Anonymity: The Politicisation of a Concept

Thiel, Thorsten Book Part — Published Version Anonymity: The Politicisation of a Concept Provided in Cooperation with: WZB Berlin Social Science Center Suggested Citation: Thiel, Thorsten (2021) : Anonymity: The Politicisation of a Concept, In: Anon Collective (Ed.): Book of Anonymity. An edited collection, ISBN 978-1-953035-31-8, punctum books, Brooklyn, NY, pp. 88-109 This Version is available at: https://hdl.handle.net/10419/231508 Standard-Nutzungsbedingungen: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden. Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich machen, vertreiben oder anderweitig nutzen. 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Introduction In May 2015 David Kaye, UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression, submitted his first report to the Human Rights Council.1 It focused on issues of encryption and anonymity, highlighting the important role these play regarding privacy and the right to free expression. The mere fact that such a report has been produced, and the debate it has engendered, indicates that anonymity has become a high-profile issue. Anonymity is, of course, nothing new in human history and has long been recognized as posing problems and providing solutions in several domains ( investigative journalism and the handling of medical data are two such areas). But the intensity Anonymity: The Politicisation of a Concept 89Anonymity: The Politicisation of a Concept b – reconfiguration of the current debate has shown just how hard it is to pinpoint anonymity — either as a normative concept or as an everyday practice. Only in the wake of the digital turn has the topic become politicized, in other words, transformed from a largely unmanaged determinant of social communication into a political issue. Until the late 1990s, there was a near-total absence of academic literature examining anonymity from a political point of view. Since the turn of the millennium and the heightened awareness of the digital condition we live in, this situation has changed radically. Discourse on the topic has become a scholarly and political battleground, and anonymity is widely understood as a cornerstone of the (normative) order governing our digital lives. This chapter traces the changing conditions of anonymity in liberal Western societies. Political, technical, economic, and social developments have undermined the broad de facto anonymity of modern societies, and I ask whether the current politicization of anonymity is likely to have any impact on the steady disappearance of opportunities for anonymous communication. I argue that anonymity is an ambivalent but critical feature of the democratic public sphere. If we want to slow down or halt this trend, or actually reverse it, it will not be enough simply to po liticize “deanonymizing ” tendencies and whip up indignation. My argument proceeds in three stages. I begin with several conceptual observations on anonymity. From these, a heuristic framework emerges with which the changes in anonymous communication, and in the role this form of communication plays in society, can be described. In very broad brushstrokes, I then describe and analyze the extent to which options for anonymity have been affected by the revolution in information and communication technologies ( ICTs). I conclude by considering how anonymity is framed in public discourse and what effects this has. My aim in this last section is to provide a sketch of the main lines in the debates and 90Anonymity: The Politicisation of a Concept b – reconfiguration 2 Helen Nissenbaum, “ The Meaning of Anonymity in an Information Age,” The Information Society 15, no. 2 (1999): 141– 44 ; Gary T. Marx, “ What’s in a Name? Some Reflections on the Sociology of Anonymity,” Information Society 15, no. 2 (1999): 99 –112 ; and Julie Ponesse, “ The Ties That Blind: Conceptualizing Anonymity,” Journal of Social Philosophy 45, no. 3 ( 2014): 304 – 22 . show that none of the different layers of the anonymity discourse have generated any cogent ideas as to how the all-encompassing trend to deanonymization outlined in the second part of the chapter might be tackled. If we are to succeed in countering this trend, we will have to adopt a more political and institutional mode of thinking. Anonymity: Conceptual Observations The word “anonymity ” literally means a condition of namelessness. But given that a name is only one — actually quite unreliable — identifier of a person, focusing on its absence does not exhaust the meaning of the concept of anonymity. A better way to understand the concept is to set it in a broader context of social communication. Viewed thus, anonymity describes a sit uation of inter subjective action in which it is not possible either to conclusively attribute a particular action or communi cation to an individual or subject or to render an individual or subject accessible and therefore accountable.2 Greater precision can be introduced into this broad definition if we take into account four closely interrelated facts. First, anonymity always relates to the question “ Who? ” It thus points to the combination of action /communication and actor. The “ what ” — in other words the object or content of the action /communication — can be known, provided it does not reveal the identity. Second, anonymity is situational. It is not a characteristic of a person; it is the product of an intersubjective con - stel lation and of the possibility / impossibility of identifying an actor in that constellation beyond the immediate context. This being the case, it is also an impermanent condition, always tied to specific delimitable actions, which themselves are visible as actions and produce effects. Anonymity is therefore distinct from invisibility. 