FN1. Much has been written about the impact of new digital technologies on individual privacy generally. See, e.g., Anne W. Branscomb, Who Owns Information? From Privacy to Public Access (1994); Oscar H. Gandy, Jr., The Panoptic Sort: A Political Economy of Personal Information (1993); Anne W. Branscomb, Internet Babylon? Does the Carnegie Mellon Study of Pornography on the Information Superhighway Reveal a Threat to the Stability of Society?, 83 Geo. L.J. 1935 (1995); Susan Freiwald, Uncertain Privacy: Communication Attributes After the Digital Telephony Act, 69 S. CAL. L. REV. 949 (1996); A. Michael Froomkin, Flood Control on the Information Ocean: Living with Anonymity, Digital Cash, and Distributed Databases, 15 J.L. & COM. 395 (1996); Joel R. Reidenberg, Privacy in the Information Economy: A Fortress or Frontier for Individual Rights, 44 FED. COMM. L.J. 195 (1992); Joel R. Reidenberg & Francoise Gamet-Pol, The Fundamental Role of Privacy and Confidence in the Network, 30 WAKE FOREST L. REV. 105 (1995); Glenn C. Smith, We've Got Your Number! (Is It Constitutional to Give It Out?): Caller Identification Technology and the Right to Informational Privacy, 37 UCLA L. REV. 145 (1989); Symposium, Privacy and IVHS, 11 SANTA CLARA COMPUTER & HIGH TECH. L.J. 13 (1995); Symposium, Data Protection Law and the European Union's Directive: The Challenge for the United States, 80 IOWA L. REV. 431 (1995); see also Seth F. Kreimer, Sunlight, Secrets, and Scarlet Letters: The Tension Between Privacy and Disclosure in Constitutional Law, 140 U. PA. L. REV. 1, 3-11 (1991) (predicting that the modern "information explosion" will exacerbate existing tensions in constitutional privacy doctrine). This Article will not revisit that ground, but will focus more specifically on the relationship between privacy, anonymity, and freedom of thought and expression. As used in this Article, "reading" includes viewing and listening.
 
 

FN2. See, e.g., Economic Indicators, THE ECONOMIST, Feb. 24, 1996, at 110 (number of Internet hosts growing at 85% annually, and number of multi-media World Wide Web pages growing at 2500% annually).
 
 

FN3. Consistent with the planned extraction of royalties on a per-use basis, copyright owners and developers of copyright management systems refer to the initial transaction in the copyrighted work as a "license" rather than a sale. Whether purveyors of copyrighted works held out for mass-market purchase may characterize consumer transactions as licenses to justify imposing more restrictive terms than allowed by copyright law is hotly debated, as is the larger question whether copyright law and the substantive policies it embodies preempt certain contract terms outright. See, e.g. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1453-55 (concluding that contract terms ordinarily will not be preempted) (7th Cir. 1996); Mark A. Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. CAL. L. REV. 1239 (1995); David A. Rice, Public Goods, Private Contract and Public Policy: Federal Preemption of Software License Prohibitions Against Reverse Engineering, 53 U. PITT. L. REV. 543 (1992). The proposed Article 2B of the Uniform Commercial Code, which is intended to cover licensing of intangibles, makes no reference to these debates. See Draft Revised Article 2B: Licenses, available online <http:// www.lawlib.uh.edu/ucc2b/0503/0503_2b.html.> This Article will not address the question of copyright preemption of license terms, except to note that the answer will affect significantly the range of copyright management practices a copyright owner may lawfully adopt. See infra notes 42-43 and accompanying text.
 
 

FN4. See Mary G. Smith & Robert Weber, A New Set of Rules for Information Commerce -- Rights-Protection Technologies and Personalized-Information Commerce Will Affect All Knowledge Workers, COMM. WEEK, Nov. 6, 1995, at 34; Mark Stefik, Letting Loose the Light: Igniting Commerce in Electronic Publication, in MARK STEFIK, ED., INTERNET DREAMS: ARCHETYPES, MYTHS, AND METAPHORS 3 (forthcoming MIT Press 1996); Robert Weber, Digital Rights Management Technologies, available online <http://www.ncri.com/articles/ rights_management/> (describing desired functions and capabilities of a copyright management system and surveying available technologies and providers).
 
 

FN5. See CHRISTOPHER BURNS, COPYRIGHT MANAGEMENT AND THE NII: REPORT TO THE ENABLING TECHNOLOGIES COMMITTEE OF THE ASSOCIATION OF AMERICAN PUBLISHERS (1995); Charles Clark, The Publisher in the Digital World, in Intellectual Property Rights and New Technologies: Proceedings of the Knowright '95 Conference 85, 96-101 (1995); Smith & Weber, supra note 4; Stefik, supra note 4; Mark Stefik, Shifting the Possible: How Digital Property Rights Challenge Us To Rethink Digital Publishing (1996) (unpublished paper on file with author); Steve G. Steinberg, Software Metering, Wired 3.07, July 1995, at 137; Steve G. Steinberg, Tracking Usage Rights, Wired 3.07, July 1995, at 140; Steve G. Steinberg, Digital Watermarks, Wired 3.07, July 1995, at 141; Weber, supra note 4; see also John Perry Barlow, The Economy of Ideas: A Framework for Rethinking Patents and Copyrights in the Digital Age, Wired 2.03, March 1994, at 84, 129; Esther Dyson, Intellectual Value, Wired 3.07, July 1995, at 136, 139, 184.
 
 

FN6. See, e.g., On-Line Security Issues: Hearings on S. 1726 Before the Subcomm. on Science, Technology and Space of the Senate Comm. on Commerce, 104th Cong., 2d Sess. (June 12, 1996) (statement of Jack Valenti, Chairman and Chief Executive Officer, Motion Picture Association of America, Inc.), available online WESTLAW, USTestimony database; National Information Infrastructure: Hearings on S. 1284 Before the Senate Comm. on the Judiciary, 104th Cong., 2d Sess. (May 7, 1996) (statement of Kenneth R. Kay, Executive Director, Creative Incentive Coalition), available online WESTLAW, USTestimony database; Copyright Protection on the Internet: Hearings on H.R. 2441 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong., 2d Sess. (Feb. 7, 1996) (statements of the Association of American Publishers; Barbara A. Munder, Senior Vice President, The McGraw- Hill Companies; Frances W. Preston, President and CEO, Broadcast Music, Inc.; Jack Valenti, Chairman and Chief Executive Officer, Motion Picture Association of America, Inc.), available online WESTLAW, USTestimony database; Creative Incentive Coalition, Ten Myths About the NII Copyright Protection Act (1996), available online http://www.cic.org/myths.html; see also U.S. ~DEP'T OF COMMERCE, INFORMATION INFRASTRUCTURE TASK FORCE, WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS 10-12, 177-78, 230 (1995) [hereinafter NII WHITE PAPER].
 
 

FN7. Weber, supra note 4, § 3.1.1; see also BURNS, supra note 5, at 17-21, 31- 35; Clark, supra note 5, at 97-99; Stefik, supra note 4, at 14-24; Steinberg, Software Metering, supra note 5; Steinberg, Usage Rights, supra note 5.
 
 

FN8. Weber, supra note 4, § 3.2.
 
 

FN9. See, e.g., BURNS, supra note 5, at 32 ("In addition to regulating access to the local data-base, the systems capture a record of what the user actually looked at, copied or printed, and this usage record is sent to the clearinghouse when the user seeks additional access, at the end of a billing period or whenever the user runs out of credit."); Smith & Weber, supra note 4, at 36-37.
 
 

FN10. It could also entail the demise of the fair use doctrine. See Pamela Samuelson, The Copyright Grab, WIRED 4.01, Jan. 1996, at 134. However, that is a subject for another article.
 
 

FN11. See Alan Wexelblat, How Is the NII Like A Prison?, available online < http://wex.www.media.mit.edu/people/wex/panoptic-paper.html> (characterizing profilers' goal as "the panoptic sort," an "information collection and use regime" that will enable perfect prediction of individual conduct); see generally GANDY, supra note 1. In cyberspace, of course, "perfect" information is a myth. Email addresses may be shared by families or even by co-workers, so that it may be impossible to assemble accurate demographic profiles. However, that is unlikely to deter digital profilers from trying.
 
 

FN12. See, e.g., Mitch Betts, Privacy Fades for Web Visitors: Lust for Data, New Tracking Techniques Dog Users, COMPUTERWORLD, Sept. 25, 1995, at 162; Steve Moore, Internet Security Split: Let the Browser Beware, COMPUTERWORLD, Aug. 28, 1995, at 59; Froomkin, supra note 1, at 484-88. Industry commentators refer to such Web site "hits" as "mouse droppings." See, e.g., Larry Irving, Progress Report on the Information Superhighway: Privacy High on the Fed's Priority List -- Surprised?, MACWORLD, Mar. 1996, at 260.
 
 

FN13. See, e.g., Betts, supra note 12 (describing "DejaNews" search tool that allows retrieval of individuals' postings to Usenet discussion groups); Forbes ASAP, How Smart Agents Will Change Selling, FORBES, Aug. 28, 1995, at 95; Debra Aho Williamson, Smart Agents Build Brains Into Net Ads: More Companies Tap Technology to Better Target Web Users Who Visit Their Sites, ADVERTISING AGE, Apr. 8, 1996, at 26.
 
 

FN14. See Reidenberg, supra note 1, at 200-06 & n.42 ("Random House is testing a database that enables it to send specialized mail order catalogs to customers with specific reading preferences."); Reidenberg & Gamet-Pol, supra note 1, at 112, 121-22; Dan Richman, Data Mining Chisels Its Niche, COMPUTER WORLD, Jan. 29, 1996, at 49 (explaining general principles of data mining); Froomkin, supra note 1, at 481-88 (describing the convergence of sophisticated data mining techniques with the increased availability of data pertaining to individual histories, purchasing patterns, and reading habits); U.S. DEP'T OF COMMERCE, NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION, PRIVACY AND THE NII: SAFEGUARDING TELECOMMUNICATIONS-RELATED PERSONAL INFORMATION app. (1995) [hereinafter NTIA PRIVACY REPORT] (same); Wexelblat, supra note 11, at 2-4 (same).
 
 

FN15. See Froomkin, supra note 1, at 415-20, 459-70.
 
 

FN16. See Smith & Weber, supra note 4, at 36 ("To protect the privacy of individuals ... the usage data can be aggregated or made anonymous before it reaches rights holders."); Weber, supra note 4, S2.5.2.1; cf. Dorothy J. Glancy, Privacy and Intelligent Transportation Technology, 11 SANTA CLARA CPTR. & HIGH TECH. L.J. 151, 181-83 (1995) (observing that the most effective way to protect individual privacy in the digital age is to design technological tools so that they prevent or limit the identification of individuals).
 
 

FN17. See, e.g., Stefik, supra note 4, at 31; Stefik, supra note 5, at 4.
 
 

FN18. See 17 U.S.C. §§ 1001-1002. Without the required modifications, digital audio recording devices can produce near-perfect copies of musical recordings. The "serial copy management" provisions were added to the Copyright Act to prevent the development of a market in unauthorized "perfect" second- generation recordings. See H.R. REP. NO. 102-873(II), 102d Cong., 2d Sess. 2 (1992), reprinted in 1992 U.S.C.C.A.N. 3578, 3601. The provisions were drafted to exclude computers and computer programs from the definitions of "digital audio recording medium" and "digital musical recording." 17 U.S.C. § 1001(4)(B)(ii), (5)(B)(ii); see 138 CONG. REC. H9029, H9033 (statement of Rep. William Hughes, then-chairman of the Subcommittee on Intellectual Property of the House Judiciary Committee). An analogous provision for inclusion of serial copy management technology in digital works published in cyberspace easily could be drafted. For a discussion of various anti-copying functions and strategies that might be incorporated into digital copyright management systems, see BURNS, supra note 5, at 15-21, 44-47.
 
