The Future of Reputation: Gossip, Rumor, and Privacy on the

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Re: The Future of Reputation: Gossip, Rumor, and Privacy on

Postby admin » Wed Oct 09, 2013 3:21 am

Chapter 5: The Role of Law

With so much data being collected about us and with anybody being able to disseminate it around the globe, is there anything we really can do to protect privacy? According to the science fiction writer and essayist David Brin, it is too late: "Light is going to shine into nearly every corner of our lives." [1] Scott McNealy, CEO of Sun Microsystems, has famously quipped: "You already have zero privacy. Get over it." [2] His stance reflects a view that many are increasingly sharing. Privacy is dead, they believe, and there's not much that can be done except deliver a eulogy and move on. Can anything be done? Is it possible for the law to protect us? Or should we just get over it?

A TRIP BACK TO THE NINETEENTH CENTURY

New technologies rarely give rise to questions we have never addressed before. More often they make the old questions more complex. Gossip, rumor, and shaming have been with us since the dawn of civilization. Although modern information technology has revolutionized how we record and spread information, we have experienced similar revolutions in the past. More than a century ago, in the second half of the nineteenth century, we were in the throes of another information revolution -- the rise of the newspaper. This revolution had its roots in the 1830s in England, with the innovation of the "penny press." New printing technology enabled newspapers to be sold much more cheaply than ever before -- for just a penny. These new papers were filled with news of scandals, family squabbles, public drunkenness, and petty crimes. [3] They were tabloids, and people loved them.

It didn't take long for the penny press to come to America. In 1833 in New York, Benjamin Day published a newspaper called the Sun modeled on the English penny papers. With a cheap price and a heavy dose of sensationalism, the Sun quickly attracted many readers. When true lurid tales couldn't be found, Sun reporters would just make them up. One series of stories about creatures on the moon became known as the "moon hoax." Circulation rates exploded, quickly surpassing those of the more traditional newspapers, which were referred to as the "qualities" or the "respectables." Imitators soon followed -- the New York Herald, the New York Transcript, and the New York Graphic, to name a few. And penny press papers sprung up in Boston and Philadelphia and other big cities as well. [4] Charles Dickens depicted this frenzy of newspapers in his novel Martin Chuzzlewit. When Martin steps off a steamer from England to New York in the 1840s, he encounters a crowd of paperboys: "'Here's this morning's New York Sewer!' cried one. 'Here's this morning's New York Stabber! Here's the New York Family Spy! Here's the New York Private Listener! Here's the New York Peeper! Here's the New York Plunderer! Here's the New York Keyhole Reporter! Here's the New York Rowdy Journal!'" [5]

This new breed of sensationalistic reportage, called "yellow journalism," proliferated after the Civil War, when newspaper circulation continued to rise exponentially. [6] Newspapers vigorously competed to capture the public interest and sell papers. The age of yellow journalism soon became dominated by Joseph Pulitzer and William Randolph Hearst, two titans who lorded over vast newspaper empires.

In the novelist Henry James's The Reverberator, written in 1888, a character proclaims the prevailing attitude of the media: "It ain't going to be possible to keep out anywhere the light of the press. Now what 1'm going to do is to set up the biggest lamp yet made over and make it shine all over the place. We'll see who's private then." [7]

The press came under sharp criticism for invading privacy. For example, when journalists converged around President Grover Cleveland's cottage while he was there on his honeymoon with his new wife and watched him with binoculars, the president complained that the press "in ghoulish glee desecrate every sacred relation of private life." [8]

The media went into overdrive during the 1875 adultery trial of the Reverend Henry Ward Beecher, which one commentator describes as "one of the first great American media/privacy stories." [9] A masterful speaker during a time when the public was captivated by oratory, Beecher was one of the most famous and revered figures in America. [10] To expose social hypocrisy about sex, the free-love proponent Victoria Woodhull revealed that Beecher was having an affair with Elizabeth Tilton, a member of his congregation and the wife of his friend Theodore Tilton. [11] The story received unprecedented media coverage. Before the trial, the Associated Press dispatched thirty reporters to cover Beecher's address before his church commission. Nearly all newspapers covered the trial, and some even printed daily transcripts. The trial ended with the jury deadlocked. Just fourteen minutes after the verdict was announced, one newspaper was already on the streets with the news. [12] A year afterward, Beecher lamented: "I have not been hunted as an eagle is hunted; I have not been pursued as a lion is pursued; I have not been pursued even as wolves and foxes. I have been pursued as if I were a maggot in a rotten corpse." [13]

In addition to the voraciously sensationalistic press, other new technologies were posing an increasing threat to privacy. In 1876 Thomas Edison invented the telephone, allowing people to converse over great distances. A short time afterward, technology to wiretap phone conversations was developed. [14]

In 1884 Eastman Kodak Company came out with a new invention called the "snap camera." Photography had been around since the mid-nineteenth century, but cameras were large and difficult to operate. People had to pose for a long time to have photos taken. Cameras were also expensive. As Robert Ellis Smith observes: "In the years before the development of photography in the mid-1800s, even mirrors were not universal in British and American home life. Imagine the realization that for the first time the very essence of your being -- your visage -- could be captured by someone else-used and controlled by someone else." [15] Kodak's snap camera was cheap and portable. Many more people could afford to own their own camera, and for the first time, candid photos of people could be taken.

In 1890 E. L. Godkin, a famous social commentator, complained that these developments were threatening privacy. According to Godkin, curiosity was the "chief enemy of privacy in modern life." Godkin noted that for a long time in history, gossip was oral and only slightly wounded the individual. But "gossip about private individuals is now printed, and makes its victim, with all his imperfections on his head, known to hundreds or thousands miles away from his place of abode." Godkin was not optimistic about finding a solution to these new threats to privacy. "In truth," he wrote, "there is only one remedy for the violations of the right to privacy within the reach of the American public, and that is but an imperfect one. It is to be found in attaching social discredit to invasions of it on the part of conductors of the press." Godkin did not foresee any plausible way to alter the current sensationalism of the press: "At present this check [of social discredit] can hardly be said to exist. It is to a large extent nullified by the fact that the offence is often pecuniarily profitable." [16]

Samuel Warren and Louis Brandeis were concerned about the same privacy problems as Godkin. Warren was a well-known Boston lawyer and socialite. Louis Brandeis was a brilliant young attorney who would later become a Supreme Court justice. Warren and Brandeis met in law school, where Warren read aloud Brandeis's law school assignments because Brandeis had poor eyesight. [17] Brandeis finished first in his class, and Warren was second. They began practicing law together in Boston and cowrote a few law review articles in the late 1880s. Their first two articles were entitled "The Watuppa Pond Cases" and "The Law of Ponds"; not surprisingly, these essays on pond law sank into obscurity. [18] But for their third article, Warren and Brandeis turned to a much more gripping topic -- privacy -- and this would become one of the most famous law review articles of all time.

