Protesters stand in solidarity with the "Native Nations Rise" march on Washington, D.C. against the construction of the Dakota Access Pipeline in Portland, Ore., on March 10, 2017.Alex Milan Tracy/Press Association. All rights reserved. Long
before the trickle of anonymous leaks from the White House became a steady downpour,
President Trump delivered a characteristically meandering address to the Conservative Political Action
Conference, in
February this year. Tucked into a library catalogue of complaints (against
“bloodsucker consultants”, Obamacare and “bad dudes”) and compliments (for
miners, Bernie voters, border police, and “really strong and really good”
regulations), was a brief tirade against anonymous sources. “I’m against the
people that make up stories and make up sources. They shouldn’t be allowed to
use sources unless they use somebody’s name. Let their name be put out there. Let their name be put
out,” the President declared. “A source says that Donald Trump is a horrible,
horrible human being. Let them say it to my face. Let there be no more
sources.”
The President’s remarks, and his subsequent sustained and
vitriolic attacks on the news media, reveal as much about the severity
of his personality flaws as they do about his dangerous
disregard for an independent and pluralistic media.
But they also suggested a more fundamental contestation of a key pillar of
democratic and human rights-respecting societies – the
right to anonymity.
Journalists’ entitlement to cite and defend anonymous
sources is guaranteed by international human rights law, under which the right
to freedom of expression guarantees all individuals the right to receive and
impart information. In the seminal case of Goodwin v The United Kingdom, the
European Court of Human Rights reasoned that if journalists are forced to
reveal their sources, the role of the press as a public watchdog would be
undermined.
In the digital age, however, it is not only journalists and
their sources who enjoy the right to anonymity. Alongside the dramatic
transformation of journalism and of the concepts of public transparency and
accountability that have accompanied recent technological changes, there has
been increasing recognition that ordinary people now create, as well as
consume, media. Through social media platforms, online forums, websites and
discussion boards, individuals receive and impart information in enjoyment of
their free expression rights. They may wish to avoid identification in doing
so, by using traditional means (such as adopting pseudonyms) or technical tools
(such as like VPNs or anonymising networks). In doing so, they are exercising their
right to anonymity, a key component of the tandem rights to freedom of expression
and to privacy, which are guaranteed to them under international
human rights law. The centrality of anonymity to the enjoyment of human
rights, particularly online, is enshrined in numerous instruments, including
the Charter
of Human Rights and Principles for the Internet.
Like international human rights law, US
constitutional law has long protected anonymous free expression. Yet, in Trump’s
America, the continued enjoyment of this right is in peril. The President’s February
screed against anonymous sources foretold of a forthcoming assault on
anonymity, particularly online. That assault began in the aftermath of the
President’s inauguration, when Facebook was sent warrants demanding the
unmasking of users and the disclosure of their communications and identifying
information in
a case thought
to be connected with an anti-Trump protest held during the inauguration. The number of people whose identity the government
requested – whose anonymity they sought to unmask – was 1.3 million.
In March, Customs and Border Protection issued
a summons to Twitter, requesting the identification
details and IP addresses associated with @ALT_USCIS, a Twitter account
purporting to convey the views of dissenters within the government. That same
month, police
sought access to the Facebook page of a group of protestors demonstrating
against the Dakota Access Pipeline. In each of these three cases, individuals
were using anonymous social media accounts or private groups to express or
organise dissent against the Trump administration.
The apogee of the assault came in July, when the Department
of Justice served a warrant on a website-hosting company, DreamHost, demanding
access to the IP address of every person who had visited a
particular website. That website was an anti-Trump website, purportedly used to
coordinate protests during the inauguration. The number of people whose
identity the government requested – whose anonymity they sought to unmask – was
1.3 million.
Inauguration Day protest at Westlake Park, Seattle. Derek Simeone. Some rights reserved.In response to legal challenge and public outcry, the
government ultimately revised the scope of the warrant, and its
legitimacy remains
in dispute before the courts. But the confidence and audacity of the
Department of Justice in the first instance suggests the principle underpinning
its demand enjoys the approval of the highest office in the land – the
President’s.
Viewed through a Trumpian lens,
anonymity is the cover behind which dissenters and critics cower, lobbing “fake
news” missives and organising protests designed to attack the President.
