[1]J.D. candidate, Northwestern University School of Law, May 2001; B.A., Brown Universiy, 1997; Email: email@georgedupont.com. This article is dedicated to Beatrice Borden, whose strength and courage continues to inspire me.  "Cyberspace" is generally considered to be a combination of the Internet, e-mail, Bulletin Board systems, Internet Service Provider domains, etc. See Reno v. American Civil Liberties Union, 521 U.S. 844, 849-54 (1997).

[2]The Nielsen//NetRatings Universe is defined as all members (2 years of age or older) of U.S. which currently have access to the Internet. See Nielsen//NetRatings statistics at the NUA Ltd. Homepage, at http://www.nua.ie/surveys/how_many_online/n_america.html (last visited Sept. 1, 2000)(on file with Michigan Telecommunications and Technology Law Review (MTTLR)).

[3]See NUA Ltd. Homepage, at http://www.nua.ie/surveys/how_many_online/n_america.html (last visited Sept. 1, 2000)(on file with MTTLR).

[4]The low cost, ease of use, and potentially anonymous nature of cyberspace makes it an attractive medium for fraudulent scams, child sexual exploitation, and "cyberstalking." See "Cyberstalking: A New Challenge for Law Enforcement and Industry," A Report from the Attorney General to the Vice President, (August 1999), available at http://www.usdoj.gov/criminal/cybercrime/cyberstalking.htm (last modified Oct. 18, 1999)(on file with MTTLR).

[5]"The FBI is constantly lobbying for so-called key-recovery features that could give them access to a person's private key to unlock their encrypted data. Law enforcement and powerful intellectual property owners -- such as the record and music industries -- don't want Net users to be completely anonymous because obviously, that makes them harder to bust if they are suspected of trafficking pirated material or committing other Net-based crimes." Courtney Macavinta, New Product Guarantees Online Anonymity, CNET News.com (December 13, 1999), http://www.cnet.com (last visited Sept. 1, 2000)(on file with MTTLR).

[6]See "Cyberstalking: A New Challenge for Law Enforcement and Industry," supra note 4.

[7]During the week of February 7, several major e-commerce web sites were the target of "denial of service attacks" by hackers. These sites included, Yahoo, eBay, Amazon.com, Buy.com, E*Trade, and CNN.com. They were temporarily crippled by the attacks, leaving customers unable to access them. Evan Hansen and John Borland, New Assault Weapons Pose Threat to Web, CNET News.com (Feb. 8, 2000), available at http://www.cnet.com (last visited Sept. 1, 2000)(on file with MTTLR).

[8]President Clinton told CNN.com that the recent cyber-attacks on e-commerce "underscore a need for the government to focus on protecting the Internet itself." Clinton Taking Up Web Security with Experts, a Leading Hacker, A. P. INDEX, Feb. 15, 2000, at 1, available at http://www.siliconvalley.com (last visited Sept. 1, 2000)(on file with MTTLR).

[9]See David R. Johnson & David Post, Law and Borders - The Rise of Law in Cyberspace, 48 STAN. L. REV. 1367, 1367 (1996); see also The Domain Name System: A Case Study of the Significance of Norms to Internet Governance, 112 Harv. L. Rev. 1657, 1657 n.2. (1999).

[10] Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. We have no elected government, nor are we likely to have one, so I address you with no greater authority than that which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear. . . . . . . We will spread ourselves across the Planet so that no one can arrest our thoughts. John Perry Barlow, A Declaration of the Independence of Cyberspace, at http://www.eft.org/~barlow/Declaration-Final.html (Feb. 8, 1996)(on file with MTTLR).

[11]See id.