"The Right to Privacy" was published in the Harvard Law Review in 1890. [19] The reason for their switching topics from ponds to privacy has long been the subject of a contentious debate. According to William Prosser, one of the most famous tort law scholars, the article was prompted by Warren's outrage over the media's snooping on his daughter's wedding. Prosser quipped that Warren's daughter had a "face that launched a thousand lawsuits." [20] But there's a problem with this theory: Warren's daughter was only about six years old in 1890. [21] Instead, Warren and Brandeis's interest in privacy was probably sparked by a series of articles about Warren's dinner parties in a Boston high-society gossip rag. [22]

More broadly, Warren and Brandeis were concerned about the sensationalistic press and new technologies such as the snap camera. "The press is overstepping in every direction the obvious bounds of propriety and of decency," Warren and Brandeis complained in the article. "Gossip is no longer the resource of the idle and of the vicious, but has become a trade." They observed that the problem of the increased commercial exploitation of the private life would be vastly heightened by the impact of new technologies: "Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops.'" [23]

At the time of their article, however, the snap camera was just a recent development and the media's use of candid photos wasn't much of a threat. In the late nineteenth century, few daily newspapers printed drawings, let alone photographs. [24] Warren and Brandeis, however, astutely recognized the potential for these new cameras to be used by the already sensationalistic press. Warren and Brandeis looked into the future and foresaw the paparazzi.

Unlike Godkin, Warren and Brandeis believed that law could provide a solution to these privacy problems. They observed that privacy invasions caused "mental pain and distress," an "injury to the feelings." The law didn't adequately protect against these kinds of injuries. [25] But they argued that the law could evolve to protect privacy. They explained that the law already protected "the more general right of the individual to be let alone," and that this right could be the foundation for new protections for privacy to develop. Warren and Brandeis recommended a tort remedy for people whose privacy is invaded. A tort is a legal cause of action where people can sue others who have wronged them. If I wrongfully injure you, you can sue me for damages. Warren and Brandeis argued that a tort remedy should be available for privacy invasions -- if I wrongfully invade your privacy, you should be able to sue me.

Warren and Brandeis's article was a big hit in the legal world. Between 1890 and 1900, more than ten articles examined Warren and Brandeis's proposal to create privacy torts. [26] Throughout the twentieth century, states began to recognize privacy torts as Warren and Brandeis had suggested. Today the vast majority of states have created tort actions in response to the Warren and Brandeis article. [27] Many commentators consider the article to be one of the primary foundations of privacy law in the United States. One famous scholar even declared that it was the "most influential law review article of all." [28]

The debate in 1890 has many similarities to that of today. Warren and Brandeis were concerned about the incursions into privacy by the burgeoning print media, the most rapidly growing form of media in the late nineteenth century. Today we are experiencing the rapid rise of a new form of media -- the Internet. There are those like Godkin, who say that there is little to be done. And there are those like Warren and Brandeis, who call for action. I side with Warren and Brandeis.

TYPES OF LEGAL APPROACHES

What can and should the law do? From the bird's-eye view, there are three basic approaches the law might take. First, the law could take a libertarian approach and remain as "hands off" as possible. Second, the law could adopt an authoritarian approach and attempt to radically limit the ability of people to spread information on the Internet. Or, third, the law could take some middle-ground approach between these extremes.

The Libertarian Approach

The law could adopt a libertarian approach, exercising great caution about hindering the flow of information. The libertarian approach reflects deeply rooted norms that developed among Internet users in the early days of the technology. At that time, the prevailing view was that the Internet was a free zone, and the law should keep out. People analogized the Internet to the Wild West. [29] One of the most famous and extreme statements of this view was John Perry Barlow's Declaration of the Independence of Cyberspace:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of the Mind. On behalf of the future, I ask you of the past to leave me alone. You are not welcome among us. You have no sovereignty where we gather.

We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear. [30]


Commentators celebrated the openness and freedom that the Internet provided. For example, the cyberlaw scholars David Johnson and David Post argued that it was best to leave the government out of regulating the Internet, which would function best on its own. [31]

Although these attitudes have mellowed over time, the general view that the flow of information should remain free still persists. Consider the case of Laurie Garrett. A Pulitzer Prize-winning journalist, she attended the World Economic Forum in 2003 and wrote a candid email to a few friends about her experience. [32] Among other things, she described her "hobnobbing with the ruling class":

A day spent with Bill Gates turned out to be fascinating and fun. I found the CEO of Heineken hilarious, and George Soros proved quite earnest about confronting AIDS. Vicente Fox -- who I had breakfast with -- proved sexy and smart like a -- well, a fox. David Stern (Chair of the NBA) ran up and gave me a hug.


With uncommon candor, Garrett concluded: "The world isn't run by a clever cabal. It's run by about 5,000 bickering, sometimes charming, usually arrogant, mostly male people who are accustomed to living in either phenomenal wealth, or great personal power."

Somehow, Garrett's email got forwarded around to others, and eventually made it onto the Web, where it was reproduced on numerous websites and widely read and commented upon. Why did the email become so popular? One of the primary reasons was that Garrett was so frank and direct. These were Garrett's personal sentiments, not the kind of prose found in the typical journalism article. Ironically, the email's popularity stemmed from its not being written for popular consumption.

Garrett was aghast that her personal email had been broadcast to the world. She wrote a public letter to MetaFilter, one of the blogs where her email was being discussed. Garrett noted that when she found her email on the Internet and "read the remarks, paranoid fantasies, speculations, derisions, insults, and Internet din," she felt "considerable humiliation." She further declared:

Let me be as clear as possible about this: The letter you are all clamoring over, parsing, deriding and fantasizing about was a personal note. It is a private letter that someone among my friends thoughtlessly, yet I am sure without any malice, forwarded to a couple of people who are strangers to me. And they, in turn, passed it on to more strangers, and so on. Now, to my deep embarrassment, and acute sense of invaded privacy, all of you -- thousands of strangers -- are dissecting my personal letter. I would never have written for public consumption in such a sloppy, candid, opinionated flip tone. This was never intended for your eyes. [33]


The reaction she received from many online, however, was unsympathetic. One commenter replied:

Personally, I'm not sorry I read your email, but I'm sorry it was posted without your knowledge, and that some people said careless things about you. If you're looking for somewhere to shove the "blame" though, you may want to start closer to home.


Another commentator observed:

For a professional journalist, Ms Garren has a pretty slip-shod approach to protecting her own privacy. Because email is as insecure as it is, responsibility falls to the end user to protect their own privacy.


"Welcome to the 21st century," yet another person wrote, chiding Garrett to stop "pining for a mythical 1979 in which privacy was universally respected and photocopiers didn't exist."

As the cyberlaw scholar James Grimmelmann aptly points out, the comments embodied a "classically techno-libertarian viewpoint" that holds that it is impossible to contain the spread of information and that the rapid dissemination of data is a good thing. [34]

The problem with the libertarian approach is that it fully embraces the free flow of information and does little to protect privacy. The result of this "hands off" approach is that people who suffer the stings of gossip and rumor on the Internet have little redress. As I will show in the next chapter, gossip and rumor have substantial effects on people's freedom, autonomy, and self-development -- the very same values that free speech protects.

