You have the right to anonymity. Part 1. Introduction and world practice

The right to anonymity has already become a world standard for ensuring the fundamental rights of a person and a citizen in the digital age, first of all - the right to freedom of expression and the right to privacy / privacy.

So what is the “right to anonymity” if we are talking about Internet space:

✓ The right to anonymous surfing (search for information on the network) and anonymous sending of personal messages (e-mail, instant messengers)
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An anonymous connection is the main subjective right necessary for any Internet user. An anonymous connection is considered to be a connection to the destination server when this server is unable to either establish the origin (IP address / location) of this connection, nor assign an identifier to it.

Users should be entitled to an anonymous search for information on the Internet, including hiding their IP addresses and sending messages anonymously. In the fall of 2016, the European Court of Justice considered the request of the German Federal Court related to the claim of the representative of the German Pirate Party to the federal government. The complaint was filed by a German citizen regarding the storage of dynamic IP addresses on government sites after the user leaves the site. The European Court, in its decision, recognized dynamic addresses (as previously static addresses) as personal data and indicated that operators do not have the right to retain dynamic IP addresses, except to protect against cyber attacks.

✓ The right to anonymous posting (publishing information on the Internet, including social networks)

In connection with the emergence of online censorship, collection and interception of data of ordinary users with their further prosecution, Internet users should have the right to use technology to provide anonymous access to the network and anonymous posting materials (posts, comments, etc.) on the Internet. This makes it possible to realize the rights of a citizen to freedom of opinion and its expression in the digital age. This opinion is shared by the UN Human Rights Council, which approved the report on the problem of anonymity of users on the Internet.

✓ The right to anonymous payments (including the use of cryptocurrencies)

It is generally accepted that charity must be anonymous. A philanthropist may have various reasons to preserve his anonymity: the desire not to disclose his financial condition, unwillingness to have a personalized sense of gratitude, etc.

✓ The right to anonymously create and distribute works

Art. 1265 of the Civil Code of the Russian Federation provides that the author’s right to name provides the right to use or authorize the use of a work under his own name, under an assumed name (pseudonym) or without a name, that is, anonymously. A similar provision is contained in the Berne Convention, which states that the copyright of a work published anonymously or under a pseudonym is valid for 50 years after the date of its legitimate publication.

However, the right to anonymity is not directly enshrined in any international document that is subject to mandatory execution by national states and can still claim only the recommendations of independent international organizations (primarily the UN) and stakeholders, as well as the developed judicial practice. At the same time, in 2016, an expanded resolution was adopted on “online rights” by the UN Human Rights Council. In the final resolution, the UN General Assembly called on countries "... to review their procedures, practices and legislation relating to the perfection of correspondence, as well as their interception and collection of personal information, including the practice of mass surveillance, in order to protect the right to privacy."

In the United States, the right to an anonymous opinion is protected by the first amendment, and the need to protect it has been repeatedly recognized by the Supreme Court. In the Council of Europe and the European Union a certain legal position on the right to anonymity was also developed. For example, the Committee of Ministers of the Council of Europe adopted a declaration on freedom of communication and the Internet in May 2003. Paragraph 7 of the document provides that:

“To ensure protection against online surveillance and to increase the free expression of information and ideas, Member States must respect the desire of Internet users not to disclose their identity. This does not prevent the members of the Union from taking measures and coordinating their actions to monitor persons involved in criminal activities in accordance with national legislation and the Convention and the protection of human rights and fundamental freedoms, as well as international treaties in the field of justice and national policy. ”

In its jurisprudence, the ECHR (KU v Finland, Appl. No.2872 / 02 dated December 02, 2008, Delfi v Estonia, App. No.64569 / 09 dated October 10, 2013) has also repeatedly recognized the importance of anonymity for freedom of expression rights opinions and privacy. At the same time, the court made it clear that anonymity cannot be absolute and can be limited to protect other interests, especially the protection of vulnerable groups:

“Anonymity and confidentiality on the Internet should not encourage states to refuse to protect the rights of potential victims, criminal acts committed on the network. Although freedom of expression and confidentiality of communications are primary considerations, and telecommunications and Internet services users should be guaranteed that their personal integrity and freedom of expression will be respected, such a guarantee cannot be absolute and must sometimes obey other legitimate imperatives, such as preventing unrest. or crimes or the protection of the rights and freedoms of others. ”

In 2015, UN Special Rapporteur David Kay in his report on the promotion and protection of the right to freedom of opinion and expression in the digital age emphasized the important role of using encryption and anonymity to protect and strengthen freedom of expression.

David Kay explains the need to protect the right to anonymity:

“Anonymity is a state of avoiding identification. Anonymity, being an ordinary human desire to protect its identity from the crowd, is able to give the user the opportunity to explore and distribute his ideas and opinions to a greater extent than if he did this under his real identity. Individuals online can use pseudonyms (or, for example, made-up e-mail or accounts in social networks) to conceal their identity, person, voice, location, etc., but the confidentiality provided by such pseudonyms, is superficial and easily violated by governments or other individuals with the necessary experience. In the absence of a set of tools for encryption and anonymization, the digital traces left by the user easily allow him to be identified. Users who want to ensure complete anonymity or hide their identity (for example, hiding their IP address) from government agencies or criminal intrusion can use such tools as virtual private networks (VPN), proxy servers, anonymous networks, applications, and P2P networks . The most famous anonymity tool is TOR. Deploys more than 6,000 decentralized computer servers around the world, in order to receive and relay information several times to hide identifying information about the endpoints, while creating a strong protection for the anonymity of users. "

In the social networking segment, anonymity has also become an important standard, claiming to become the custom of business turnover. For example, the Facebook company at one time refused to develop a “real-name policy” developed by it after a mass public protest. The world's largest social network also took another very interesting step - it opened its representative office in the anonymous Tor network , thereby instilling users' interest in network tools that increase the protection of personal data.

However, the Russian authorities, seeing an absolute evil in anonymity, after China and the countries of the Muslim world continue to ignore this right, and moreover, they are trying to destroy this anonymity in RuNet in various ways (both legislative and law-enforcement), allowing you to be online anonymously. Currently, work is underway to block resources that provide anonymous access to web resources, attempts are being made to put pressure on VPN services and to compromise the TOR network.

So what happens to the issue of anonymity and privacy in Russia?

About this - in the following parts:
Part 2. Legislation against anonymity
Part 3. Law enforcement struggle with anonymity tools

Prepared by:
Sarkis Darbinyan, Artyom Kozlyuk, Aliona Ryzhikova for the Center for the Protection of Digital Rights