Tech Policy Seminar

The Future of Reputation: Professor Solove Responds

I’d like to thank Professor Picker for using The Future of Reputation: Gossip, Rumor, and Privacy in this seminar. It gratifies me greatly to see the book being discussed so robustly in law school classes. I wrote this book primarily to spark discussion, which is why I spend so much time on anecdotes. I wanted my own solutions to be in the background rather than at the center of the book, because this book is more about understanding the complexity of the problems than it is about proposing an elegant theory for solving them. Indeed, I don’t think that there is a particularly great solution out there, only a series of steps that can help a little bit, but that ultimately are not even close to pulling a rabbit out of a hat. The goal of the book is to get people talking about some difficult and interesting issues – and to keep the discussion balanced and at a sophisticated level. I hope I achieved that even if you weren’t sold on my solutions, which I consider to be moderate rather than radical and paradigm-shifting.

I greatly enjoyed reading the commentary about the book on this blog. I found the comments on the blog to all be quite thoughtful and thought-provoking. I have a few responses to some of the comments (there are too many to respond to all). Without further ado, here are my thoughts.

Mario V on 4/20 writes: “Solove is right in saying that we should be able to control our reputation to some extent, but I think that he underestimates our ability to do so. If I do not want a video of me posted on internet, I should be more careful of where I leave videos of myself after I record them. People know or should know that with today’s technology anyone can capture anything one does in public and expose it to everyone else in the world. Keeping this in mind, people can modify their behavior accordingly.”

Daniel J. Solove (DJS): I disagree both descriptively and normatively. With the current trajectory of modern technology, it is becoming very difficult to escape from being recorded unless one lives like a hermit. As a normative matter, should a person have to be so guarded in public to escape from being photographed, videotaped, or recorded? Preserving the privacy of public spaces where we expect a kind of anonymity is important. This is a normative issue. The law in other countries protects against being photographed in public – the ECHR cases of Peck v. United Kingdom [2003] ECHR 44, and Von Hannover v. Germany, [2004] ECHR 294 – strike me as well-reasoned and thoughtful opinions that depart from the general U.S. view that there exists little privacy in public. I discuss these cases briefly in my new book, Understanding Privacy.

Nathan Richardson on 4/20 writes: “Letting humans use the internet is like setting monkeys loose on a space station - there’s going to be a mess. In neither case is technology the problem, and in neither case is it the solution. Fix the monkey, and you fix the mess.”

DJS: Yes, technology is an amplifier of human nature. It isn’t altering human nature. We are prone to gossiping, spreading rumors, and shaming. The Internet doesn’t change that about us. But it does change the nature and effects of these practices. I’m not sure that you can alter human nature so that people don’t gossip, spread rumors, or shame. So without this, the goal must be to try to minimize the amplifying effects of the technology without unduly limiting the good aspects of the technology.

Kathy Lee on 4/21 observes: “Solove does a nice job presenting real-life examples of erosions of privacy that have troubling consequences. Solove, unfortunately, fails to present examples that align with the first view of the world [reputation is part of an individual’s fundamental right to dignity], which would offer stronger and more absolute protections of privacy. . . . “

DJS: The Star Wars Kid’s dignity is impinged because he can’t present himself to the world as he would like. The problem isn’t just cruelty, as you categorize it. It is that he will never live down being the Star Wars Kid. No matter what he does, short of coming up with a cure for cancer, it will always be a major part of his biography. Maybe in the future he won’t be embarrassed by it, but he still might not enjoy being known for it, having that be a defining feature in how others view him.

Washingtonienne also involves the same phenomenon. Robert may not be ashamed of his sexual activities, but he might not want to be known primarily as “the guy who had spanked Jessica Cutler during sex.” This strikes me as a matter of dignity.

Overall, I’m not a big fan of dignity-based arguments, as I find the concept of dignity to be so amorphous and undefined that it does little actual work. We can justify free speech, too, as a matter of individual dignity.

Issues of reputation are tricky, because they involve individual interests on both sides. It is hard to appeal to rights, or dignity, or autonomy since these are implicated both by the interest in privacy and the interests in expressing oneself, sharing information, and learning information about others.

Christopher James on 4/22 writes: “Being a bad tipper or improperly driving in an HOV lane is hardly the type of behavior that ends one’s career or relationship, and rational individuals, such as employers, should likewise recognize the one-sided nature of such sites. . . . In this scenario, individual indiscretions such as those mentioned by Solove are quite damaging, and perhaps disproportionately so relative to their actual gravity—mostly because their disclosure is still relatively uncommon. . . . The second scenario I can contemplate is one which I sense Solove believes is possible, namely the emergence of a world where every last mistake or willful norm violation lands us on someone’s “pet norm” grievance blog, full with photos and video of the misdeed. . . . Rather, if this ubiquity of disclosure is indeed our future, the very ubiquity the scenario describes will only serve to make each violation recorded progressively less significant and less memorable. Only the truly outrageous will stand out, as perhaps they should to a degree and already do anyway.”

DJS: These are fair criticisms. Regarding the first scenario, it is true that the more minor indiscretions aren’t bad in isolation, but one can imagine a world where they are aggregated. Regarding ubiquity of disclosure, it is true that there will be less attention to people like the Dog Poop Girl if people are writing about these things every day. One of the features of Internet gossip and shaming is that it is new – so people get a kick out of writing about the Dog Poop Girl because it is a new phenomenon, not because it happens thousands of times. Will shaming occur on a systemic level like the Dog Poop Girl all the time in the future? Probably not. There will be special cases that are “sticky” and get a lot of attention. With gossip, there will be more information online about people based on all the blogging and social network website use in high school and college. This information can pull up in a Google search and could be used to affect how people are judged, etc. It is true that “only the truly outrageous will stand out” for the purposes of making people into Internet celebrities. There will only be a handful of Dog Poop Girls or Star Wars Kids. But the Dog Poop Girl isn’t really outrageous. Nor is Little Fatty. Nor is the Star Wars Kid. There’s a rather random quality to what people suddenly decide is funny or interesting. Part of the process is that a meme gets started and then grows based on its own momentum. So the reality is that even non-outrageous things might become popular memes, but which ones will be relatively hard to predict.

Somers on 4/22 observes: “I also wasn’t terribly persuaded by his appeals to youthful mistakes and second chances. Frankly if the modern trends in the internet force our youth to march up the learning curve a little faster than they otherwise might, this is a preferable situation in the aggregate. Society as a whole will be better off (although admittedly potentially at the expense of the individuals crucified along the way). The kind of youthful indiscretions that one might suffer for later in life in the world of tell-all internet searches- petty theft, drug abuse, etc.- aren’t exactly desirable life experiences, nor are they costless to society as a whole (law enforcement costs, economic loss to stores). If the practical affect is to so stigmatize those offenders so severely that the acts less oft repeated, we may be better off.”

DJS: It is true that many of these behaviors aren’t socially desirable. I admitted as much in the book. But I argued that Internet shaming punished people disproportionately and led to greater social disorder. The punishment is more harmful than the crime. Somers’s view is based on a deterrence model – these behaviors can certainly be deterred through such actions. We can also deter petty theft much more if we executed people for it. But deterrence is only one penal goal – there’s also retribution, which has a sense of proportionality to it.

We certainly don’t want to encourage youthful indiscretions, but despite punishments, many young people still do them. There is a limit to how much we can expect teenagers to avoid engaging in some unsavory activity. Many will do so. We obviously want to deter, but we also want to deal fairly with those who transgress.

Frank B on 4/23 writes: “High profile individuals might have effective error correction online, but a dispersed preference for accuracy does not trump the focused motives of a defamer. Solove’s central observations ring true for me.”