The Authoritarian Approach

At the other end of the spectrum, the law could adopt an authoritarian approach. Such an approach is designed to employ strict controls over the spread of information. Authoritarian approaches employ censorship in an attempt to halt the circulation of problematic information. Lawmakers often find such approaches appealing. For example, a bill in the United States House of Representatives would ban social network sites from public schools and libraries. [35] Some state legislatures are considering similar bills. Other authoritarian attempts at regulation have included bans on anonymous speech or criminal penalties for impersonating another online. For example, back in the mid-1990s, Georgia made it a crime to send any data through a computer network and falsely identify oneself. A federal court struck down the law as violating the constitutional right to free speech. [36]

Authoritative approaches often wind up being more symbolic than effective, since the First Amendment stands in the way of many attempts at censorship. The authoritative approach can be oppressive and far too stifling of free speech. Attempts to ban social network sites from schools do little to stop students from using them. The use of the sites will simply migrate to places outside of school, where schools have even less control. In short, authoritative approaches attempt to address the problem in a broad and crude manner that is inconsistent with the U.S. Constitution.

Finding a Middle Ground

We need to find some middle ground between the libertarian and authoritarian approaches. A more moderate role for the law to take would be to help shape the norms that govern the circulation of information. As people are discovering the profound power to disseminate information across the planet, they often continue with gossip as if there were no difference between realspace and cyberspace. The law should ensure that people better understand the dramatic difference between gossip offline and online.

Tort law remedies -- lawsuits -- represent one possible middle-ground approach. They aren't authoritarian because they are initiated by individuals and are not systematic in their reach. There are many problems with lawsuits, which I will discuss, but we must evaluate any approach not in the abstract but as a practical choice among a set of imperfect alternatives.

The law currently protects the flow of personal information about people's reputations through defamation law as well as the invasion-of-privacy torts spawned by Warren and Brandeis's article. For this body of law to work effectively, however, two seemingly contradictory changes must be made. First, the law must be broadened significantly -- especially the law of privacy. Second, the law must be restricted so that the lawsuit is employed only rarely to redress privacy invasions.

LEGAL PROTECTIONS OF PRIVACY AND REPUTATION

Throughout history, people have found some mechanism for vindicating their reputations. For centuries, European aristocrats defended their honor by dueling. [37] The duel, which originated in Italy around 1500, became immensely popular among European gentlemen, especially in the 1600s and 1700s. As one commentator observes: "In France alone, in just the twenty-one years of Henri IV's reign, 1589 to 1610, perhaps ten thousand gentlemen died for their honor." [38] Although today we think of dueling as barbaric, it was long considered to be a civilized and urbane way of resolving disputes, since the alternatives were sneak attacks and brawls.

A duel could be provoked by insult, defamation, or gossip. Even the slightest of insults could spark a duel. An elaborate set of rules, the "code duello," governed the practice. The offended person would issue the challenge, which involved the use of swords or pistols. Before a duel was fought, the parties exchanged letters and engaged in negotiations to see whether a reconciliation could be achieved. Each party had a "second," who functioned as his agent throughout the process. In many cases, the parties reached a settlement, with the offender admitting, for example, that a rumor was spurious without conceding that he had deliberately spread a lie. [39] Skillful seconds were adept at helping the parties reconcile, and one contemporary observer even remarked that "nine duels out of ten, if not ninety-nine out of a hundred, originate in the want of experience in the seconds." [40] "It is not the sword or the pistol that kills," another stated, "but the seconds." [41]

When dueling migrated to America, it became especially popular in the South, where lawyers, judges, politicians, and wealthy elites frequently engaged in the practice. Andrew Jackson allegedly engaged in more than a hundred duels before becoming president and even killed a man during one duel. [42]

Although both the church and the law banned it, dueling persisted. As the eighteenth-century English legal scholar William Blackstone observed, until an alternative method could be found to redress the offended person, "the strongest prohibitions and penalties of the law will never be entirely effective to eradicate this unhappy custom." [43] In America every state prohibited dueling, but nobody seemed to care. A duelist who killed his opponent could face murder charges, but even this was an ineffective impediment, as juries would rarely convict. [44]

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The duel between Alexander Hamilton and Aaron Burr

One reason dueling was so difficult to stop was the tremendous social pressure to defend one's honor. If a person wasn't willing to duel, he was thought to be spineless. [45] As Samuel Johnson once said, the gentleman duels "to avert the stigma of the world, and to prevent himself from being driven out of society."  [46] Alexander Hamilton perished in a duel he didn't want to fight. When Aaron Burr challenged Hamilton to a duel in 1804, Hamilton wrote that he "abhor[red] the practice of dueling" but that he felt a "peculiar necessity not to decline the call." He explained that to remain "useful" in public affairs, he had to protect his reputation, which would be impugned if he refused Burr's challenge. [47] During the duel, Hamilton's shot missed (by some accounts his intention), but Burr's shot mortally wounded Hamilton.

An alternative to the duel was the courtroom. Lawsuits constituted a peaceful way to resolve disputes and keep people from resorting to violence. They substituted money for blood. [48] But many still believed that squabbles over reputation were "best resolved by extralegal means," and courts were a "last resort."  [49] In the days of dueling, going to court was seen as cowardly and ineffective.  [50] As one commentator has observed, "Duels were the only court available for retrieving your reputation with your peers." [51]

The historian Cynthia Kierner's fascinating account of a scandal in the 1790s involving Richard Randolph (brother of the famous politician John Randolph) reveals a lot about how people attempted to vindicate their reputation in postrevolutionary America. The Randolph family was one of the most elite families in Virginia. Rumors circulated that Richard Randolph had engaged in an adulterous affair with his unmarried sister-in-law, Nancy, resulting in an unwanted pregnancy. Although the infant may have been miscarried or stillborn, Richard and Nancy were suspected of having aborted it.

Richard thought that Nancy's brother William was spreading these rumors. To defend himself, Richard published an open letter to the public in the principal newspaper of Virginia (it appeared just after news of King Louis XVI's beheading in Paris). [52] In the letter, he indicated that he would be willing to duel to defend his reputation.

Richard didn't bring a defamation lawsuit because, as Kierner notes, "slander was a deeply gendered offense in eighteenth century America." For men, the most damaging attacks on their reputation impugned their honesty and trustworthiness; for women, the most harmful reputational assaults focused on their sexual activities. Therefore the sexual dimension to the scandal "undoubtedly deterred Richard from initiating legal proceedings against William Randolph." [53] Instead, Richard "waited for the local authorities to act and faced a criminal charge instead." Richard and Nancy were charged with the murder of their baby. They were acquitted, but the trial may have "enhanced the authority of the gossip and innuendo that he sought to discredit .... The court proceedings, far from silencing the rumors about him and Nancy, facilitated their circulation among a wider audience." [54]

The Richard Randolph scandal illustrates the benefits and limitations of using the courts as an alternative to dueling. The courts could provide a more orderly and fair way to vindicate one's reputation, but they also could further spread the offensive information.

