Costs of Loss of Anonymity in Administrative Surveillance State


The ability of citizens to communicate privately and to retain anonymity if desired are foundational rights, slipping away in the regulatory panopticon of the administrative state.

Warnings about the demise of legitimate anonymity accompanied the rollout of the Patriot Act and the establishment of the Department of Homeland Security, and new calls for social media regulation herald the next phase. The dilemma has never been one of the achievability of privacy and a balance between authentication and anonymity for members of the public, but that government does not and will not permit anonymity and privacy, so most legislative privacy debates occur under phony assumptions.

This is being demonstrated again as Facebook has turned a corner and is proposing that governments collude with the social media sector to remove “harmful content” online. While private companies cannot achieve illegitimate monopoly power acting alone, this regulatory “partnership” move would make Facebook a public utility immune from displacement by rivals. It would also be an abomination that would violate the First Amendment right to private speech, so watch for creating framings by regulators to nonetheless regulate online dissent.

Indeed, governments are not saying no. Politicians like Sen. Mark Warner (D-VA)—in “Potential Policy Proposals for Regulation of Social Media and Technology Firms”—is calling for elimination of “disinformation” and “misinformation,” including regulation of “bots” (in the case of the latter, ostensibly to protect election integrity).

The end-game for all this, however, is some form of licensing and registration and the elimination of anonymous dissent online that does not conform to liberal orthodoxies and is therefore deemed “harmful.” That’s in the short term—if conservative radicals were to somehow, someday gain power that the liberal/progressive/socialist ethos wields today, the shoe could be on the other foot as “blasphemy” and “sin” are purged online. Either way, the powers need to rob you of your anonymity.

Prof. John Cochran, writing on the ability to transact privately in the wake of federal terror and drug wars (in a white paper called “The Rule of Law in the Regulatory State”) noted that “The right to political dissent requires the ability to speak freely and privately; the right to earn a living despite political opposition; and the right to transact in private. All three are vanishing.”

Issues like the collection of metadata on citizens have been a concern for some time now. The purportedly discontinued Pentagon “Total Information Awareness” project was a prominent post-9/11 example of watching citizens rather than suspects. Embedded surveillance is affecting new innovations, too. The path of smart cities, for example—given the centrality of federal (and local) regulation in the transportation, autonomous vehicle and biometric components—is trending away from rather than toward greater privacy and liberty in implementation. While private smart cities experiments will undoubtedly be surveillance oriented, and legitimately so, the appropriateness of data aggregation changes when private and public spheres are blurred and data-sharing made compulsory.

In the most pertinent context today, while private social media platforms may elect to eliminate anonymity and purge unwanted content, governments must not be permitted to participate in and influence these schemes. Freedom entails allowing members of the public to present different faces to the world; that is, different shades of authentication and anonymity would be allowed in different contexts not just including but especially in political contexts. The authors of “The Federalist Papers,” for example, signed themselves collectively as “Publius.”

The thrust instead is toward more government compulsion and access to private information and communication, and a federal eye in the sky. The Internet, which was supposed to liberate individuals, is a concern to those holding power, and the crackdown on privacy and speech joins a long list of other unmeasured and unfathomed costs of the now very large administrative state.

Note: This post is part of a series on “Rule of Flaw and the Costs of Coercion: Charting Undisclosed Burdens of the Administrative State,” and comprises an element of A Brief Outline of Undisclosed Costs of Regulation.