The New York legislature is currently considering two bills that would permit users to identify “anonymous” posters online. Specifically, under the identical bills (S. 6779 and A. 8688), web administrators would be required to, upon request, “remove any comments posted on his or her website by an anonymous poster unless such 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.” The bills apply to “social networks, blogs, forums, message boards, or any other discussion site where people can hold conversations in the form of posted messages.” Therefore, under the bills, individuals posting messages across the Internet could either be identified or their posts would not be permitted to remain online if someone asks for the posts to be removed.

Although neither bill has been voted on, if they were to become law, they would have a large impact on the web as they would virtually ban anonymous web posts across the Internet. While the bills were designed to combat cyberbullying, they face opposition by entities such as the Electronic Frontier Foundation, which has noted the importance of anonymous speech. The right to anonymous speech has been upheld by the US Supreme Court in several decisions over the years, including ones covering anonymous campaign literature and anonymous fliers. Some opponents of the bills have even noted that the Federalist Papers, which are commonly viewed as fundamental to the formation of our current government structure, were published under pseudonyms and were therefore anonymous.

While many believe that the New York bills will not pass constitutional muster, all website operators and frequent bloggers should be aware of activity in this area. With the rise in cyberbullying and youth use of the web, more legislatures are becoming concerned about regulating use of the Internet.

Arent Fox is continuing to monitor activity in this area. Please contact Anthony Lupo, Sarah Bruno, or Eva Pulliam with questions.