Courts eventually won out over the duel as the way to redress reputational harm. The death of Hamilton had a sobering effect on dueling in the North, where it largely ceased by 1850. Dueling in the South lasted longer but finally began to fade away after the Civil War. Many theories have been proposed for why dueling ended. One of the more convincing theories is the legal historian Alison LaCroix's contention that dueling diminished because the norms of honor governing gentlemen changed with increased commercial activity and industrialization. The qualities that people deemed important to reputation transformed from a more aristocratic sense of honor to factors that mattered in the marketplace. Impugning one's honor no longer was a big deal; instead, what mattered was damaging one's reputation for "creditworthiness." Dueling persisted longer in the South in part because the South remained more agrarian and honor-based than the North. [55] After the Civil War, another commentator explains, many in the Southern aristocracy had been killed, and the South became "more urbanized and commercial, more open to ambitious businessmen" and "less hospitable to dueling." [56]

For all their crudeness and barbarism, duels did serve an important function. As the historian David Parker notes, "The duel offered a highly effective tool for repairing a damaged reputation" because others in the aristocracy viewed one's willingness to duel as "evidence" of his "integrity and conviction" and because "an agreement to duel was also an agreement to end the polemic that gave rise to the duel." As Parker writes, "Ideally, a well-fought duel reconciled the two adversaries, reestablished mutual respect, and 'cleansed' the stain caused by the original insult. No lawsuit or libel prosecution was capable of producing the same effect." [57] Moreover, the law could not redress all of the harms redressed by duels. The kinds of insults that provoked duels would strike many of us as rather silly. Merely calling a person a "puppy," a "liar," or a "coward" could spark a due. [58] South Carolina Governor John Lyde Wilson, in his 1858 guide to dueling, declared that "in cases where the laws of the country give no redress for injuries received, where public opinion not only authorizes but enjoins resistance, it is needless and a waste of time to denounce the practice [of dueling]." [59]

But as America modernized, mere insults no longer seemed as damaging. Instead, what mattered to people's reputations were harms that would diminish their employment opportunities and economic success. Courts in defamation cases understood reputation more narrowly as "damage to an individual as a commercial actor" rather than more broadly as gentlemanly honor. [60]

If there's a moral to the story of the demise of dueling and the rise of litigation, it is that every society needs some mechanism to resolve reputational harms. Duels served this function for centuries (albeit only for elites). Duels thus satisfied a social need. With the rise of the modern economy, honor ceased to be the core of a person's reputation, and dueling faded into obscurity. But something still had to serve as the vehicle for people to safeguard their reputations, and the courts became the main option.

Today, instead of guns and swords, people use lawyers. There are two main bodies of law available to people who sue because of information (or misinformation) being circulated about them -- the law of privacy and the law of defamation. These two bodies of law serve as a primary tool for people to vindicate their reputations.

Defamation

The ancient law of defamation has long protected against spreading false rumors about a person. Defamation "exposes a person to hatred, contempt, ridicule, or obloquy, or causes him to be shunned and avoided." [61] President John Adams once stated that the "man ... without attachment to reputation, or honor, is undone." [62] As one U.S. congressman remarked in 1794, "Slander is in a moral what poison is in a physical sense; it is the resource of cowards. It is a species of attack against which it is impossible to defend ourselves." [63]

Defamation law developed over the course of thousands of years. It existed in ancient Rome, which made certain kinds of defamation criminal offenses. [64] In the early Middle Ages, defamation was punished by cutting out the offender's tongue. Later on in the Middle Ages, ecclesiastical courts began to punish defamation by requiring public penance. [65] Eventually, the state required defamers to pay damages and publicly admit to their lies. [66]

Today, defamation law consists of two torts -- libel and slander. Libel involves written or recorded words (newspaper articles, television broadcasts, and writing on the Internet). Slander involves oral communications and speech between individuals. For the law to kick in, a statement must be false and it must harm a person's reputation. [67] The person making the defamatory statement must be at fault -- if she reasonably believed the fact to be true, then she isn't liable. It is up to the plaintiff to prove that the statement was false, and the speaker doesn't have to vouch for its truth. If the statement is true, the plaintiff loses. Someone can be liable for defamation even for just spreading information originated by someone else. [68]

Defamation law is a complicated and uncertain body of law. Entire treatises have been written on it. Critics call it a "forest of complexities, overgrown with anomalies, inconsistencies, and perverse rigidities." [69] Another First Amendment scholar writes: "The law of defamation is dripping with contradictions and confusion and is vivid testimony to the sometimes perverse ingenuity of the legal mind." [70] Beyond these complexities, defamation law has been limited by the Supreme Court in order to protect free speech. Even though these limits are substantial, the defamation torts remain quite powerful. For defamation on the Internet, however, the law is much more restricted. These restrictions, which I will discuss in the next chapter, make defamation law a relatively ineffective tool to protect against the spread of rumors on the Internet.

Invasion of Privacy

The second body of law available to protect reputation is the law of privacy. A number of torts evolved to protect privacy in response to the Warren and Brandeis article of 1890. These torts are referred to collectively as "invasion of privacy." The privacy torts are a relatively young body of law, just over a century old. There are four torts in all: (1) intrusion upon seclusion; (2) public disclosure of private facts; (3) false light; and (4) appropriation. [71]

The tort of intrusion protects against the intentional intrusion into one's "solicitude or seclusion" or "his private affairs or concerns" that "would be highly offensive to a reasonable person." [72] This tort primarily redresses intrusive information gathering activities. The tort of false light protects against the spread of false, distorted, or misleading information about an individual that is "highly offensive to a reasonable person." [73] False light has many similarities to defamation law.

The two most relevant privacy torts for addressing the spread of information online are appropriation and public disclosure. Appropriation protects against the use of a person's name or likeness for the benefit of another. [74] For example, the tort allows someone to sue if her name or image is used in an advertisement without her consent. To be liable for appropriation, "the defendant must have appropriated to his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff's name or likeness." [75]

Another of the privacy torts is the tort of public disclosure of private facts, which provides a remedy when somebody widely discloses another person's private information. The disclosure must be "highly offensive to a reasonable person" and "not of legitimate concern to the public." [76] This tort can potentially be helpful in protecting our private lives from being splattered across the Internet. In contrast to defamation, which makes people liable for spreading falsehoods, the public-disclosure tort remedies the dissemination of truths.

Courts are uneasy about the privacy torts and have limited them in two fundamental ways. First, in the name of free speech, privacy law (as well as defamation law) has been severely restricted. Second, the law of privacy is being held back by narrow understandings of privacy. Many courts throw out lawsuits because they do not recognize a privacy violation. As a result, people suing under the privacy torts frequently lose their cases. The First Amendment scholar Rodney Smolla observes that if the Warren and Brandeis privacy torts "were a stock, [their] performance over the last century would not be deemed impressive." [77]

FINDING THE RIGHT ROLE FOR LAW

Although lawsuits based on defamation law and the privacy torts are key components of a middle-ground approach, we don't want to encourage a blizzard of lawsuits. Lawsuits are frightful monsters. They are expensive, imposing, and stressful. Merely being subjected to a lawsuit can be traumatic, let alone losing and having to pay damages. The threat of a lawsuit -- even a lawsuit which a speaker or writer will ultimately win -- can be damaging enough to make the potential defendant extra cautious.