 

FN19. NII WHITE PAPER, supra note 6, at 192 & n.518. The rights management system is conceived as a means for licensing rights in copyrighted works using electronic mail. See Robert E. Kahn, Deposit, Registration and Recordation in an Electronic Copyright Management System, available online <http://www.nlc- bnc.ca/documents/infopol/copyright/kahn.txt.> Field tests of the system began in late 1994. Otis Port, Halting Highway Robbery on the Internet, BUSINESS WEEK, Oct. 17, 1994, at 212.
 
 

FN20. See NII WHITE PAPER, supra note 6, at 192 & n.518; U.S. Copyright Office, Copyright Office Electronic Registration, Recordation and Deposit System, available online <http://lcweb.loc.gov/copyright/cords.html.>
 
 

FN21. See Kahn, supra note 19. For a brief overview of public key cryptography, see Froomkin, supra note 1, at 418-419 & n.74. For more in-depth treatments of cryptography generally and the encryption of digital communications in particular, see BRUCE SCHNEIER, APPLIED CRYPTOGRAPHY 19-56 (1994); A. Michael Froomkin, The Metaphor Is the Key: Cryptography, the Clipper Chip, and the Constitution, 143 U. PA. L. REV. 709, 713-14, 718-63 (1995).
 
 

FN22. It is unlikely that the government would mandate adoption of the Copyright Office's system by copyright owners who prefer something different. As in other areas of federal technology policy, it is more likely that future legislation or regulation in this area will simply encourage private sector development of systems and standards. This is the approach recommended by the government in the NII WHITE PAPER. NII WHITE PAPER, supra note 6, at 233 ("Copyright owners should be free to determine what level or type of protection (if any) is appropriate for their works, taking into consideration cost and security needs, and different consumer and market preferences.").
 
 

FN23. See Weber, supra note 4, §§ 3.3, 5.5.1
 
 

FN24. See BURNS, supra note 5, at 30-35; Weber, supra note 4.
 
 

FN25. Burns, supra note 5, at 36; see also Reidenberg, supra note 1, at 206-07 (noting disparity between industry and individual views on consumer privacy issues).
 
 

FN26. NTIA PRIVACY REPORT, supra Note 14. The report proposes the adoption of voluntary privacy guidelines. See infra pp. 993, 1036-1037.
 
 

FN27. Nearly all states have statutes that protect the identities and checkout records of library patrons. See infra note 213. Federal laws protect the privacy of video rental and cable consumers, but those protections may not cover online transactions. See 18 U.S.C. § 2710; 47 U.S.C. § 551; NTIA PRIVACY REPORT, supra note 14, at 16-17. For an overview of existing statutes that afford privacy rights to information consumers in narrower contexts, and discussion of their flaws where anonymity is concerned, see infra Part VI.
 
 

FN28. S. 1284 & H.R. 2441, 104th Cong., 2d Sess. (1995).
 
 

FN29. As of this writing, it appears that efforts to agree on a legislative markup of the original bill have failed, and that the NIICPA will not be put to a vote this year. See Heather Boyles, FARNET's Washington Update (May 17, 1996), available online http://www.eff.org/pub/Alerts/farnet_on_copyr_bill_ 960517.article. However, it is overwhelmingly certain that the bill will be reintroduced when Congress reconvenes in the fall.
 
 

FN30. NII WHITE PAPER, supra note 6, app. 1.
 
 

FN31. See, e.g., Jessica R. Friedman, Report, A Lawyer's Ramble Down the Information Superhighway: Copyright, 64 FORDHAM L. REV. 705 (1995); Jessica Litman, The Exclusive Right to Read, 13 CARDOZO ARTS & ENT. L.J. 29 (1994); Marybeth Peters, The Spring 1996 Horace S. Manges Lecture -- The National Information Infrastructure: A Copyright Office Perspective, 20 COLUM.-VLA J.L. & ARTS 341 (1996); Samuelson, supra note 10; Pamela Samuelson, Intellectual Property Rights and the Global Information Economy, 39 COMM. OF THE ACM 23 (1996); Symposium, Is Congress Turning the Internet into an Information Toll Road?, INSIGHT MAG., Jan. 15, 1996, at 24 (debate between Professor James Boyle, a leading opponent of the NIICPA, and Rep. Carlos J. Moorhead, a sponsor of the bill).
 
 

FN32. S. 1284 & H.R. 2441, 104th Cong., 2d Sess. § 4 (1995) (proposed § 1201 of the Copyright Act). A draft committee print prepared by the House Judiciary Committee's Subcommittee on the Courts during the unsuccessful markup negotiations, see supra note 29, would extend protection to any mechanism or system "an effect of which" is to prevent infringement, when there is reckless disregard of facts showing that the accused device "primarily enables such infringement." See Draft Committee Print of H.R. 2441 (on file with author).
 
 

FN33. S. 1284 & H.R. 2441, 104th Cong., 2d Sess. § 4 (1995) (proposed § 1202 of the Copyright Act).
 
 

FN34. Id. § 1202(c).
 
 

FN35. See NII WHITE PAPER, supra note 6, at 10-12, 177-78, 230.
 
 

FN36. See Samuelson, supra note 10, at 188 ("[I]n the future, it won't be possible to say no, and any effort you make to block [copyright management systems'] intrusions may make you a felon.").
 
 

FN37. S. 1284 & H.R. 2441, 104th Cong., 2d Sess. § 4 (1995) (proposed § 1203 of the Copyright Act).
 
 

FN38. 17 U.S.C. § 504(b) (1994).
 
 

FN39. S. 1284 & H.R. 2441, 104th Cong., 2d Sess. § 4 (1995) (proposed § 1204 of the Copyright Act). The draft committee print would criminalize certain violations of § 1201 as well. See Draft Committee Print of H.R. 2441, supra note 32.
 
 

FN40. S. 1284 & H.R. 2441, 104th Cong., 2d Sess. § 4 (1995) (proposed § 1204 of the Copyright Act).
 
 

FN41. See 17 U.S.C. § 506(a) (1994); 18 U.S.C. § 2319 (1994); cf. United States v. LaMacchia, 871 F.Supp. 535 (D.Mass. 1994) (reasoning that illegal conduct alone, without some independent source of duty to the injured party, cannot satisfy the fraud element of the federal wire fraud statute) (citing United States v. Dowling, 739 F.2d 1445, 1449-50 (9th Cir. 1984), rev'd in part on other grounds, 473 U.S. 207 (1985)).
 
 

FN42. See, e.g., NII WHITE PAPER, supra note 6, at 233 ("Copyright owners should be free to determine what level or type of protection (if any) is appropriate for their works.").
 
 

FN43. Id. at 191.
 
 

FN44. U.S. Dep't of Commerce, National Telecommunications & Information Administration, The National Information Infrastructure: Agenda For Action, 58 FED. REG. 49,025, at 49,035 (1993).
 
 

FN45. U.S. Dep't of Commerce, Information Infrastructure Task force, Privacy Working Group, Privacy and the National Information Infrastructure: Principles for Providing and Using Personal Information (1995) [hereinafter NII PRIVACY REPORT], available online <gopher:// ntiantl.ntia.doc.gov:70/h0/papers/documents/files/niiprivprin_final.html>.
 
 

FN46. Id. at Introduction. In contrast, the European Union has adopted a directive requiring all member countries to enact laws that govern the collection, maintenance, use, and disclosure of personal data, and has designated threshold standards that such laws must meet. See Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O.J. (L 281) 31; Spiros Simitis, From the Market to the Polis: The EU Directive on the Protection of Personal Data, 80 IOWA L. REV. 445 (1995). The European Union's Green Paper dealing with intellectual property and the global information infrastructure (the counterpart to the NII White Paper) is correspondingly more sensitive to the privacy and anonymity implications of digital copyright management systems. Commission of the European Communities, Green Paper: Copyright and Related Rights in the Information Society, COM(95)382, 79-80 (1995) (calling for "a detailed examination" of the privacy implications of copyright management technologies); see also Samuelson, supra note 10, at 25.
 
 

FN47. NII PRIVACY REPORT, supra note 45, at III.B., ¶ 31.
 
 

FN48. NII PRIVACY REPORT, supra note 45, at III.B., ¶ 31.
 
 

FN49. NTIA PRIVACY REPORT, supra note 14.
 
 

FN50. NTIA PRIVACY REPORT, supra note 14, at 19-27. For a more detailed description of the NTIA proposal, see infra p. 1036-1037.
 
 

FN51. NTIA PRIVACY REPORT, supra note 14 at 20-21; see Irving, supra note 12, at 260 ("[T]he plan's success depends on service providers' willingness to be self-regulating."). The report suggests that the government should mandate privacy standards only "[i]f such private sector action is not forthcoming." NTIA PRIVACY REPORT, supra note 14, at 21.
 
 

FN52. See, e.g., David D. Friedman, Why Encryption Matters, available online < http://www.best.com/ddfr/ Libertarian/Why_Crypto_Matters.html>; Timothy C. May, Crypto Anarchy and Virtual Communities, available online <http:// www.c2.org/arkuat/consent/Anarchy.html>; Timothy C. May, Cyphernomicon 2.13, available online <http:// ocaxpl.cc.oberlin.edu/brchkind/cyphernomicon/chapter2/2.13.html>; DigitaLiberty FAQ, available online <http://www.digitalib.org/dl-faq.html>.
 
 

FN53. See, e.g., Robert L. Dunne, Deterring Unauthorized Access to Computers: Controlling Behavior in Cyberspace Through A Contract Law Paradigm, 35 JURIMETRICS J. 1 (1994); I. Trotter Hardy, The Proper Legal Regime for "Cyberspace", 55 U. PITT. L. REV. 993 (1994); Henry H. Perritt, Jr., Dispute Resolution in Electronic Network Communities, 38 VILL. L. REV. 349 (1993).
 
 

FN54. See David Kline & Daniel Burstein, Is Government Obsolete?, WIRED 4.01, Jan. 1996, at 86 (outlining this argument and identifying some of its proponents).
 
 

FN55. NII WHITE PAPER, supra note 6, at 58-59, 192 n.517 (characterizing "rights management" systems simply as a form of electronic contracting).
 
 

FN56. See, e.g., Hardy, supra note 53, at 1022-24, 1036-41.
 
 

FN57. See, e.g., Hardy, supra note 53, at 1019-21, 1028-36; Perritt, supra note 53, at 367-72; NII WHITE PAPER, supra note 6, at 58-59, 192 n.517.
 
 

FN58. Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes 177-206 (1991); see also Mark A. Lemley, Shrinkwraps in Cyberspace, 35 JURIMETRICS J. 311, 314 (1995).
 
 

FN59. Ellickson, supra note 58, at 41-81, 185-89.
 
 

FN60. See Ellickson, supra note 58, at 65-81, 188-89 (describing norms that govern fence construction and repair); cf. Perritt, supra note 53, at 360 (observing that the "multidimensional relationships" necessary for the development of a functioning system of extra-legal norms typically do not exist on electronic networks).
 
 

FN61. See, e.g., BURNS, supra note 5, at 59-62 (recommending that the Association of American Publishers "lead the evolution" of the digital copyright management regime); ELLICKSON, supra note 58, at 169 (acknowledging that some closely knit groups may have norms that maximize their own welfare at the expense of other groups); Lewis A. Kornhauser, Are There Cracks in the Foundation of Spontaneous Order?, 67 N.Y.U. L. REV. 647, 652-55 (1992) (noting the potential problem of "exploitation of some external group," and further noting that unequal distribution of power within groups also may preclude formation of consensual, informal norms of the type Ellickson describes).
 