[12]Some web sites advocate cyber-anarchy, cyber-terrorism and e-commerce disruption. The Anarchist Action Network states three goals: 1) to counter defamation of anarchy and anarchists in the media, 2) to foster cooperation, mutual aid, public space, compassion, understanding, sharing, community- especially among young people who may not realize alternatives to authoritarian control structures of the society into which they were born, and 3) to challenge the authority of all institutions and sources of coercion. http://www.zpub.com/notes/aadl.html;. The Hackers Homepage disclaimer states "We WILL NOT answer emails from anyone asking about illegal activities, or how to use our products for illegal activities . . . they will automatically be deleted. All products [sold by the web site] are designed for testing and exploring the vulnerabilities of CUSTOMER-OWNED equipment, and no illegal use is encouraged or implied. We WILL NOT knowingly sell to anyone with the intent of using our products for illegal activities or uses. It is your responsibility to check with the applicable laws of your city, state, or country." http://www.hackershomepage.com. However, some of the Internet products available for sale at The Hackers Homepage site include: Membership Sites Password Hacker: "Use this software to hack into most Internet sites that use membership sign-on screens." http://www.hackershomepage.com. H@tmail/Eud@ra Email Hacking: "Easy methods to hack into someone's H@tmail/Eud@ra account and view their email." (Note that "Hotmail" and "Eudora" are purposely misspelled). Id. Computer Pranks Collection: "This CD contains dozens of pranks that can be used to annoy your victim. Pranks include: CD drive opening and closing, printer randomly printing, windows moving about the screen, buttons moving before you can click on them with your mouse, fake start menu, fake deletion of files and many more. Easy to install and will drive your victim nuts. They'll be calling tech support thinking something is wrong with their computer." Id. Internet Site Ripper: "Have you ever found an Internet site that was too good to be true, and you wanted to save everything on it to your hard disk? Well, this software does jut that. It is a ripper and site scanner. It can also download, in many instances, areas of membership protected sites that are usually impossible to view without paying a fee." Id. Answering Machine Scanner/Hacker: "Use this device to access someone else's answering machine. This device will scan all possible codes. Change someone else's messages, change their access code, listen to their message, possibly gain access to free long distance calling, etc. Works with most machines . . . $100." http://www.hackershomepage.com. Pager Hacking & Bomber Software: "This CD is filled with texts and software pertaining to hacking pagers. Learn to encode and decode Pagers. It contains several programs for reprogramming most pagers. Several hardware interfaces are included. Also includes frequencies, capcodes, passwords, universal programming adapter and discriminator pinpoints. This complete collection contains everything you wanted to know on how to hack these units. PAGER BOMBER: Use this software and your computer to activate all pagers within a certain area code. All pagers will beep and display whatever number you entered. Imagine the expression on the person's face when they receive thousands of calls asking the reason for being paged. CD-ROM $125." Id. GSM Cell Phone Hacking: "This CD contains everything currently available that can be used to hack GSM digital and analog phones. Includes hard-to-find, experimental software and texts for most phones. Nothing beats being able to call anyone you want for free." Id. Of course, no self-respecting hacker would be caught without a File Shredder: "Includes a 'panic button' that will delete all your sensitive files with the click of a button faster than you can say 'search warrant'. Invaluable to businesses, hackers, and anyone with secrets, skeletons, stored on their computer." http://www.hackershomepage.com.

[13]For a more mainstream-oriented approach to anonymous mischief, PoisonPen.com offers its customers "anonymous email services for ex-girlfriends, ex-boyfriends, disgruntled employees, targets of unwanted sexual advances and ticked-off people everywhere." While the company "strictly prohibits" profanity and vulgarity, it charges $8 to email anonymous, "private, explicit words to the enemy." Evan Hansen, Start-up Sells Email Services to Revenge Seekers, CNET News.com, Nov. 16, 1999, at 1, available at http://www.cnet.com (last visited Sept. 1, 2000)(on file with MTTLR).

[14]Companies often take action against anonymous abuses in cyberspace by trying to unveil the identity of the abuser. "Online services in the United States have been flooded with subpoenas demanding to unmask the identities of anonymous posters -- a request that companies sometimes honor." See Hansen, supra note 13.

[15]See discussion Infra Part III.A.