DJS: I agree. The web-correction argument only works in some circumstances, not all. It is an argument I believe that is often overplayed.

Ross Tucker on 4/28 writes: “While I’m all for free content on the Internet, I think it’s pretty difficult for copyright owners to police their rights on this medium. I think it will be just as difficult, if not more difficult, for people to police their own reputations on the Internet. We see how difficult it is for large copyright owners (such as record labels and studios) to prevent infringement of their materials, and they hire people to do the enforcing for them.”

DJS: This is a good argument, and one that is difficult to respond to. Notice and takedown regimes don’t work very well. Although the strategy taken by the RIAA regarding copyright is an unfortunate one in my opinion, I don’t think that it is entirely ineffective in achieving its goal. It is expressive, and it does increase the risks and costs of music sharing. It may not stop a lot of piracy, but it probably does deter some. This is a mild benefit. I think that the strategy ultimately fails not because it doesn’t fully stamp out piracy, but because there are better strategies out there that could benefit both consumers and the music industry.

Jim Abell on 4/29 argues that my suggestions for an expanded conception of privacy might only be partially effective, and that “a large portion of the problem can be solved through a greater self-awareness of the risks to privacy that our networked world poses.” In other words, we should be more careful in public.

DJS: There are at least two issues involved in whether law should expand its conception of privacy. The first is whether it is possible for the law to protective privacy more expansively in a given manner. The second is whether it is normatively desirable for the law to do so. Regarding the first, many objections to a more expansive protection of privacy in public stem from the argument that it is simply not feasible to do so. I believe that it is possible for the law to protect privacy in public in an effective way. In the book, I analogized to copyright law to demonstrate that even if information is public and readily available, the law can still regulate the way it is used and provide a lot of control over it. The second issue -- whether any particular level of protection of privacy in public is desirable -- is a different question. I took Abell’s argument to be based on the first argument rather than the second.

Dan Jones on 4/29 writes: “Solove is entirely too dismissive of the court’s reasoning in the Ruth case. The court, by deferring to the media, was rightly uncomfortable with imposing editorial controls that would be difficult to enforce and would lack a coherent legal standard. . . . . It also sounds a lot like a legislative problem, not one well-suited to ill-fitting common law standards.”

DJS: When courts first confronted whether to recognize the Warren and Brandeis torts, some courts recognized them in the common law. Others concluded, as Jones does, that legislatures were best suited to doing so. When legislatures did respond by legislating the torts, they did so by basically providing for a fairly open-ended framework. In other words, regardless of whether the tort of public disclosure was legislatively or judicially crafted, these versions of the tort have been remarkably similar. Thus, a call to the legislature has often resulted in a punt back to the courts. Legislative solutions can be just as open-ended and muddy as common law ones. Moreover, I wonder whether it is possible to craft a more detailed legislative approach toward the newsworthiness test. It is easy to punt to the legislature; courts often like to do this. And legislatures love to punt to courts. If the law were a football league, there would be no shortage of punters and very few quarterbacks.

Deferring to the media is untenable because it basically eviscerates the tort. So what, then, would a legislative approach do? Jones is quick to note difficulties with the approaches, but there are muddy areas in nearly all areas of law, so why is the muddiness here any more pernicious than muddiness in other areas of free speech law or other areas of tort law?

Max Schleusener on 4/30 writes: “If the gossip is juicy, easily copied and reposted elsewhere, there’s no stopping it with a feeble penalty.” He also recommends Justice White’s suggestion for defamation law – limited damages and in some cases, merely a judgment that a statement was false would be sufficient.

DJS: The goal of the law is to nudge norms a little bit. That’s all I really think that the law can achieve here.

Regarding Justice White’s suggestion of limited damages on recovery and a judgment of falsity in defamation cases, I have no objection to this – I think it’s a good idea. I recommend limited damages in the book as a possible component of a solution. As far as a judgment of falsity, it works for defamation, but doesn’t work as well for invasions of privacy. A judgment that something invaded a person’s privacy is not likely to do anything to help cure the invasion. In contrast, a judgment from a court that something said was false is an authoritative source that a person can cite to in order to counteract the false statement.

Sarah Cottrell on 4/30 writes: The primary problem with Solove’s book is that he does such a good job describing all of the reputational horrors that can result from abuse of online forums that his relatively modest proposals look laughably impotent in the face of these harms. I came away from the book thinking that the only way to truly prevent many of the harms that Solove describes would be a system so draconian, punitive, and regulated that it should make anyone who recognizes the value of free speech shudder.

DJS: I agree that the law is quite limited in what it can do. I tried in the book to suggest a solution that would be respectful of free speech yet push the law to do as much as it could do to protect privacy. At best, the law can help nudge norms along, but beyond that, it isn’t a magic elixir.

Sarah Cottrell continues: “I came away from the book wondering if Solove really believes that his modest proposals would result in greater protection of individual’s privacy if the legal penalties are faster, easier, and cheaper.”

DJS: I think that improving the law would help somewhat, but it’s far from a cure. It can push toward a direction, but that’s all. It is tempting in the field of law to think that the law can achieve a lot more than it can. I’m a realist as to what I think that the law can achieve. But imperfect and weak an instrument as it may be, the law can do something. It may not be much, but I have yet to hear of anything that would be more effective. Ultimately, I recommend in Chapter 8 that we better educate people about the consequences of spreading information online, and my suggestions for legal reform are actually ways to make the law serve a more educative function. I’m trying to use the law in a way that maximizes its expressive qualities and minimizes its cost and burden.

There were many other thoughtful comments that I found insightful, such as Derek Little’s analysis of shaming and Foucault, Frank_B’s discussion of Wikipedia, and Claire Hausman’s discussion of anonymity, among others.

Thanks for your interesting reactions to my book. It was a pleasure to read them on this blog.

 

Two Great Articles About Privacy and Social Networking Websites

This is about a scandal when kids made facebook groups writing obscene (I mean really obscene) things about their teachers and how, if at all, to reprimand them in light of their online conduct that they took to be private:
http://nymag.com/news/features/45592/

This is about HS teachers who put themselves on myspace and say/do something stupid and public: http://www.washingtonpost.com/wp-dyn/content/article/2008/04/27/AR2008042702213.html?nav=hcmodule&sub=AR

Internet Celebrity and Newsworthiness

Intro: Holey Theory of Liability, Batman
    Solove’s proposed solution has far too many holes to be tenable: its costs are too high for individuals seeking to protect themselves (the cost of monitoring and trying to bring down the rumor or private fact with or without a lawsuit), the potential for wrongful removal of true information is high, the potential for reposting of salacious false information is high, and, as other people have suggested, the DMCA-like application of 230 will  not incentivize ISP removal where the stakes are low (e.g. if an individual wants to remove a minor rumor that an employer might, but hasn’t, seen), and where the stakes are high, ISPs already will need to act for extralegal reasons (see Ross’s and Ruben’s entries below).
    For the purposes of this post, though, I would like to focus primarily on the newsworthiness test, because Solove hangs his hat on it as a good measure of what true and false information can be posted about someone on the web. (129, 187)  Unfortunately, I don’t think this is a good metric to apply to internet celebrities (willing and unwilling alike).

