Daniel Solove was kind enough to send me a review copy of his new book, The Future of Reputation. That he did this in spite of knowing that I have previously disagreed vehemently with the notions of privacy and internet conduct that he champions makes this especially generous. If the reader does not accept certain first principles (and I do not), Solove’s analysis will not be persuasive nor his recommendations appealing. This book does, however, provide an excellent summary of the internet’s effect on personal information distribution and reputations.
I provide this brief excerpt in the hope that you will be inspired to read both Professor Solove's book and a full review, should it ever see the light of day. (UPDATE: Julian Sanchez hits many of the issues I would have covered in my full review.)
There is a simple rule of thumb for predicting Solove’s positions and proposals. Ask yourself: Would this rule allow Anthony Ciolli and the pseudonymous defendants in the AutoAdmit.com litigation to be nailed to the wall? If the answer is yes, then Solove is for it. Traceable anonymity? Yes. Stricter limits on disclosures of facts about private persons? Yes. Anonymity for plaintiffs? Yes. This is a handy metric, but it doesn’t really do justice to the book.
Solove's fundamental contention is that the law can and should intervene to protect privacy in the face of challenges posed by the internet. The libertarian approach, he says, “does little to protect privacy.” If you are not concerned by this failure (and I am not), the entire project lacks a certain urgency. But, setting this aside for the moment, let’s explore some of what Solove finds threatening about the anarchic aspects of internet speech.
One of the most serious problems with “internet shaming” is that it creates a permanent record of transgression, compiled by vigilantes instead of professionals, and without input or rebuttal from the subject. Although Solove acknowledges that in some cases the web can shore up collapsing social norms, he give far more weight to the idea that the internet may contribute to the decline of certain social norms: namely, norms about privacy.
Very well, what should we do about this? Being a law professor, Solove recommends using tort law. (Solove’s embrace of privacy torts is based in part on the idea that “tort law remedies . . . aren’t authoritarian”—this despite their enforcement at the barrel of a gun.) He further proposes that the law be structured to avoid immediate recourse to the courts. In particular, this entails requiring that parties exhaust informal resolution mechanisms; “if the defendant agrees to remove the harmful information from the website, then this should be the end . . . unless the victim can demonstrate that [this] won’t sufficiently patch up the harm.”
Given the abuses of the DMCA takedown notice process, I would think that instantiating a similar set of procedures for any speech about an individual that could arguable violate his or her privacy would be extremely unappealing. While Solove is extremely concerned about over-enforcement in the context of private parties punishing norm violations, he does not recognize that his own proposal would result in over-enforcement of privacy norms, since the threat of litigation is often enough for webmasters to take down protected speech. Solove’s concern about protecting the identities of plaintiffs would also seem to be in tension with the need for a webmaster to be able to investigate and verify whether a takedown request is valid. Solove also argues for abolition of Section 230’s blanket immunity provision, but this too would result in over-enforcement; given the massive exposure and lower standards for liability imposed by a regime that punishes website operators aware of “problematic material,” the rational response to any given request would probably be to take down the material. And penalties for takedown-notice abusers are only useful if these same operators (who cannot afford even minor legal battles) or the likely-anonymous speakers (most of whom are similarly impoverished) would be willing to take the would-be censor to court, which would occur only rarely.
Perhaps the most troubling part of Solove’s argument is his discussion of how free speech rights conflict with the preservation of online privacy. “Disclosures made for spite,” he says, “or to shame others, or simply to entertain, should not be treated the same as disclosures made to educate or inform.” In fact, Solove takes the Supreme Court’s statements placing political speech at the core of the First Amendment to mean that non-political speech can be restricted with greater ease. This rank-ordering is not Solove’s invention, but although it is comparatively simple to divide speech into commercial and non-commercial, how do we decide what is informative and what is entertaining? What classification would the Drudge Report get? The National Enquirer? The New York Review of Books? How does the test for “entertaining” versus “informative” compare to the test we currently apply to pornography (which looks for social, literary, scientific, artistic value)? Likewise, Solove’s argument for the privacy of non-newsworthy information, such as the identity of subjects in a book or article, involves courts in normative and editorial judgments about the “proper interest” of the public and how to present a story. Courts are not equipped to make these determinations: they are not equipped to bowdlerize, censor, or recut media. And in an era of media fragmentation and non-credentialed citizen journalism, verifiability is even more vital; attempts to reduce the amount of information in stories are now more likely to make it difficult for the true picture to be discerned.
Solove asserts that the fall of privacy subjects us to judgment from many other people, which “can lead to an oppressive amount of social control.” But only pages before he argues that it might be difficult for us to judge others at all if we knew everything about them. In a society with much less privacy than our own, is it likely that oppressive social norms could be upheld once the popularity of deviance became evident? Wouldn’t we be likely to judge people using our new baselines for expected behavior, which would include much of what we currently choose to deny?
The experience of living online will only become more universalized, giving people more of a basis for judging people and information they encounter there. Privacy will recede from the heights it achieved during our brief period of wealth and atomization. Present notions of reputation will no longer apply; as multiple personas become more difficult to maintain. All this will result in a more accurate and humanized representation: we are who we are, warts and all, and the exposure of actions and beliefs that we now keep under wraps will result in changes in social norms. We need not fear the future, and despite Solove’s concerns, the temporary dislocation of the present is no great danger either.