91Anonymity: The Politicisation of a Concept b – reconfiguration Third, although anonymity can be produced intentionally (through disguise, for example, or the use of a pseudonym), it can also arise from a situation (as when one finds oneself in a crowd ). Anonymity is generated by indistinguishability and therefore only succeeds where there are multiple possible authors of an action. This being so, anonymity always depends, at least indirectly, on others’ either ignoring or accepting it and exercising restraint — by not insisting on identification, for example, or by not attempting to single out those performing an action. No individual can be sure that their action will in fact play out anonymously — especially since the possibility of identification persists after, or indeed arises from, the action. Anonymity therefore can never be established for good. Strengthening it would mean taking measures that render identification more difficult — by, for example, removing information from a situation. The upshot of this, fourth, is that anonymity is best under stood and analyzed in terms of its opposite — identification. Hence, anyone wishing to ascertain whether and to what degree anonymity exists in a particular situation must establish to what extent and by whom identification is possible. With these observations in mind, we can set about constructing a heuristic framework that will help us trace the social and technological developments concerning the state of anonymity in liberal societies. To do this, we must first draw two distinctions. The first differentiates horizontal from vertical anonymity. “ Horizontal anonymity ” refers to anonymity among peers and one’s immediate surroundings. Such anonymity is obtained where one is not, or cannot be, identified by those observing a particular act or conversation. This is the situation, for example, in a café or bar, where we tend not to know the people around us and have no way of finding out who they are short of asking them to identify themselves. “ Vertical anonymity,” by contrast, 92Anonymity: The Politicisation of a Concept b – reconfiguration 3 For a more thorough discussion, compare Thorsten Thiel, “Anonymität und Demokratie,” Forschungsjournal Soziale Bewegungen 30, no. 2 ( 2017 ): 152 – 61. refers to anonymity vis-à-vis well-resourced institutions. Most notable among these are states, which have a broad range of means available to identify people in situ and retrospectively. Such actors do not have to be present in the situation in order to make an identification. This chronological aspect points to the second distinction, which relates to the fact that anonymity is not contained within the presence. On the contrary, it almost necessarily extends to the future. Being unidentified in a particular situation is different from being (or at least feeling ) pro tected against later identification. We would not, for example, describe communication as anonymous if we were aware that it was possible, or even likely, that we would later be identified. Our second distinction is therefore between identification (which puts an end to anonymity within a situation) and identifiability (which implies that anonymity cannot be maintained beyond that situation). Whereas identification mostly has to be done overtly (a person presenting ID to board a plane is aware that they are not maintaining their anonymity), identifiability can be achieved without the knowledge or consent of those whose anonymity is being breached. Being aware of the possibility of later identification often prevents us from acting as if we were anonymous. It is possible to secure anonymity actively by introducing (effective, nonreversible) anonymizing procedures that restrict identifiability. These two distinctions in themselves provide us with enough of a conceptual apparatus to trace the devel op - ment of anonymity over the last three decades, in which we have experienced the advent of the public internet and the rise of mobile computing, triggering a deep meditization of our now digital lives. Before we do this, however, we need to make a short detour through normative territory.3 Anonymity is, after all, most often discussed in relation to whether we have cause to fear its spread or demise. If, as previously proposed, anonymity is highly dependent on intersubjective constellations and 93Anonymity: The Politicisation of a Concept b – reconfiguration 4 For example, Tony Doyle and Judy Veranas, “ Public Anonymity and the Connected World,” Ethics and Information Technology 16, no. 3 ( 2014): 207–18 ; Alfred Moore, “Anonymity, Pseudonymity, and Deliberation: Why Not Everything Should Be Connected,” Journal of Political Philosophy 26, no. 2 ( 2018 ): 169 – 92 ; and Dongwon Lim, Hangjung Zo, and Dukhee Lee, “ The Value of Anonymity on the Internet,” in Service-Oriented Perspectives in Design Science Research: 6th International Conference, DESRIST 2011, Milwaukee, WI, USA, May 5 – 6, 2011, Proceedings, ed. Hemant Jain, Atish P. Sinha, and Padmal Vitharana ( Berlin and Heidelberg: Springer-Verlag, 2011), 452 – 64 . 5 Ingrid Brodnig, Der unsichtbare Mensch ( Vienna: Czernin, 2013). 