Responses to Blog Reviews of The Future of Reputation: Part II

posted by Daniel Solove

This post responds to more reviews of my new book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press, Oct. 2007). I posted Part I of my responses to reviews here. This is Part II.

1. Susan Cartier Liebel at Build A Solo Practice

Susan Cartier Liebel, a lawyer who started her own law firm and now works as a consultant on developing a law practice, reviewed The Future of Reputation in her blog Build A Solo Practice, LLC. In her review, she writes:

[A]nyone who uses the internet in any way shape or form, blogging, YouTube videos, social media and all sharing of information in digitized form needs to read this book. And even if you don’t use the internet, you can still be a victim of another’s use of the internet to invade what you believe is private. . . .

There are no clear cut answers although the author poses some interesting thoughts. It is a book sure to stimulate serious debate amongst layperson and lawyer alike. But in the end we are responsible for ourselves and our uses of the internet. With every action taken we self-define free speech and privacy. I highly recommend this book.

I am delighted by Susan’s thoughtful review of my book.

2. Bram Strochlick at Harvard Crimson

Bram Strochlick at the Harvard Crimson wrote a very nice review of the book. He was not part of my free-review-copies-for-bloggers experiment, but I can’t resist quoting briefly from his review:

Rather than simply warning readers about possible scenarios, Solove shows first-hand the lives that have been ruined, combining descriptions of the original events with verbatim reproductions of comments posted by various bloggers throughout the Web. . . .

Solove’s crisp and refreshing writing strays from the ponderous tone many writers take when criticizing the Internet, achieving a balance of humor and levity that keeps the pages turning and demonstrates a real understanding of and engagement with the youthful Internet culture he analyzes. Another key strength is the unassuming nature of the author’s prose; one does not have to be at all familiar with how the Internet works or what the current laws regarding Internet usage entail to fully enjoy this often saddening chronicle of lives destroyed by virtual gossip.

My goal was to write a widely-accessible book, and I’m quite pleased that Bram believed I succeeded.

I have little more to say about Susan and Bram’s reviews. The lesson I learned from clerking on federal district court was that if the judge indicates strong agreement with an attorney’s argument, then it’s generally best for that attorney to shut up before the judge changes his or her mind.

3. Amber Taylor at Prettier than Napoleon

To counterbalance the two reviews above is this review from Amber Taylor, a Harvard-educated lawyer who describes herself as a “small-l libertarian.” Having read Amber’s blog, Prettier Than Napoleon, I knew that she would vehemently disagree with my arguments in the book. And she did not disappoint. I found her review to be quite good and thought-provoking. I don’t mind disagreement as long as it is smart and interesting — which Amber’s perspective is. She begins:

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.

Amber first critiques my suggestion that the law better empower people to have defamatory or privacy-invasive information taken down from websites:

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.

This is a very potent challenge to my proposal. Part of the difficulty is that it depends upon an empirical issue that nobody quite knows the answer to: How often will people attempt to request to have information taken down? How frequently will such a notice-and-takedown system be abused? I don’t believe that comparing it to the DMCA regime is an apt analogy, as that regime governs copyright enforcement, which in my opinion has spiraled out of control. The DMCA takedown notices are part of a corporate campaign to stop music piracy and to push beyond for even greater control over content, often threatening fair use. I don’t see the same kind of money at stake and litigating power with those who request information be taken down to protect their personal reputations. Therefore, I don’t think that there will be rampant abuse. But then again, this is but a guess. It’s hard to predict what will happen unless we try it.

Amber complains that my proposal might be too privacy-protective at a cost to free speech; but currently the law is too speech-protective at a cost to privacy. I believe that the balance is currently out of kilter. My proposals might tip the balance too much in the privacy direction, but given the status quo of a balance tipped too far on the side of speech, I believe it is worth tinkering with the scale and taking the risk. In the unlikely event that the balance winds up shifting too far over to privacy, then tweaks can be made. In other words, Amber’s objection certainly suggests caution, as there is indeed a risk of rampant abuses, but that is a risk, not a certainty, and we shouldn’t let it paralyze us from trying to fix an existing problematic imbalance.

Amber also contends that there is no good way to determine what information about people is newsworthy and what isn’t:

[H]ow 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.

This is a powerful argument, but in the end, I believe we must make some distinctions. If we leave the decision about what’s newsworthy solely to the discretion of the media writ large (i.e. anybody who posts anything online), then we must accept the judgments of the lowest common denominator. The result will be that there will be no standards or limitations at all, as there will always be somebody among the tens of millions of bloggers who has standards that would even make a tabloid seem respectable. In other words, Amber is arguing for a kind of free speech absolutism based on the difficulty of providing any limitations. But we live in a world of gray, and the law rarely gives us clear bright-line rules (as every law student discovers to his or her chagrin). Things are certainly not any different with privacy and speech, but that shouldn’t be a reason for no law.

