Kozinski's responses

[tien@well.com (Lee Tien)]

Here is my on what Judge Kozinski wrote:
>
> a.  You have anonymous snail-mail and telephone calls--why
> not e-mail?  The truth is, anonymous snail-mail and
> telephone calls are also an invasion of privacy, but there
> is not much we can do about them.  

1.      But do anonymous snail-mail or phone calls invade privacy?  Is an
anonymous phone call an invasion of privacy in a way that an ordinary phone
call is not?  Is anonymous snail-mail more invasive of privacy than
ordinary junk snail-mail?  Is it the anonymity that is objectionable?  Many
people object to spam even when they know who it's from.

It's certainly reasonable to define privacy as including an interest in
disattention or not being drawn into communication.  But isn't that
interest implicated every time someone calls you?  And not just when the
caller has ID blocking, or doesn't tell you who he or she is?  Normally,
when I make a phone call, I don't identify myself.  If I'm asked, who is
this, then we have a decision point.  Until I do, isn't the call anonymous?
 Once I do, it's not - any more - but it was until then.  

Put slightly differently, in daily life we interact with those we know
little about, and we learn more (usually) as the interaction unfolds. 
Interaction is sequential, involves turn-taking; trust is built, not
warranted at the outset.  So what is distinctly privacy-invasive in being
anonymous?  

>Someone asked whether I
> objected to getting anonymous snail mail if it was not
> threatening.  The answer is YES, just like getting an
> anonymous phone call is objectionable.  When the person who
> communicates with you insists on retaining anonymity, there
> is always an implicit threat--they know who you are, but you
> don't--you feel vulnerable, you doubt their motives, you
> have difficulty knowing whether to trust their
> representations.  Anonymous complaints against co-workers
> and supervisors was a standard way to get people into big
> trouble in Communist Romania when I was growing up.

The thrust of his comment seems to be (a) that when the caller is
anonymous, there is an imbalance:  you know less than the caller.  You
interact on an unequal footing.  This may well be, as he puts it,
"objectionable"; but the appeal is to some norm of informational
reciprocity, of fair disclosure.  What I don't get is how that is a
violation of *privacy.*    

Does "being named" dispel the objectionable quality of the interaction?   
Don't we often interact with people whom we hardly know?  It seems neither
necessary nor sufficient.  I can feel vulnerable, doubt motives, etc., even
when I know someone's name.  Isn't he really talking about reputation?  To
what extent does nymity (I just coined this as the opposite of anonymity)
matter?  Name may permit you to assess reputation later, but may be of
little use at the time.Is that a privacy issue?

Does Kozinski assume (b) that the anonymous are more dangerous, that
anonymity maps to unaccountability, and unaccountability maps to higher
likelihood of threat.  Even if that's true, is that a matter of privacy?  

2.      As for anonymous snail-mail, consider that an anonymous envelope
isn't necessarily an anonymous letter.  The anonymity is relative to what's
exposed.  Map that onto e-mail.  Isn't that equivalent to anonymizing the
header and encrypting the message itself?  That the header doesn't reveal
sender identity doesn't entail that the message is itself anonymous.  The
anonymity may merely be against third parties.  Kozinski himself says:

> 2.  I also agree that it should be possible to have mutually
> agreed-upon anonymity--i.e. I write to you and you write to
> me and we both know who we are, but nobody else does.  No
> problema--it's nobody else's business.
>

So from that POV, wouldn't a ban on anonymous remailers, to the extent that
they don't preclude nymity w/i the message body, reach too far?

Blatant self-promotion:  BTW, I recently published an article on anonymity
and the McIntyre case in the Oregon Law Review.  75 Or.L.Rev. 117 (1996).

Lee