Newsworthiness and Lies
    Solove cites New York Times v. Sullivan when discussing the treatment of false statements of fact under the law. (126)  This case primarily held that a false statement of fact about a public official can be made so long as it is not published “with knowledge that it was false or with reckless disregard” for the truth.  This rule applies to public figures as well. (Curtis Publishing and Associated Press v. Walker)  Because public officials and public figures are well-known and notable enough to be able to contest published information, untrue statements about them are tolerated.  The law holds that in a marketplace of ideas, false statements about people who are in a position to refute them ought to be tolerated and ought only to be the subject of lawsuits in exceptional situations.
    The internet is such a marketplace of ideas.  If a rumor about you is famous enough to deserve the attention of some set of readers, then you are likely famous enough to be able to refute it.  Internet celebrity is cheap: it has a low (and uneven) bar.  The Star Wars and NumaNuma kids have fan sites devoted to them.  They have a forum to respond to those who say false things about them because they are internet public figures.  This feature will be key to understanding newsworthiness in the case of true facts, too, so keep it in mind through the next two sections.

Newsworthiness and Private Information
    Solove suggests that the newsworthiness test will “reconcile the public disclosure tort with free speech.” (132)  I don’t think this is so clear.  The newsworthiness test is extremely subjective, and the Washingtonienne and Dog Poop Girl and other internet stars may, by their willing or unwilling stardom, qualify as newsworthy. 
    That which is newsworthy is of “legitimate concern to the public;” meaning “the public has a proper interest in learning about” it. (132, citing 2nd Restatement of Torts)  Sadly, this is not a simple, concrete test that can be easily applied.  As Dan discussed, Solove skims across the surface of the cases of the Starving Glutton and Ruth (133-136), but doesn’t really get into the details.  It should be noted, at a minimum, that Ruth’s car accident and medical treatment were found to be of public concern. 
    To see how varied the threshold for public concern is, we can turn to the casebook classic Cox Broadcasting v. Cohn, in which a newspaper published a rape victim’s name.  The Supreme Court found that because the victim’s name was in the public record, its publication couldn’t support a suit for violation of privacy.  The Court also stated that the story of her rape was newsworthy enough to merit publication of her name.
    Nowadays, blogs are newsworthy.  This is a fact that Solove must believe because he tells us that mainstream media read and crib from blogs.  Even the Washingtonienne would qualify.  Dog Poop Girl could easily be a fluff story on a local news station.  And viral videos crop up on CNN whether their stars like it or not.  If the majority of mainstream media outlets treat internet stars as news, courts will likely follow given the subjective nature of the test.

Intuition and Evidence of Newsworthiness
    So far, this post has only argued based on intuition that blogs and internet stars are newsworthy.  Don’t take my word for it, though.  Let’s prove it under the law.  One of the purposes of the newsworthiness test for private information is to protect private individuals where they, as opposed to public figures, do not have the remedy of counterspeech. 
    Let's compare a public figure with a private individual who becomes an internet celebrity.  Take, for example, the public figure Britney Spears.  There are at least these two obstacles to her suing for disclosures of private information: 1) she has the celebrity to be able to respond to news about her in the marketplace of ideas; and 2) she is newsworthy and has voluntarily thrust herself into the public eye (see Time v. Firestone).
    I will address these issues as they pertain to internet celebrities in order.  First, willing and unwilling internet celebrities have the notoriety to be able to respond to news about them.  If the Wonkette published an interview of Jessica Cutler, the Wonkette would likely want to hear from her notorious lover, too.  NumaNuma kid was on Leno.  Etc.  Etc.  There is no doubt that the remedy of counterspeech is available on the internet to those with even modest notoriety. 
    Second, do internet celebrities voluntarily thrust themselves into the public eye?  NumaNuma: yes.  Star Wars Kid: No.  Jessica Cutler’s partners: No.  The answer is that it varies.  The problem is that even where they do not, they may be newsworthy under the flexible subjective test.  And even if it’s non-newsworthy, the person has no right to sue unless the content of the information is “highly offensive” to a reasonable person. (Cox Broadcasting v. Cohn)  Many unwilling internet celebrities do not suffer from the publication of “highly offensive” information about them.  They merely suffer from embarrassment, like Star Wars Kid.
    Solove wants to cast the net wider, but lessen the bite.  I agree here with Ross that this will do little or nothing to slow down the suffering of those whose privacy has been violated.  We can’t lessen the bite and expect it to affect people’s conduct online.  If the gossip is juicy, easily copied and reposted elsewhere, there’s no stopping it with a feeble penalty.  Solove cites the cute analogy of ripping open a pillow and seeing the feathers fly to the four winds; you can never get them back in the pillow, and you can’t stop gossip once it starts.

An Alternative Solution
    Recovery in defamation and violation of privacy cases, Solove points out, is more a matter of pride than of money.  Widening the net for liability is no more effective for this purpose than lowering the threshold for a plaintiff to win.  Solove wants more parties to possibly be liable, but that seems wrong-headed.  Instead, consider an approach taken by Justice White.  In Dun & Bradstreet v. Greenmoss Builders, an individual was suing for defamation after it was inaccurately reported that he had filed for bankruptcy.  Justice White wrote the concurrence in a four-four tie.  He said, “Instead of escalating the plaintiff’s burden of proof to an almost impossible level, [the Court] could have achieved [its] goal by limiting the recoverable damages [and] the defamed [individual], upon proving falsity, could at least have had a judgment to that effect.  His reputation would then be vindicated.”  Solove seems to want to give wronged individuals multiple bites at the apple, so to speak, letting them hold multiple parties liable.  That would be a major reform in the law.  It is more realistic to imagine a tiny step, like that suggested by Justice White. 

Fighting A Losing Battle?

The primary problem with Solove’s book is that he does such a good job describing all of the reputational horrors that can result from abuse of online forums that his relatively modest proposals look laughably impotent in the face of these harms. I came away from the book thinking that the only way to truly prevent many of the harms that Solove describes would be a system so draconian, punitive, and regulated that it should make anyone who recognizes the value of free speech shudder. Many of the harms he describes are instantaneous upon the release of information, which can only be prevented in a world where releasing information is so costly that people only do so if they are utterly convinced that they will not be punished for its release. This, of course, is the very reason that we worry about free speech and have created safeguards to ensure that free speech continues.

 

The problem, of course, is that reputational harm or invasion of privacy in the modern age can spread so rapidly and so completely via the internet that any after the fact legal solutions are mere tokens, sort of an “Oops… sorry! Well, here’s some validation that you were put in an unfortunate situation” certificate. Solove, of course, wants to make it easier for people whose privacy has been invaded to actually do something about it– get the offending material pulled, for example. However, even if Google and every other search engine and person can be convinced or forced to remove every bit of offending material, significant harms often have already occurred. So, an employer cannot Google some lurid detail about a person’s life? In one sense, that is a pretty significant victory, because the invasion of privacy will not continue to follow the person around ad infinitum. But in another sense, a separate and distinct harm has already occurred, which is the destruction of privacy in the individual’s current life. No legal remedy can alter this reality.

 

In a certain sense, this is the nature of most of our civil legal remedies. The idea in torts that the plaintiff could be put in the same position as he or she was prior to the harm is a legal fiction– no one would argue that a person who has been maimed for life, for example, could in reality really be put in the “same” position as he or she was before the injury through a mere damage award. The law merely makes its best effort to compensate the victim for their injury, a solution that will always be imperfect. (I realize this is a gross oversimplification of tort law, but I offer it only to illustrate the fact that I don’t think Solove’s solutions can be attacked solely on the grounds that they will not wipe away whatever reputational harms or privacy invasions occurred.)