One problem with lawsuits is abuse. For example, people can misuse defamation as a way to attack critics. Defamation law does not protect one from being the target of negative opinions, criticisms, satire, or insults. It protects one from having falsehoods spread that damage one's reputation. But people merely insulted by criticism or satire can overreact by filing an inappropriate defamation suit. Likewise, people may misuse invasion of privacy torts to attack speakers because they dislike criticism, not because of any privacy violation.

Lawsuits can chill speech. If it is too easy to win a lawsuit, people will sue too readily, causing people to refrain from engaging in candid robust speech for fear of being sued. The effect of too many lawsuits resembles that of the authoritative approach, impeding speech far too much. But without the threat of lawsuits, online speakers have no legal incentive to remove posts or to resolve disputes informally. And for egregious cases, we want the law to be involved.

Lawsuits hurt not only the speaker but also the person who is suing. Judge Richard Posner notes that privacy cases are rare because such a suit results in further publicizing the privacy violation. [78] When people sue, American courts are reluctant to allow them to conceal their names. As one court declared, "The use of fictitious names is disfavored" and will be allowed only under "exceptional circumstances." [79] In contrast, courts in many European countries are more willing to allow people to conceal their identities when suing, thus protecting plaintiffs from bringing more attention to the gossip they are trying to stop.

The American approach, however, penalizes people for using the law to protect their rights. In one recent defamation lawsuit, a man named Todd sued the website Don't Date Him Girl for false statements about him appearing on the site. His profile contained his picture and the following comment:

This guy is a trip. In fact, screw trip, he's a DOG. He dated one of my friends .... that was before she found out he had dated half of Pittsburgh .... Often dresses shabbily for a lawyer -- probably part of his disguise. He's in his 30s; AND he is believed to have HERPES. Stay away!


Another commentator stated:

Do NOT DATE HIM. He gave me an STD and dated 2 people at a time.


Yet another chimed in:

Dark and handsome ladies, he looks like a chocolate dream. Until you get to know him. His crib is a dump. He wears dirty clothes all the time. He's an attorney but you would never think so cause he complains about paying child support for his kids. He got hook-ups in every zipcode in the USA. He's hot. ... DON'T LET HIM FOOL YOU GIRL!


Todd sued, claiming that these were lies, and he wanted to set the record straight. His decision to sue, however, was met with disdain in the blogosphere. One blogger wrote that before the lawsuit, he had never heard of Todd, but now "thousands of people who never would have seen the comments are left wondering if they're not true." The moral of the story, the blogger concluded, was: "Don't sue for defamation, because even if you win, you'll lose." [80] On another blog, one commentator wrote: "To me it is like rumors and people talking smack; the more you yell about it the more truthful it seems to others. Better to post a rebuttal on [Don't Date Him Girl] and let it die a more silent death." [81] Yet another commentator said: "Hey Todd, I went to the website and read the comments about you. Big deal! You must be very thin-skinned. By suing you've brought the whole world's attention to the fact that four women don't like you. And believe me, bro, you're not helping yourself. My advice: just lay low for awhile so people will forget." [82] Reaction to Todd's lawsuit in the blogosphere is similar to the reaction to many people who sue for privacy and defamation. Some people are sympathetic, but others ridicule the plaintiffs for bringing more attention to themselves.

The American rule is unproductive, and it cuts against people's right to obtain redress for damage to their reputation. More people should be allowed to sue without having their real names appear in the record. This would allow people to seek a remedy for the spread of information about them without having to increase the exposure of the information.

Even if this problem is resolved, other problems make bringing a lawsuit a losing strategy for a plaintiff. Unlike the mainstream media, many bloggers are amateurs without a lot of money to pay damages to an injured person. In one recent incident, a woman won an $11.3 million verdict against another woman who posted messages on the Internet stating that the plaintiff was a "con artist" and a "fraud." But the woman who posted the comments had no money to pay. She had lost her home in Hurricane Katrina, she couldn't even afford a lawyer, and she didn't even bother to show up for trial. So why did the victim bother to sue? Indeed, it cost her money to sue and she wound up losing money by pursuing the case. She explained: ''I'm sure [the woman] doesn't have $1 million, let alone $11 million, but the message is strong and clear. ... People are using the Internet to destroy people they don't like, and you can't do that." [83] As one lawyer candidly observes: "Rarely does a good defamation case walk in the door." [84] Few plaintiffs win their cases in defamation suits. According to one estimate, only about 13 percent prevail in the end. [85] If you're suing for the money, then defamation and privacy lawsuits are not particularly effective. So in cases where there isn't a lot of money at stake, why would people sue?

The reason, I posit, is that people need to protect their reputations, and there are few alternatives besides bringing a lawsuit. Although in several cases, the law doesn't provide financial redress, it establishes a forum for people to seek vindication. In one study of people suing for defamation, only 25 percent were primarily interested in getting money. [86] The law professor Jerome Barron notes: "Individuals increasingly use libel actions for purposes such as vindication, reprisal, response, and publicity." [87] Lyrissa Lidsky, a defamation law scholar, notes that people sue primarily "to salve hurt feelings and express outrage at the misbehavior of defendants who publish false statements." [88] Many plaintiffs want the gossip or rumor-mongering to stop and to be removed from the site. They want to be issued an apology. In other words, people resort to the law because they want a way to vindicate their reputations.

Ideally, the law can spur people to work out these disputes amicably before the lawsuit is brought. If we find a way to allow people to vindicate themselves, express their anger, and have the damage patched up at least to some degree, we can avoid a lot of litigation. People resort to lawsuits because of a lack of informal means to find resolutions, because there are no other good options.

The goal of the law should be to encourage the development of norms and to spur people to work out their disputes informally. Ideally, most problems would be dealt with between the parties without resort to law. We need some legal remedies, however, for more extreme and harmful cases. We also need remedies for systematic infringers -- those who repeatedly invade others' privacy or facilitate shaming. The law should encourage websites to develop a process by which problems can be adjudicated and resolved, where bad information can quickly be taken down, and false statements can be corrected.

At its best, the law can achieve control without having to be invoked. This might sound paradoxical, but it is a rather obvious point. The best laws for addressing harms are ones that not only help fix the damage but also keep the harms from occurring in the first place. The most effective law rarely needs to be used, as the legal process is expensive and time-consuming. The law works best when it helps people resolve disputes outside the courtroom.

TOO MUCH LAW, TOO LITTLE LAW

In short, the law works best when it can hover as a threat in the background but allow most problems to be worked out informally. The threat of the lawsuit helps to keep people in check. Without the lawsuit threat, people who defame other people or invade their privacy can just thumb their nose at any complaints.

The problem, of course, is how to have lawsuits serve as a credible threat without being brought inappropriately. Under our current legal system, we have remedies for defamation and invasion of privacy, but as we have seen, these remedies are currently quite limited in their effectiveness, especially the law of privacy. The current law is too limited and restricted to serve as a tenable threat in many situations.