 

FN62. Ellickson, supra note 58, at 82-103.
 
 

FN63. Ellickson, supra note 58, at 207-29, 236-39.
 
 

FN64. See Dunne, supra note 53, at 11; Lemley, supra note 58, at 313-14; Peter H. Lewis, An Ad (Gasp!) In Cyberspace, N.Y. TIMES, Apr. 19, 1994, at D1.But see Perritt, supra note 53, at 360 (suggesting that the efficacy of third-party enforcement will diminish as the online population grows).
 
 

FN65. See Perritt, supra note 53, at 360; cf. Lemley, supra note 58, at 314 ("Unlike e-mail discussions, or the posting of free information, commerce requires either a legal enforcement mechanism or a high degree of trust among market participants.").
 
 

FN66. See Ellickson, supra note 58, at 48-64, 69-81. For testimony and statements in support of the NIICPA's anti-tampering provisions, see National Information Infrastructure: Hearings on S. 1284 Before the Senate Comm. on the Judiciary, 104th Cong., 2d Sess. (May 7, 1996) (statement of Kenneth R. Kay, Executive Director, Creative Incentive Coalition), available in WESTLAW, USTestimony database; Copyright Protection on the Internet: Hearings on H.R. 2441 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong., 2d Sess. (Feb. 7, 1996) (statements of the Association of American Publishers; Barbara A. Munder, Senior Vice President, The McGraw-Hill Companies; Frances W. Preston, President and CEO, Broadcast Music, Inc.; Jack Valenti, Chairman and Chief Executive Officer, Motion Picture Association of America, Inc.), available in WESTLAW, USTestimony database; Creative Incentive Coalition, Ten Myths About the NII Copyright Protection Act (1996), available online <http://www.cic.org/myths.html>; see also On-Line Security Issues: Hearings on S. 1726 Before the Subcomm. on Science, Technology and Space of the Senate Comm. on Commerce, 104th Cong., 2d Sess. (June 12, 1996) (statement of Jack Valenti, Chairman and Chief Executive Officer, Motion Picture Association of America, Inc.), available in WESTLAW, USTestimony database.

It is also worth noting that the NIICPA's anti-tampering provisions have been opposed by a coalition of organizations representing, inter alia, educators and libraries; presumably, this would not be the case if the provisions merely restated a consensus. See National Information Infrastructure: Hearings on S. 1284 Before the Senate Comm. on the Judiciary, 104th Cong., 2d Sess. (May 7, 1996) (statement of Prof. Robert Oakley, Georgetown University Law Center, for the Digital Future Coalition), available in WESTLAW, USTestimony database; Digital Future Coalition, Statement of Members of the Digital Future Coalition on H.R. 2441: The NII Copyright Protection Act of 1995 (Feb. 15, 1996), available online <http://www.ari.net/dfc/info/Copyright.html>. I should note that I belong to the Committee of Concerned Intellectual Property Educators, a member organization of the Digital Future Coalition.
 
 

FN67. See Litman, supra note 31, at 31-32, 39-42; cf. Edward L. Rubin, The Nonjudicial Life of Contract: Beyond the Shadow of the Law, 90 NW. U.L. REV. 107, 125-31 (arguing that self-help is an important element of private ordering via contract and that repeat players enjoy "simply overwhelming" advantages in implementing the self-help strategies of their choice); see also Edward L. Rubin, The Nonjudicial Life of Contract: Beyond the Shadow of the Law, 90 NW. U. L. REV. 107, 125-31 (arguing that self-help is an important element of private ordering via contract and that repeat players enjoy "simply overwhelming" advantages in implementing the self-help strategies of their choice).
 
 

FN68. There is every reason to believe that copyright owners will do so. See BURNS, supra note 5, at 59-62 (recommending that the Association of American Publishers "move as swiftly as possible toward" the development of a standard for attaching usage restrictions to digital works and that it "lead the evolution" of digital copyright management technologies); Weber, supra note 4 (describing Copyright Clearance Center's plan to offer comprehensive digital copyright management services to member publishers); see also On-Line Security Issues: Hearings on S. 1726 Before the Subcomm. on Science, Technology and Space of the Senate Comm. on Commerce, 104th Cong., 2d Sess. (June 12, 1996) (statement of Jack Valenti, Chairman and Chief Executive Officer, Motion Picture Association of America, Inc.), available online WESTLAW, USTestimony database.
 
 

FN69. See Lemley, supra note 3, at 1283-86. Professor Perritt acknowledges that contract theories based on presumed equality of bargaining power may be "artificial," and that in such situations societal norms of fairness should play a role in determining the acceptability of particular terms. Perritt, supra note 53, at 369-71.
 
 

FN70. See Daniel A. Farber, Free Speech Without Romance: Public Choice and the First Amendment, 105 HARV. L. REV. 554, 560-61 (1991).
 
 

FN71. See id. at 558-59 (discussing attributes of public goods). Requiring eligible individuals to identify themselves to demonstrate entitlement to anonymity would defeat the purpose.
 
 

FN72. Although some commentators have argued that the rise of electronic distribution systems will allow authors to eliminate large publishing intermediaries and transact business with readers on an individual basis. See, e.g., Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805, 1834-1836 (1995); see also Barlow, supra note 5, at 126-28, the rise of digital copyright management technologies suggests precisely the opposite trend. On the information superhighway of the very near future, publishers who formerly controlled the physical plant necessary to distribute a work will administer the copyright management software that performs the equivalent function, and the bargaining position of individual readers will be, if anything, worse than before. Professor Perritt acknowledges that contract theories based on presumed equality of bargaining power may be "artificial," and that in such situations societal norms of fairness should play a role in determining the acceptability of particular terms. Perritt, supra note 53, at 369-71.
 
 

FN73. Cf. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958) ("To require that [the First Amendment right to nondisclosure of group membership] be claimed by the members themselves would result in nullification of the right at the very moment of its assertion.").
 
 

FN74. See, e.g., Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31, 35-44 (1991) (defining interest group theory as based on the presumption that interest groups act to further their own welfare at the expense of other groups); cf. Daniel A. Farber & Philip P. Frickey, The Jurisprudence of Public Choice, 65 TEX. L. REV. 873, 900-01, 906-07 (1987) (arguing that a pure interest group theory does not adequately describe the legislative process, but that interest groups do "play a significant role" in that process).
 
 

FN75. See Farber, supra note 70, at 560-61 (discussing MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 163-64 (1971)). Olson demonstrated that larger groups are disadvantaged in the bargaining arena because their members, each perceiving a low benefit from organization relative to its costs, will tend to free ride on the efforts of other group members, thereby reducing the group's overall strength. For a straightforward illustration of this process, see David McGowan & Mark A. Lemley, Antitrust Immunity: State Action and Federalism, Petitioning and the First Amendment, 17 HARV. J.L. & PUB. POL'Y 293, 324-25 (1994).
 
 

FN76. See, e.g., Sandy Close & Nick Montfort, Free-Speech Activists in Cyberspace Gird for Virtual War, BALTIMORE SUN, Mar. 13, 1996, at 15A (describing Internet protests against the Communications Decency Act); Jeffrey Weiss, '24 Hours of Democracy' Puts Free Speech Protesters On Line, DALLAS MORNING NEWS, Feb. 23, 1996, at 7A (same); Academics Stir Internet Protest as Cambridge Press Shuns Book, SAN DIEGO UNION-TRIB., Feb. 17, 1996, at A17 (describing protest by academic authors of publisher's decision not to publish controversial book); Associated Press, Internet Now Home of Attack on Big Mac: McDonald's Protesters, Spurred By A 2-Year-Old Libel Trial, Have Set Up A Site on the Internet, ORLANDO SENTINEL, Mar. 26, 1996, at B5 (describing use of Internet site to coordinate protest against McDonald's).
 
 

FN77. The NIICPA itself may become a test of whether such an effort by a relatively diffuse coalition of groups and individuals can succeed. See Digital Future Coalition, Statement of Members of the Digital Future Coalition on H.R. 2441: The NII Copyright Protection Act of 1995 (Feb. 15, 1996), available online <http://www.ari.net/dfc/info/Copyright.html>, supra note 66.
 
 

FN78. See generally John S. Wiley, Jr., A Capture Theory of Antitrust Federalism, 99 HARV. L. REV. 713, 724-26, 741-43 (1986) (outlining special interest capture theory and suggesting that it explains some, though not all, instances of government regulation).
 
 

FN79. See supra pp. 990-92.
 
 

FN80. See supra note 66 and accompanying text. This strong support for the proposed anti-tampering law is consistent with Professor Galanter's thesis that repeat players who have the resources to do so will seek to shape the formal rules of play in ways that favor their interests. See Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 L. & SOC'Y REV. 95, 98-104 (1974).
 
 

FN81. See Kornhauser, supra note 61, at 652-53.
 
 

FN82. See DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION 36-37, 132-43, 146 (1991); Galanter, supra note 80, at 103-04, 123-24, 135; Lloyd L. Weinreb, Custom, Law, and Public Policy: The INS Case as an Example for Intellectual Property, 78 VA. L. REV. 141, 144 (1992) (arguing that theories of "spontaneous social order" merely "confirm [ ] and celebrate[ ] power").
 
 

FN83. Robert P. Merges, Intellectual Property and the Costs of Commercial Exchange: A Review Essay, 93 MICH. L. REV. 1570, 1611-13 (1995).
 
 

FN84. Id. at 1611 (quoting Friedrich Kessler, Contracts of Adhesion -- Some Thoughts About Freedom of Contract, 43 COLUM. L. REV. 629, 640 (1943)).
 
 

FN85. See Lemley, supra note 58, at 319-21. Thus, Professor Lemley observes, "this new law of the Internet would be unlike any form of legislation known to modern society. No one elected its drafters .... They are accountable to no one. There is no provision for varying the model code in individual cases, or for amending the code itself at popular request. Nor is there any provision for 'opting out' of this new social contract, other than by withdrawing from cyberspace." Id. at 321. If, as I have predicted is likely, digital copyright management systems become universal and are judged a valid, consent-based form of contracting, and if federal copyright law does not preempt inconsistent license terms, see supra note 3, the substantive limits that copyright law places on owners' rights may become irrelevant for all practical purposes.
 
 

FN86. See Weinreb, supra note 82, at 143; see also Merges, supra note 83, at 1611-13 (arguing that ostensibly private but universally-adopted contract provisions may have the effect of subverting federal copyright policy and substituting private, undemocratically determined conceptions of good policy in its place).
 
 

FN87. Notable exceptions are Ulrika Ekman Ault, The FBI's Library Awareness Program: Is Big Brother Reading Over Your Shoulder?, 65 N.Y.U. L. REV. 1532, 1540-46 (1990); William E. Lee, The Supreme Court and the Right to Receive Expression, 1987 SUP. CT. REV. 303; and Robert M. O'Neil, Libraries, Liberties and the First Amendment, 42 U. CIN. L. REV. 209 (1973). For a preliminary discussion of reader anonymity in the context of digital payment systems generally, see Froomkin, supra note 1, at 496-503. Professor Lee's 1987 review of Supreme Court decisions demonstrated that the "right to receive" had been addressed solely on a piecemeal, ad hoc basis, and that the Court had yet to articulate a cohesive vision of the right. Nor has it done so in more recent years.
 
 

FN88. The Supreme Court has repeatedly indicated that the First Amendment encompasses a right to receive information from a willing speaker. See infra note 137 and accompanying text. My purpose here is to examine the scope of that right. The questions whether and when there might exist an affirmative right of access to particular reading materials are subjects for another Article.
 
 

FN89. Of course, a constitutional right to read anonymously will not afford protection against the actions of private copyright owners unless those actions somehow implicate state action. Part V, infra, addresses the state action problem.
 