[16]See Donald J. Karl, State Regulation of Anonymous Internet Use After ACLU of Georgia v. Miller, 30 ARIZ. ST. L.J. 513, 530 n.179 (1998). See generally Reno v. ACLU, 521 U.S. 844 (distinguishing the Internet from zoning precedents for adult movies and bookstores, as well as precedents regarding broadcast media).

[17]See discussion Infra Part III.A.

[18]"[W]hether a narrowly tailored Internet anonymity restriction might pass constitutional muster under the First Amendment remains an open question." See Karl, supra note 16, at 533.

[19]Noah Levine, Establishing Legal Accountability for Anonymous Communication in Cyberspace, 96 COLUM. L. REV. 1526, 1528 n.9 (1996)(citing Mike Goodwin, Who Was That Masked Man?, Internet World, Jan. 1995, at 22).

[20]See DAVID H. FLAHERTY, PRIVACY IN COLONIAL NEW ENGLAND 118 (1972).

[21]See Id.

[22]See Id.

[23]See Id.

[24]Levine, supra note 19, at 1528.

[25]Id.

[26]Cf. NICHOLAS NEGROPONTE, BEING DIGITAL 4-5 (1995)(discussing the move away from communications employing physical objects towards completely digital communications media).

[27]"As Moore's Law (the assertion that every eighteen months, processing power doubles while cost holds constant) continues its relentless journey into the realm of smaller, cheaper, and faster, the acceleration of new technology introductions will increase. As it does, Metcalf's Law (the assertion that the more people who use your software, your network, your standard, your game, or your book, the more valuable it becomes, and the more new users it will attract, increasing both its utility and the speed of its adoption by still more users) is there to spread them around. LARRY DOWNES, UNLEASHING THE KILLER APP 21-28 (1998).

[28]"The anonymity question is further muddied by a great deal of confusion about what constitutes privacy in electronic communication. The agitation regarding the use of high levels of cryptography to protect the 'privacy' of electronic messages should not be confused with the question of true anonymity of message sources." Anne Wells Branscomb, Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces, 104 YALE L.J. 1639, 1675 (1995).

[29]See Reno, 521 U.S. at 851.

[30]People take nicknames in Internet chat rooms to protect their identity from others in the room. Although the host of a chat room usually has access to their real identities, this information can be falsified. Likewise, although all WWW page domains must be registered to a paying individual or company, several services (such as Tripod.com) exist that provide free WWW pages in exchange for (easily falsified) personal information.

[31]Not only is it socially undesirable, but it is technologically impossible to eradicate all truly anonymous communication. Recent anonymous attacks on e-commerce sites are considered to be "part of the price of the success of the Internet." Web Security, supra note 8. Additionally, "most analysts predict that such attacks will become a fixture of the digital landscape." Hansen and Borland, supra note 7.

[32]See Courtney Macavinta, Internet Protocol Proposal Raises Privacy Concerns, Cnet News.com, (Oct. 14, 1999), at http://news.cnet.com/news/0-1005-200-852235.html (last visited January 15, 2001)(on file with MTTLR); see also Domain Name System, supra note 9.

[33]As of November 4, 1999, there were 20 remailers up and running. See Ralph Levien, Remailer List, at http://www.cs.berkeley.edu/~raph/remailer-list.html (last visited November 4, 1999)(on file with MTTLR).

[34]See Attorney General, supra note 4.

[35]Levine, supra note 19, at 1557.

[36]See "Cyberstalking: A New Challenge for Law Enforcement and Industry," supra note 4.

[37]This has already happened. On December 13, 1999, Zero-Knowledge Systems introduced a Montreal, Canada-based anonymous remailer called "Freedom", "for those who want to troll the Net incognito." "With Freedom, users' online activities are encrypted and routed through a globally distributed network of servers that make it impossible to know where users are physically located or who they really are. To ensure that people's actual identities are not linked to their Freedom pseudonyms, they will buy $10 tokens and cash them in for nyms. So all Zero-Knowledge ever knows about a person is that he or she purchased a token, according to the company. 'Zero-Knowledge has no data that can be used to compromise a user's privacy,' said Austin Hill, the company's president." Hill is "not worried" about possible legal problems: "We're not exporting or building encryption [from within] the United States...We took an active stance to educate law enforcement [such as] the Department of Justice. Generally the conversation is 'can you build a backdoor?' and we say 'No.'" See Macavinta, supra note 5.

