Anonymity is not just an aspect of privacy and recognizing their difference reveals a powerful and poorly understood set of legal tools for facilitating and controlling the production of public goods. This is the central claim of my newest article (SSRN draft available here).
Three examples illustrate the scope of the under-explored ways in which anonymity is currently used in our law.
- The first is from June 1997, when many residents in the Boston neighborhood of Allston learned to their anger that Harvard University had spent the previous 8 years secretly acquiring over 50 acres of Allston real estate. It did so using buying agents, which can generally protect their principal’s anonymity—even by falsely stating that they are not agents.
- The second is from Election Day 2012, when many voters who had shared photos of their completed ballots on Facebook and Twitter learned, to their surprise, that they had violated their states’ elections laws in doing so. They did not know that anonymity in voting was not just a right, but also a requirement.
- The third is from a 2006 lawsuit over the control of thousands of tissue samples being used in research at Washington University. When many of the research participants sought to withdraw their tissue from future research, in response to what they saw as a breach of their consent, they were shocked to learn that the university could refuse and extinguish their rights of withdrawal by anonymizing their tissue samples.
These varied uses of anonymity in our law—as a right when purchasing land, a requirement in voting, and a trigger than extinguishes rights in biomedical research—may appear to be unrelated. But I argue that they are in fact all part of a cohesive and previously unrecognized class of rules that use anonymity not to protect privacy, but rather to incentivize or control the production and circulation of information and other socially desirable goods.
These rules can be found operating across our law, in domains ranging from contract and copyright to criminal law and constitutional law, but we have failed to recognize them because we have understood anonymity to be a mere tool or aspect of privacy. In conflating anonymity and privacy, we have failed to see an important factual difference between them: under the condition of privacy, we have knowledge of a person’s identity, but not of an associated personal fact; whereas under the condition of anonymity, we have knowledge of a personal fact, but not of the associated person’s identity. In this sense, privacy and anonymity are flip sides of each other. And for this reason, they can often function in opposite ways: whereas privacy often hides facts about someone whose identity is known by removing information and other goods associated with the person from public circulation, anonymity often hides the identity of someone about whom facts are known for the purpose of putting such goods into public circulation.
My article offers a taxonomy and theory of this poorly understood function of anonymity, and develops generally-applicable lessons for the use of anonymity in law and policy — lessons that I then apply to reveal innovative solutions to a series of difficult and pressing questions, ranging from how to prevent conflicts of interest in the creation of public policy, to how to regulate the use of human tissue samples in biomedical research. For more on this, click here.