As for verifiability, it is true that if a blogger is breaking a story about secret government plans, verifiability is important. But when the information is that John Doe slept with Jane Doe, does the world really need to verify? Gossip about average Johns and Janes isn’t newsworthy enough to make verifiability very valuable. Amber, of course, questions my classifying such information as not newsworthy. I’m not sure whether her objection stems from a slippery slope objection (there’s no clear place to draw a line between newsworthy and not newsworthy) or from a belief that everything is newsworthy (who are we to judge what’s newsworthy or not? let people judge for themselves). If it’s a slippery slope objection, I believe that this doesn’t imply that the law can’t work. There are many cases where there is widespread consensus that something is newsworthy or not. But there are a number of gray cases too. We need not sacrifice the black-and-white because there’s some gray. In other words, I believe we can and should strive to draw a line, and while there will be fuzziness around the line, not every case will be fuzzy, and we can and do live with fuzziness in so many areas of law already.

Ultimately, Amber has a very different normative attitude toward privacy:

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.

I don’t believe exposing all our warts will improve our judgments of others or create a world where the norms people champion yet secretly transgress disappear. People are often hypocritical. Many social norms are idealized standards of behavior. Take the law’s conception of a “reasonable person” in tort or criminal law. All the time, juries are making people liable for accidents or even criminally culpable based on acting “unreasonably.” The “reasonable person” is an ideal. The reasonable person looks both ways before crossing the street. He or she is always respectful of others, never in a hurry, never prone to errors or rash judgments. But most people aren’t like this. Take the average driver — likely to be a speeder, prone to mistakes, and rather careless. Yet this isn’t the standard we hold each other to. We use the “reasonable person” standard, which is more reasonable than we actually are. And the same is true with many things. So when all our warts are exposed, we might still condemn. It is not clear that exposing warts will change norms — it might just hurt those who get exposed. Perhaps if we had 100% information on 100% of the people, things might change, but that never happens. Whose curtains get ripped down and whose don’t is haphazard. And so Amber’s Utopia might never exist, and instead there will be a world where more people are hurt and condemned when their private lives are suddenly exposed.

4. Anne Reed at Deliberations

Finally, Anne Reed, an attorney at Reinhart Boerner Van Deuren, SC, writes a very nice review of my book in two parts. In Part I, she sets forth a preface for her review. She notes that law professors and law practitioners have had not talked much to each other for a long while, and she explains that the blogosphere is starting to change that. In Part II she writes:

With all the stories of Internet outrages still fresh in your mind, you’re full of what-ifs, and Solove’s suggestions don’t offer the strength and certainty you suddenly crave. Unlike some, though, I’m delighted with Solove’s answer to that critique:

I really wanted to be able to pull a rabbit out of a hat — to find a nifty and elegant solution. But, alas, I couldn’t. Thus, I came up with a number of small tweaks and fixes to the law, to help make it better. It isn’t meant to be a cure — in the book I wrote that I don’t think that there is a cure — but my suggestions for legal reform are meant to be improvements.

At times, when writing the book, I just wanted to throw up my hands and say that these problems are unsolvable. And without a cure, the best I could offer were some ways to better cope.

On behalf of practicing lawyers everywhere, let me say: Welcome to our world.

She continues:

This is how it is, and we’ll talk about it with any legal scholar who’s willing to grapple with just how messy it is. Lawsuits are awful, on all sides and from every direction. When parties have to bear their own fees, they can’t fund valid claims; and in cases where the loser has to pay, opportunistic plaintiffs come running and never go away. Sometimes it seems that the discovery rules don’t work regardless of which side I’m on: either my client is killing itself responding to silly and onerous demands, or we’re unable to learn the basic things we need to defend a claim. The substantive law we have to work with is rarely better; either we have to address Internet-age problems with ponderous court opinions from 1910, or we’re stuck trying to interpret some recent ham-handed fix-it statute. A lawsuit can inspire, even change the world, and some have. As to many more lawsuits, though, all you can say is (and Solove does, in a nice historical section) it beats dueling.

What practicing lawyers have to say to professors is that the law in practice is messy. But just as important: what they have to say to us is that in spite of the mess, there’s still a place for vision, for improvement, for ideas. And so Dan Solove and this book, working to describe the problem and offer ideas to address it in the real world, start a welcome conversation between scholars and practitioners.

Anne articulates my aspiration in the book very well. Despite trying very hard, I could find no neat and tidy solutions. I think I advanced the ball, first by trying to spark serious discussion about the issues, and second by trying to suggest some steps toward improvements.

And my book is far from the last word. There may well be better solutions out there, but those criticizing my suggestions have rarely offered solutions of their own. That’s fine, as working out solutions is much beyond what is ordinarily expected for a review. But it is easier to tear down a proposal than it is to build one and defend it. I’ve played the critic plenty of times myself, so I’m not trying to take a holier-than-thou stance. My solutions are not particularly dazzling, but that’s because I’m trying to be realistic and practical. Maybe somebody will propose something better. There are more blog reviews to come, and I would be very interested to hear if somebody has any ideas for better or additional tweaks to the law than the ones I propose.

 November 20, 2007 at 2:56 pm   Posted in: Book Reviews, Privacy, Privacy (Gossip & Shaming), Social Network Websites, Web 2.0    Print This Post

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