[38]U.S. CONST. amend. I.

[39]ACLU v. Reno, 31 F. Supp. 2d 473, 476 (E.D. Pa., Feb. 1, 1999)(mem.).

[40]Branscomb, supra note 28, at 1676.

[41]ACLU v. Reno, 31 F. Supp. 2d at 476.

[42]See Attorney General, supra note 4.

[43]Mark Twain (Samuel Langhorne Clemens), O. Henry (William Sydney Porter), Voltaire (Francois Marie Arouet), George Sand (Amandine Aurore Lucie Dupin), George Eliot (Mary Ann Evans), Charles Lamb (sometimes wrote as "Elia"), Charles Dickens (sometimes wrote as "Boz"), and Benjamin Franklin (employed numerous different pseudonyms) all cloaked their identities with various levels of anonymity. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342 n.4 (1995).

[44]Talley v. California, 362 U.S. 60, 64 (1960), quoted in McIntyre, 514 U.S. at 342.

[45]See Talley, 362 U.S. at 64-65, quoted in McIntyre, 514 U.S. at 342.

[46]DOWNES, supra note 27, at 5.

[47]ACLU v. Reno, 31 F. Supp. 2d at 476.

[48]Id.

[49]See Press Release, American Civil Liberties Union, Supreme Court Rules: Cyberspace Will be Free! ACLU Hails Victory in Internet Censorship Challenge (June 26, 1997), at http://www.aclu.org/news/n062697a.html. Although ACLU v. Miller and American Liberty Association v. Pataki were the first challenges to state attempts to regulate cyberspace, currently more than 20 states have passed or are considering passing laws that regulate cyberspace. See id.

[50]"The threat of an 'electronic Pearl Harbor' was raised in March 1999 by then-Deputy Defense Secretary John Hamre, who predicted in congressional testimony that cyberterrorists would target America's commercial interests." In response, President Clinton stated on February 15, 2000 that the major e-commerce attacks of the week before "were a source of concern", but were not "an electronic Pearl Harbor." Web Security, supra note 8.

[51]See discussion Infra Parts III.A.ii, III.A.iii.

[52]See Attorney General, supra note 4.

[53]See Attorney General, supra note 4. ("Care must be taken in drafting cyberstalking statutes to ensure that they are not so broad that they risk chilling constitutionally protected speech, such as political protest and other legitimate conduct.").

[54]As more and more people begin using their cable connections to gain access to cyberspace, the Cable Communications Policy Act (CCPA) may limit the ability of law enforcement agencies to track down stalkers and other criminals acting anonymously in cyberspace because the CCPA prohibits the disclosure of cable subscriber records to law enforcement agencies without a court order and advance notice to the subscriber. See Attorney General, supra note 4; see also 47 U.S.C. 551(c), (h) (2000). On the other hand, Lawrence Lessig noted that some cable television companies offering high speed Internet access have attempted to deny competing Internet Service Providers access to their cable networks. Steve Lohr, Policing the Internet: Anyone But Government, N.Y. TIMES, Feb. 20, 2000, 4 (Week in Review) at 3. This could theoretically force the Internet users on that network to give up all forms of true anonymity.

[55]See Karl, supra note 16, at 517 (referring to Act No. 1029, 1996 Ga. Laws 1505-06, codified at GA. CODE ANN. 16-9-93.1 (1996)).

[56]ACLU of Ga. v. Miller, 977 F.Supp. 1228, 1231 (N.D. Ga. 1997).

[57]Id.

[58]Karl, supra note 16, at 522 (quoting Brief in Opposition to Plaintiffs' Motion For Preliminary Injunction, ACLU of Ga. v. Miller, 977 F.Supp 1228 (N.D. Ga. 1997)(No. Civ.A.1: 96(V2475MHS(visited Jan. 14, 1998), available at http://www.inteliview.com/aclupbi.txt.