6 James Gardner, “Anonymity and Democratic Citizenship,” William & Mary Bill of Rights Journal 19, no. 4 ( 2011): 927. situational specifics, mounting a hardline defense of it ( for example, according it the status of a human right) or, alternatively, banning it altogether would seem to be equally unpromising approaches. Normative evaluations of anonymity generally take the form of discussions about the presumed effects of anonymous communication. Although the language in these debates is normatively charged and seemingly general, these setups are better thought of as clashes between differing empirical expectations. The optimistic camp holds that facilitating anonymous or at least pseudonymous communication will engender authenticity since power relations can then be ignored, and the individual will be able to speak freely and openly.4 The pessimists, by contrast, believe that giving up the possibility of holding someone to account will foster irresponsible and antisocial behavior.5 These two sets of expectations are then tied into broader normative debates, such as those on privacy (where anonymity can be seen either as crucial to the creation of an inviolable personal sphere or as likely to foster negative behavior such as hate speech) and those on democracy (where anonymity may figure either as a necessary bulwark against the state or as a mechanism that can both facilitate collective action and undermine public discourse). The fact that both sides have a wealth of anecdotal evidence to draw on suggests that rather than treating anonymity as being of value in and of itself, we should look at it in specific contexts.6 Indeed, to regard anonymity as being of inherent worth would seem, quite manifestly, to be a category error. This being the case, rather than taking the abstract route and discussing potential effects of anonymous communication, I follow the heuristic framework es tablished above and trace developments in the possibilities for such communication in society. By establishing what has changed, we get a different view of what these developments entail, and how we might respond. 94Anonymity: The Politicisation of a Concept b – reconfiguration A Brief Overview of the Development of Anonymous Communication in the Digital Constellation Guided by the conceptual framework laid down in the first section, we can now analyze the fortunes of anonymity in the digital constellation. To do this, we first need to ascertain the nature of anonymity — or more precisely, of the options for anonymous communication — prior to these events. Before we can focus on the specific scope and structure of anonymity in Western liberal societies in most of the second half of the twentieth century, we have to turn our attention to the abstract matter of historical representation. Founding sociological text like those of Weber, Durkheim, and Simmel have often depicted modernity as an age of anonymity. In these accounts, the accelerated pace of life and the spread of impersonal modes of production and communication brought about by the Industrial Revolution has been precipitating the demise of community life. Bureaucracy, pluralism, and urban living are characterized as anonymous and contrasted with trust-based communication in small-scale communities. Overall, anonymity is described as ambivalent and often demanding for the individual but at the same time seen as inevitable, a necessary byproduct of the ongoing growth and differentiation of societies. Anonymity is conceptualized as a condition of modern life, less as something individual and situational that deserves protection. Against this sociological background, what is the situation of anonymous communication in societies for most of the twentieth century ? Two facts stand out from the above account: first, anonymity is a feature of society that points to broad development rather than intentional design; and second, anonymity is focused on the horizontal dimension, on societal experiences and peerto-peer relations. Staying anonymous in a public setting 95Anonymity: The Politicisation of a Concept b – reconfiguration is easily achieved, given that peers are not obliged to identify themselves, and it is not difficult to withhold information. Attempting to establish someone’s identity is not only costly; in most situations, it also violates social and legal norms. Regarding vertical anonymity, there are specific areas — such as travel and taxation — in which identification has long been mandatory and is strictly enforced. Outside of these contexts, even the ( liberal ) state most often opts for modes of governance that are not based on establishing individual identities: besides being costly, it is a task that is feasible only for a limited number of individuals and that has to be performed more or less openly. Corporate actors play a minor role and are only able or inclined to enforce identification in very special circumstances. A visual summary of the observations made so far is given in Table 1 This points to the centrality of de facto anonymity in societies before the last decade of the twentieth century. Private, public, and political spaces are mostly constituted in ways conducive to the spread of anonymity — provided this preservation does not entail the breaking of certain written and unwritten rules, and attempts to reach out to a wider public often brings with it a re quirement for identification. At the same time, only a handful of actors are capable of breaching anonymity and curtailing the privacy it can afford to individuals moving in public spaces. Any actors (states, for example) who do seek to “unmask ” an individual are often constrained by laws and social norms or deterred by the high cost and visibility of identification procedures. Even though anonymity, and the possibility of anonymous communication, is deeply inscribed in Western liberal societies of the twentieth century, the notion itself is viewed as negative and dangerous. As a result, social and legal norms aim chiefly to delimit anonymous spaces and tend to frame anonymity as a problem that must be tolerated for pragmatic reasons. 