At a hearing last week, Sen. Richard Blumenthal, a Democrat from Connecticut, posed the question to Antigone Davis, the head of global safety for Facebook, Instagram’s parent company.
Davis paused. “Senator, again, let me explain. We don’t actually—we don’t actually do finsta. What finsta refers to is young people setting up accounts where they may want to have more privacy.”
The brief clip went viral, as some commentators cited it as an example of legislators’ inability to understand the technology they’re attempting to regulate. Others pointed to earlier portions of the hearing, in which Blumenthal described finstas as “fake Instagram accounts” and “kids’ secret second accounts” as evidence that he knew what the term meant. Still, the exchange earned Blumenthal a cameo on John Oliver’s Last Week Tonight.
The jokes about whether Blumenthal understands finsta distract from a far more important issue: A member of Congress asked a large social media platform to prevent at least some users from communicating pseudonymously. Such discussions must account for the vital role that anonymity and pseudonymity have played in the American conception of free speech and privacy since our nation’s founding.
Davis alluded to these values in her response to Blumenthal. “You refer to it as privacy from their parents,” Davis said. “In my interaction with teens, what I found is they sometimes like to have an account where they can interact just with a smaller group of friends.”
Instagram could choose to require real names, as the Facebook platform has long mandated. “Facebook is a community where everyone uses the name they go by in everyday life,” Facebook tells users. “This makes it so that you always know who you’re connecting with.” Mark Zuckerberg said in a 2010 interview that “having two identities for yourself is an example of a lack of integrity.” But a real-name policy carries substantial costs for many, particularly those who lack the luxury of being able to freely express themselves under their real names. For instance, in 2014, the Electronic Frontier Foundation documented the harms of Facebook’s real-name policy for the LGBTQ community. “Being able to connect a legal name with an online LGBTQ identity makes it much easier for not just stalkers and harassers, but dangerous abusers, to find people offline,” EFF wrote. “And the loss of ability to identify using one’s chosen identity makes it more likely that an individual will simply leave social media, thereby losing an essential source of community and information.” In 2015, Facebook responded to some of this criticism by changing some of its enforcement procedures, requiring people to provide context when they flag allegedly fake names and allowing those with flagged accounts to provide justifications.
Free speech expert Jillian York has aptly labeled real name proposals the “White Man’s Gambit.” I spent the past three years writing a forthcoming book about the longstanding U.S. tradition of anonymous and pseudonymous speech, from Common Sense and the Federalist Papers to websites such as Glassdoor where employees can candidly expose their employers’ shortcomings. I’ve reviewed the arguments for and against anonymity in many different contexts. Much of the pushback to anonymity comes from a few misunderstandings.
First, anonymity and pseudonymity are too often conflated with deception. To be sure, some people do attempt to impersonate others online. But impersonation is not the same as allowing people to separate their identities from their words. Platforms like Twitter and Reddit correctly prohibit impersonation while still allowing users to operate under pseudonyms.
Second, even platforms with real-name policies are susceptible to abuse. For instance, Facebook reported that during the 2016 presidential election season, Russian propaganda reached up to 126 million Americans. Tightening identification policies might reduce some malicious acts, but in my research I’ve found that the particularly dedicated bad actors are more likely to figure out how to circumvent real-name rules. Or they simply assume the risk of operating under their real names while causing as much harm as possible.
Third, real-name policies do not magically result in civil discourse. For instance, a 2016 study that reviewed hundreds of thousands of comments on a German online petition site concluded that “more online aggression is obtained by non-anonymous commenters, and not by anonymous commenters.” Just check out any random Facebook group to witness people engaging uncivilly under their real names.
Of course, Instagram is a private platform that is free to enforce a strict real-name policy. The most concerning aspect of Blumenthal’s question was that it came from a lawmaker. Every so often, commentators and politicians float the idea of requiring social media sites to adopt and enforce real-name requirements.
Some countries, such as China, impose real-name requirements, but U.S. courts would almost certainly strike down such laws. The Supreme Court first recognized that the First Amendment protects anonymity in 1958, when it blocked segregationist Alabama state officials’ attempts to force the NAACP to disclose its membership lists. Two years later, the court struck down a Los Angeles ordinance that required handbills to include their authors’ names. “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind,” the court wrote. “Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”
Courts have recognized a strong—but not absolute—First Amendment right to online anonymity. The issue has arisen most frequently when civil litigants have sued anonymous posters and issued subpoenas for websites and service providers to disclose identifying information. Generally, courts will take a very close look at the justifications for the unmasking. “Anonymous internet speech in blogs or chat rooms in some instances can become the modern equivalent of political pamphleteering,” the Delaware Supreme Court wrote in 2005 when it blocked the attempts of a town councilmember to unmask online critics through a defamation lawsuit.
For similar reasons, courts have long pushed back against real-name requirements. In 1998, a federal judge invalidated a New Mexico age verification law “because it prevents people from communicating and accessing information anonymously.” In 2014, the U.S. Court of Appeals for the 9th Circuit struck down a law that required registered sex offenders to provide law enforcement with a list of their internet identifiers.
One might ask whether a real-name requirement would matter on Instagram, where users often post photos that reveal their faces. As I describe in my book, the First Amendment has created a culture of anonymity empowerment that allows individuals to decide how much identifying information to disclose. Anonymity is not binary; people could reveal some identifying details but not others. Or they could choose to disclose their identities to some people while remaining anonymous to most. Even the authors of the Federalist Papers—Alexander Hamilton, James Madison, and John Jay—unmasked themselves as the men behind “Publius” to a select handful of associates.
The Supreme Court has recognized the nonbinary nature of anonymity. For instance, in 2002, it struck down an ordinance in the small village of Stratton, Ohio, that required canvassers to first register with the mayor’s office. “In the Village, strangers to the resident certainly maintain their anonymity, and the ordinance may preclude such persons from canvassing for unpopular causes,” the court wrote.
I agree that we must do more to protect teenagers—and adults—from online harms. But I question whether a real-name requirement, even if it could apply only to teens, would be an effective solution. I think of Microsoft researcher danah boyd’s years of foundational studies of teens’ use of social media. She found that many teenagers, including a disproportionately high number of teenagers of color, relied on pseudonyms. “The people who most heavily rely on pseudonyms in online spaces are those who are most marginalized by systems of power,” she wrote in 2011. “ ‘Real names’ policies aren’t empowering; they’re an authoritarian assertion of power over vulnerable people.”
Congress can—and should—continue the debate about the harms that minors experience on social media. Facebook whistleblower Frances Haugen has exposed vital information, particularly about the mental health harms to teenagers associated with Instagram use. I hope Haugen’s revelations start a serious discussion about many long-neglected issues, including the lack of a strong U.S. privacy law. But “ending finsta” is not the solution.
The views expressed in this piece are only the author’s and do not represent the Naval Academy, Department of the Navy, or Department of Defense.