 

FN90. As is appropriate in an article about reading, my working definition of the nature and scope of communication is derived in part from copyright law -- the body of law that grants and protects authorship rights in written speech. See Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) ("[T]he Framers intended copyright itself to be the engine of free expression."). A copyrightable work of authorship may consist of words, images, or sounds, but also may consist of "numbers, or other verbal or numerical symbols or indicia." See 17 U.S.C. § 101. Thus, numerical or symbolic works, like verbal works, may constitute constitutional "speech." Bernstein v. U.S. Dep't of State, 922 F.Supp. 1426, 1434-36 (N.D. Cal. 1996). However, to be copyrightable, a work must be "fixed" in some tangible medium from which it is capable of being "perceived, reproduced, or otherwise communicated." 17 U.S.C. § 101. Thus, my working definition is narrow as well as broad, in that it does not take into account the debate over the communicative significance of unfixed, nonverbal acts. Thus, for example, it is not my intent to define as "reading" the experience of witnessing an act of flag-burning. Arguably, some of the conduct one witnesses may be as constitutive of individual thoughts, beliefs, and subsequent expression as anything one reads. See infra pp. 1007- 08. Nonetheless, it is hard to imagine a limiting principle, and wholly implausible to contend that First Amendment protection extends to everything one does and sees. In my view, it is neither inconsistent nor undesirable to single out the receipt of core First Amendment communication -- listening and reading (including the viewing of fixed images) -- as worthy of special protection.
 
 

FN91. See supra notes 87, 88. The debate over the extent of constitutional protection for scientific research also touches on this issue. See, e.g., Richard Delgado & David R. Millen, God, Galileo, and Government: Toward Constitutional Protection for Scientific Inquiry, 53 WASH. L. REV. 349 (1978); Gary L. Francione, Experimentation and the Marketplace Theory of the First Amendment, 136 U. PA. L. REV. 417 (1987); John A. Robertson, The Scientist's Right to Research: A Constitutional Analysis, 51 S. CAL. L. REV. 1203 (1977). Both Professor Robertson and the team of Professor Delgado and Mr. Millen argue that scientific research should be privileged as a necessary precondition for the dissemination of scientific information. Both sets of authors rely in part on a First Amendment right to receive information, although their arguments take slightly different paths. Robertson contends that a scientist's right to receive the information necessary to conduct research derives from the public's right to receive information about the end-result of such research, and suggests that scientific information is particularly important for the public to receive. Robertson, supra, at 1216-25. Delgado and Millen argue that a scientist's right to receive information mirrors the more general right of all citizens to receive information on issues of public concern. Delgado & Millen, supra, at 382-85.

Pointing out the contingent and culturally determined nature of efforts to identify the activities that are properly considered "scientific" or "informative," Professor Francione persuasively rebuts efforts to single out scientific research for special treatment. Francione, supra, at 482-510. He concludes, however, that the First Amendment cannot be understood to protect any preconditions for speech without thereby protecting all of human conduct. Id. at 448, 501. As discussed in note 90, supra, I believe that reading can be privileged without such a risk. Unlike Delgado and Millen, however, I believe that the relationship between reading and speech is fundamental and structural; receipt of external information is an essential precondition not just for "informed" speech, but for any speech. See infra pp. 1007-1008.
 
 

FN92. See M.T. CLANCHY, FROM MEMORY TO WRITTEN RECORD: ENGLAND 1066-1307 at 266-93 (2d ed. 1993).
 
 

FN93. See id. at 266-93. Only gradually did solitary, silent reading become the predominant method of using written texts.
 
 

FN94. For a concise, readable introduction to the concepts of hypertext and "hypermedia," see JAY DAVID BOLTER, WRITING SPACE: THE COMPUTER, HYPERTEXT, AND THE HISTORY OF WRITING 21-31 (1991); see also M. ETHAN KATSH, LAW IN A DIGITAL WORLD 198-211 (1995).
 
 

FN95. See BOLTER, supra note 94, at 59-61, 113-19; GEORGE P. LANDOW, HYPERTEXT: THE CONVERGENCE OF CONTEMPORARY CRITICAL THEORY AND TECHNOLOGY 14-17 (1992) (development of hypertext "reconceive[d] reading as an active process that involves writing"), id. at 88-92; see also Paul Roberts, Virtual Grub Street: Sorrows of a Multimedia Hack, 292 HARPER'S MAGAZINE 71, 75-77 (1996) ( "The nexus of creativity is shifted from the writer to either the producers, who lay out the text links, or the readers, who make use of those links."); cf. American Civil Liberties Union v. Reno, 992 F.Supp. 824, 843-44 (E.D. Pa. 1996) ("Once one has entered cyberspace, one may engage in the dialogue that occurs there. In the argot of the medium, the receiver can and does become the content provider, and vice-versa.").
 
 

FN96. Compare BOLTER, supra note 94, at 153-66 (suggesting that the electronic author loses direct control over the path of the text but gains the power to "manipulate the reader's time at one remove" by careful construction of textual cross-references), with Roberts, supra note 95, at 75-77 (predicting that the author will vanish in the electronic age).
 
 

FN97. See, e.g., Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164, 1169 (1994) ("Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.") (quoting Emerson v. Davies, 8 F. Cas. 615, 619 (D. Mass. 1845) (Story, J.)); Jessica Litman, The Public Domain, 39 EMORY L.J. 965, 966 (1990); Robert H. Rotstein, Beyond Metaphor: Copyright Infringement and the Fiction of the Work, 68 CHI.-KENT L. REV. 725, 756-57 (1993); see also JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY 54- 57 (1996) (arguing that the concept of the "romantic author" is a cultural construct that conveniently obscures the extent to which so-called "original" works of authorship are based on shared, preexisting cultural referents); Peter Jaszi, Toward A Theory of Copyright: The Metamorphoses of 'Authorship,' 41 DUKE L.J. 455 (1991) (tracing the evolution of the "Romantic vision of 'authorship"' throughout the history of American copyright law).
 
 

FN98. See 17 U.S.C. § 102 (copyright subsists in "original works of authorship fixed in any tangible medium of expression").
 
 

FN99. See Niva Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators, 13 CARDOZO ARTS & ENT. L.J. 346, 400 n.284 (1995) ("[T]he objective world receives its meaning through symbolic communication, and is, therefore, necessarily mediated by dialogic relations. Identities and ideologies are formed through dialogical interaction with shared cultural symbols." (citing MICHAEL GARDINER, THE DIALOGICS OF CRITIQUE: M.M. BAKHTIN AND THE THEORY OF IDEOLOGY (1992))); cf. BOLTER, supra note 94, at 156-57 (characterizing text as "' ... an arena in which reader and author participate in a game of the imagination' ... every text leaves gaps for the reader to complete" (quoting Wolfgang Iser, The Reading Process: A Phenomenological Approach, in JANE P. TOMPKINS, READER-RESPONSE CRITICISM: FROM FORMALISM TO POST-STRUCTURALISM 50-69 (1974))); Rotstein, supra note 97, at 736-37 (describing the emergence of the post-structuralist view of text as dependent upon reader interpretation).
 
 

FN100. Cf. Elkin-Koren, supra note 99, at 400 (characterizing cultural and political discourse as "an ongoing process of meaning-making through communicative activities" that include both communication and interpretation of preexisting symbols or cultural signifiers). Various members of the Supreme Court appears to have recognized a weaker version of this argument. In Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853 (1982), three justices characterized "the right to receive ideas" as "a necessary predicate to the recipient's meaningful exercise of his own rights of speech, press, and political freedom." Id. at 867 (plurality) (emphasis in original); see also Kleindienst v. Mandel, 408 U.S. 753, 775 (1972) (Marshall, J., dissenting) (arguing that the freedoms to hear and to speak "are inseparable; they are two sides of the same coin"); Red Lion Broadcasting v. FCC, 395 U.S. 367, 390 (1967) (observing that members of the public have the right "to receive suitable access to social, political, esthetic, moral, and other ideas and experiences"). That is so, however, not merely because of the useful or relevant information that is conveyed, see Pico, 457 U.S. at 867-68 (plurality), but because without access to the universe of preexisting speech that defines our understanding of the world and our place in it, one would literally have nothing to say.
 
 

FN101. The debate over scientific research falls into this error. See supra note 91.
 
 

FN102. See, e.g., McIntyre v. Ohio Elections Commission, 115 S.Ct. 1511, 1519 (1995); Mills v. Alabama, 384 U.S. 214, 218-19 (1966); New York Times v. Sullivan, 376 U.S. 254, 269-70 (1964).
 
 

FN103. 354 U.S. 234 (1957) (plurality).
 
 

FN104. Id. at 251-55; id. at 261-66 (Frankfurter, J., concurring in the judgment).
 
 

FN105. Id. at 250-51 ("Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die."); see also id. at 262 (Frankfurter, J., concurring in the result) ("For society's good -- if understanding be an essential need of society -- inquiries into [intellectual] problems, speculations about them, stimulation in others of reflection upon them, must be left as unfettered as possible.").
 
 

FN106. 390 U.S. 17 (1968).
 
 

FN107. Id. at 24-25; see also United States v. Rumely, 345 U.S. 41, 46- 47 (1953) (holding that statutory authority to investigate "lobbying activities" did not confer power to compel names of those who purchased political literature for subsequent distribution).
 
 

FN108. 381 U.S. 301 (1965).
 
 

FN109. 394 U.S. 557 (1969).
 
 

FN110. Lamont, 381 U.S. at 307.
 
 

FN111. Id. (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).
 
 

FN112. Stanley, 394 U.S. at 563-65.
 
 

FN113. Id. at 565-66.
 
 

FN114. Id. at 565.
 
 

FN115. See, e.g., Whalen v. Roe, 429 U.S. 589, 599 n.25 (1977); Roe v. Wade, 410 U.S. 113, 152 (1973). Arguably, the right of informational privacy recognized in Whalen and Nixon v. Administrator of General Services, 433 U.S. 425 (1977), also could be used to protect the confidentiality of individual reading decisions, at least to an extent. See Froomkin, supra note 1, at 492-94; George P. Long, III, Note, Who Are You? Identity and Anonymity in Cyberspace, 55 U. PITT. L. REV. 1177, 1189-93 (1994). One recent commentary characterizes the right at issue in Stanley as that of "privacy of thought." See Claudia Tuchman, Note, Does Privacy Have Four Walls? Salvaging Stanley v. Georgia, 94 COLUM. L. REV. 2267, 2280-82 (1994). Professor Kreimer locates a right of anonymity in constitutional privacy doctrine as part of a "freedom of intimate self-definition." See Kreimer, supra note 1, at 12, 69-71. Without question, "informational privacy" and anonymity concerns are closely related. As both Kreimer and Tuchman recognize, however, a pure constitutional privacy framework alone will not justify or protect the full range of anonymity concerns. See Kreimer, supra note 1, at 69-71, 131-43 (constructing a combined privacy and First Amendment rationale for a right of anonymity with respect to intimate information and "[s]elf-regarding activities crucial to personal identity"); Tuchman, supra, at 2280-82 (analyzing "privacy of thought" in First Amendment terms); see also infra notes 216-17, at 1032-33 (discussing "anonymity" issues as a unique subset of "privacy" issues).

The Ninth Circuit's recent decision in Oregon Natural Desert Ass'n v. Bibles, 83 F.3d 1168 (9th Cir. 1996), illustrates this distinction. The case involved a Freedom of Information Act request for the names of individuals on the mailing list for a newsletter distributed by the Bureau of Land Management. The court held that the privacy rights of the affected individuals did not bar disclosure because "the majority" of them had asked to be placed on the mailing list, and because disclosure was sought in order to send newsletter recipients additional materials dealing with the same subject matter. Id. at 1171-73. Thus, in effect, it reasoned that a request for reading material may waive any interest in having the request kept confidential. The former type of consent should not so easily be read to imply the latter. (If the federal government funded abortions, could it be required to disclose the names of individuals who had requested information about such services, so that they could be targeted for private anti-abortion mailings?) If the court had considered First Amendment-based anonymity concerns, the result might -- and, I would argue, should -- have been different.
 
