Illinois Clumsily Enters the Nymwars

Update (Feb. 25, 2013): Computeworld reports that Rep. Silverstein has withdrawn the bill in question.

Last week the great state of Illinois entered into the not-so-great business of trying to govern anonymous speech online through the introduction of Illinois Senate Bill 1614 by State Senator Ira Silverstein. The bill, introduced on February 13th, seeks to force identification of anonymous online commenters by requiring that

[a] web site administrator upon request shall remove any comments posted on his or her web site by an anonymous poster unless the anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate. All web site administrators shall have a contact number or e-mail address posted for such removal requests clearly visible in any sections where comments are posted.

Ignoring that the bill makes no attempt to avoid the obvious dormant commerce clause issues inherent when a state tries to regulate what has to be on all Internet websites, and ignoring that New York tried the same thing last year with nothing to show for it, and ignoring that the average Internet user probably doesn't know how to find their IP address (you can here), and ignoring that IP addresses are dynamically assigned on most ISPs and therefore one's presence at a given IP address does not actually help to identify a person, and ignoring that the definition of "anonymous poster" does not include the critical ingredient that a poster be anonymous, and ignoring that the same State Senator also sponsored a bill to prevent disclosure of identities of firearm owners in Illinois (leading to the pithy critique "guns don't kill people; comments do") – the entire premise of this bill is fundamentally repugnant to the First Amendment and may actually harm those that it is likely intended to help protect.

This is hardly the first battle in the "nymwars," and the obvious unconstitutionality of this bill will come as no surprise to those that have been following along. First Amendment doctrine has long held that, in the words of the Supreme Court, "[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind," and that "an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment." The courts that have looked at this in the context of anonymous posting online have rightly noted that First Amendment concerns play with equal force on the Internet, and that "[a]nonymous internet speech in blogs or chat rooms in some instances can become the modern equivalent of political pamphleteering." To force identification of the originator of a comment "upon request" without any limitation is just the Talley v. California case replacing each instance of the word "pamphlet" with the word "blog;" it is painfully unconstitutional.

But more importantly, there are very, very good reasons for opposing forced identification for all online speech. As danah boyd noted in one very influential blog post, the "real names policies" that are imposed on platforms like Facebook and Google Plus (with some qualifiers) – while usually done with the intent of increasing civility by forcing identification – can actually levy the greatest harm against the vulnerable persons and groups that such policies are intended to help. The