[59]Karl, supra note 16, at 527; see also ACLU v. Miller, 977 F.Supp at 1235 (Enjoining Georgia from enforcing the anti-anonymity act).

[60]The Georgia law provides that it is illegal for any person to knowingly transmit data through a computer network if that data uses individual names, trade names, registered trademarks, logos, official seals, or copyrighted symbols to falsely identify the person or entity sending the data. See GA. CODE ANN. 16-9-93.1(a) (Harrison Supp. 1997).

[61]Reno v. ACLU, 521 U.S. at 858.

[62]ACLU v. Reno, 31 F. Supp. 2d at 476.

[63]Id.

[64]Reno v. ACLU, 521 U.S. 844; See also, Electronic Privacy Information Center, EPIC Hails Supreme Court Internet "Indecency" decision: Opinion "Preserves Both Free Speech and Personal Privacy" (June 26, 1997) at http://www2.epic.org/cda/epic_sup_ct_statement.html (last visited Jan. 15, 2001)(on file with MTTLR)

[65]See EPIC, supra note 64.

[66]See id.

[67] F. Supp. 160 (S.D.N.Y. 1997).

[68]See Revo v. ACLU, 521 U.S. 844.

[69]See Karl, supra note 16, at 534.

[70]The legislature criminalized any cyberspace communication that "in whole or in part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors." Id. (quoting American Libraries Ass'n v. Pataki, 969 F. Supp. at 163 (quoting N.Y. Penal Law 235.21(3)(1996)).

[71]See Karl, supra note 16, at 534.

[72]Id.

[73]Press Release, American Civil Liberties Union, New York Judge Prohibits State Regulation of Internet (June 20, 1997), at http://www.aclu.org/news/n062097c.html(last visited Jan. 15, 2001)(on file with MTTLR).

[74]See Karl, supra note 16, at 533.

[75]Reno v. ACLU, 521 U.S. 844, 850-51 (1997).

[76]Id. at 870.

[77]NEGROPONTE, supra note 26, at 23-24.

[78]See Reno v. ACLU, 521 U.S. at 885.

[79]Id. at 874.

[80]Id. at 885.

[81]See Karl, supra note 16, at 530.

[82]See infra. Part III.

[83]See id.

[84]See McIntyre v. Ohio, 514 U.S. 334, 357 (1995).

[85]Id. at 338 n.3

[86]Id. at 337.

[87]Id.

[88]Id at 338.

[89]Id. at 339, 357.

[90]Id. at 341.

[91]The opinion went on to state, "Accordingly, 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." Id. at 342.

[92]Id. at 342 n.5.

[93]Footnote 6 of McIntyre reads: "That tradition [of true anonymity with respect to political speech] is most famously embodied in the Federalist Papers, authored by James Madison, Alexander Hamilton, and John Jay, but signed 'Publius.' Publius' opponents, the Anti-Federalists, also tended to publish under pseudonyms: prominent among them were 'Cato,' believed to be New York Governor George Clinton; 'Centinel,' probably Samuel Bryan ...; 'The Federal Farmer,' who may have been Richard Henry Lee, a Virginia member of the Continental Congress and a signer of the Declaration of Independence; and 'Brutus,' who may have been Robert Yates, a New York Supreme Court Justice who walked out of the Constitutional Convention. 2 H. Storing, ed., The Complete Anti-Federalist (1981). A Forerunner of all of these writers was the pre-Revolutionary War English pamphleteer 'Junius,' whose true identity remains a mystery. See Encyclopedia of Colonial and Revolutionary America 220 (J. Faragher ed. 1990)(positing that 'Junius' may have been Sir Philip Francis). The 'Letters of Junius' were 'widely reprinted in colonial newspapers and lent considerable support to the revolutionary cause.' Powell v. McCormack, 395 U.S. 486, 531, n.60, 89 S.Ct. 1944, 1969, n.60, 23 L.Ed.2d 491 (1969)." Id. at 343 n.6. Although this footnote illustrates the value of anonymity, the content of this footnote is misleading because it does not distinguish between the pseudo-anonymous identities of the Federalist Papers authors and the truly anonymous identities of some Anti-Federalists.