102Anonymity: The Politicisation of a Concept b – reconfiguration 14 Laura DeNardis, “ Hidden Levers of Internet Control,” Information, Communication & Society 15, no. 5 ( 2012 ); and Yochai Benkler, “Degrees of Freedom, Dimensions of Power,” Daedalus 145, no. 1 ( 2016 ): 18 – 32 . basis of the internet — protocols, routing logic, and so on, as well as advancing techniques of encryption — still leaves considerable room for anonymization, although the commodification of the Web and the framing of digital communication as a critical infrastructure (cyber security ) has tightened control.14 Still, every attempt to enforce personalized, verified identification necessitates the creation and acceptance of additional layers of communication. Cookies are one example of this — and also illustrate the characteristic “cat and mouse” game in which identification mechanisms are created and then repeatedly circumvented and refined. To secure acceptance of these kinds of identification mechanisms, the organizations concerned have mostly avoided directly raising the issue of anonymity, instead focusing on the benefits of identification (ease of use, elimination of the need to log in, etc.). Nowadays, many services are available only to registered users, and the processes used for verification are much more advanced. Mobile technology and the app economy have been game changers in this respect: logins here are often permanent, and much more metadata — notably regarding location — is collected by default. This reshaping of online communications has been met with vocal opposition. It has also triggered the development of alternatives that subvert or supplement the offers described above. Probably the most significant endeavor in this regard is TOR ( The Onion Router), an anonymization network that one of the NSA slides leaked by Edward Snowden described as “the king of high-secure, low-latency Internet anonymity.” Within public discourse, technical solutions that offer anonymity are mostly framed as a form of justified civilian self-defense. Anonymity itself is depicted as a weapon with which to resist state-based and commercial data collection to preserve the capacity to organize collective action and hold monopolies of force in check. It is thus represented as inherently democratic in both a participatory and a civil liberties sense. This framing has been met with attempts to criminalize traffic using 103Anonymity: The Politicisation of a Concept b – reconfiguration 15 Helen Nissenbaum, “ Hackers and the Contested Ontology of Cyberspace,” New Media and Society 6, no. 2 ( 2004): 195 – 217. 16 Thorsten Thiel, “ Turnkey Tyranny ? Struggles for a New Digital Order,” in Resistance and Change in World Politics, ed. Svenja Gertheiss, Stefanie Herr, Klaus Dieter Wolf, and Carmen Wunderlich ( Basingstoke: Palgrave Macmillan, 2017 ), 215 – 42 . anonymous networks or the equation of anonymizing mechanisms with fraud. As Helen Nissenbaum pointed out in regard to the hacker community, the contested ontology of cyberspace brings with it massive shifts in the normative evaluation of communication practices, even when these practices themselves change little.15 To sum up: in the technical domain, delegitimization discourses are on the rise, but significant factions in the tech community, especially in countries like Germany, have mostly remained on the side of anonymous communication. Several technical innovations for preserving anonymity have proliferated, although application rates in the wider public stay low. Because these tools are mostly geared to individual self-defense, often reduce ease of use, and entail regular checks and updates, their operation is restricted to a rather small group of technically literate users. Nevertheless, these tools and mechanisms are crucial, and internet-focused civil society has in Europe and the United States mostly succeeded in developing a political voice that commands a degree of attention.16 All in all, though, the impact of these endeavors is tempered by developments in other sectors. The Economic Domain In the economic domain, anonymity is a latecomer and still “under construction.” On the face of it, this is surprising, given the importance of anonymity in classical liberal theory. Here, markets are assumed to operate anonymously, and identification is regarded as unneces sary (or indeed likely to disrupt proper functioning ), since goods can be exchanged by means of a mediation technique (money) that makes it irrelevant who is doing the buying and selling. In addition, modern economies are still viewed as being centered on markets, and they acquire much of their legitimacy by linking market exchange to the idea of freedom. The success of that 104Anonymity: The Politicisation of a Concept b – reconfiguration 17 A. Michael Froomkin, “ Legal Issues in Anonymity and Pseudonymity,” Information Society 15, no. 2 (1999): 113 – 27 ; Ian Kerr, Carole Lucock, and Valerie Steeves, eds., Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society (Oxford and New York: Oxford University Press, 2009). linkage depends, in its turn, on nondiscriminatory, anonymous markets. Digitalization has clearly not resulted in the abandonment of the idea of markets. Instead it has reinforced a number of trends in capitalist economics that were already at work in postindustrialist societies generally; for example, the increased personalization of products, the localization of