 

I came away from the book wondering if Solove really believes that his modest proposals would result in greater protection of individual’s privacy if the legal penalties are faster, easier, and cheaper. Is defamation or invasion of privacy really undertaken with the explicit assumption that remedies are not fast, easy, and cheap, and therefore the person can get away with it? Relatedly, if the “price” of defamation or invasion is often paid when these things occur, but the price is not all that high, will people really cease defaming and disclosing information? A more reasonable assumption might be that people will release information or invade privacy until they are told to stop. But, as Solove and other posters have noted, the harms attendant on the release of this information have frequently already been experienced almost instantaneously with the release of the information. Would Solove’s proposals really change all that much about the way people deal with information?

 

Chang notes that anonymous speech has been fundamental to our notion of freedom of speech because it facilitates speech that is controversial. While I agree that anonymous speech can be an important tool, the distinction that Solove alludes to between types of anonymous speech is an important one. It is one thing for an individual to publish anonymously information pertaining to view of a political nature, or information about a public figure. However, it is quite another thing for someone to anonymously post information about a private citizen that has no value to anyone other than a moment or two of bemusement, voyeurism, or outrage. I am not sure if this distinction is a particularly legal one, or even a distinction that most people would agree with, and I am certainly not suggesting that the law should explicitly try to draw a distinction between these two kinds of disclosures. However, when constructing any legal system to deal with invasions of privacy and reputational harms, I think we should be a lot less concerned if whatever system we construct might dampen the latter sorts of disclosures, on purely social and political utility grounds.

 

As I noted last week in class, gossip has always been with us, and if we cannot and do not control it in the halls of a high school, than we probably cannot control it on the internet. But should we even try? Solove cites Strahilevitz’s point about social networks, which I think is a good and important one. It is one thing to tell someone that gossip is just a part of life and that they should learn to deal with it when the gossip is confined to a particular social sphere. While it might be humiliating and even socially crippling, there is always the option to move out of that social sphere, or at least the opportunity to tell yourself that not everyone in the world thinks what some (relatively) small group of people thinks. When gossip is placed on the internet, mobility and psychic benefits vanish.

 

It seems clear to me that Solove’s point that it should be easier to get defamatory or clearly invasive information about yourself pulled from the internet as much as practically possible is correct. It must be maddening to be Ken, the individual inaccurately listed as the purveyor of the offensive Oklahoma City t-shirts, frightening to be the exposed Columbian judge with a bounty or her head, and traumatizing to be the couple “outed” to their disapproving religious community as users of IVF against their wishes. However, while the generic principle is good, Solove offered little in the way of practical structure for this new system. Ultimately, I question whether any kinder, gentler system that also allows for the kind of speech freedoms that we think are important can really significantly impact the nature or degree of reputational harms and invasion of privacy facilitated by the internet. While Solove makes a valiant effort, I suspect he may be fighting a losing battle.

Hands off the Internet--Norms, the Market and Self Help

The Internet Tabloids: pass them by in the checkout lane

As several people have already noted in their posts, there is certainly a growing trend among individuals to discount a vast majority of the information that’s available on the internet. As Solove point out, the internet is in its adolescence, with all of the irresponsibility and immaturity that comes with that age. In Chapter 5, Solove draws what I believe to be an excellent analogy to the status of the press in the latter part of the nineteenth century. In many ways, the proliferation of the blog does indeed resemble the “penny press” explosion that took place during this time (p 106).

As Dan pointed out, as the various generations go through the Internet experience, the development of the “tabloid norms” may serve to mitigate the impact of the more harmful gossip and rumors. Yet I would add to this a possibility that the simple forces of supply and demand may step in as well. Going back to Carr’s book, as the internet assumes a greater role relative to other sources of traditional media, we might expect a segmentation into the “respectable online press” and the “Internet Tabloids”. Solove points out that the penny press was enormously popular in its heyday, arguably reaching its height with the “yellow journalism” that helped spark the Spanish-American War (p 106). 

Yet the press soon split off into two branches: “respectable journalism” and what we’ll call “other”. Today, people can choose to read the National Enquirer, but we all know (hopefully) that Bat Boy does not in fact live in Texas and that Atlantis was unfortunately not discovered in Lake Michigan. Rather, we go to CNN, Fox News or the New York Times to get our “real” (though certainly not unbiased) information. As the blogosphere continues to mature and we see the rise of fulltime professional bloggers (Above the Law), one might expect a similar schism to develop. As individuals become more savvy about accepting information posted on the internet as true, individual blogs may begin doing a more thorough job vetting the information for truthfulness. As word spreads over the net that a particular blog is “reliable”, we can expect the number of visits to increase when people want information, yes, even gossip that they know is true. Like the Enquirer, it might be difficult to completely stamp out the Internet Tabloids completely. But to borrow Solove’s argument for a second, norms and market forces might go a long way towards diminishing their impact. When some is asked where they got a particular piece of information, revealing that they read it in the newsstand tabloids usually subjects that person to a raised eyebrow or two. The same might be said as we begin to ask one another about the internet sources that we get our information from. As of now, whenever someone gets pressed on that question, the answer is normally “I read it on the Internet”. A possible solution to the online gossip problem would be a similar pressure to have the online community press to know specifically where individuals got their information from. Along those lines, I think Chang’s idea of verifiable sourcing is a good place to start.

Raise the liability bar, but also recognize the increased risks to Privacy

As we ha€™ve seen with the Paparazzi, it might never be possible to fully stamp out the online tabloids. There will always be some demand based on our prurient interests for the most sordid details of other people'™s lives. This raises an interesting question €”does the advent of the internet, with its ability to instantly allow the entire world access to all of our intimate details, require a change in the liability scheme or a rethinking of what constitutes a reasonable expectation of privacy. I’m sure some of us remember the case Hustler Magazine, Inc. v. Falwell. In that case, the Court sympathized with Falwell'€™s objections to a fairly offensive parody published by Hustler, going so far as to describe this form of satire as a distant cousin of core areas of protected First Amendment speech. Yet the court noted that as a “public figure”, Falwell was entitled to less protection than as a private figure. As Solove notes, in today'€™s world of cell phone cameras and blogs, individuals can become amateur paparazzi (p 164). In the Digital Age, one may wonder whether the distinction between public and private figures matters that much anymore.

Solove's solution to this new dilemma is to argue for a more flexible approach to privacy law. He argues that the law'€™s current binary system of privacy, with a distinct public and private sphere, should be replaced with a more nuanced approach (Pg 166). I agree that in certain semi-private places (the locker room), it is reasonable for individuals to expect some level of privacy. At the same time, however, the omnipresence of these new technologies does raise the question of whether individuals, at some level, must take greater precautions to protect their own privacy. With millions of people having heard about the Star Wars Kid and the Dog Poop Girl, one might plausibly argue that we'™re at least aware of the potential that we too can become instant celebrities. While I agree that this may require some adaptation of the new laws of privacy, we can no longer claim ignorance of the fact that we are living in a less-private world. We have all experienced the bar/club situation where we’re captured on someone's cell phone and put up on Facebook the next morning. While we may be upset, can we really argue that we had no idea that such a thing could happen when the vast majority of us carry cell phone cameras? Solove would argue that even outdoor groups of 25,000 participating in the nude activities of the Burning Man festival (162). But such an approach invites judges to decide for themselves just how private each group activity should be and that at times is a hard line to draw. Those caught on Girls Gone Wild could argue that they reasonably expected their image would be viewed by those ordering the DVDs and perhaps as a few thousand downloads from the internate, but not that they would receive national attention for it. As Eliot Spizter'™s acquaintance, Ashley Dupre, is finding out, those old archives can come back to haunt you.

