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A new jurisprudence for anonymity

  • (DONNA GRETHEN / Tribune Media Services)

Surveillance used to mean gathering data — essentially, watching and listening. Hidden cameras and bugs were the technologies of choice.

That age is passing. No one is “watched” in the National Security Agency’s massive program to capture metadata. No agents are listening when they merely go through metadata, though agents are undoubtedly listening to some conversations pursuant to other programs. The NSA program isn’t really about gathering data. It’s about mining data. All the data are there already, digitally stored and collected by telecom giants, just waiting. The NSA applies search algorithms to these trillions of information bits, compiling, sorting, looking for patterns.

In the world of data-gathering, the key concept for setting limits on government surveillance is privacy. But in the world of data-mining, the key is anonymity.

Anonymity is very different from privacy. Walking the streets, you’re not in private, but you may be anonymous if no one recognizes you. If you go into a store and pay cash for a book, what you’re doing isn’t private, but, again, you may be anonymous, and that anonymity might be very important to you. When people post material on a freely accessible website, their postings are public, not private — but they may well be anonymous. In such contexts, the question is not whether privacy should be honored but whether anonymity should be protected.

Anonymity can in some circumstances be a great freedom, worthy of protection. In others, it can encourage vicious behavior and enable crime. Solving the riddle of anonymity is the central question of the brave new digital world, even if our courts haven’t quite yet caught on.

When the government engages in data-mining, anonymity deserves protection. Consider telephone metadata — the dates, times and numbers of phone calls. Is that information “private”? Thirty-five years ago, in Smith v. Maryland, the U.S. Supreme Court said no. All that information is already turned over to and collected by phone companies. Hence the government can capture metadata without any constitutional restrictions — with no warrant, no probable cause, not even reasonable suspicion.

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