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.