Following United States v. Forrester, which established that IP addresses are not private, I would like to consider how this ruling, which seems to make sense in most contexts, might actually be quite problematic. As the court noted, to/from fields in emails and IP addresses serve as routing information, and just as the outside on an envelope is not private, these things should not be private. This seems to make a lot of sense. However, in some cases, such as when people visit sites and post on them, the government’s ability to track IP addresses could constitute a serious attack on free speech.
If the government suspects a person is making bombs, and then checks to see if they have visited IP addresses of sites with bomb making instructions, this seems fine. This seems to be a logical extension of the government legally looking an envelopes sent between someone and a bomb making consulting firm (not the best example, but oh well).
However, a problem arises when the IP address tracking reveals not only a site someone visited, but a site someone may have posted on, such as a blog or a newspaper that provides user comments after articles. In such cases, it might be possible for the government to see that a certain person visited a certain site at a given time, which corresponds to the time and IP address of someone who posted a certain comment. I am not an expert on IP addresses and these issues, but it does not seem unforeseeable that the government could sometimes figure out if a certain user posted a certain comment based on IP addresses. In such cases, what was intended to be an anonymous comment would lose anonymity. Unlike cases of letters and phone calls, where the government can know which two people are communicating but the content of such communication remains private, because what’s posted on the internet often stays there for all to see, the government can piece together who was talking and what they said.
Clearly, from a First Amendment perspective, the above scenario is quite problematic. Essentially, the government gains the ability to uncover anonymous posters to online sites without a warrant. This, of course, creates problems since individuals lose their right to anonymous speech, and this will lead to injustices as well as to chilling speech.
However, how can the laws be modified? Is it possible to draw a line between letting the government track IP addresses for sites people have viewed but not for tracking things people have written online? If it is not possible, which should be sacrificed – the government’s ability to track online activity or freedom to post online without fear that IP addresses will lead the government back to the speaker?
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Great job! Triangulation allows the government to deduce a lot of stuff about what you're saying and with whom you're associating -- stuff that is central to First Amendment doctrine. So that leaves us with a major question -- where do we draw the line? How do we balance competing concerns? Can you make a bright line rule or should we allow these issues to be dealt with on a case by case basis?
ReplyDeleteGreat insight into the First Amendment dimension of that a lot of these issues have. I'm not sure the choice is between anonymous speech and "sacrific[ing] the government's ability to track online activity," though -- if we say that looking at IP addresses is a search, that doesn't completely preclude the government from doing it; it just means they need to get a warrant first. Are there circumstances you can think of in which the police wouldn't have probable cause to look at IP addresses (so would be unable to get a warrant) but we might want them to be able to do so anyway?
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