So where does that leave us? Arguably forced to recognize the fact that we cannot expect the same level of privacy that prevailed twenty years ago. Solove'€™s proposals for more aggressive enforcement of breach of confidentiality suits (176) might provide some relief, but in the end, a large portion of the problem can be solved through a greater self-awareness of the risks to privacy that our networked world poses. If I walk into a room of close friends where everyone has a microphone and a recording device and later discover an audio recording of parts of my conversation where I made an embarrassing statement is posted on the internet, I may decide to go after the individual for breach of confidentiality. But at the same time, I could have saved myself a lot of trouble by recognizing the increased risk to my privacy in that situation and perhaps treading a bit more carefully. If everyone is carrying iPhones, today's modern world may require a similar exercise in additional caution.

Tortured Torts

I was tempted to take the approach I did with Carr, and post a series of unanswerable questions in scattershot fashion. Solove’s book suffers, like Carr’s, from a similar lack of focus in addressing the difficult legal and policy questions he raises. Instead, however, I’m going to critique one particular discussion: court-mandated anonymity through a broad reading of the “public disclosure” tort and a narrow reading of the “newsworthy” exception as seen in pp 133–36. Disclaimer: I haven’t had a course in privacy law, or con law for that matter. 

Starving Glutton and Mangled Ruth

Solove starts by contrasting two different cases: in the first, Barber v Time, Inc, we have our starving glutton, and in the second, Shulman v Group W. Productions, Inc, we have a victim of a horrible car accident, Ruth. First of all, the two cases’ different outcomes might be symbolic of the erosion of privacy over time, since the starving glutton case took place in 1942 and the Ruth case in 1998. There might also be a technological difference that Solove implies, but never states. The starving glutton story was an article in a magazine, and it is trivial to write a story without naming names. It is a different matter (is it?) to take video footage and doctor it to conceal someone’s identity.  
       
Solove is entirely too dismissive of the court’s reasoning in the Ruth case. The court, by deferring to the media, was rightly uncomfortable with imposing editorial controls that would be difficult to enforce and would lack a coherent legal standard.  After all, what standard would the court suggest in order to cabin forced anonymity to only those cases in which the plaintiff should be spared the public airing of her problems (note the normative component in the question)? We could imagine a consent standard, but that protects too much. The tort of public disclosure already has a “offend a reasonable person” standard, but that doesn’t get us very far.
       
I don’t think the disclosure in either of these cases offends a “reasonable person;” rather, it offends the unwitting celebrity (though see Barber, which went through a list of considerations in order to determine whether the public disclosure violates the reasonable person standard, and ultimately concluded that it did). The media here lacks the kind of malice or prior relationship normally associated with the tort of public disclosure: the idea being that the airing of someone’s private laundry in public in order to inflict reputational or other damage would offend the reasonable person—libel doesn’t work because the facts happen to be true, just private. It also sounds a lot like a legislative problem, not one well-suited to ill-fitting common law standards.  
       
Solove believes this deference to the media “dodges the issue,” but isn’t the issue to what extent a court should interfere with the broadcast decisions of a television company? Apparently not.  He suggests the ease with which the show could be edited means courts should mandate taking that step. That odd flow of logic seems to dodge the issue pretty nicely.

The counterargument addressed by Solove is a bit of a strawman as well. The erosion of credibility by using anonymity doesn’t seem like nearly as serious a concern as judicial policymaking. Furthermore, the analogy to Deep Throat is unhelpful.  Of course stories can be important and reliable without naming sources or individuals. But it doesn’t automatically follow that the media should hold privacy as the default in the absence of a “need to identify.” Furthermore, I’m not sure that shows like the one Ruth was on are that interested in credibility. They are likely more interested in dramatic footage and vivid details. The television company could make a good argument that the forced editorial controls would reduce the immediacy and the impact of the program. Not to sound like a broken record, but courts are not well-suited to assess the impacts of these privacy controls, which would vary from show to show.    

In short, if this is such a normative problem, fight for a legislative solution, though it would have to be crafted carefully to avoid First Amendment concerns (see Chang’s post for good discussion of the authoritarian-libertarian balancing act inherent in regulations regarding anonymous speech). What seems to be animating Solove is a distributional concern: the companies benefit from the misfortune of people like Ruth without having to pay them for it. If that is the problem, then the tort system is a lousy way to approach it, since recovery is limited to the actual damage of the disclosure (hard to establish!).          

I Read Somewhere that Jessica Cutler’s Favorite Position is the “Tortious Blogger”  

Solove switches gears here to advocate for what I think is a negligence standard for bloggers when divulging personal details. I’ll start by posting his Kumbaya-conclusion: “In many cases . . . with a little bit of care, free speech and privacy can peacefully coexist.” Sounds okay, but what is a “little bit of care” exactly? The discussion is inattentive to the actual cases in which this would appear before a court: a friend/lover/coworker of the blogger will be “outed” in some embarrassing way. That already means the blogger has failed to keep the other person’s identity a secret. Should we always find liability at that point, since the blogger can always be more careful for basically no extra cost, and whatever steps she took to mask identity were ineffective (in hindsight)?  Probably not, so we have a line-drawing problem. And then, given the uncertainty of this line, we are faced with the familiar argument that this mandated self-censorship will chill speech.

Also, note the difficulty of defining a “reasonable standard of care” in protecting the anonymity of others. The Kaysen example is telling: she never referred to Joseph by name, but those who knew the two still didn’t have any trouble putting two and two together. The court was probably right to dismiss that case, even if the newsworthiness exception was an awkward legal approach. The Cutler case would raise the same concerns. Even if she took additional steps to mask the identity of Robert, all it would take was one person who had additional inside information, and one comment or blog post later, the secret would be out. And as others have noted, the internet is a very difficult medium for putting genies back in bottles.    

To Solove’s credit, here his discussion seems to better match the purposes of the public disclosure tort, admonishing courts for focusing solely on the public interest in the information, and not considering the source of the private information and the motive for disclosure. “Newsworthiness” may be an outdated exception regardless, now that publication is so dispersed and personal minutae is viewable by the masses.  

The above sounds pessimistic about preventing the harms to individuals’ privacy through public disclosure by the media. But the argument is narrower: it is pessimistic about the ability of courts to prevent those harms in a sensible way. The social norm discussion advanced by Derek last week might go a long way towards reducing the problem. And the problem itself may be exaggerated by availability bias (note Solove’s approach, bombarding the reader with horrifying anecdotes), so we should not worry so much (see Nathan’s post and Chris’ scenarios from last week).   

ISP Liability and Privacy -- Much Ado About Nothing?

This week we get to rip into Solove’s solutions for protecting privacy and reputation (after spending a week trying to decide whether the Internet really causes huge problems regarding privacy and reputation). So what do we think about these solutions? We’ve already had some discussion about alternative dispute resolution, traceable anonymity, and Solove’s proposed reinterpretation of Section 230 to be analogous to the DMCA notice and take down regime. I’m going to talk a little more on the notice and take down regime.

Solove’s goal with his various solutions is to expand the scope of liability for defamation and invasion of privacy while reducing damages awarded for these offenses – as he describes it, a wider net with a less painful bite. One of the methods of widening the net is to impose liability on ISPs for failure to take down offensive comments when notified of them. He argues that the status quo, complete immunity for ISPs, doesn’t give enough incentive to website operators to help informally resolve disputes. Therefore, he argues that people should be able to hold ISPs liable when they are notified of posts that are defamatory or invade someone’s privacy but the ISPs fail to act. This of course is the regime under the Digital Millennium Copyright Act. Suppose Alice puts a video with one of Bob’s songs on YouTube. If Bob spots this video on YouTube, believing the video to infringe his copyright, he can notify YouTube and demand that the site take down the infringing video. If YouTube didn’t have knowledge that the video was infringing until receiving notice from Bob and then removes it promptly, YouTube is then protected by the DMCA’s safe harbor provision. If Alice thinks the video wasn’t infringing, she can request that the video be reposted, and then Bob has to sue to keep the video from being put back up. Sounds great, right? If we want to reduce the amount of infringement, we should hold more people liable, right?

