Before discussing the topics at the forefront of cyberlaw, it is important to take a step back and acknowledge the unique role the Internet’s culture plays in those issues. The digital realm is very distinct from the offline world. These differences, and their resulting cultural impact, are important in determining not only how and why cyberlaw issues arise, but also what can be done to solve them.
The World Wide Web is an amorphous and diverse space. Its users span the entire globe and nearly every language, culture and creed. As such, it would be naive to think the Web could be distilled down to a single philosophy or culture. There are, however, several core factors that continue to shape the evolution of the Internet and the behavior of its users. Factors such as anonymity, limited material cost, low barrier to entry and instant global communication make the Internet a unique place with the potential to shape both the actions and beliefs of its users.
Each of the above factors could each have countless papers and books written about them. Their breadth and depth are vast. Beginning with anonymity, this posting will not attempt be an exhaustive last-word. Instead, it will serve as a basic introduction and create a lens through which a fuller view of cyberlaw issues can be granted.
Anonymity, the lack of connection between name and content, is one of the most important factors shaping online behavior. Hiding behind a digital veil, users are endowed with a sense of freedom. It enables them to utilize this digital world in a way that they could not bring themselves to otherwise. While there is certainly no end to the anecdotes describing people behaving in a way online that they would not have offline due to anonymity, there have also been scientific studies that suggest such behavior (like this one from Japan, for instance). Before looking at the effects of this anonymity, however, it is important to examine what gives Internet users anonymity.
Why is there anonymity on the Internet?
When accessing the Internet, users send packets of information to a server, then wait to hear a response. Packets are marked with both the source (user) and destination (server) addresses. In between the user and the server are routers. Routers receive these packets and forward them to the next router. When the router examines the packet, it is only interested in the destination address; the data contained in the packet is not viewed or logged (much like how letter carriers do not open up mail, but only look at the destination address). The fact that routers do not discriminate based on the information in the packet is an important issue and is at the heart of the net neutrality debate. Once the packet arrives at the destination server, the data is interpreted and a return packet is sent back to the source address.
The addresses on the packets are a series of numbers (and soon to be letters) that are assigned to a particular device. These addresses are known as Internet Protocol (IP) addresses. IP addresses are similar to house numbers; however, they differ in two key aspects:
(1) they are not easily traced back to an owner
(2) they are can easily be forged.
Currently, there is no public listing to match IP addresses to individuals. In order to trace an IP address to an individual, a subpoena must be issued to the Internet Service Provider (ISP; Comcast or Charter for example) of that IP address. Subpoenas are granted if there is suspicion of illegal activity originating from that IP address.
Even if an ISP reveals the person associated with an IP address, this does not necessarily mean that any wrongdoing occurred from that address. The Electronic Frontier Foundation compiled a list in 2003 of just such instances. Part of the problem is the inherent difficulty of associating an IP address with an action. It is possible to frame someone (or even a printer!) for illegal activity. The automated methods that are used to detect illegal behavior (such as torrenting copy protected files) are flawed; researches at the University of Washington have shown how easy it is for people to be falsely accused of illegal downloading.
Assuming that there was 100% certainty that a wrongdoing was perpetrated from a certain address, there is still no guarantee that the person assigned that address is the same person who did something wrong. One common technique for hiding activity is to use the Internet from an open, unsecured access point. Many coffee shops offer free unsecured wireless access (Wi-Fi) and people who are not so security conscious also often leave their Wi-Fi unsecured. Anyone can connect to these open access points. Anything that someone does on the network, including illegal activity, is associated with the person who runs the access point, not the person who connected to it. Recently, a man in Tennessee was investigated for child pornography because someone else was using his unsecured network.
Connecting to someone else’s network in order to further obscure one’s identity is not the only method of masking one’s activity; there are many other methods to do so. Tor for instance, is a software method where volunteers run relays to further obscure one’s Internet traffic.
As shown above, there is no simple, built-in system for associating an IP address (how the Internet sees a user) and the identity of that user. The result is a community made up not of individual identifiable people, but rather faceless, nameless packets. Of course some sites require users to identify themselves (banks, online retailers, etc.), but those locations do so by asking for additional information. By default, however, everyone on the Internet is cloaked in a thick veil of anonymity and can claim to be whoever they want with little chance of their Internet avatar being traced back to them. The nature of this anonymity causes a profound shift in how people interact online.
Note: there has recently been a movement within government towards requiring ISPs to retain more information about its users for longer periods of time. A bill proposing such action has recently passed a house panel. A similar bill is also gaining ground in Canada.
