How the Internet changes the rules of the game

Privacy and anonymity are challenged by public records and transparency demands. The latest venue of this clash of public interests is Washington state and its referendum petitions process.

The United States Supreme Court recently upheld a federal lower court ruling (by not accepting the case and allowing the ruling to stand) that the names of the signers of the petitions should not be made public. At issue were 138,000 names of people petitioning for extension of married-couple rights to same-sex couples. Those seeking the names argued that disclosure prevents fraud and makes public the names of people seeking to influence legislation. Opponents feared intimidation, as names going on the Internet will chill free speech and association rights.

Shame or disclosure? Or both? “The Internet changes the calculus,” an election law specialist told The New York Times. Claims on both sides of the issues are correct — there is an intimidation factor by wide disclosure of names of petitions on hot-button issues. But the Washington state situation differs from cases in the civil-rights era where the Supreme Court held that the First Amendment freedom of association includes the freedom of anonymity. There, lists of civil rights organizations’ membership were held protectible from mischievous attempts at disclosure. While there might be a mischievous purpose for disclosing names of petitioners for legislative action, the better argument is that when people act to affect public laws, they make their names public. They shouldn’t be heard to claim that disclosure of their identity would be intimidation — they’ve entered a public debate.

It is the Internet which magnifies public information, and as a result opens new possibilities of expanded public “debate.” Misuse of the Internet must be policed, lest the bounds of free and open debate be abused for reasons other than debate. The new democracy of the Internet leads to making the protection of anonymity quaint. When anonymity is mischievous, it should not be protected; but when it is necessary for legitimate privacy it should be protected.

In the early battles of the new century, the drawing of these lines will require constant care and genuine thoughtfulness.

Visit www.RonaldGoldfarb.com.