Anonymity in the Tracking Age

-- By AlexPadilla - 21 Nov 2020 (I wrote this prior to your lecture on this week.)

Innocent Until Proven Guilty

The right to privacy provides one of the most fundamental protections in the United States, the comfort of knowing that one is shielded from the public eye within the confines of their own home. Inherent in this proposition is that bad actors will use this protection in order to protect illicit activities from prying eyes. However, American society has determined that there is greater danger in the arbitrary invasion of an innocent individual’s home than the reasonable, but unsubstantiated, search of a malicious actor. Implicit in this acceptance of possible protection for criminal activity is the value judgment that not all individuals who seek some form of privacy are up to no good. Rather the proper understanding is that criminals will look to take advantage of any normative protections society is willing to provide.

The right to privacy is not as simple as a prohibition against searches and seizures of a person, or a place deemed protected by a reasonable expectation of privacy. In many ways the right to privacy is better understood as a right to anonymity. First, the right, as much as it applies to items, actually applies to actions as well. For example, illicit drugs, as innate items, are not themselves illegal, rather it is the possessing, using, and distributing of these items which itself constitutes an illegal act. When searches and seizures are conducted, they reveal these illicit items which carry an inference that the individual has committed an illegal act. For the simple act of possession the revelation of the illicit item is enough to infer an illegal act. But in cases where more than mere possession is required more intrusive investigation into an individual’s actions may be required.

A Modern Right to Privacy

Considering the right to privacy as a right to the protection of anonymity of action demonstrates that anonymity of identity is a natural outgrowth of existing constitutional protections. Although critics may claim that only guilty individuals wish to remain anonymous, it is clear that ordinary citizens have their own legal reasons for wishing to remain anonymous. Anonymity of identity has been harder to protect because traditionally it has been difficult for an individual to hide their persona when they step outside the confines of their home. However, anonymous online personas have essentially flipped the privacy equation on its head. Instead of easily hiding one’s private actions, individuals can now easily hide their identity, or at least establish their desire to remain anonymous, while their actions online have become increasingly difficult to shield from prying eyes. This is where understanding that the right to privacy is the right to anonymity helps to properly balance the privacy equation in the modern age.

The right to privacy is better understood, and adapted to the modern age, as a right to anonymity. First, as a right to anonymity of action when traditional constraints allowed for the protection of such actions. The advent of newer technologies has made it more difficult for an ordinary person to conceal their actions even with the most outward presentation of an expectation of privacy. The existing constitutional structure establishes a foundation for adapting current protections in response to the changing nature of anonymity. By focusing on the right to privacy as a desire for actions to remain anonymous, the doctrine allows flexibility to protect anonymity of action through anonymity of identity when actions are no longer plausibly anonymized.

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