Indeed, the equation of anonymity with falsity is a key tactic that Trump uses
to discredit those who might wish to speak out against the administration
without identifying themselves. Anonymous critics are not only unreliable, they
are deliberately untruthful: according to a Trump
tweet, “Whenever you see the words ‘sources say’ in the fake news
media, and they don’t mention names… it is very possible that those sources
don’t exist but are made up by fake news writers. #FakeNews is the enemy!” The equation of anonymity with falsity is a key tactic.
At an
August rally in Phoenix, Arizona, the President accused “truly dishonest people in the media and the fake
media” of simply “mak[ing] up stories. They have no sources in many cases. They
say “a source says” – there is no such thing. But they don’t report the facts.”
In the same speech, he also implicitly criticised protestors for exercising
their right to physical anonymity, calling out anti-fascist protestors for
“show[ing] up in the helmets and the black masks.”
Days later, following
subsequent anti-Trump protests, Arizonan legislator Republican Jay Lawrence announced his
intention to ban masks at protest rallies,
claiming that “while the
right to anonymity is sometimes desirable in healthy political discourse… too
many who wish to act violently hide behind hoods or masks in an effort to
intimidate or conceal their identity from law enforcement.” This rhetoric,
when taken alongside the government’s legal attempts to unmask anonymous
internet users involved in protest and activism, amounts to an
administration-sanctioned attack on anonymity, online and off.
Across the world
It
is an attack which is all the more concerning because it is not only confined
to Trump’s America. Across the world, we see countries proposing measures aimed at unmasking internet
users: from China,
where new rules require internet forum providers to obtain and verify the real
identities of their users before accepting their comments, to Britain, whose Independent
Reviewer of Terrorism Legislation Max Hill QC recently suggested that social media providers should
withhold the provision of encrypted services pending positive identification of
the internet user. Ecuador,
Vietnam, and Iran have all enacted laws in recent years requiring the use of
“real names” online, and large social media platforms such as Facebook enforce
real name policies. Max Hill QC suggested that social media providers should
withhold the provision of encrypted services pending positive identification of
the internet user.
Despite its clear importance in protecting critics,
activists, dissenters and whistleblowers from the types of punitive action
demonstrated by the Trump administration, the right to anonymity is neither
universally valued nor without its pitfalls.
Anonymity has a disinhibiting effect, particularly online,
removing social and cultural constraints that might otherwise restrain
commentators from making controversial, offensive or harmful remarks. The
confidence, ease and impunity with which online trolls, fake
news purveyors and hate groups operate in the digital age is undoubtedly
fuelled in part by their ability to open and close anonymous social media
accounts with relative ease. That trolls’ platform of choice is overwhelmingly
Twitter, a social network that does not enforce a real name policy, is no
coincidence. Many have connected
the seeming uptick in intolerance, incivility and hate speech to the
proliferation of anonymous means of expression that the internet has enabled. Indeed,
some
States have begun to exploit an increasingly caustic cyberspace by
deploying trolls and online hate mobs to promote State propaganda and silence
critics.
A
price worth paying
But seen through the lens of human rights, anonymity may be
the cure, rather than the cause, of intolerance and majoritarianism. Anonymity,
particularly online, enables those in the minority, those who would normally
stay silent, to speak out against the status quo without fear of reprisals.
Without the protection of obscurity, dissenting views might
disappear altogether, and along with them pluralistic societies, as public
discourses homogenise, intolerance becomes mainstream, and populist leaders
become increasingly emboldened by the absence of criticism. As the US Supreme
Court so
eloquently observed, “[a]nonymity is a shield from the tyranny of the
majority . . . [that] exemplifies the purpose [of the First Amendment]: to
protect unpopular individuals from retaliation . . . at the hand of an
intolerant society.”
The
obstacles facing human rights activists faced with Trump’s unique brand of
populist and intolerant governance are many, but countering the President’s
assault on anonymity presents a particularly acute challenge. As long as the
right to anonymity exists, it can be enjoyed by fascists, trolls, journalists
and anti-Trump protesters alike. If we believe that it is a critical necessity
for some people to enjoy their free speech and privacy rights, we must defend anonymity’s
enjoyment by all. Violent protests and incivility online may be the price of
such a right, but the unexpected ascendency of a populist, fascistic and
authoritarian leader such as Donald Trump is a painful reminder of why that is
a price worth paying.
