The Right Not To Be Known

While the First Amendment protects the right of a speaker to proclaim a message in public, it also protects the right to speak anonymously.  As well it should.  There are times when a message may only be uttered if the speaker can do so anonymously.   Let’s not forget that the pamphlet Common Sense  — so influential to the cause of American independence – was originally published anonymously.  

And while it is not subject to the First Amendment, the International Corporation for Assigned Names and Numbers (“ICANN”) would be wise to consider the thinking behind the First Amendment and reconsider its plans to limit the ability of commercial Web site owners to register domain names anonymously.   

But first, some background.   ICANN is the nonprofit agency responsible for maintaining the unique identifiers related to namespaces on the Internet.  Anyone wishing to create a domain name is a “registrant.”  ICANN manages this process through multiple registrars and registries, the entities who register the domain names for registrants.  The information collected in the process is maintained in the WHOIS data base.  

Registrants who preferred not to share contact information have been able to pay a small fee and use proxies to register for them.  And there could be lots of reasons for this. Certainly anyone establishing a Web site geared around controversial or unpopular topics might prefer anonymity.  Others may fear retaliation for the site’s content.  Had the Internet existed in the 18th century, Thomas Paine – the author of Common Sense – likely would have taken advantage of it.   

But the aforementioned proposal would essentially eliminate this option.  Which is curious.  Because there seems to be no compelling reason for the proposal.  There are, no doubt, occasions where a party needs to know the registrant’s identity.   This could be for a criminal or civil proceeding.  And that’s what a subpoena is for.   

So it’s not like the information is out of reach. It’s more like it’s inconvenient to retrieve.  And so the proposal seems designed to make it easier to retrieve the information.  It’s significant that the Coalition for Online Accountability ( a group made up of 8 U.S. entertainment companies) is a leading supporter of the proposal.  Those companies are engaged in a constant battle against online piracy.  It’s understandable that they’d like to make the process of rooting out pirates a little easier.  

But given the free speech stakes involved, it’s reasonable to expect a better reason for this change than convenience.