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Legislators

defending the regulation of violent speech on

enforcement officials from the United States

the Internet, law professor Cass Sunstein

and seven other industrialized countries

should be partic-

wrote, "Suppose that an incendiary speech,

issued a joint statement calling for "informa-

ularly wary of

expressly advocating illegal violence, is not

tion and telecommunications systems" to be

laws requiring

likely to produce lawlessness in any particu-

"designed to help prevent and detect network

lar listener or viewer. But of the millions of

abuse." According to an article in Communi-

sweeping changes

listeners, one, or two, or ten, may well be pro-

cations Daily, "It would be helpful to law

to communica-

voked to act, and perhaps to imminent, ille-

enforcement if information sent over the

gal violence."4 7However, the proposition that

Internet were tagged, and packets would

tions technology

controversial speech is acceptable so long as

transmit information reliably as to where

in order to serve

it reaches only a very few listeners flies direct-

they came from, including user and service

speech-restricting

provider, officials said."5 2

ly in the face of the governing metaphor of

First Amendment jurisprudence, as stated by

A few months later, FBI director Louis

goals.

Justice Holmes: "The ultimate good desired

Freeh testified to a Senate appropriations

is better reached by free trade in ideas. . . . The

subcommittee about child pornography,

best test of truth is the power of the thought

encryption, and the traceability of e-mail. His

to get itself accepted in the competition of

prepared remarks stated: "The telephone

the market."48 Sunstein, by contrast, argues

industry is required by FCC regulation to

maintain subscriber and call information for

that government must intervene whenever

a fixed period of time. It would be beneficial

controversial speech is about to gain accep-

tance in the marketplace of ideas.4 9

for law enforcement if Internet service

providers adopt a similar approach for

A closely related argument is that anony-

retaining subscriber information and records

mous speech is more dangerous on the

for screen names and associated Internet

Internet because of the lack of gatekeepers--

working protocol numbers, or `IP addresses.'"5 3

such as publishers, editors, or television pro-

ducers--who may know the identity of the

Laws requiring the disclosure of identity in

anonymous speaker or filter out anonymous

cyberspace would require far-reaching changes

speech. However, that argument is also high-

in Internet technology. Today, one can set up

ly anti-democratic and opposed to free mar-

an Internet account without one's full name

kets because it presupposes that anonymous

being stored anywhere on the Internet; in fact,

speech is acceptable only if prescreened by an

by setting up accounts on a private network

informed elite. "Such an elitist attitude

attached to the Internet, users may gain use of

should not be part of modern free speech

the Net without placing their identities on file

philosophy," writes attorney Lee Tien in an

anywhere at all. Anonymity and pseudonymi-

informative article on the applicability of

ty are built into the architecture of the Net.

McIntyre to cyberspace.5 0

Legislators should be particularly wary of laws

requiring sweeping changes to communica-

No gatekeeper stood between Mrs. McIntyre

tions technology in order to serve speech-

and her intended audience. In order to recon-

restricting goals.

cile McIntyre with a pro-regulation view based

on the lack of gatekeepers, it is necessary to

drag in Cass Sunstein's volume argument as

Conclusion

well. According to that view, Mrs. McIntyre's

actions were permissible because her audi-

ence was very small. Here you have two elitist

Problems linked to anonymity, such as dif-

arguments for the price of one.

ficulty in tracing hackers and perpetrators of

online fraud,5 4 must find other solutions.

Since the Georgia decision, law enforce-

ment authorities have continued to push for

Better security practices as a preventive mea-

sure are a logical first step.5 5Around the world,

the elimination of anonymity on the

Internet.5 1 On December 17, 1997, law

many governments refuse to protect their citi-

5