I think most people agree that the notice and take down regime doesn’t work especially well. Copyright owners frequently issue mass takedown notices to websites without regard to fair use, and websites usually take down the allegedly infringing material without asking questions. (See here for an interesting account of a professor taking on the NFL, trying to make a point about fair use as the NFL keeps issuing take-down notices.) Meanwhile, users respond by reposting the material somewhere else or even on the same site. (For an extreme example, see the Digg controversy where users went nuts publicizing an encryption key for DVDs after Digg pulled a story from its site.) To harken back to Elements, the result is over- and under-inclusive – stuff that shouldn’t get taken down is taken down, and stuff that should get taken down isn't.

So how would this carry over into the context of privacy? I’ll admit that I don’t know whether copyright is really analogous to privacy and reputation. Maybe there are greater incentives to infringe copyright – people want to be able to access copyrighted material without paying for it, and you may think that someone wants to see a movie for free more than they want to defame someone else. But as we see with the dog poop girl and the Washingtonienne, people really enjoy consuming and sharing gossip. So I imagine that the incentives to violate or protect copyrights are similar to the incentives to violate or protect privacy. I can easily imagine public figures such as politicians or actors (which have lesser privacy protection than the general public) issuing take-down notices to websites demanding that they remove postings that are true. Some gossip website receives a posting that Paris Hilton is pregnant? Let’s send them a cease-and-desist letter (even though it’s true…).  On the other hand, take someone who has a legitimate argument that his or her privacy was violated (we’ll call her Sally). A commenter on one website said Sally was gay. Sally, being a kindergarten school teacher, is not gay, and she is legitimately afraid of the consequences of such information, fearing that complaints from parents will lead to her dismissal by the school district. Her lawyer issues a take-down notice to the website hosting the initial comment, but subsequent posters keep reposting the same allegation. Soon the rumor spreads to other websites. Do we think that Sally can bottle up this rumor through the notice and takedown regime? Probably not.

I think this second example is the most likely of what we’d see. While I’m all for free content on the Internet, I think it’s pretty difficult for copyright owners to police their rights on this medium. I think it will be just as difficult, if not more difficult, for people to police their own reputations on the Internet. We see how difficult it is for large copyright owners (such as record labels and studios) to prevent infringement of their materials, and they hire people to do the enforcing for them. Courts have already started pushing back on these companies when they start issuing hundreds of “John Doe” subpoenas with boilerplate allegations at college campuses over illegal peer-to-peer file sharing (see here). Privacy and reputation is largely a personal and individual right, and thus it would probably have to be enforced by individuals (unless we see some type of reputation monitoring service analogous to the credit monitoring my credit card companies always try to get me to sign up for). If this is the case, we should expect only the worst cases of invasion of privacy and defamation to result in takedown notices. Is it worth my time to send a cease and desist letter to YouTube if someone posts an unflattering video of me? I don’t know, it depends on how bad it is. It may not be until afterwards that I realize how bad the video is – I’m sure the Numa Numa kid had no idea that his video would be seen by millions of people. (Interestingly, he seems to have cashed out on his fame – check out www.newnuma.com and his description of his story, including a plug for his band). I’ll probably just hope that no one else sees it and it gets lost in the wealth of stupid and embarrassing videos on YouTube.

Overall, I’m just not sure that a DMCA-like interpretation of Section 230 will really change much of where we are with respect to privacy. Right now only the most egregious violations of privacy get litigated. With a take-down regime, probably still only the most egregious violations will result in take-down notices. While there has been a bit of press about companies issuing hundreds of take-down notices at a time, for an individual fighting invasions of privacy the work involved probably is a bit more significant as they have to find out to whom to send the letter, certify that they have a good faith belief that the material invaded their privacy, etc. Thus thousands or even millions of lesser violations of privacy and defamation will probably still occur, resulting in nontrivial harms. Allowing ISP liability gives the injured party someone else to sue, but most people won’t sue, and as Ruben argued already, these ISPs may already have market incentives to remove the really bad posts. As we discussed last Thursday, to deter would-be lawbreakers, we need to either increase the probability of detection or increase the punishment if caught. I don’t know if ISP liability will have any practical effect on either side of the equation.

On Reputation: Various Thoughts

Prof. Solove covers a lot of ground in "the future of reputation," and presents a pretty comprehensive picture of the challenges confronting privacy in our digital age.  This blog post tries to cover a few areas that aren't Solove's focus, but that I'd like to hear him discuss, including: non-legal mechanisms of privacy protection (such as intermediary competition), the eventual discounting of "bad" reputation, and some comments on Solove's vision for CDA §230.  At the end I include a short discussion on what the "next" privacy-threatening technologies might be.

Competitive Forces & Privacy

Last fall, the Legal Forum here at the University of Chicago held a symposium on "Law in a Networked World."  The Keynote Speaker, Cindy Cohn (legal director for the EFF), gave a talk entitled "It's the Intermediaries, Stupid!"  The premise was that many of the legal issues involving the internet dealt with the intermediaries, whether they be hosting services, web 2.0 services, ISPs, or telecommunicaitons providers. This theme is pretty strong throughout Solove's book, particularly when it comes to his proposed remedies under CDA §230.

I think Solove overlooks the strong competitive forces among intermediaries that are already at play in protecting user privacy on the internet.  I can't say whether these forces are "enough" to protect user privacy and reputation, but I think they should surely be part of the discussion.  As Solove describes in the last chapter of his book, people, especially younger generations, are more and more willing to share private information online.  This is of course their choice, but it is often a choice that fits into a social networked theory of privacy--often users want to share some information with closer friends, and not with strangers.  Intermediaries have started giving users the tools to better "control" who gets what information.

I will use Facebook as an example.   Solove cites the anti-privacy "default rules" of MySpace, but, Facebook has offered a number of Privacy-protecting rules in response to user outcries (MySpace has also subsequently given users more control).  Solove cites the initial negative reaction to Facebook's "News Feed" functionality, but now users can decide whether changes to their profile appear in feeds.   People can also remove their "tags" from photos uploaded by others, minimizing the ability for people to identify you in an embarrassing photo.  Most recently the user outcry to Facebook beacon (which tracked and shared your internet purchases... not sure who thought that was a good idea) led to a shift from a default anti-privacy scheme to an opt-in scheme.  I think all of these are examples of competitive forces drawing a line between the sort of privacy users are willing to give up, and the sort of control they still seek to  exercise on their information.  I think it's a hard line to draw, as you can see from Facebook's back-peddling when they've gone to far, but i think it's better managed through the private arena than through any liability rules.  If Facebook ever became too privacy infringing, or too "risky" to use, people would presumably shift to a better service that better values their privacy (after all, MySpace was King before Facebook).

Competitive forces can push intermediaries towards the sorts of privacy protections that users want better than liability rules.  Intermediaries will remove anonymous posts that people find offensive not because of fear of CDA §230 liability, but because the market demands it.  Intermediaries have their own reputations to uphold, if one is known to be too aggressive in deleting comments, people won't like using it.  If another is too lenient, letting people fling garbage at each other, the majority of users will probably avoid it.  That isn't to say fringe users won't gravitate to these intermediaries, but if we're talking about a widespread public policy (such as expanding CDA §230 liability), we should probably care more about what the majority of users will do rather than the fringe.