 

FN116. See Ault, supra note 87, at 1543-46; see also O'Neil, supra note 87, at 219-20 (characterizing Lamont as an unconstitutional conditions case). The definitive treatment of the "chilling effect" as an independent and sufficient basis for according First Amendment protection is Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the "Chilling Effect", 58 B.U.L. REV. 685 (1978).
 
 

FN117. See United States v. Twelve 200-Foot Reels of Super 8mm. Film, 413 U.S. 123 (1973); United States v. Orito, 413 U.S. 139 (1973); see also Osborne v. Ohio, 495 U.S. 103 (1990) (holding Stanley inapplicable in cases involving the private possession of child pornography because of the compelling state interest in protecting children from being used as pornographers' subjects). Osborne, in particular, makes clear that a sufficiently important government interest may override whatever rights of anonymity or privacy readers have. Osborne, 495 U.S. at 108-10; see infra pp. 1026-27. For a persuasive critique of the "spatial" conception of privacy developed in the post-Stanley cases, see Tuchman, supra note 115.

The Court's focus on the privacy of the home also suggests that any right to read anonymously might apply only to digital information accessed through a home computer system -- and not, for example, to information accessed using computer facilities provided by one's employer. Since many individuals (including this author) connect to the Internet via an employer-provided link, the answer to this question could significantly affect the practical extent of First Amendment protection for individual reading activity. See, e.g., Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743, 1748-49 (1995) (describing how the systems operator at a university might easily monitor users' activities). In general, employee rights against surveillance by private employers are a function of federal and state privacy law. See, e.g., Julie A. Flanagan, Note, Restricting Electronic Monitoring in the Private Workplace, 43 DUKE L.J. 1256, 1264-71 (1994); Larry O. Gantt, An Affront to Human Dignity: Electronic Mail Monitoring in the Private Sector Workplace, 8 HARV. J.L. & TECH. 345 (1995); David Neil King, Note, Privacy Issues in the Private- Sector Workplace: Protection from Electronic Surveillance and the Emerging "Privacy Gap", 67 S. CAL. L. REV. 441 (1994); Note, Addressing New Hazards of the High Technology Workplace, 104 HARV. L. REV. 1898 (1991). Federal and state employers are directly subject to the First Amendment, but may in some circumstances limit the exercise of employee First Amendment rights for administrative reasons; the extent of this authority has been hotly disputed. See, e.g., United States v. National Treasury Employees Union, 115 S.Ct. 1003 (1995); Waters v. Churchill, 511 U.S. 1061 (1994); Rankin v. McPherson, 483 U.S. 378 (1987); Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board of Educ., 391 U.S. 563 (1967); Leslie S. Blickenstaff, Don't Tip the Scales! The Actual Malice Standard Unjustifiably Eliminates First Amendment Protection for Public Employees' Recklessly False Statements, 70 MINN. L. REV. 2911 (1996). The question whether current law affords adequate protection to the reading activities of employees, public or private, is beyond the scope of this Article.
 
 

FN118. See Bowers v. Hardwick, 478 U.S. 186, 195 (1986) (characterizing Stanley as "firmly grounded in the First Amendment['s]" prohibition against thought control); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65-67 (1973) (distinguishing refusal to protect distribution of obscene materials from "control of reason and the intellect").
 
 

FN119. Stanley, 394 U.S. at 565. Whether the identical conduct by private copyright owners implicates state action sufficient to trigger First Amendment protection is discussed in Part V, infra.
 
 

FN120. 116 S.Ct. 2374 (1996).
 
 

FN121. Id. at 2390-96. Although six members of the Court agreed that the segregation provision was unconstitutional as worded, they were divided as to the appropriate level of scrutiny. See id. at 2391 (suggesting that intermediate scrutiny might be required); id. at 2407-19 (Kennedy, J., concurring in part, concurring in the judgment in part, and dissenting in part) (arguing that strict scrutiny should apply).
 
 

FN122. Id. at 2390 (citing Lamont v. Postmaster Gen., 381 U.S. 301, 307 (1965)). The Ninth Circuit's recent decision to require the Bureau of Land Management to disclose the names of individuals who had asked to be placed on its mailing list, though based entirely on a privacy rationale, appears inconsistent with this reasoning. See Oregon Natural Desert Ass'n v. Bibles, 83 F.3d 1168 (9th Cir. 1996); supra note 115.
 
 

FN123. 896 F.2d 780 (3d Cir. 1990).
 
 

FN124. Id. at 785 (quoting Lamont, 381 U.S. at 309 (Brennan, J., concurring)).
 
 

FN125. 115 S.Ct. 1511 (1995).
 
 

FN126. Id. at 1516-17; see also Talley v. California, 362 U.S. 60, 64-65 (1960) (invalidating city ordinance prohibiting the anonymous distribution of handbills).
 
 

FN127. See McIntyre, 115 S.Ct. at 1526-28 (Thomas, J., concurring) (chronicling Founding-era attempts to require authors of news articles and pamphlets to disclose their identities); Talley, 362 U.S. at 64-65 (describing punishments inflicted by English courts on individuals who refused to disclose information that might lead to discovery of anonymous or pseudonymous authors' identities).
 
 

FN128. This terminology is borrowed from Jeffrey H. Reiman, Driving to the Panopticon: A Philosophical Exploration of the Risks to Privacy Posed by the Highway Technology of the Future, 11 SANTA CLARA COMPUTER & HIGH TECH. L.J. 27, 43-44 (1995). Reiman defines "material conditions" for privacy as the "physical realities that hinder others in gathering information about or experiences of you." Id. at 43. He observes that the new monitoring technologies establish the "material conditions for invasion of privacy on unheard-of scale." Id. at 44. This analysis fits the particular case of copyright management technologies uncomfortably well.

The fact that nearly all states have enacted statutes to protect the confidentiality of library circulation records (low-tech and less pervasive precursors of digital copyright management systems) is compelling evidence of the high value placed by the general public on the freedom to read anonymously. See infra note 213.
 
 

FN129. Cf. Anne W. Branscomb, Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces, 104 YALE L.J. 1639, 1644 (1995); Reiman, supra note 128, at 38-42 (arguing that such intrusions, if pervasive, will deprive individuals of "self-ownership" and stunt their inner emotional and intellectual lives). Arguably, therefore, requiring readers to disclose their identities might constitute unconstitutional compulsion. Cf. Wooley v. Maynard, 430 U.S. 705, 714 (1977) (holding that state motto on license plate constituted a form of compelled speech and that defendant's prosecution for removing motto violated his First Amendment rights); West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943) (holding that compelling public school students to recite the Pledge of Allegiance in violation of their religious beliefs offended the First Amendment).
 
 

FN130. See, e.g., McIntyre, 115 S.Ct. at 1536-37 (Scalia, J., dissenting) (arguing that speaker identification requirements are desirable because they promote accountability for false and harmful statements); Branscomb, supra note 129, at 1644; Froomkin, supra note 1, at 401-04; A. Michael Froomkin, Anonymity and Its Enmities, 1 J. ONLINE L. art. 4, ¶¶ 50-52 (1995), available online http://www.law.cornell.edu/jol/froomkin.html (characterizing the accountability argument as "the strongest moral objection to the increase in anonymous interaction" on the Internet); Kreimer, supra note 1, at 78-88. But see Lee Tien, Who's Afraid of Anonymous Speech? McIntyre and the Internet, 75 OR. L. REV. 117, 152 (arguing that the accountability argument "ultimately reduces to a concern about ordinary individuals, not 'responsible' elites, engaging in speech without being vertically filtered").
 
 

FN131. Unauthorized access to information held as a trade secret may cause injury. In such cases, anonymous access might properly be denied for other reasons. See infra note 149 and accompanying text.
 
 

FN132. See, e.g., Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 (1963); Bates v. City of Little Rock, 361 U.S. 516 (1960); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).
 
 

FN133. NAACP v. Alabama, 357 U.S. at 460-62. Thus, although the Court identified the right of associational anonymity as grounded in the assembly clause of the First Amendment, it noted "the close nexus between the freedoms of speech and assembly." Id. at 460.

NAACP v. Alabama was the stated basis for the only reported First Amendment challenge to a prosecutor's attempt to subpoena library circulation records. The court summarily rejected the constitutional argument without deciding whether NAACP might be read to afford a right to reader anonymity. Brown v. Johnston, 328 N.W.2d 510, 512-13 (Iowa), cert. denied, 463 U.S. 1208 (1993).
 
 

FN134. See Tien, supra note 130.
 
 

FN135. See Lamont v. Postmaster Gen., 381 U.S. 301, 308 (1965) (Brennan, J., concurring) (characterizing as "equally fundamental" the rights "necessary to make the [First Amendment's] express guarantees fully meaningful").
 
 

FN136. International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 697 (1992) (Kennedy, J., concurring in the judgment); see also Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 116 S.Ct. 2374, 2402-03 (1996) (Souter, J., concurring) (analyzing the danger of establishing fixed legal standards for rapidly developing technology).
 
 

FN137. See, e.g., United States v. National Treasury Employees Union, 115 S.Ct. 1003, 1015 (1995); Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 866-68 (plurality) (1982); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-57 (1976); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969).
 
 

FN138. First Amendment rights assume slightly different contours where children are involved. See, e.g., Sable Communications v. FCC, 492 U.S. 115, 126 (1989) (holding that children may be shielded from speech that is not "obscene" by adult standards); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969) (holding that, although children do not shed their First Amendment rights at the schoolhouse door, those rights must be interpreted "in light of the special characteristics of school environment"). It is reasonable to assume that a right to read anonymously would be no different in this regard. For example, some leeway to inquire whether school children have done their assigned reading seems unwarranted. The discussion in this Article presupposes adult readers.
 
 

FN139. Wooley v. Maynard, 430 U.S. 705, 714 (1977).
 
 

FN140. See Lee, supra note 87, at 324-25.
 
 

FN141. This formulation of the right to read also raises the question whether, in some circum-stances, there might be an affirmative right of access to information that trumps the speaker's right to withhold it. This Article does not address that question.
 
 

FN142. 471 U.S. 539 (1985).
 
 

FN143. Id. at 558.
 
 

FN144. Id. at 559-60.
 
 

FN145. Id. at 555, 559-60; see also Salinger v. Random House, Inc., 811 F.2d 90, 100 (2d Cir.) (holding that an author has a right "to protect the expressive content of his unpublished writings"), cert. denied, 484 U.S. 890 (1987).
 
 

FN146. Although the right of creative control sketched by the Harper & Row Court might seem personal to the author, the Court did not raise this issue, but allowed a publisher to assert the right on the author's behalf. Moreover, innumerable decisions according publishers the status of First Amendment speakers make clear that publishers, too, have their own rights not to speak. See, e.g., Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 115 S.Ct. 2338, 2345-46 (1995); Turner Broadcasting Sys., Inc. v. FCC, 114 S.Ct. 2445, 2456 (1994); Miami Herald Publish. Co. v. Tornillo, 418 U.S. 241, 258 (1974).
 
 

FN147. For purposes of this inquiry, it is not significant that a digital work may be the subject of regular revisions and updates after it is released to the general public. The dispositive question is not whether the work is "final," but whether some version of it is made available for acquisition by interested readers. See Julie E. Cohen, Reverse Engineering and the Rise of Electronic Vigilantism: Intellectual Property Implications of "Lock-Out" Programs, 68 S. CAL. L. REV. 1091, 1113 (1995).
 