One problem with expanding the scope of legal protection, however, is that it might encourage more lawsuits. Make it too hard to sue, and the law ceases to be a credible threat. Make it too easy to sue, and lawsuits multiply like rabbits. How can we maintain the law as a credible threat yet keep lawsuits in check? I propose a requirement that a plaintiff first exhaust informal mechanisms for dealing with the problem. If the defendant agrees to remove the harmful information from the website, then this should be the end of the lawsuit unless the victim can demonstrate that merely taking down the offensive speech won't sufficiently patch up the harm.

Under this system, before proceeding in a lawsuit, a plaintiff must prove that she first attempted to seek informal redress and that the defendant didn't adequately attempt to provide a resolution. Or a plaintiff could also proceed if she established that the damage done was severe and irreparable -- for example, gossip that had already wreaked havoc that couldn't be undone by quietly removing the material from the site. In many cases, the gossip or rumor has not yet gone viral -- it has not spread too far beyond the originating speaker. Although the Internet allows information to proliferate much faster than before, it has the virtue of allowing for an easier cleansing of gossip and rumor than does print, where retractions can be printed but the uncorrected publication still exists in circulation. Online postings, in contrast, can promptly be edited. The law should serve to induce people to edit their postings to eliminate harmful information about others.

Although in many cases, problems can be resolved before they spiral out of control, in other situations, it is too late. In several cases the information has become infectious and has spread far and wide, such as the video of the Star Wars Kid and the gossip by Jessica Cutler in her Washingtonienne blog. In these circumstances, there is no way to remove the information from the Internet. The damage is irreparable, and the lawsuit should be allowed to proceed even if the speaker subsequently removes the information from her site.

The law should also create incentives for parties to use what is known as "alternative dispute resolution." Parties can go to a mediator or arbitrator rather than go to court. In mediation and arbitration, a neutral person or group of people resolves the case. Mediation and arbitration are similar, but they differ in that mediation is nonbinding and arbitration is binding. Alternative dispute resolution might cut down considerably on the legal costs and allow disputes to be resolved more quickly.

Another possible method of cutting down on law's expense is to limit damages. Most people posting online have little money to pay. The threat of massive damages can unduly chill speech and make lawsuits more contentious. Limiting damages is designed not to trivialize the harm some people suffer to their reputations but to steer litigation toward resolving disputes more quickly and inexpensively. The primary goal of the law should be imparting a sense of responsibility on those who post online, deterring the spread of gossip and rumors in cyberspace, and creating incentives for parties to resolve their disputes informally. Large damage awards are not necessary to accomplish these goals. Exceptions could be made, however, for especially egregious cases or for speakers who demonstrate a pattern of abusive conduct.

Therefore the law should expand its protection against irresponsible Internet postings, but only after disputes have been proven insoluble via informal means or alternative dispute resolution. In other words, the law should cast a wider net, yet have a less painful bite.
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Re: The Future of Reputation: Gossip, Rumor, and Privacy on

Postby admin » Thu Oct 10, 2013 6:20 am

PART 1 OF 2

Chapter 6: Free Speech, Anonymity, and Accountability

Gossiping. Shaming. Rumor-mongering. All have pernicious effects on people's lives, yet they all involve acts of expression. When the law restricts the circulation of information, it creates potential threats to free speech. This is one of the main reasons that the law of defamation and privacy are limited in scope. If the law's goal is to restrict the spread of information when it causes harm, how can the law do so without unduly infringing upon freedom of speech?

GOOD SPEECH, BAD SPEECH

Freedom of speech is an essential right in a democratic society. As the poet and essayist John Milton put it eloquently in 1644, "The liberty to know, to utter, and to argue freely according to conscience [is] above all liberties." [1] Reflecting this wisdom, the First Amendment to the U.S. Constitution guarantees that "Congress shall make no law ... abridging the freedom of speech, or of the press." [2] Freedom of speech gives us the right to express ourselves even if our speech is trivial, despicable, crass, and repulsive. We don't allow the government to regulate "matters of taste and style" in speech, the Supreme Court has ruled, since "one man's vulgarity is another's lyric." [3] As the Court also declared, we have a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open." [4]

The Supreme Court has held that the First Amendment right to freedom of speech places some limits on defamation law. The Court had originally viewed defamation as not being protected by the First Amendment because it has "no essential part in the exposition of ideas." [5] Speech that defamed a person was not a key part of public debate, so it didn't warrant constitutional protection. However, the Court changed its position in the famous case of New York Times v. Sullivan in 1964, when it concluded: "Erroneous statement is inevitable in free debate, and ... it must be protected if freedoms of expression are to have the 'breathing space' they need to survive." [6] Instead of wiping out defamation law, the Court crafted a compromise to balance the protection of free speech with the ability to seek redress for defamatory statements. In later cases, the Supreme Court left the defamation tort largely intact for "private figures" but limited it significantly for "public figures." [7] A "public figure," one who has achieved a general level of "notoriety" or who has come to the "forefront of particular public controversies," must prove that the speaker acted with "actual malice." [8] "Actual malice" requires that the person who made the statement knew that it was untrue or acted "with reckless disregard of whether it was false or not." [9] Basically, famous people have to prove that the defendant intentionally told lies about them or simply didn't care whether rumors were true or not. Actual malice is hard to establish, and most plaintiffs who have to prove it lose their cases. [10] Private citizens need only show the defendant to have been negligent when he told lies, a much easier standard to establish.

The Supreme Court could have simply abolished the defamation torts of libel and slander in the name of free speech, but it compromised and preserved much of defamation law. One reason, the Court noted, was that falsehoods are "not worthy of constitutional protection" and that the "First Amendment requires that we protect some falsehood in order to protect speech that matters." [11] In other words, the First Amendment protects false speech not for its own sake but as a means of protecting true speech. Moreover, the Court observed, it is important also to preserve the "individual's right to the protection of his own good name," which "reflects no more than our basic concept of the essential dignity and worth of every human being." [12]

The law of privacy clashes more directly with free speech. As we have seen, unlike defamation law, which applies only to falsehoods, privacy law allows people to redress harms caused by the spread of true information about themselves. Truth is one of the primary defenses to a defamation case, but the fact that information is true will do nothing to halt a privacy case. The famous tort law scholar William Prosser viewed the privacy torts as creating "a power of censorship over what the public may be permitted to read, extending very much beyond ... the law of defamation." [13] Many scholars have argued that it is difficult or even impossible to square the privacy torts with freedom of speech. As the First Amendment scholar Thomas Emerson argues: "Any individual living among others is, by the very nature of society, subject to an enormous amount of comment, gossip, criticism and the like. His right to be left alone does not include any general right not to be talked about." [14] Similarly, another First Amendment scholar, Eugene Volokh, contends: "The difficulty is that the right to information privacy -- my right to control your communication of personally identifiable information about me -- is a right to have the government stop you from speaking about me." Volokh concludes that the First Amendment "generally bars the government from controlling the communication of information." [15]

If Emerson and Volokh are right, then there's little the law can do. The First Amendment gives people the right to say whatever they want so long as it is true. It gives you and me the right to blog our thoughts without fear of reprisal. How can the public-disclosure tort -- which would make someone liable for saying true things about someone else -- be constitutional under the First Amendment? Although the privacy torts can be squared with the First Amendment, the issue is a difficult one, and it requires a bit of explanation.