What effect does this anonymity have?
While the cause of anonymity is straightforward, its effect is complex, nuanced and affects each user differently. Some do not grasp the extent of their anonymity or simply do not care. Others take advantage by bullying other users (on the Internet, this behavior is known as trolling or griefing ). Still others embrace the accompanying freedom and create whole new virtual lives to escape or supplement their offline world. When discussing the legal ramifications of the Internet, however, there are two particularly noteworthy effects of anonymity: lowered inhibitions and hacktivism.
The ease and relative reliability of establishing an anonymous presence online makes users feel as though negative repercussions of their actions are less likely or, at least, less severe. This property can make both benevolent and malicious actions easier to rationalize.
As mentioned earlier, there are studies that suggest a link behind anonymity and the ease of committing a crime. Take, for example, someone wanting to illegally download (pirate) a movie. The anonymous presence online greatly reduces the risk of being caught, especially if using anonymity enhancing software and tactics. The anonymity of committing these actions is made all the more easy to rationalize when hiding behind a digital veil.
The screen of anonymity goes both ways, however. It is important to note that, while online, people are interacting with other faceless presences. This factor contributes of a sense that one is not interacting with another person, but rather, just a series of flashing lights on a screen. The dehumanizing effect can further lowering their inhibitions.
Regardless of the resulting action, the ability of users to hide their identity facilitates acting with lower inhibitions and makes online activities (both good an ill) easier to rationalize.
Anonymity and the accompanying lowered inhibitions enable people to participate in events that they would not normally have. Some of these events, when done for political ends, are known as hacktivist events (hack + activism). The anonymous nature of the Internet has enabled people to participate in political or social activism events, putting their force behind a cause in which they might have been otherwise unable or unwilling to participate.
Take, for example, the recent Arab Spring in which the Internet played a central role in organizing the demonstrations and uprising . There, the anonymous nature of the Internet made the planning and execution of events easier and safer than if it would have been done offline. These factors cause activist events to shift in large part towards the digital realm.
Additionally, the global nature of the Internet allowed those individuals with information that needed to get out, the ability to do so without compromising their identity and risking capture by malicious authorities. anonymous nature of the Internet allows bloggers and reporters to exercise free speech rights that would have otherwise been denied to them.
For instance, in the days of Woodward and Bernstein, the informant William Mark Felt used the pseudonym Deep Throat as well as an elaborate series of secret signals and signs to preserve his anonymity. Today, the ease of establishing anonymity online combined with sites such as Wikileaks and unbreakable encryption makes leaking sensitive information simple and low-risk.
It can be easy, especially when speaking in the context of law, to see online anonymity as a negative force, to think that those who have nothing to hide should not need anonymity. While it is true that online, just as it is offline, there are a minority of malicious people taking advantage of their anonymity, there are also profound advantages to ensuring an anonymous Internet.
Firstly, online anonymity is not binary. The choice is not between pure anonymity and full disclosure. Users, if they so choose, can reveal whatever personal information they like. It is currently an opt-in option. Sites like Facebook encourage users to reveal private data in order to reap the benefits of doing so. There has even been a push recently to encourage the use of real names online to encourage more civil behavior. The internet is set-up in such a way that one can choose to be as open as possible on one site (such as Google+), more guarded on another (only represented by an avatar in a forum, perhaps) or completely anonymous (4chan). This granularity gives a profound power and freedom to the user.
It is also important to distinguish anonymity and privacy. With the correct precautions, technology and tactics it is possible to make one’s activity on the Internet entirely anonymous. These actions do not guarantee complete privacy, however. Packet sniffing and other interception technologies mean that even if the sender’s address is anonymous, the data contained in the packet could still reveal sensitive information about the sender that could compromise his/her anonymity. For example, even if a user took every precaution to hide their presence online, if they post, or even send out their real name, it is possible for their identity to be compromised. Strong encryption of the packet data is necessary to ensure both anonymity and privacy.
People who want anonymity on the internet are not necessarily law breakers. Most are good, decent people who simply want as much privacy as possible. Maybe its because they want to discretely blow the whistle on a wrongdoing, maybe its because they do not want to be stalked (by a person or even a company), maybe its because they belong to a persecuted minority group or maybe its just because they want to protect their identity. The list of legitimate uses for anonymity is vast and deep. While some will take advantage of it for ill, many more will use it to create a new and more positive experience than if it was not present.
Regardless of its effects, anonymity has come to be seen as an inseparable part of the Internet. As such it is important, when examining cyberlaw issues, to consider the effects and impact that anonymity has on the arguments of both sides of an issue.