
well, are my own. Unless otherwise noted, this article attempts to reflect legal and technical
developments through November 2016.

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