[94]Id. at 341.

[95]See ACLU of Ga. v. Miller, 977 F.Supp. at 1232.

[96]See Karl, supra note 16, at 531 n.187.

[97]See Karl, supra note 16, at 531-32 (quoting Hernandez v. Superintendent, 800 F. Supp. 1344, 1346 n.1 (E.D. Va. 1992))(holding that a mask that is not a necessary part of an identifying costume is not protected symbolic speech).

[98]See Karl, supra note 16, at 533-34 (quoting State v. Miller, 398 S.E.2d 547, 549 (Ga. 1990)).

[99]See Karl, supra note 16, at 533 (quoting State v. Miller, 398 S.E.2d at 553).

[100]See id.

[101]See Attorney General, supra note 4.

[102]The "anonymous nature [of cyberspace] make[s] it an attractive medium for fraudulent scams, child sexual exploitation, and increasingly, a new concern known as 'cyberstalking.' . . . [T]his report . . . provides recommendations on how to improve efforts to combat this growing problem." Id.

[103]See supra Part III(A)(i).

[104]See Attorney General, supra note 4.

[105]Levine, supra note 19, at 1540.

[106]See Trotter Hardy, The Proper Legal Regime for "Cyberspace", 55 U. PITT. L. REV. 993, 1051 (1994).

[107]Id. at 1051

[108]Id.

[109]Id.

[110]See supra Part II(C).

[111]Levine, supra note 19, at 1532.

[112]Hardy, supra note 106, at 1051.

[113]"No single organization controls any membership in the Web, nor is there any single centralized point from which individual Web sites or services can be blocked from the Web." Reno v. ACLU, 521 U.S. at 853.

[114]A case that further undermines Hardy's proposal is GTE Media Services Inc. v. Bellsouth Corp., 199 F.3d. 1343 (D.C. Cir. 2000). The Court found that personal jurisdiction could not be based solely on the ability of District residents to access the defendant's web site. Id. at 1345. The defendants must be inhabitants of, transact business in, or be found in the District for the court to have personal jurisdiction. Therefore, a plaintiff in the District of Columbia must supplement its jurisdictional allegations against a remailer in another state through discovery. Discovery against a remailer who does not keep records may prove futile.

[115]"[S]uch technology is already creating problems for the legal system by making it impossible to identify a responsible party when assessing civil or criminal liability." Levine, supra note 19, at 1527.

[116]Id. at 1541-42.

[117]Id. at 1572.

[118]Levine notes that "the present law governing the liability of anonymous remailers . . . is confusing and uncertain, . . . [and] to the extent the law is discernable, it creates incentives for administrators to either shut down their remailers or operate them irresponsibly." [i.e., without keeping a list of true identities]. Id. at 1557.

[119]Id. at 1561.

[120]Id. at 1563. Levine envisions that "an incentive can be provided through a safe harbor provision guaranteeing the remailer administrator protection from civil and criminal liability when the administrator (1) has acted in good faith, and (2) voluntarily discloses to the authorities the identity of a user engaging in illegal activities." Id.

[121]Id. at 1560.

[122]According to R. H. Coase, "A regulation need not be absolutely effective to be sufficiently effective." See Lawrence Lessig, The Zones of Cyberspace, 48 STAN. L. REV. 1403, 1405 (1996).

[123]Levine incorrectly concludes that "it is highly unlikely that the significant number of domestic remailer administrators would change their country of residence just to be able to continue running their own remailers free from regulation." Levine, supra note 19, at 1564. Levine fails to account for the strong motivations of remailer administrators that he noted earlier in his comment: [M]ost remailer administrators are . . . motivated by either an interest in having the service available for their personal use or a deep-seated belief in the virtues of anonymity." Id. at 1533.

[124]Id. at 1564.

[125]Id. at 1542.

[126]See supra Part III.