When you look at privacy in this context though, the natural tendency is to shift to thinking of legal rules in the context of antitrust.  Competitive forces can only act to ensure  privacy in the face of robust competition.  If an intermediary starts looking like a monopoly, then it might be able to extract monopoly rents on user privacy.  For example, fast forward 10 years... "MyFaceSpaceBook Xanga" is the only social networking site around, online social networking is the main form of communication, and it's basically essential for getting work done and staying in contact with friends. MFSBX, however, asserts some property or contractual right that prevents users from switching to smaller privacy-friendly services.  Such a situation would probably merit regulatory intervention in the name of privacy.

Discounting Bad Internet Reputation

Another reason that private competition may handle privacy rules better than increased liability is the fact that as younger generations become older, people will be more able to discount information of "bad reputation" found on the internet.  Any legal rules put in to place today may be entirely moot if in a few years no one takes anonymous comments or possibly photo-shopped pictures seriously.  Claire and Christopher have already made this point in class and on posts, and I don't think we're quite there yet, but i do think that we are slowly seeing a shift to discounting information found on the internet.  Education, as Solove mentions, in this area is probably useful.  (ie, pretty much everyone knows that anyone can edit wikipedia... and if something looks strange/wrong/out of place/scandalous, most users are likely to discount that information as bad).  Also, people generally discount what they read in tabloids (though they probably did it less in the initial days of the penny paper).

CDA §230 meets the DMCA: Not so happy a marriage?

Solove's suggestion that CDA §230 take on a notice-and-takedown regime much like the DMCA is an interesting one.  I'm not convinced it's necessary given the private incentives intermediaries have to keep their users happy, but if there's evidence of persistent harm caused by anonymous defamers/privacy trolls, it might not be a bad way to go.  There are some costs to imposing such a regime, and I'm not sure how Solove would react to them.

As currently written, 230 is a form of complete immunity.  An intermediary is immune if it doesn't remove defamatory information, but it's also immune if is DOES remove information (either upon a request or by it's own initiative).   This is one of the mechanisms that allows an intermediary to respond to competitive pressures and produce the sort of online environment users want.  I'm not sure how Solove's schemes would affect situations where an intermediary takes down information without a request, could they now be liable?  If not liable, would they be more interested in using their resources to take down only information for which people file formal requests? Even when there might be more egregious posts out there, but that for some reason a formal takedown hasn't been filed?

There are also two important "chilling" effects I see with expanding CDA §230 immunity, even if liability is only imposed in response to a take-down request.  Under the DMCA, filing a counter notice to have your speech placed back online requires identifying yourself and subjecting yourself to jurisdiction.  This could have a huge deterrent effect on anonymous speakers.  Those who wish to squelch anonymous speech need just to file take-down request under Solove's manifestation of CDA §230.  If the speaker is relying on anonymity to make a point, they likely won't file a counter notice, and the speech is effectively relegated to oblivion.  Note that under this regime, the intermediary would likely have to remove the post due to the risk of liability, even if the speech involved is neither defamatory/private/etc.  One way to get around this problem would be to have the intermediary arbitrate whether the post actually is defamatory/privacy-invading/etc.  Such a determination however is likely to impose high costs on the intermediary, and it would likely more-often-than-not be the case that the intermediary would be better off removing the post than conducting such an analysis.

The other chilling effect is on intermediaries.  While well-established intermediaries would likely continue their operations in compliance with the new liability rule.  Bloggers and smaller entities might be chilled from blogging altogether, or at least from allowing comments and other user-generated content, if they face the risk of downstream liability.  Even if the costs are small (ie deleting a few posts), the imposition of a legal duty can be enough to detract a good number of individuals.

A Look Ahead: From Kodak's Snap Camera to the Internet to Nanosensors

Solove's book focuses entirely on the internet.  As such, the harms to privacy come generally from the greater ability to share, search, and make permanent private information or gossip.   Brandeis'  original article on the  Right to Privacy was sparked not by greater information-sharing technology, but greater detection technology: The Kodak snap camera.  I think the next stage of privacy-threatening technology will see a shift back to greater detection.  Before Law School I worked in a Nanotechnology Lab, and did some research into privacy issues arising from nanotechnology (Link: here). Nanosensors in particular create an interesting threat to privacy: they can be small and undetectable.  Many of the privacy rules regarding surreptitious collection of information already apply to nanotechnology (whether via privacy torts or  criminal sanctions under ECPA), but detection and accountability might be more difficult.  The new threat to privacy that I see from nanosensors is the ability to instantaneously detect biological information, from DNA, to testing for certain diseases or conditions, simply by collecting a sample on an electromechanical sensor.  Since this is a capability that didn't previously exist, it'll be interesting to see what sort of privacy protections develop.

Anonymity in the Internet

In the second half of his book, Prof. Solove includes analysis of various legal issues surrounding privacy and reputation in the Internet.  Although Prof. Solove covers a lot of different issues in his book, I will focus my post on the issue of anonymity.  Prof. Solove identifies the usual advantages and disadvantages of anonymity.  Allowing anonymous speech has been thought to be fundamental to our notion of freedom of speech because it facilitates speech that is controversial.  However, anonymous speech also causes harm to people because of the lack of accountability. 

As Prof. Solove identifies in a prior chapter, the problem of anonymous speech is not a new problem that arose out of the Internet.  Gossiping between neighbors could be seen as quasi-anonymous because of the difficulties in attributing the gossip to a particular person.  Also, a person could conceivably print “anonymously” and spread a damaging untrue statement against another person.  However, the cost of anonymous speech has gotten much lower.  Furthermore, there are now tools that are being developed or used to make it even easier to become anonymous.  It is trivial to publish an anonymous post or comment on a blog.  There are anonymous proxy server tools that a person can use to make it harder for other people to track down the identity of the person.

Prof. Solove describes the libertarian and authoritarian approaches in law and claims that we need to find some middle ground.  He dismisses the so-called “authoritarian attempts at regulations”, such as “bans on anonymous speech or criminal penalties for impersonating another online,” as being “more symbolic than effective, since the First Amendment stands in the way of many attempts at censorship.” Interestingly enough, Korea, the place of the “dog-poop girl” story, has mandated by law an “internet real-name system” which requires comments and postings to be registered with real names of the users for large websites.  Korea (and most other countries) do not have the same notion of fundamental freedom of speech as we have here and is probably able to implement these “authoritarian” regulations without watering them down.  While I don’t think such law will be constitutional in United States, I think it would be still interesting to see whether prohibiting anonymous speech in large websites has led to severe limitation on freedom of expression or whether it has led to better quality speech in the Internet.  My personal sense is that it didn’t effect the quality of speech in a significant way.  A person who has something important but controversial to say could still speak anonymously in small websites.  At the same time, because the real identity is linked to a comment or a post, the number of extreme comments has gone down substantially.  However, the law seems some troubling as it also appears that main application of the law has been to track down speech that is supposedly in violation of campaign laws, e.g., political speech. 

  [Because we (thankfully) have the fundamental right to freedom of speech] Prof. Solove discusses other regulatory approaches.  He talks about using alternative dispute regulation, such as arbitration process, as a cheap way to resolve disputes.  The domain name dispute resolution offered by World Intellectual Property Organization could serve as a model for such system. I do think that arbitration could be a very effective and viable solution to both the supposed victim and anonymous posters.  Generally, even if the plaintiff has a genuine case against the defendant, monetary awards may not necessarily have the deterrence effect because the defendant will not have the financial resources to pay the damages.  Allowing alternative resolutions, such as forced publication of rebuttal or deletion of a post, which is enforceable again any websites, may be a far more effective resolution than monetary damages.  One problem that still remains is that it will not safeguard anonymity.  A person could still bring a proceedings under an arbitration framework just to find out the identity of a poster and retaliate against that person in other ways, such as termination of employment in case of an employer. 

