The right to online anonymity

Hanane Boujemi 

The Internet has become an essential platform for the exercise of free speech, especially in oppressive environments where freedom of expression, freedom of association, and/or freedom of assembly are hindered. The main reason why the Internet is the preferred channel for dissidents is the possibility of maintaining one’s anonymity, which is vital for protecting citizens from state power.

It is a remarkable achievement how the Internet has revolutionized traditional communications channels by allowing more virtual space for the activist community in order to exercise its rights.

The question of whether human rights offline should also be protected online, however, is still problematic. While the legal context of the right to free speech is well-defined, the debate on the right to anonymity has triggered controversial points of view, which will require a global discourse on both government and corporate policies specific to anonymity. This piece will examine to what extent anonymity plays a key role in safeguarding freedom of speech, freedom of assembly, and freedom of privacy.

It will also shed light on the arguments of anonymity as a “cloak” beneath which to conduct criminal activity and its impact on advocacy efforts as a legitimate “inherent right.”

Government policies under pressure

Human rights advocates support the concept of anonymity as a key element for the protection of freedom of expression and the right to privacy because it is indispensable when criticizing regimes or speaking openly about taboo or censored topics.

For example, in the context of protecting sources of critical information, which could shape public opinion, anonymity is recognized as an important safeguard to exercise fundamental rights. This also extends to ‘expression’ via the Internet, the only issue being that online anonymity has received limited recognition under international law (Article 19, 2015), leaving a vacuum in the international legal framework to reinforce this concept.

Nevertheless, according to a report published in May 2015 by the United Nations’ special rapporteur on freedom of expression, encryption, and anonymity enable individuals to exercise their rights to freedom of opinion and expression in the digital age; thus, such freedoms deserve strong protection.

In my opinion, the conclusions of the special rapporteur serve as a pressure point for government members of the United Nations Human Rights Council, which commissions such reports in an attempt to address emerging issues related to preserving a “rights-based approach” in various fields.

The focus on anonymity online is no coincidence as many governments rush to approve legislation related to banning anonymity or criminalizing encryption. In fact, one of the recommendations of the aforementioned report specifically suggests that draft laws and policies that seek to apply restrictions to encryption or anonymity should be subject to public comment and only be adopted following a regular procedure rather than fast-track legislative process.

Social media platforms

Government-implemented policies affecting the right to anonymity are not the only challenge facing activists and free speech advocates. As the use of social media platforms as a main channel for activism, technology companies, namely Facebook and Twitter, are increasingly criticized for initiating a “real name policy” rule, which gravely hinders the “dissenters role” and in some cases triggers harassment against minorities.

In November 2015, I contributed to the My Name Is campaign, which lobbied fiercely against Facebook’s “real name policy,” and the outcome was a significant win for the activist community. Yet, Facebook did not fulfill the demand to completely remove the policy and allow users to utilize pseudonyms. The change focused instead on introducing another step that allows the account holder to provide a detailed context of the name change.

On the other hand, users that flag others for employing alternative names are requested to provide additional details and information in their complaint to avoid locking the reported accounts. A recent exchange within the mailing list against “real name policy” campaign, however, suggested that Facebook is dealing with cases on an “ad hoc” basis and do not follow the change they introduced in 2015. Some activists complained that other users flagged their accounts, which prompts a 60-day block unless they provide documents to authenticate their name. In some cases, the account is disabled for up to six months, which directly affects their reporting work. Hence, it is inevitable to conclude that public pressure generates short-term results but does not guarantee policy change.

Threatened voices

Facebook’s decision on its “real name policy” is aligned with government procedures and will not change, according to their officials. The tweaks introduced will facilitate a transparent appeals process of locked out users; however, the user's real name is mandatory by default for their online activity because they can be held accountable for their actions and words, according to Facebook.

Such a procedure supports the theory of online anonymity’s chilling effects on state security from the government perspective. In principal, it does not take into account the shrinking space to exercise free speech or even the privacy of threatened voices, which include the transgender community, LGBTQ activists, victims of domestic violence, political dissidents, and other marginalized or vulnerable groups.

Governments are seemingly more concerned with how the Internet could be used as a safe haven for criminal activity; hence, many governments are implementing hardline policies that compromise basic human rights. Nevertheless, the lack of protective legal mechanisms is considered a significant drawback, since most project laws related to anonymity are punitive and restrictive. In this regard, the special rapporteur on freedom of expression highlighted in the same report the importance of establishing strong procedural and judicial safeguards to guarantee the right to due process of any individual whose use of encryption or anonymity is subject to restriction.

Blanket policies

State security is the main argument used by most governments to justify their opposition to anonymity. In their view, the Internet is a safe harbor for terrorist groups since it can be used as a platform to facilitate illegal activities, such as human trafficking, arms sales, and child pornography. In essence, these concerns are legitimate and directly feed into a noble objective, yet one cannot justify blanket policies that prohibit anonymity online because it excludes its critical value as a facilitator of free speech and opinion. On the other hand, one could argue that tracking criminals and/or terrorists is not directly affected by anonymity as a practice because most of these criminals are not living in disguise and are already known to the authorities. With this in mind, any restrictions on anonymity can be interpreted as a proxy to facilitate state surveillance, which has a chilling effect on the free expression of information and ideas.

Future challenges

The prohibition of online anonymity by governments and tech companies as well as the absence of any binding legal mechanisms to guarantee it is making the job of digital rights advocates, human rights activists, and minority groups substantially challenging. The concept of security outweighs any possibility of balance vis-à-vis the right to anonymity or privacy. Moreover, it overtly affects inherent acquired rights, namely freedom of expression, freedom of information, and freedom of association, especially of vulnerable groups as stated earlier. While technology evolves at a fast pace to cater to progressive environments, policies lag behind. The more disruptive the technology is, the more restrictive government policies become, which is dampening the concept of creativity and could alter the functionality of online environments in the long-term.

It is everyone’s responsibility to define and agree on describing the fine line between a right and an obligation but it is also crucial to think of technology policies that are coherent and more relevant to the technological progress we are witnessing. Furthermore, human rights should be central to deploying applications, standards, and considered proportionally in any governmental policy related to the Internet, in a way which will hopefully spur the private sector to follow.

/OD