[127]For example, the Supreme Court rejected one legislature's argument that its statute "aimed at providing a way to identify those responsible for fraud, false advertising and libel" because "nothing in the text or legislative history of the ordinance limited its application to those evils." McIntyre, 514 U.S. at 343 (quoting Talley v. California, 362 U.S. 60, 64 (1960)).

[128]As stated above, legislatures will never be able to end all truly anonymous communication. Regardless of this fact, statutes criminalizing anonymity must only affect targeted crimes, or they will be struck down by the courts as over-broad. Proper use of technology can insure that narrowly tailored anti-anonymity statutes have only the intended effect.

[129]Political speech, crime witnesses, novelists, whistle blowers, and Federalist Paper authors are among the socially valued and protected beneficiaries of truly anonymous communication.

[130]See generally Walter Pincus, The Internet Paradox: Libel, Slander & the First Amendment in Cyberspace, 2 GREEN BAG 2D 279 (1999).

[131]David Johnson and David Post assert that "efforts to control the flow of electronic information across physical borders. . . are likely to prove futile." Johnson & Post, supra note 9, at 1372. On the other hand, Lessig proclaims that "Code (as in software) is an efficient means of regulation." Lessig, supra note 122, at 1408.

[132]"Just now the architecture of cyberspace is quite imperfect. Indeed, what is central about its present architecture is the anarchy that it preserves. . . . but this anarchy is just a consequence of the present design. In its present design, cyberspace is open, and uncontrolled; regulation is achieved through social forces much like the social forms that regulate real space . . . It could be made different, and my sense is that it is. The present architecture of cyberspace is changing." See Lessig, supra note 122, at 1408.

[133]The failure of government-created computer programs may raise yet-unanswered problems. "Many questions arise in trying to apply negligence theory to an Internet security breach caused by a failed security device." 10 HIGH TECH. L.J. 213, 245

[134]Devices that access cyberspace, including computers, web phones, Web TVs, and Global Positioning System units, are typically assigned an identifier known as an IP address. Since there are a limited number of potential addresses, devices that "dial-up" cyberspace are often assigned "dynamic addresses" that are reassigned to other devices at the end of a call, allowing the address to be used more efficiently. It is difficult to track the users of these devices because their addresses change from call to call or day to day. A revised addressing scheme vastly increases the number of potential addresses, and the Internet Engineering Task Force (IETF) will soon decide whether dynamic address assignments should persist for much longer periods of time. See Macavinta, supra note 32. If this occurs, each device will essentially have its own virtual license plate, and all communications stemming from a device will be easily associated with its users. A program that cloaks the sender's IP address via a PGP-like encryption technology would enable truly anonymous communication. However, if a neutral body held the encryption key, the communication would become pseudo-anonymous because the true identity of the user could ultimately be discovered.

[135]This second requirement may lead to a new (fairly ironic) problem: the theory that rational governments are likely to increase their eavesdropping activities as technological advances make eavesdropping easier. See Karl, supra note 16, at 530 n.176; see also A. Michael Froomkin, The Metaphor is the Key; Cryptography, the Clipper Chip, and the Constitution, 143 U. PA. L. REV. 709, 804-05 (1995)(asserting that rational governments are likely to increase their eavesdropping activities as technological advances make eavesdropping easier).

[136]See Karl, supra note 16 at 530 ("The United States Supreme Court consistently has held that the government may not inquire into a person's private associations.")(Footnote omitted).

[137]Internet service providers are asked to keep logs so that if they are attacked, authorities can use the information to help track down the hackers. Joe Wilcox, Reno Vows Fed Help in Combating Net Vandalism, CNET News.com, Feb. 9, 2000, available at http://news.cnet.com/news/10-1005-200-1546086.html (on file with MTTLR).

[138]As Ron Dick, chief of the FBI's computer investigation section explained, "Until you get to the keyboard being utilized [by an anonymous message sender], you don't know what you're dealing with." In other words, even if the sender's computer can be identified, the sender herself may remain anonymous. Biggest Cyberattack Was Simple, NYTimes.com, Feb. 9, 2000, available at http://www.nytimes.com (on file with MTTLR).

