Academic journal article Southern Law Journal

Who Is That Masked Man: Should Anonymous Posters to Newspaper Websites Be Unmasked?

Academic journal article Southern Law Journal

Who Is That Masked Man: Should Anonymous Posters to Newspaper Websites Be Unmasked?

Article excerpt

I. INTRODUCTION

A variety of cases have considered the privacy rights of anonymous posters on newspaper websites. Do the First Amendment or state shield laws defeat a subpoena demanding the names of these individuals? There are several competing considerations. Are journalistic shield laws appropriate in a situation in which the news source is presenting information directly to the public without the filtering influence of a professional journalist? To what extent does the First Amendment protect the right to be anonymous and what competing interests are sufficiently important to overturn this protection? May a newspaper argue on behalf of the legal rights of a third-party poster? What ethical considerations are present on both sides of this debate? What public policy is appropriate in the new media age that society has entered? The answers to these questions will shape society's understanding of the First Amendment and the rights of the individual in this new digital age.

II. INFORMATIONAL AND DECISIONAL PRTVACY

While privacy is fundamental to personal autonomy and freedom, how broadly it may be asserted in a social setting is a significant policy question. Some scholars divide privacy into informational privacy and decisional privacy. Informational privacy "limits the ability of others to gain, disseminate, or use information about oneself."1

Information privacy involves the collection, use, and disclosure of personal information. Information privacy is often contrasted with "decisional privacy", which concerns the freedom to make decisions about one's body and family. Decisional privacy involves such matters as contraception, procreation, abortion, and child rearing, and is at the center of a series of Supreme Court cases often referred to as substantive due process or the constitutional right to privacy.2

Of special significance for this analysis is the fact that U.S. law only treats decisional privacy as a fundamental individual right. Freedom of information is a significant public policy issue and the First Amendment gives added weight to this consideration. European law treats information privacy as a significant human right officially protected by European Union (EU) Data Protection Directive 95/46 EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

The EU directive is broadly written to define personal data as "any information relating to an identified or identifiable natural person (data subject); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity."4 However, the Directive does allow exceptions for "the prevention, investigation, detection and prosecution of criminal offenses, or of breaches of ethics for regulated professions"5 and "the protection of the data subject or of the rights and freedoms of others."6 Doubtless the European restrictions are a result of historical abuses by Communist and Fascist dictatorships.

U.S. federal legislation does not broadly regulate the collection and use of online personal information. A variety of offline data collection activities are regulated, notably video rental records7, motor vehicle record8, and cable TV subscription information.9 While many states protect library records, Section 215 of the 2001 Patriot Act broadly permits the Director of the Federal Bureau of Investigation to "make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items). . .".10 Mentioned are "library circulation records, library patrons lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records..."11 These provisions are controversial and some librarians have resisted such requests. …

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