  An idea that I thought about while reading this part is a system of verified real identity, where the system can guarantee that the post was written by the identified person. It is somewhat based on the notion of marketplace of ideas.  I think in most cases, people will discount posts and comments by anonymous users. Because you have no idea who wrote the posting, you can’t gauge the trustworthiness of the post.  But even if the post is supposedly written by a “real person,” I personally tend to ignore that because I have no idea if it was written by that supposed person.  Also, I have no sense of the trust worthiness of that person.  However, if I am certain that a posting was written by the identified person and if I can easily determine the reputation of that person, I would give more weight to that posting instead of an anonymous post.  In the marketplace of ideas, a posting by an identified person would overwhelm an anonymous posting, while still allowing it. Also, you can set up the website such that non-anonymous postings appear on the top (I think digg and Slashdot is somewhat like this in that if you post a comment as an “anonymous coward,” your initial rating is lower than that of a comment made by a registered user, although it could be shifted upwards if other users feel that your anonymous comment is interesting or insightful).  This sort of system could be tied in with a single-sign on (SSO) system, such that my identify can be shared across multiple systems (think Google's ID which works across all of Google's services or Microsoft's Live ID). 

  One final comment is that I wish Solove would have done a better job at differentiating the problems.  For example, the book identifies two different type of problems, one where a person maliciously submits an untrue statement of fact and another where a person’s privacy is being invaded.  The “Star-wars kid” and the “dog-poop” girl instances are of the later problem and requires a fundamentally different solution than preventing libel in the Internet. 

Why a cost benefit analysis causes everyone to be anonymous, and what to do about it

In Chapter 6, Professor Solove weighs the benefits of anonymity against the need for a certain amount of accountability. He starts by explaining positive aspects of anonymity: “Anonymity allows people to be more experimental and eccentric without risking damage to their reputations . . . .Without anonymity, some people might not be willing to express controversial ideas. Anonymity thus can be critical to preserving people’s right to speak freely.” (140) One can think of a myriad of examples where the advantages of anonymity help people to express themselves without any counterbalancing harm to anyone else--the gay closeted teenager who needs reassurance about his identity, the person who wants to talk politics or religion but lives in a small town where his views would not be accepted, the blogger who wants to try out writing, but doesn’t want his amateur efforts associated with his accomplished professional persona. But Solove also acknowledges the dangers of anonymity: “When anonymous, people are often much nastier and more uncivil in their speech. It is easier to say harmful things about others when we don’t have to take responsibility.” (140) In other words, anonymity has both a good and bad side. Anonymity encourages candid speech while allowing anonymous people to harm others without being held accountable. (141) Solove suggests striking a balance by enforcing traceable anonymity. A harmed individual would be able to get a court order to obtain the identity of an anonymous speaker only after demonstrating genuine harm and the need to know who caused that harm. (146) Solove determines that “the key is for the law to allow the unmasking of anonymous people when they engage in harmful speech about others. But people shouldn’t be unmasked too readily.” (147) For example, Solove specifies that the law should not allow bad-faith lawsuits designed solely to unmask anonymous speakers. (149)

However, the anecdotes Solove relates later in the chapter made me skeptical that this balance can be better struck by courts than it is right now. Solove notes that currently several courts have required heightened standards before ordering the identification of an anonymous speaker by his ISP. In order for the John Doe one sues to be revealed, the judge must be convinced that the case is strong enough to go forward. In the story Solove tells though, an employer satisfied this standard in a “breach of a duty of loyalty” suit to identify an employee posting negative comments about the company as well as racial slurs. Once the employer got the employee’s name through the lawsuit, it fired the employee, and dropped the lawsuit. Solove questions whether the bar was high enough. On the other side, Solove describes people who had harmful, false information posted about them who couldn’t get the identities of their tormentors unveiled quickly enough. Usually, for the courts to be helpful, the targets of harmful, anonymous postings need immediate action, as we saw in the case of the fake Oklahoma bombing merchandise, where the target was overwhelmed by harassing phone calls, or the fake profile, including the target’s address that lead to threatening sexual advances.

If most targets need immediate relief, bringing a John Doe case, and then having to demonstrate “genuine” harm to have the poster identified, will not provide an effective mechanism for a remedy. Realistically, in almost all of these cases, the ISPs, not the courts will have to become the arbitrators of these cases if as Solove proposes, ISPs are no longer immune under Section 230. Do we want courts, not ISPs making large amounts of legal-type decisions? Further, when cases do make it to the courts, how are courts going to determine “genuine harm”? Could a minority employee at Allegheny Energy Service sue the anonymous commenter claiming he created a hostile work environment because of his racial slur, and get his identity revealed? If the fake dating profile meets the standard, does a true post on Don’tDateHimGirl.com that leads to harassing phone calls from irate readers of the website meet the standard of “genuine harm”? Can Dog Poop Girl prove “genuine harm,” can Star Wars Kid? Dog Poop Girl and Star Wars Kid were genuinely being harmed by the amount of unsolicited attention that often ran to extreme harassment in real life, but does “genuine harm” necessitate a legal violation? Would Dog Poop Girl and Star Wars Kids have privacy claims under Solove’s privacy laws?

A major problem with balancing anonymity and accountability is that the cost of revealing one’s identity when posting anything to the internet versus the benefit from that posting almost never weighs in favor of identification. In other words, any material that can be construed as negative, will always be posted anonymously. When discussing Numa Numa Dancer, people thought that a silly video of a dance made when the person was still a minor could adversely affect his dating life, his career, and any other social interaction because his dance video would forever be connected with his name in a Google search. I disagreed, but after hearing how judgmental classmates fear others will be, it leads to the question, why take the risk? We live in a world that is increasingly competitive in almost every way. Why ever risk disadvantaging yourself by associating your name with any but the blandest material on the internet? After all, there will always be someone competing against you for that job, or the object of your desire who does not have the Numa Numa video, or its equivalent associated with himself. So, for example, even if you write a well reasoned, logical comment about a political event, why attach your name? What if the employer interviewing you happens to disagree? Even though the employer might not consciously reject you because of differing political views, why take the risk that this divergence in opinions will unconsciously tilt him toward picking the other applicant? The only benefit you might gain from posting using your name is that other people will like your comment, but what does that really get you? The end result is that everyone who writes on the internet who is not doing so in a professional capacity, or hoping to make it big off his blog, will do so anonymously. So even though most people do not really need the cover of anonymity, the fear that innocent material will have negative repercussions will lead almost everyone to shield themselves with anonymity. Unfortunately, as discussed, when people post anonymously, the temptation for people not to hold themselves to the same standard of decency or quality that they would have used if not posting anonymously causes the level of discourse to drop dramatically.

One solution to this trap of anonymity is if people become less judgmental over time. Perhaps as Mr. James suggested in our last class, eventually everyone will have some material about them posted online, and the ensuing cacophony will cause readers to ignore internet material about other people. Unfortunately, I don’t think that the internet will be able to change human nature. People love to judge, and they will continue to do so, even if they can’t know whether the information is accurate.

Another possible solution would be a law allowing ISPs to reveal the identity of anyone who posts material about another non-public individual to the non-public individual posted about. For example, the person posted about would have to fax a copy of his driver’s license as proof of identity. There’s no real benefit to allowing people who post about other non-public individuals to be able to do so anonymously. This law would allow people to continue posting about controversial ideas that they wouldn’t post about otherwise for fear of repercussions from society, while preventing slander and gossip about individuals.