Privacy and Common Law Names: Sand in the Gears of Identification

During the last two decades, law and regulation have expanded to require real name identification in virtually every aspect of life—from online purchases to healthcare. This slow, subtle transformation has rendered a de facto nullity the Constitution’s anonymity protection against compelled identity disclosure. This evolution also has rendered impracticable the traditional, but mostly forgotten, common law rights to use whatever name one wishes—the de facto right to pseudonymity. This common law right facilitates anonymity, which, in turn, facilitates privacy.

This Article argues that the continued vitality of common law name rights, particularly in light of recent First Amendment jurisprudence, establishes a right to pseudonymity. This right includes, in certain circumstances, the ability to demand a government-issued identification under a common law pseudonym. This ability would allow individuals to frustrate regulatory identification regimes and regain some privacy. Beyond these practical implications, this Article, employing the classic property–liability distinction, demonstrates how name governance changed from the common law liability regime to a government-owned property regime.

This shift reflects an important, and hitherto unrecognized, transformation in the legal relationship between the state and citizen.