 

FN148. Cf. Robert A. Kreiss, Accessibility and Commercialization in Copyright Theory, 43 UCLA L. REV. 1 (1995) (suggesting that public rights of access to a copyrighted work should turn on whether or not the work has been "commercialized"). Without more information as to what "commercialization" means -- in particular, whether a copyright owner could argue that distribution to a small number of licensees is not enough to trigger Professor Kreiss' quid pro quo -- I am not necessarily prepared to agree that commercialization should be the only criterion for access to a work. With a similar caveat, however, a commercialization or "general distribution" test provides a useful basis for assessing the plausibility of a copyright owner's claim that particular contract terms are necessary to effectuate its constitutional right not to speak.
 
 

FN149. For similar reasons, it make sense to argue that in some circumstances a sender of electronic mail could refuse to "speak" to anonymous "listeners." This Article has focused primarily on more traditional works of authorship -- literature, musical compositions, and so on -- that are offered for public distribution online. See 17 U.S.C. § 102(a) (1994). In cyberspace, one method of distinguishing between such works and more conversational communications is lost, since in both cases, the medium of transmission is the same. See, e.g., Niva Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators, 13 CARDOZO ARTS & ENT. L.J. 345, 389-90 (1995) (arguing that the new digital media "create a continuum" between modes of communication traditionally viewed as private and those traditionally viewed as public); Henry H. Perritt, Jr., Tort Liability, the First Amendment, and Equal Access to Electronic Networks, 5 HARV. J.L. & TECH. 65, 67 (1992) (observing that the line of demarcation between electronic publishing and private electronic conversation is blurred). Nonetheless, it is difficult to argue that distribution of so-called traditional works via personalized electronic "communication" supports a right-not-to-speak claim. Although a novel certainly is speech in the constitutional sense, see Harper & Row, 471 U.S. at 558-60, in "real" (as opposed to cyber-) space, the decisions to write and publish it are separate, both temporally and logically, from later purchase-and-sale transactions with individual customers.

It is worth noting, moreover, that many electronic mail conversations both "look" and "feel" more like traditional, published works in this regard. For example, posts to open-subscription Internet listservs or Usenet discussion groups are inherently public in nature -- they are conversations with many listeners, most of whom remain silent and unidentified, and there are no membership restrictions. Accordingly, any attempt to use a right-not-to-speak claim to defeat anonymous access to listserv or Usenet posts would be implausible.

One way to determine whether a work or communication belongs in the "limited audience" category might be whether the information it contains qualifies as a trade secret. See, e.g., RESTATEMENT (THIRD) UNFAIR COMPETITION § 39 (1995); Uniform Trade Secrets Act § 1(4). By definition, a trade secret's value inheres in its continuing secrecy, which its owner should remain free to protect. However, the requirement that a trade secret confer an economic advantage on its owner may be a difficult standard for some claimants to meet. See, e.g., Religious Technology Ctr. v. Wollersheim, 796 F.2d 1076, 1090 (9th Cir. 1986) ("We do not accept that a trade secret can be based on the spiritual advantage the Church [of Scientology] believes its adherents acquire over non- adherents by using the materials in the prescribed manner." (emphasis in original)), cert. denied, 479 U.S. 1103 (1987). Nor is an "economic advantage" test necessarily appropriate for determining when an author-speaker may invoke First Amendment rights.
 
 

FN150. Once armed with reader identifying information, some copyright owners who hold their works out for general distribution might seek to engage in price discrimination or private censorship with respect to particular individuals or groups. Whether this is a good thing, a bad thing, or a mixed blessing is a subject on which reasonable minds will differ. Charging lower rates to educators, for example, does not seem invidious. See Weber, supra note 4 (suggesting that some copyright owners may wish to implement a variable royalty schedule that, for example, charges more for commercial uses than for educational ones); see also Stefik, supra note 4, at 23 (envisioning grants of "special rights to certified librarians, researchers, and teachers"). However, one can imagine discriminatory policies that are far less benign. The economics and ethics of price discrimination and private censorship are vast topics, and I will not pursue them here. It is worth noting, though, that reliance on the market to suppress the more irrational instances of discriminatory pricing may be misplaced, for the reasons discussed in Part III, supra.
 
 

FN151. Nor, as Part III demonstrates, may copyright owners fall back on arguments about freedom of contract to justify a preference for standardized electronic contracts that unconditionally require the surrender of anonymity.
 
 

FN152. See, e.g., Osborne v. Ohio, 495 U.S. 103, 108-10 (1990) (declining to recognize a constitutionally protected right to receive child pornography, in light of the compelling state interest in protecting children from abuse). Thus, for example, the deeply-rooted presumption that reading habits are sacrosanct coexists with another line of cases that accept without question judicial power to inquire into individual reading habits in particular circumstances. Most notably, a criminal defendant may question prospective jurors as to their choice of reading material in an effort to identify prior knowledge or bias. See, e.g., United States v. Jackson, 542 F.2d 403 (7th Cir. 1976); United States v. Hearst, 466 F.Supp. 1068, 1076 (N.D. Cal. 1978), modified, 638 F.2d 1190 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981). Arguably, however, these cases stand for no more than the ordinary proposition that the government may impose rules that incidentally but evenhandedly burden the exercise of First Amendment rights for sufficiently substantial reasons. See infra page 1026.
 
 

FN153. Fabulous Assocs., Inc. v. Pennsylvania Pub. Util. Comm'n, 896 F.2d 780, 786 (3d Cir. 1990); see also Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 116 S.Ct. 2374, 2392 (1996) (discussing lesser restrictions imposed on cable operators and subscribers by other statutory provisions).
 
 

FN154. S. 1284 & H.R. 2441, 104th Cong., 2d Sess. § 4 (1995) (proposed §§ 1201 and 1202 of the Copyright Act) (emphasis added).
 
 

FN155. Whether the willful infringer, as well the concerned libertarian, would or should be permitted to assert an overbreadth challenge is a topic beyond the scope of this Article. For helpful discussions of the "third-party standing" aspect of the First Amendment overbreadth doctrine, see Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235, 261- 64 (1994); and Richard H. Fallon, Making Sense of Overbreadth, 100 YALE L.J. 853 (1991).
 
 

FN156. But see Shelley v. Kraemer, 334 U.S. 1 (1948) (finding state action in private property owners' use of the court system to enforce racially restrictive covenant).
 
 

FN157. See San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 544 (1987) ("All enforceable rights in trademarks are created by some governmental act .... The actions of trademark owners nevertheless remain private.").
 
 

FN158. See Dowling v. United States, 473 U.S. 207, 216-17 (1985); Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 555-60 (1985) ("First Amendment protections ... [are] embodied in the Copyright Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and in the latitude for scholarship and comment traditionally afforded by fair use."); Los Angeles News Serv. v. Tullo, 973 F.2d 791, 795 (9th Cir. 1992); New Era Publications Int'l v. Henry Holt & Co., 873 F.2d 576, 584 (2d Cir. 1989), cert. denied, 493 U.S. 1094 (1990); Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1174 (5th Cir. 1980); Religious Technology Ctr. v. Netcom On-Line Communication Serv., Inc., 907 F.Supp. 1361, 1377 (N.D. Cal. 1995); Maxtone-Graham v. Burtchaell, 631 F.Supp. 1432, 1435 (S.D.N.Y.), aff'd, 803 F.2d 1253 (2d Cir. 1986), cert. denied, 481 U.S. 1059 (1987); see also Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164, 1171 (1994) (holding that commercial character of song parody did not create a presumption against fair use); W. Warren Hamel, Harper & Row v. The Nation: A First Amendment Privilege for News Reporting of Copyrightable Material?, 19 COLUM. J.L. & SOC. PROBS. 253, 290-91 (1985) (arguing that the first amendment controls when copyright and free speech considerations clash); Melville B. Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. REV. 1180 (1970) (discussing the need to balance copyright and free speech interests). As the above quote from Harper & Row indicates, both the idea/expression distinction and the fair use doctrine were incorporated into the 1976 Copyright Act. See 17 U.S.C. §§ 102(b), 107 (1994).

Some have argued that in addition, the First Amendment should provide a separate, independent defense to charges of copyright infringement in some situations. See, e.g., Robert C. Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 CAL. L. REV. 283 (1979); see also Diane L. Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 WM. & MARY L. REV. 665 (1992) (exploring the conflicts between the claims of authorship and those of the public domain where speech rights are concerned). This issue will become considerably more important if the courts and Congress conclude that copyright does not preempt private license terms that are inconsistent with substantive copyright policies. See supra notes 3, at 85.
 
 

FN159. See Hamel, supra note 158, at 290-91 (observing that the First Amendment limits congressional power to define copyright just as it limits "other federal laws restricting expression"); cf. Cohen v. Cowles Media Co., 501 U.S. 663, 668 (1991) (application of state rule of law in a manner that restricts First Amendment freedoms constitutes state action); New York Times Co. v. Sullivan, 376 U.S. 254, 265 (1964).
 
 

FN160. For general discussions of the evolution of the public/private distinction and its internal contradictions, see Paul Brest, State Action and Liberal Theory: A Casenote on Flagg Brothers v. Brooks, 130 U. PA. L. REV. 1296 (1982); Morton J. Horwitz, The History of the Public/Private Distinction, 130 U. PA. L. REV. 1423 (1982); Duncan Kennedy, The Stages of the Decline of the Public/Private Distinction, 130 U. PA. L. REV. 1349 (1982).
 
 

FN161. Marsh v. Alabama, 326 U.S. 501, 506 (1946).
 
 

FN162. See United States v. Dowling, 473 U.S. 207, 216 (1985) ("The copyright owner, however, holds no ordinary chattel. A copyright ... comprises a series of carefully defined and carefully delimited interests to which the law affords correspondingly exact protection."); Elkin-Koren, supra note 99, at 391-92; Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343, 1370-71 (1989); Raymond T. Nimmer & Patricia Ann Krauthaus, Copyright on the Information Superhighway: Requiem for a Middleweight, 6 STAN. L. & POL'Y REV. 25, 27, 29-30 (1994).
 
 

FN163. See 17 U.S.C. § 106 (1994) (listing the exclusive rights given to copyright owners); id. § 109(a); Elkin-Koren, supra note 99, at 391-92; Nimmer & Krauthaus, supra note 162, at 29-30.
 
 

FN164. See 17 U.S.C. §§ 102(b), 107.
 
 

FN165. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556- 60 (1985); Nimmer, supra note 158, at 1186-93; cf. Elkin-Koren, supra note 99, at 392 ("[C]opyright doctrine mediates public interest in the production of information and the public interest in access to information.").
 
 

FN166. See supra Part III.
 
 

FN167. NII WHITE PAPER, supra note 6, at 233; supra pp. 991-993.
 
 

FN168. See NCAA v. Tarkanian, 488 U.S. 179, 195-97 (1988); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351-52 (1974). The contract-policing function may be delegated to a private arbitrator, but only with the consent of the affected parties. As discussed in Part III, supra, that requirement is not met here.
 
 

FN169. 436 U.S. 149 (1978).
 
 

FN170. See id. at 157, 160 n.10. Professor Tribe argues that private self- help should constitute state action in cases where such self-help is expressly authorized by law. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 18-5, at 1706-07 (2d ed. 1988). Thus far, the Court has not agreed.
 
 

FN171. See Flagg Bros., 436 U.S. at 162 n.12 ("This is not to say that dispute resolution between creditors and debtors involves a category of human affairs that is never subject to constitutional constraints.").
 