Absolutism

A popular view of the First Amendment is that its protection of free speech is absolute. This means that if somebody is engaging in speech, then the First Amendment bars any attempt to regulate or prohibit that speech -- no matter how odious or harmful the message might be.

Justice Hugo Black became famous for adopting this position. [16] Black argued that the First Amendment is an "unequivocal command that there shall be no abridgment of the rights of free speech and assembly." [17] In one lecture, Black declared: "It is my belief that there are 'absolutes' in our Bill of Rights, and that they were put there on purpose by men who knew what words meant and meant their prohibitions to be 'absolutes.'" [18] An interviewer once asked Justice Black what precisely he meant by these words. Black replied by taking out the copy of the Constitution that he always carried in his pocket. He read the First Amendment: "Congress shall make no law ... " And then he said: "That's the First Amendment -- I would think: Amen, Congress should pass no law. Unless they just didn't know the meaning of words." [19]

If you're a free-speech absolutist, much of the law protecting privacy becomes difficult to defend. The First Amendment forbids the law from restricting people from saying what they want to say.

Balancing

Justice Black's absolutist approach didn't win the day. Instead, the Supreme Court currently resolves free-speech cases by balancing speech against opposing interests. [20] Under a balancing approach, the value of free speech is high, but it's not absolute. If there's a good enough reason, then free speech can be trumped. So the balancing approach views free speech as important, just not sacrosanct.

Even under a balancing approach, critics of privacy protections argue that free speech has a high value that will trump privacy except under exceptional circumstances. When balancing, courts analyze any law -- including a tort law -- under a level of constitutional "scrutiny." The highest form of constitutional scrutiny is strict scrutiny. Under strict scrutiny, to "outweigh" a First Amendment interest, a law must be the "least restrictive means" to achieve a "compelling" government interest. [21] Laws restricting speech rarely survive strict scrutiny, which has been referred to as "'strict' in theory and fatal in fact." [22] Volokh argues that many laws protecting privacy should be subjected to strict scrutiny: "Political speech, scientific speech, art, entertainment, consumer product reviews, and speech on matters of private concern are thus all doctrinally entitled to the same level of high constitutional protection, restrictable only through laws that pass strict scrutiny." [23] This means that the Warren and Brandeis tort of public disclosure is probably unconstitutional if we apply the strict-scrutiny standard.

Contrary to Volokh's stance, current case law holds that not all forms of speech are worthy of being protected with strict scrutiny. Some forms of speech are less important than others. If we look at current Supreme Court law, not all forms of speech are protected equally. [24] For example, the Supreme Court gives less protection to commercial speech, which occupies a "subordinate position in the scale of First Amendment values." [25] Since commercial speech isn't protected with strict scrutiny, the law can more readily regulate it.

Speech of private concern should be given less protection than speech of public concern. The Supreme Court has endorsed this view to a limited extent. In one case, the Supreme Court concluded that "not all speech is of equal First Amendment importance. It is speech on 'matters of public concern' that is 'at the heart of the First Amendment's protection.' ... In contrast, speech on matters of purely private concern is of less First Amendment concern." [26] In short, the Supreme Court ruled that speech of private concern should be given much less protection than speech of public concern [27] The Court has never held that Warren and Brandeis's public disclosure of facts tort is unconstitutional. The tort has been around for more than one hundred years, so if the Court were to suddenly strike it down, it would be a bolt out of the blue.

The Supreme Court has thus left open an area for the public-disclosure tort to thrive. Recall the last element of the public-disclosure tort -- the "newsworthiness test" -- that the speech cannot be of "legitimate concern to the public." If it is, then the case is dismissed. If the speech involves matters of private concern, then the lawsuit proceeds. The newsworthiness element of the public-disclosure tort is designed to protect free speech. The tort was, after all, designed by Louis Brandeis, who after becoming a Supreme Court justice, was a champion of the First Amendment. He is considered one of the great heroes of free speech. But he also believed in the importance of protecting privacy, and he reconciled free speech and privacy with the newsworthiness test.

BALANCING FREE SPEECH AND PRIVACY

Several scholars think that the Supreme Court should abolish the privacy torts when they conflict with free speech. The law professor Diane Zimmerman, for example, argues that the public-disclosure tort should be "scuttled" because the costs to free speech are too high; potential litigation will have a chilling effect on speech and the tort inhibits the "free exchange of personal information."  [28] Zimmerman raises a valid point -- the privacy torts definitely have the potential to chill speech.

There are compelling reasons, however, why the Supreme Court is right not to eliminate the privacy torts, especially the public-disclosure tort. In fact, protecting privacy -- and restricting free speech in some cases -- can actually advance the reasons why we protect free speech in the first place. Since this sounds paradoxical, some explanation is in order.

We first need to begin by looking at why free speech is valuable. We're so used to assuming that free speech is important that we often don't take the time to think about why. But the why of it really matters. Those pondering the issue have come up with a number of reasons. I will discuss three of the most popular ones: individual autonomy, democracy, and the marketplace of ideas.

Individual Autonomy

One of the most frequently articulated rationales for why we protect free speech is that it promotes individual autonomy. [29] We want people to have the freedom to express themselves in all their uniqueness, eccentricity, and candor. Stopping Jessica Cutler from speaking about Robert in her Washingtonienne blog limits her freedom. The autonomy of listeners is also involved. Many people enjoyed Cutler's blog. Stopping Cutler from writing her blog will take away stories that many people might want to read.

But the autonomy justification cuts both ways. As the law professor Sean Scott observes, "The right to privacy and the First Amendment both serve the same interest in individual autonomy." [30] The disclosure of personal information can severely inhibit a person's autonomy and self-development. [31] Julie Cohen notes that lack of privacy can "chill the expression of eccentric individuality."  [32] The risk of disclosure can inhibit people from engaging in taboo activities. [33] From Cutler's blog, it seemed as though she fully consented to Robert's spanking and kinky sex. She liked being with him. So why shouldn't Robert be able to have sex the way he wants to with another consenting adult? The risk of disclosure, however, might prevent people from doing things they enjoy because of fear of social disapproval. Privacy allows people to be free from worrying about what everybody else will think, and this is liberating and important for free choice.

Privacy protects more than just people's freedom to engage in an unconventional sex life. Privacy permits individuals to express unpopular ideas to people they trust without having to worry how society will judge them or whether they will face retaliation. [34] Without privacy, it is hard for many people to sound off about their bosses or express their honest opinions. All of these activities are central to people's autonomy. Protecting privacy can promote people's autonomy as much as free speech can.

