The Anonymity That Imperfection Allows

[Please see the Discussion Page for suggestions/thoughts on how to update this Part.  Please feel free to contribute edits directly to the text or to suggest & discuss ideas on the Discussion Page.]  I was a student in England for a number of years, at an English university. In the college I attended, there was a “buttery”—a shop that basically sold alcohol. During the first week I was there I had to buy a large amount of Scotch (a series of unimaginative gifts, as I remember). About a week after I made these purchases, I received a summons from my tutor to come talk with him in his office. When I arrived, the tutor asked me about my purchases. This was, to his mind, an excessive amount of alcohol, and he wanted to know whether I had a good reason for buying it.

Needless to say, I was shocked at the question. Of course, formally, I had made a purchase at the college, and I had not hidden my name when I did so (indeed, I had charged it on my college account), so formally, I had revealed to the college and its agents my alcohol purchases. Still, it shocked me that this information would be monitored by college authorities and then checked up on. I could see why they did it, and I could see the good that might come from it. It just never would have occurred to me that this data would be used in this way.

If this is an invasion, of course it is a small one. Later it was easy for me to hide my binges simply by buying from a local store rather than the college buttery. (Though I later learned that the local store rented its space from the college, so who knows what deal they had struck.) And in any case, I was not being punished. The college was just concerned. But the example suggests a more general point: we reveal to the world a certain class of data about ourselves that we ordinarily expect the world not to use.

Trusted systems depend on such data—they depend on the ability to know how people use the property that is being protected. To set prices most efficiently, the system ideally should know as much about individuals and their reading habits as possible. It needs to know this data because it needs an efficient way to track use and so to charge for it.¹

But this tracking involves a certain invasion. We live now in a world where we think about what we read in just the way that I thought about what I bought as a student in England—we do not expect that anyone is keeping track. We would be shocked if we learned that the library was keeping tabs on the books that people checked out and then using this data in some monitoring way.

Such tracking, however, is just what trusted systems require. And so the question becomes: Should there be a right against this kind of monitoring? The question is parallel to the question of fair use. In a world where this monitoring could not effectively occur, there was, of course, no such right against it. But now that monitoring can occur, we must ask whether the latent right to read anonymously, given to us before by imperfections in technologies, should be a legally protected right.

Julie Cohen argues that it should, and we can see quite directly how her argument proceeds.² Whatever its source, it is a value in this world that we can explore intellectually on our own. It is a value that we can read anonymously, without fear that others will know or watch or change their behavior based on what we read. This is an element of intellectual freedom. It is a part of what makes us as we are.³

Yet this element is potentially erased by trusted systems. These systems need to monitor, and this monitoring destroys anonymity. We need to decide whether, and how, to preserve values from today in a context of trusted systems.

This is a matter of translation.⁴ The question is, how should changes in technology be accommodated to preserve values from an earlier context in a new context? It is the same question that Brandeis asked about wiretapping.⁵ It is the question the Court answers in scores of contexts all the time. It is fundamentally a question about preserving values when contexts change.

In the context of both fair use and reading, Cohen has a consistent answer to this question of translation. She argues that there is a right to resist, or “hack,” trusted systems to the extent that they infringe on traditional fair use. (Others have called this the “Cohen Theorem.”) As for reading, she argues that copyright management schemes must protect a right to read anonymously—that if they monitor, they must be constructed so that they preserve anonymity. The strategy is the same: Cohen identifies a value yielded by an old architecture but now threatened by a new architecture, and then argues in favor of an affirmative right to protect the original value.

Footnotes

¹ Efficient here both in the sense of cheap to track and in the sense of cheap to then discriminate in pricing; William W. Fisher III, “Property and Contract on the Internet,” Chicago-Kent Law Review 74 (1998). Edit Delete

² Julie E. Cohen, “A Right to Read Anonymously: A Closer Look at ‘Copyright Management’ in Cyberspace,” Connecticut Law Review 28 (1996): Reading anonymously is “so intimately connected with speech and freedom of thought that the First Amendment should be understood to guarantee such a right” (981, 982). Edit Delete

³ “The freedom to read anonymously is just as much a part of our tradition, and the choice of reading materials just as expressive of identity, as the decision to use or withhold one’s name” (ibid., 1012). Edit Delete

⁴ See Lessig, “Translating Federalism,” 125. Edit Delete

⁵ See Olmstead v United States 277 US 438, 474 (1928) (Justice Louis Brandeis dissenting: “Can it be that the Constitution affords no protection against such invasions of individual security?”). Edit Delete