[139]As always, Hackers will be able to bypass this system and use the remailers to send truly anonymous messages. However, this does not affect my proposal because "what hackers do doesn't define what the effect of law as [a] code is on the balance of the non-hacker public". Lessig, supra note 122, at 1408 n.17.

[140]Although this statement assumes trust in the United States government, this proposal does not require people to trust the government any more or less than the average citizen does during the course of a day.

[141]Criminals who want to communicate anonymously will find a way to do so, regardless of legislation.

[142]"Growing concern over the increased threat of cyber crime has prompted the Justice Department to request another $37 million next year on top of the estimated $100 million already being spent to combat increasingly sophisticated computer criminals." Justice Department Wants More Funds to Fight Cyber Crime, CNN.com, Feb. 9, 2000, available at http://www.cnn.com/2000/US/02109/cyber.crime.money/index.html (last visited Jan. 15, 2001)(on file with MTTLR).

[143]"President Clinton met in the White House Cabinet Room with about 20 industry representatives, national security experts and Attorney General Janet Reno. He said the goal of the meeting was to ensure that the Internet remains 'open and free.'" See Web Security, supra note 8. The President does not, however, want to ensure that the hackers remain free. According to Attorney General Reno, the government is "committed in every way possible to tracking down those who are responsible." Reno explained that the F.B.I. will mobilize massive resources to try to hunt down and prosecute the attackers in cooperation with federal, state and local law enforcement, government and private sector computer experts, the intelligence community, and military experts. Wilcox, supra note 137.

[144]Lohr, supra note 54 (alteration in the original).

[145]Michael Vatis, director of the National Infrastructure Protection Center, told the Senate Judiciary Committee that the main difficulty in catching cybercriminals is determining where and how the crime was committed. Troy Wolverton and Greg Sandoval, Net Crime Poses Challenge to Authorities, CNET News.com, Oct. 12, 1999, available at http://new.cnet.com/news/0-3834-200-850601.html(last visited Jan. 15, 2001)(on file with MTTLR). Vatis says he, "expect[s] to see an increase in hacking by organized crime as the new frontier for large scale theft." David Kennedy, director of research services for Isca.net, a security company that advises Internet companies on how to improve their security, believes that "things will get worse before they get better." Id.

[146]Steve Lohr, writer for the New York Times, notes that the FBI, Justice Department and FTC are "increasing their computer crime and Internet fraud squads" and that "the issue appears to be mainly one of enforcement, not the need for new laws or policies." Lohr, supra note 54. The FBI recently unveiled a computer system called "Carnivore" that acts as a traditional phone tap for internet communications. Given the identity of an individual and access to that individual's ISP, and given proper legal authorization, the FBI can use Carnivore to examine all of the packets crossing the ISP's network and capture investigated communications. Aside from the problem of actually identifying who to look for and where to look, U.S. Representative Charles Canady, chairman of the House Judiciary Committee's Constitution panel stated that "Carnivore raises the question as to whether existing statutes protecting citizens from 'unreasonable searches and seizures' under the Fourth Amendment appropriately balance the concerns of law enforcement and privacy." FBI Defends Email Scanner to House Probe, CNET News.com, July 25, 2000, available at http://new.cnet.com/news/0-1005-200-2339615.html (on file with MTTLR). To top off the issue, Troy Wolverton and Greg Sandoval, staff writers for CNET News.com, say that "although crime might pay, combating it usually doesn't" because "[m]ost online fraud cases involve amounts small enough that authorities often won't investigate." They explain that "[l]aw enforcement officials have been scrambling to catch up with these kinds of criminals--hobbled by insufficient resources and a flurry of trained investigators leaving for the private sector." Doug Rehman, president of the Florida Association of Computer Crime Investigators agreed: "Unfortunately I don't think that you're going to see law enforcement catch up with the curve. In many ways, it's easier to commit crimes in cyberspace than in the real world." Wolverton and Sandoval, supra note 145.