Larry Lessig replies to Politech over limiting anonymity [fs][priv]

[Declan McCullagh <declan () well com>]

---

[Why do I get the feeling that Larry Lessig doesn't like "absolute" 
anonymity much at all? Systems for building and defending "absolute" 
anonymity already exist in the form of anonymous remailers and Freenet, 
among others. It would be foolish to follow Larry's advice and concede too 
quickly that such technologies have so few legitimate uses that they cannot 
be reasonably defended. Even the oft-benighted Eurocrats have recognized 
this: a 1997 EC directive encourages anonymity, as does a German federal 
law (http://www.iid.de/rahmen/iukdgebt.html). In the U.S., since the 
Federalist Papers were published with effectively "absolute" pseudonymity, 
surely the framers of the U.S. Constitution had them in mind when crafting 
the Bill of Rights. Justice Thomas lists more contemporaneous examples in 
his McIntyre concurrence 
(http://supct.law.cornell.edu/supct/html/93-986.ZC1.html). Saying anonymous 
technologies are indefensible concedes a crucial point: that the 
government's power is so sweeping that police have the right to learn our 
identity in all cases. So much for whistleblowing and anonymous reports of 
public brutality.

Perhaps more to the point, the twin privacy-encroaching technologies of 
automated electronic surveillance and efficient large-scale databases did 
not exist decades or centuries ago. "Absolute" anonymity lets us reclaim 
some of that lost zone of privacy. Lastly, trying to remove "absolute" 
anonymity from the Internet (banning strong encryption and computers that 
can be programmed not to keep logs) would be far more disruptive, 
destructive, and harmful than proposals like Hollings' CBDTPA that Larry 
has rightly opposed. --Declan]

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From: Lawrence Lessig <lessig () pobox com>
Cc: Declan McCullagh <declan () well com>
Subject: Re: [Politech] Economist, Lessig want to preserve freedom by 
ending anonymity [fs][priv]
Date: Fri, 5 Dec 2003 10:16:31 +0900
To: Aaron Swartz <me () aaronsw com>

It's not an inaccurate quote, but it is taken out of context.

What I said was that the trend in our laws was to destroy any privacy at 
all -- that the idiocy of Patriot Acts, etc., was effectively eliminating 
any form of privacy. There are two kinds of responses to this -- one to try 
to defend and build a system protecting absolute anonymity; the second is 
to build effective protections for pseudonymous life, which is shorthand 
for traceable transactions, but where the permission to trace is protected 
by something like a warrant requirement. I'm not saying the government 
should build these systems, but that they should be permitted and indeed 
encouraged.

In my view, we will make no progress following path one, but that we would 
strongly advance privacy if we could advance path two. A strong ethic and 
architecture of pseudonymous identity, properly protected, would give us 
more privacy than we have today.

Of course, it is possible (and probably likely) that such an architecture 
would not properly protect the link between a transaction and the privacy 
of a person. Government officials, for example, upon mere suspicion would 
be able to break the link, etc. That of course is not what I am promoting. 
I would promote a regime where the gov't required a very strong 
warrant-like reason before it could break the code that makes the link. But 
I will not that the baseline from which we're starting is a world where no 
real showing is necessary for this sort of surveillance.


On Dec 4, 2003, at 9:26 AM, Aaron Swartz wrote:

> > To preserve freedom further, suggests Mr Lessig, anonymity could be 
> > replaced by [warrant-traceable] pseudonymity.
>
> Can you explain this? The Economist article seemed to be total nonsense, 
> but I'm surprised they paraphrase you as saying something like this. In 
> general, for eliminating anonymity to make sense you need to answer three 
> questions:
>
> 1. Is anonymity the problem? Between DMCA subpoenas and national security 
> letters, it seems that very few people on the Internet have even limited 
> anonymity.
>
> 2. Will the people who are anonymous evade things? The people who _are_ 
> anonymous, of course, are people like crackers. If you outlaw anonymity, 
> crackers will likely find security holes that let them hide their identity 
> and pass their actions off as those of others (e.g. using the WiFi network 
> of some squeaky-clean grandma to launch the attacks).
>
> 3. Is it worth the cost? Even if you can answer the above questions, it'll 
> be difficult to do without knocking large groups of people off the 
> Internet. (If the digital divide is bad now, imagine what it'll be like 
> when you need a credit card to get on the Net.)
>
> Were you misquoted? If not, can you answer these questions? Or is this 
> more blind optimism?
> --
> Aaron Swartz: http://www.aaronsw.com/
-----
Lessig
Stanford Law School
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Stanford, CA  94305-8610
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650.723.8440 (fx)

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