 

FN172. Cf. Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 116 S.Ct. 2374, 2383-85 (1996) (plurality) (assuming that a statute allowing but not requiring specified private conduct may implicate the First Amendment). The argument that First Amendment considerations are woven into the fabric of copyright doctrine is, of course, also an argument in favor of finding copyright preemption of pervasive private contract terms that alter the balance between public and private that Congress and the courts have sought to maintain. See supra notes 3, 158.
 
 

FN173. See Flagg Bros., 436 U.S. at 159-62. The proposed Article 2B of the Uniform Commercial Code, an effort to set default rules for the licensing of intangibles, would allow a licensee to challenge contract terms on grounds of unconscionability, but as of this writing does not appear to authorize a licensee to raise such a challenge separately from and prior to its own breach. See U.C.C. § 2B-110 (Draft Revised Art. 2B 1996), available online http:// www.lawlib.uh.edu/ucc2b/0503/0503_2b.html.
 
 

FN174. As currently worded, both of the NIICPA's prohibitions against tampering generously allow a tamperer to raise the defense of authorization by law. See S. 1284 & H.R. 2441, 104th Cong., 2d Sess. § 4 (1995) (proposed §§ 1201 and 1202 of the Copyright Act).
 
 

FN175. See Flagg Bros., 436 U.S. at 157, 160 n.10; see also Lugar v. Edmondson Oil Co., 457 U.S. 922, 941 (1982).
 
 

FN176. See supra pp. 991-992.
 
 

FN177. See supra p. 991.
 
 

FN178. See Lugar, 457 U.S. at 941 ("While private misuse of a ... statute does not describe conduct that can be attributed to the State, the procedural scheme created by the statute [which allowed a party to invoke a state official's assistance in seizing disputed property] obviously is the product of state action."); Flagg Bros., 436 U.S. at 160 n.10.
 
 

FN179. See, e.g., Texas v. Johnson, 491 U.S. 397, 406-07 (1989); United States v. O'Brien, 391 U.S. 367, 376-77, 381-82 (1968).
 
 

FN180. 391 U.S. 367 (1968).
 
 

FN181. Id. at 378-82.
 
 

FN182. See 18 U.S.C. §§ 1030(a)(5), 2701 (1994).
 
 

FN183. 430 U.S. 705 (1977).
 
 

FN184. Id. at 715-17.
 
 

FN185. O'Brien, 391 U.S. at 375; see Wooley, 430 U.S. at 707 (quoting N.H. REV. STAT. ANN. § 262:27-c (Supp. 1975)).
 
 

FN186. Turner Broadcasting Sys. v. FCC, 114 S.Ct. 2445, 2469 (1994) (citing Ward v. Rock Against Racism, 491 U.S. 781 (1989), and United States v. O'Brien, 391 U.S. 367 (1968)). In contrast, the court in Fabulous applied strict scrutiny because the regulations at issue were directed specifically at pornography. Fabulous Assocs., Inc. v. Pennsylvania Pub. Util. Comm'n, 896 F.2d 780, 784-85 (3d Cir. 1990).
 
 

FN187. Turner Broadcasting Sys., 114 S.Ct. at 2469 (quoting United States v. O'Brien, 391 U.S. 367, 377 (1968)).
 
 

FN188. See, e.g., Froomkin, supra note 1, at 473-77 (predicting government opposition to anonymous digital cash); see generally Freiwald, supra note 1 (describing the various federal statutes that govern communications monitoring by law enforcement and analyzing the extent to which they preserve protection for individual privacy); Froomkin, supra note 21 (describing government efforts to implement the so-called Clipper encryption standard in order to acquire the capability to monitor encrypted private communications).
 
 

FN189. NII WHITE PAPER, supra note 6, at 233.
 
 

FN190. Stanley v. Georgia, 394 U.S. 557, 565 (1969) ("If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch."); Schneider v. Smith, 390 U.S. 17, 24 (1968); Lamont v. Postmaster Gen., 381 U.S. 301, 307 (1967); see also United States v. Rumely, 345 U.S. 41, 57- 58 (1953) (Douglas, J., concurring) ("Then the spectre of a government agent will look over the shoulder of everyone who reads. The purchase of a book or pamphlet today may result in a subpoena tomorrow. Fear of criticism goes with every person into the bookstall. The subtle, imponderable pressures of the orthodox lay hold.").
 
 

FN191. See Froomkin, supra note 1, at 501 n.414. Professor Froomkin suggests that no such interest supports retention of old circulation records.
 
 

FN192. See NII WHITE PAPER, supra note 6, at 92.
 
 

FN193. See 17 U.S.C. § 506(a) (1994); 18 U.S.C. § 2319 (1994).
 
 

FN194. See, e.g., CBS, Inc. v. Davis, 114 S.Ct. 912, 914 (1994) (Blackmun, J.) (staying preliminary injunction barring publication of allegedly defamatory material, and observing that prior restraint will be allowed only in the most extraordinary circumstances, "where the evil that would result ... is both great and certain and cannot be militated by less intrusive measures").
 
 

FN195. Pursuant to the Audio Home Recording Act of 1992, Pub. L. No. 102-563, § 2, 106 Stat. 4237-40 (codified at 17 U.S.C. §§ 1001-02 (1992)), digital audio recording devices sold in the United States are already required to incorporate this "serial copy management" technology. See supra p. 988 and note 18.
 
 

FN196. See supra notes 15, 16 and accompanying text.
 
 

FN197. See, e.g., Sable Communications v. FCC, 492 U.S. 115, 126 (1989) (recognizing a compelling government interest in "shielding minors from the influence of literature that is not obscene by adult standards"); New York v. Ferber, 458 U.S. 747, 756-62 (1982) (holding child pornography not entitled to First Amendment protection); FCC v. Pacifica, 438 U.S. 726, 733 (1978) (recognizing that certain "forms of offensive expression may be withheld from the young").
 
 

FN198. See, e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 66 (1973); Ginsberg v. New York, 390 U.S. 629, 635 (1968); Roth v. United States, 354 U.S. 476, 485 (1957).
 
 

FN199. American Civil Liberties Union v. Reno, 929 F.Supp. 824, 855 (E.D. Pa. 1996) (opinion of Sloviter, J.); see also, e.g., Manual Enterprises, Inc. v. Day, 370 U.S. 478, 487 (1962) (observing that applying an "indecency" rather than "obscenity" standard "might well put the American public in jeopardy of being denied access to many worthwhile works in literature, science, or art").
 
 

FN200. Cf. Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 116 S.Ct. 2374, 2393 (1996) (reiterating that government may not regulate speech in a manner that restricts adults to reading "only what is fit for children") (quoting Sable Communications v. FCC, 492 U.S. 115, 128 (1989)); ACLU, 929 F.Supp. at 876 (opinion of Dalzell, J.). Denial of anonymity in the interest of ensuring that would-be readers of arguably indecent material are screened as thoroughly as possible would subject adults to a level of supervision fit for children.
 
 

FN201. See ACLU, 929 F.Supp. at 845-47 (describing available technologies but finding that it is neither technically nor economically feasible for most non-commercial organizations to use them); Froomkin, supra note 1, at 413-25 (describing the technology that enables creation of secure but anonymous digital signatures).
 
 

FN202. See ACLU, 929 F.Supp. at 838-42 (finding such parental-screening systems technically feasible); Eugene Volokh, Freedom of Speech on the Infobahn from the Listener's Perspective: Private Speech Restrictions, Libel, State Action, Harassment, and Sex, 1996 U. CHI. LEGAL F. (forthcoming 1996).
 
 

FN203. Michael N. Dolich, Note, Alleging A First Amendment "Chilling Effect" to Create A Plaintiff's Standing: A Practical Approach, 43 DRAKE L. REV. 175 (1994); Jonathan R. Siegal, Note, Chilling Injuries as a Basis for Standing, 98 YALE L.J. 905 (1989); see also Ault, supra note 87, at 1547-49.
 
 

FN204. See Carlin Communications, Inc. v. FCC, 837 F.2d 546, 557 (2d Cir.) (holding that provider of dial-a-porn services lacked standing to raise a facial overbreadth challenge to state access regulations on behalf of would-be listeners who might experience a chilling effect in the future), cert. denied, 488 U.S. 924 (1988).
 
 

FN205. See Froomkin, supra note 1, at 459-70.
 
 

FN206. See supra note 150.
 
 

FN207. See Froomkin, supra note 1, at 473-78.
 
 

FN208. TRIBE, supra note 170, § 3-19 at 138; see, e.g., Singleton v. Wulff, 428 U.S. 106, 117-18 (1976) (allowing physician to assert his patient's constitutional right to obtain an abortion in challenge to statute denying reimbursement for abortion providers, on the ground that the patient's desire for anonymity might deter her from asserting her own rights); Eisenstadt v. Baird, 405 U.S. 438, 446 (1972) (allowing distributor of contraceptives to assert recipients' constitutional privacy rights in challenge to law banning distribution to unmarried individuals); Griswold v. Connecticut, 381 U.S. 479, 481 (1965) (allowing medical professionals who provided birth control to married couples to assert the users' constitutional privacy rights in challenge to their convictions under law forbidding such distribution); NAACP v. Alabama, 357 U.S. 449, 459 (1958) (allowing organization to assert its members' constitutional rights to anonymity as justification for withholding membership information from the state, on the ground that "[t]o require that it be claimed by the members themselves would result in nullification of the right at the very moment of its assertion"). See generally TRIBE, supra note 170, § 3-19 (discussing third-party standing doctrine).
 
 

FN209. NAACP, 357 U.S. at 459 (allowing NAACP to assert its members' constitutional rights to associational anonymity); see also Singleton, 428 U.S. at 117-18 (observing that abortion patient's desire for anonymity might deter her from asserting her own privacy rights).
 
 

FN210. Craig v. Boren, 429 U.S. 190, 195 (1976) (allowing vendors to challenge statute forbidding sale of 3.2% beer to men (but not women) between the ages of 18 and 21); Singleton, 428 U.S. at 117-18; Eisenstadt, 405 U.S. at 443-46; Griswold, 381 U.S. at 481; Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (allowing private schools to challenge statute requiring parents to send their children to public schools); see TRIBE, supra note 170, § 3-19 at 138-39.
 
 

FN211. See 18 U.S.C. § 2710 (1994); CAL. CIV. CODE § 1799.3 (West Supp. 1996); CONN. GEN. STAT. ANN. § 53-450 (West 1996); DEL. CODE ANN. tit. 11, § 925 (1995); IOWA CODE ANN. § 727.11 (West 1993) (amended 1996); MD. ANN. CODE art. 27, § 583 (Supp. 1991); MICH. STAT. ANN. § 19.418(101)- (104) (Callaghan 1990); MINN. STAT. ANN. § 325I.01-.03 (West 1995); N.H. REV. STAT. ANN. § 351-A:1 (Supp. 1994); N.Y. GEN. BUS. LAW §§ 671- 673 (McKinney 1996); R.I. GEN. LAWS ANN. § 11-18-32 (1994).
 
 

FN212. See 47 U.S.C. § 551 (1992); CAL. PENAL CODE § 637.5 (West 1988); CONN. GEN. STAT. ANN. §§ 53-420 to 422 (West 1994); D.C. CODE ANN. § 43- 1845 (1981); ILL. ANN. STAT. ch. 720, para. 110/3 (Smith-Hurd 1993); N.J. STAT. ANN. § 48:5A-54 to -63 (West 1969); WIS. STAT. ANN. § 134.43 (West 1989).
 