offers, and the shift from manufacturing to services. In this context, anonymity emerges as an obstacle to be overcome. The approach in the economic domain, therefore, has often been not to discredit ano nymity but to highlight the virtues of identity and identification. Services have become increasingly personalized, social networking being the prime example. The gradual disappearance of options for anonymous communication brought about by the changing behavior of commercial players has concerned privacy advocates and more recently also lawmakers. Although these diverse actors have vigorously condemned the kind of allencompassing data collection pursued by business, they have mostly done so without referring to anonymity. Discussion here has generally taken place under the rubrics of data protection, responsible data use, and data minimization. Privacy, not anonymity, is the rallying cry. So, while there is, and always has been, a powerful anticonsumerist critique of the commercial internet, the argument is about collective goods and control of information and not about options for anonymous communication. The Legal Domain Because the issue of anonymity crops up in connection with many of the fundamental rights of liberal democracy, it presents a complex and persistent legal problem. Constitutionally, attempts have been made both to establish an abstract right to anonymity and to ban it.17 105Anonymity: The Politicisation of a Concept b – reconfiguration Discourse in the legal sphere tends to be more nuanced than in the other domains discussed here. In relation to digital issues, debates about recognizing anonymity as a right, or banning it, tend to develop out of specific legal concerns. The critique of copyright enforcement, for example, led to a discussion about legal responsibility in the context of peer-to-peer networks and cloud storage, and this in turn triggered a debate about anonymity and the necessity of identification for these kind of services. State-based attempts to expanding law enforcement pushed for data retention, framing anonymity as an obstacle to the application of the law (or to the prevention of its violation). These moves have at least in Germany been countered with a fierce defense of data protection and the right to “ informational selfdetermination.” In legal discourses, those who support (qualified ) rights to anonymity appear to be winning the argument. In regard to copyright infringement and data retention at least, a significant proportion of the relevant publics in democratic societies have become skeptical about proposals for an outright ban on anonymous communications. Still discursive framing does not translate directly into political power, and the current awareness might be temporal and specific to certain contexts and cases. The Sociopolitical Domain Within the wider sociopolitical domain, we find that many of the arguments from the other three areas also make an appearance here. The issue of anonymity has begun to excite interest and has been taken up by mass media. The way anonymity is framed in the public discourse continues to be more negative than positive, emphasizing the risks that anonymous communication brings with it and the antisocial behavior it is expected to engender. Attention is focused on the horizontal 106Anonymity: The Politicisation of a Concept b – reconfiguration dimension and on the harm that can be done to private individuals in situations of direct interaction. While the main triggers to the public debate about anonymity are still bad digital practices (such as cyberbullying and hate speech), the exposure of surveillance activities by states and corporations, such as the Snowden revelations or the Cambridge Analytica scandal, have given rise to counter-discourses. Although civil society activists often claim that not enough attention is paid to arguments about anonymity, issues relating to anonymity, privacy, and surveillance have undoubtedly gained considerable traction in the public sphere and have graduated from niche concern to major political battleground. Concluding Remarks The scope and diversity of discourse in these four differ ent areas demonstrates the speed with which the debate on anonymity has evolved in the last decade. Arguments on both sides — for and against anonymity — have become much more sophisticated, and anonymity is now an object of political contestation rather than a minor determinant of modern life. Although politicization is clearly under way, one can foresee that the current attempts might not be enough to counter the powerful trend toward deanonymization. Politicization itself can only be a necessary step not a sufficient one — especially since the forces driving us toward identification are to an extent isolated from public debates and shifting sensitivities. Therefore, those who want to ensure that anonymous communication has a secured place in digitized societies will have to more radically rethink the way our digital societies are governed. The focus should be less on techniques of anonymization and more on a legal and an institutional setup that is robust enough to keep capitalist dynamics and governmental overreach in check. Ensuring that the horizontal and vertical 107Anonymity: The Politicisation of a Concept b – reconfiguration dimension of anonymity are kept apart is as important as acknowledging the socioeconomic drivers of the development toward deanonymization. How and by whom the digital public sphere should be regulated is an open question and a major task of civil society and democratic politics. 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