 

FN213. See ALA. CODE § 41-8-10 (1975); ALASKA STAT. § 09.25.140 (1994); ARIZ. REV. STAT. ANN. § 41-1354 (1992); ARK. CODE ANN. §§ 13-2-2703 to - 2704; CAL. GOV'T CODE § 6254(j) (West 1995); COLO. REV. STAT. § 24-90- 119 (1973); CONN. GEN. STAT. ANN. § 11-25 (West 1986); D.C. CODE ANN. § 37- 106.2 (1981); DEL. CODE ANN. tit. 29, § 10002(12) (1991); FLA. STAT. ANN. § 257.261 (West 1991); GA. CODE ANN. § 24-9-46 (Harrison 1994); ILL. ANN. STAT. ch. 81, para. 1201 (Smith-Hurd 1993); IND. CODE ANN. § 5-14-3- 4(16) (Burns 1994); IOWA CODE ANN. § 22.7(13) (West 1995) (amended 1996); KAN. STAT. ANN. § 45-221(23) (Supp. 1995); ME. REV. STAT. ANN. tit. 27, § 121 (West 1988); MD. CODE ANN. STATE GOV'T § 10-616(e) (1993); MICH. COMP. LAWS ANN. §§ 397.601-605 (1982) (amended 1996); MINN. STAT. ANN. § 13.40 (West 1988) (amended 1996); MISS. CODE ANN. § 39-3-365 (1992); MO. ANN. STAT. §§ 182.815, -.817 (Vernon's 1986) MONT. CODE ANN. § 22-1-1101 to -1103 (1995); NEB. REV. STAT. § 84-712.05(10) (1994) (amended 1995); NEV. REV. STAT. § 239.013 (Michie 1996); N.H. REV. STAT. ANN. § 201- D:11; N.J. STAT. ANN. § 18A:73-43.2 (West 1989); N.M. Stat. Ann. § 18-9-4 to -5 (Michie 1978) ; N.Y. Civ. Prac. Law § 4509 (McKinney 1992); N.C. Gen. Stat. § 125-19 (Michie 1985); N.D. Cent. Code § 40-38-12 (Supp. 1995); Okla. Stat. Ann. tit. 51, § 24A.11 (West 1988); id. tit. 65, § 1-105 (1995); 24 Pa. Cons. Stat. Ann. § 4428 (1992); R.I. Gen. Laws § 38-2- 2(21) (1956); S.C. Code Ann. § 60-4-10 (Law. Co-Op. 1985); S.D. Codified Laws Ann. § 14-2-51 (1991); Tenn. Code Ann. §§ 10-8-101, -102 (1988); Vt. Stat. Ann. tit. 1, § 317(b)(19) (1995); Va. Code Ann. § 2.1- 342(B)(8) (Michie Supp. 1994); Wash. Rev. Code Ann. § 42.17.310(1) (West Supp. 1996); W. Va. Code § 10-1-22 (1995); Wis. Stat. Ann. § 43.30 (West Supp. 1995); Wyo. Stat. § 16-4-203(d)(ix) (1977).
 
 

FN214. For a more detailed discussion and critique of these ad hoc, context- specific privacy statutes, see Reidenberg, supra note 1; Joel R. Reidenberg, Setting Standards for Fair Information Practice in the U.S. Private Sector, 80 IOWA L. REV. 497 (1996). Professor Reidenberg argues that United States legal protection for personal data falls far short of universally accepted standards, and that the failure to take a comprehensive approach to the privacy issues raised by collection of personal data is a significant cause of this inadequacy. See Reidenberg, supra, at 507-31.
 
 

FN215. Video Privacy Protection Act of 1988, 18 U.S.C. § 2710 (1994). It is unclear whether the language of this statute covers online video services. See NTIA PRIVACY REPORT, supra note 14, at 16-17.
 
 

FN216. As discussed in note 115, supra, a constitutional right of anonymity may be grounded, at least partially, in constitutional privacy doctrine. Anonymity objectives and privacy objectives overlap substantially. Nonetheless, the term "anonymity" describes a particularly stringent variety of "privacy," and achieving true anonymity, as opposed to mere confidentiality, presents unique technological and procedural challenges.
 
 

FN217. Cf. Smith, supra note 1, at 177 n.155 (noting that the right of informational privacy focuses to a significant extent on the conditions for disclosure of personal identifying information rather than its initial collection). The DAETC Court appears to have recognized this distinction. Cf. Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 116 S.Ct. 2374, 2391 (1996) (acknowledging constitutionally protected subscriber interest in anonymity), with id. at 2430 (Thomas, J., dissenting) (characterizing fear of chilling effect as "pure hyperbole" given privacy provisions of statute). It is worth noting that the voluntary privacy principles set forth in the NII Privacy Report attempt to raise the threshold for collection of personal data, by stating that information users should "acquire only that information reasonably expected to support" activities that are either current or actually planned, and should destroy any information that no longer satisfies those criteria. NII PRIVACY REPORT, supra note 45, at II.A., ¶ 9. However, this standard is vague and affords no guarantees with respect to anonymity, which may easily be violated by the collection of such basic personal identifying information as the reader's name.
 
 

FN218. See, e.g., 18 U.S.C. § 2710(b)(2)(E) (1995) (video rental provider may disclose information "to any person if the disclosure is incident to the ordinary course of business of the video tape service provider"); 47 U.S.C. § 551(b)(2)(A) (1995) (cable operator may collect and use "information necessary to render a cable service or other service provided by the cable operator to a subscriber"); ARIZ. REV. STAT. ANN. § 41-1354.B.1 (1992) (allowing disclosure of library rental records "[i]f necessary for the reasonable operation of the library"); N.Y. GEN. BUS. LAW § 673(3)(C) (McKinney 1996) (allowing disclosure of video tape rental records "to any person if the disclosure is incident to the ordinary course of business of the video tape service provider"); see also NII PRIVACY REPORT, supra note 45, at II.A., ¶ 9 (framing data acquisition guidelines in terms of what is "reasonably expected to support" the collector's activities); id. at II.D., ¶¶ 21-23 (defining acceptable uses of personal data in terms of what would be compatible with individuals' "objectively reasonable contemplation," and suggesting that even for some "incompatible" uses, individual consent may fairly be implied from failure to use opt-out procedures). Professor Reidenberg predicts that such exceptions may become "major loophole[s]" in consumer privacy statutes. Reidenberg, supra note 214, at 219
 
 

FN219. See, e.g., 18 U.S.C. § 2710(b)(2)(C) (1995); CAL. CIV. CODE § 1799.3(b)(3), (4) (West Supp. 1996); COLO. REV. STAT. ANN. § 24-90- 119(2)(c) (Supp. 1987); N.Y. GEN. BUS. LAW § 673(2)(a), (c) (McKinney 1988).
 
 

FN220. See, e.g., CAL. CIV. CODE § 1799.3(b)(1) (West Supp. 1996); CAL. PENAL CODE § 637.5(c) (government agencies only); COLO. REV. STAT. § 24-90- 119(2)(c) (Supp. 1987).
 
 

FN221. See, e.g., 18 U.S.C. § 2710(b)(2)(F) (1995); N.Y. GEN. BUS. LAW § 673(2)(b) (McKinney 1988). For example, FED. R. CIV. P. 45(c)(3)(B) provides that before a litigant may require a nonparty to disclose a trade secret, it must show "a substantial need for the testimony or material that cannot otherwise be met without undue hardship." Similarly, FED. R. CIV. P. 26(b)(1) limits the discovery available from a party to matters that are "not privileged."

Such a "compelling need" threshold could be subject to appropriate exceptions. Like other privileged information, information about reading habits should be subject to discovery when a party has placed it at issue. For example, a copyright infringement defendant who denies ever having seen or heard the plaintiff's copyrighted work should not be allowed to preclude the plaintiff from using appropriately tailored discovery requests to investigate the denial. In addition, a law privileging reader identifying information should not prevent relevant inquiry regarding documents read in the course and scope of employment, such as interoffice memos and reports.
 
 

FN222. The rules of evidence in criminal proceedings reflect the heightened protection accorded to reading. Even when there is other evidence to support charging a particular individual with a particular crime, evidence relating to reading habits is inadmissible on the ultimate question of guilt. See, e.g., United States v. Giese, 597 F.2d 1170, 1184-95 (9th Cir.) (evidence of reading habits admissible only to impeach defendant's contention that his reading materials showed him to be peaceable), cert. denied, 444 U.S. 979 (1979); United States v. McCrea, 583 F.2d 1083 (9th Cir. 1978).
 
 

FN223. See Carol M. Ostrom, Unabomber Case Gives Librarians Privacy Fits, SEATTLE TIMES, May 1, 1996, at A1; Sue O'Brien, Librarian's Silence Is Golden, DENVER POST, Apr. 21, 1996, at E-01.
 
 

FN224. The only reported court opinion to consider a First Amendment challenge to such disclosure rejected the constitutional arguments out of hand, citing a government interest in fair and effective law enforcement. Brown v. Johnston, 328 N.W.2d 510, 512-13 (Iowa 1983), cert. denied, 463 U.S. 1208 (1983). Provisions of the federal Video Privacy Protection Act that would have established privacy rights for library patrons were dropped from the proposed bill after disagreement arose regarding law enforcement access to circulation records. S. REP. NO. 100-599, 100th Cong., 2d Sess. 8 (1988), reprinted in 1988 U.S.C.C.A.N. 4342-1, 4342-8.
 
 

FN225. See Freiwald, supra note 1, at 950-51, 953, 966-75, 994-97.
 
 

FN226. See id. at 968 (discussing requirements for access to communication contents under Title III of the Omnibus Crime Control and Safe Streets Act of 1968); id. at 970-73 (discussing requirements for access to stored records reflecting communication attributes under the Electronic Communications Privacy Act of 1986); id. at 995, 1005-07 (discussing requirements for access to stored records reflecting communication attributes under the Digital Telephony Act of 1994).
 
 

FN227. Professor Freiwald suggests that it should be abandoned, and replaced with strong protection for all aspects of digital communications. See Freiwald, supra note 1, at 1006-07, 1013-20.
 
 

FN228. See 18 U.S.C. § 2710(b) (1995); Freiwald, supra note 1, at 1014-16.
 
 

FN229. See Ostrom, supra note 223; supra pp. 1027-1028.
 
 

FN230. See supra p. 994.
 
 

FN231. NTIA PRIVACY REPORT, supra note 14, at 25-26 & n.98. The report contemplates that consumers will receive a notice of the "opt-out" rule at the start of the relationship.
 
 

FN232. NTIA PRIVACY REPORT, supra note 14, at 25-26 & n.98.
 
 

FN233. See, e.g., GA. CODE ANN. § 16-9-93.1 (prohibiting use of a false identity on the Internet); Ilana DeBare, State Trademark Bill Ignites Net Turmoil, SACRAMENTO BEE, Mar. 2, 1996, at F1 (describing California Senate bill intended to prohibit false use of trademarks on the Internet); Dan L. Burk, Federalism in Cyberspace, 28 CONN. L. REV. 4, 1095 (1996).
 
 

FN234. See Burk, supra note 233.
 
 

FN235. See supra Part III; see also GANDY, supra note 1, at 205-08 (observing that individual consumers "are contract takers rather than contract makers," and may not appreciate the consequences of blanket authorizations to disclose personal data or understand the full range of possible future costs).
 
 

FN236. See, e.g., 18 U.S.C. § 2710(b)(2)(F) (1995); N.Y. GEN. BUS. LAW § 673(2)(b) (McKinney 1988).
 
 

FN237. See, e.g., 18 U.S.C. § 2710(b)(2)(F) (1995); N.Y. GEN. BUS. LAW § 673(2)(b) (McKinney 1988).
 
 

FN238. See supra p. 1036.
 
 

FN239. See supra p. 1035.
 
 

FN240. See, e.g., 47 U.S.C. § 551(e) (1995).
 
 

FN241. Undoubtedly, some consumers will find a per-transaction waiver requirement annoying or onerous and wish to execute blanket waivers. The statute should allow these individuals to do so, but should afford them the opportunity to revoke such waivers upon request.