Democracy

Free speech is also vital to democracy. The famous First Amendment scholar Alexander Meiklejohn argued that free speech is important not because we should protect the individual's desire to speak but because free speech is necessary for a robust political discourse. According to Meiklejohn, "What is essential is not that everyone shall speak, but that everything worth saying shall be said." [35] As the law professor Owen Fiss observes: "On the whole does [speech] enrich public debate? Speech is protected when (and only when) it does, and precisely because it does." [36] In other words, free speech is most valuable when it contributes to public discussion on issues of policy and politics. Under this view, speech of private concern is relatively unimportant. Reporting people's secrets rarely contributes much to politics. Was Jessica Cutler's Washingtonienne blog about her sexual exploits on Capitol Hill really useful for a political debate? It's a titillating and engrossing read, but our democracy probably isn't going to suffer without it. As Benjamin Franklin asserted: "If by the Liberty of the Press were understood merely the Liberty of discussing the Propriety of Public Measures and political opinions, let us have as much of it as you please. But if it means the Liberty of affronting, calumniating, and defaming one another, I for my part ... shall cheerfully consent to exchange my Liberty of Abusing others for the Privilege of not being abus'd myself." [37]

In fact, privacy protections can strongly promote democratic discussion and debate. [38] Political discussions often take place between two people or in small groups rather than at public rallies or nationwide television broadcasts. More discourse about politics occurs in personal conversations than on soapboxes or street corners. Without privacy, many people might not feel comfortable having these candid conversations. Protecting privacy can actually promote free speech, not just restrict it.

The Marketplace of Ideas

A third justification for free speech is that it contributes to the promotion of truth. This justification was most famously propounded by the philosopher John Stuart Mill, who observed that it is best not to censor speech, because that speech might be true, and censors can't infallibly distinguish between the true and the false. [39] Justice Holmes drew from this theory when he articulated the notion of the marketplace of ideas: "When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out." [40] Under the marketplace theory, free speech enables us to find the truth. The law should butt out and let people decide for themselves what's true and false.

But truth isn't the only value at stake. [41] Truth must be weighed against other values. As one nineteenth-century English judge put it: "Truth, like all other good things, may be loved unwisely -- may be pursued too keenly -- may cost too much." [42] There are many "truths" that are not worth much effort to find out. For example, there is a true answer to the number of paperclips I have in my office, but this information does not have much value. Much true information is trivial and useless. The value of the quest for the truth depends upon what information one is seeking. The truth about a private person's personal life is often worth little or nothing to the general public.

On balance, privacy furthers many of the same interests that free speech does. Free speech is indispensable because it promotes autonomy, democracy, and the quest for the truth. But these interests also depend upon protecting privacy. A balance between free speech and privacy might achieve these interests more effectively than merely protecting speech at all costs.

NEWSWORTHINESS

To reconcile the public disclosure tort with free speech, the tort doesn't apply when the information is of "legitimate concern to the public." [43] This is referred to as the "newsworthiness test." If a particular disclosure is newsworthy, then a public-disclosure tort case is dismissed. This newsworthiness limitation is included in the tort to protect free speech.

Information is of public concern when "the public has a proper interest in learning about [it]." [44] For example, the Restatement of Torts distinguishes between "information to which the public is entitled" and "morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern." [45] What is of interest to most of society is not the same question as what is of legitimate public concern. It is possible that people will want to hear a story even when they do not consider it of legitimate public concern. For example, a video of Pamela Anderson having sex with Bret Michaels was sold over the Internet, generating hundreds of thousands of dollars in revenue. [46] A video of the president giving a speech would be much less lucrative. Does this make the sex tape more newsworthy? Ample public curiosity doesn't make a piece of gossip newsworthy, as such interest can stem from a hunger for prurient entertainment instead of from a desire to learn about the news and current events. Therefore information that involves matters of public concern is protected; information that merely provokes our prurient curiosity is not.

Identifying Information

In many instances, there is little need for a story about a person's private life to identify the person. The facts of the story may be of legitimate concern to the public, but the identification of the people involved might not further the story's purpose. In one case, for example, a woman suffered from a rare disease that caused her to continue to lose weight no matter how much she ate. A reporter wrote an article about her called "Starving Glutton," and it contained a photograph of her in a hospital bed. The court found the facts of the woman's disease to be newsworthy, yet the court still let the case proceed because the story could have been told effectively without identifying the woman: "While plaintiff's ailment may have been a matter of some public interest because unusual, certainly the identity of the person who suffered this ailment was not." [47]

Contrast the "Starving Glutton" case with that of Ruth, who was involved in a horrible car accident. The car was so badly mangled that she had to be cut from the car with the "jaws of life" device. Ruth was rushed away in a helicopter. A while later, lying in her hospital bed as a paraplegic, Ruth was watching On Scene: Emergency Response, a reality television show featuring real medical rescues. She was shocked when she saw that this episode was about her. Scenes from her rescue were vividly featured, including images of her mangled body in the car. Ruth was appalled. She said: "It's not for the public to see this trauma that I was going through."

Ruth sued for public disclosure of private facts. The court, however, dismissed her case because Ruth's rescue and treatment were of legitimate concern to the public. Ruth argued that the show's producers should have edited the episode to obscure her identity. The court, however, rejected her argument: "That the broadcast could have been edited to exclude some of Ruth's words and images and still excite a minimum degree of viewer interest is not determinative. Nor is the possibility that the members of this or another court, or a jury, might find a differently edited broadcast more to their taste or even more interesting. The courts do not, and constitutionally could not, sit as superior editors of the press." [48] Here, the court simply deferred to the media, an approach that I believe is dodging the issue. The show could have readily been edited to protect Ruth's privacy by blocking her face and not revealing exact details about Ruth's identity. Why not require a few small steps to protect people like Ruth?

One common argument against shielding people's identities is that doing so erodes the credibility of an article. [49] Identifying people in news stories certainly allows people to verify the stories independently. But many stories of paramount importance have employed anonymous sources. In exposing the Watergate break-in and cover-up, for example, Bob Woodward and Carl Bernstein relied on the well-known pseudonymous source "Deep Throat." When journalists protect confidential sources, they engage in a balancing determination, sacrificing the public's ability to verify for the importance of protecting confidentiality. Public verifiability is not sacrosanct; it can be outweighed by privacy interests. Of course, concealing identities cannot work for all stories, especially those about public figures, since it is the identity of the person that gives the story its relevance. But in many cases, there is no need to identify.

Speaking About One's Life

Bloggers like Jessica Cutler do not have an unfettered free-speech right to talk about other people's private lives. People like Robert should be able to sue bloggers like Cutler when they reveal private details that are not of legitimate concern to the public.

However, there is one other important issue involved in the case that must be addressed -- Cutler's right to speak about her own life. Our lives are intertwined with those of others. If you want to write an autobiography, you're probably going to have to talk about other people, unless you spent your life living in a shack in the woods on a mountainside. Telling Cutler not to speak about her relationship with Robert -- even though it may be of private concern -- seems rather stifling to her freedom to express herself. It would be one thing for a stranger to talk about Cutler and Robert's sex life, but it's another if either Cutler or Robert wants to talk about it. Shouldn't we be extra careful to preserve people's ability to tell their own life stories?

Oddly, few cases address the issue of who is doing the talking. The focus is on whether the information is of legitimate concern to the public regardless of whether Cutler is speaking about her own life or whether some reporter is talking about it. A better approach would be for the law to pay attention to who is divulging the secret. It is essential for autonomy that a person be able to talk about her own life -- even when what she's describing isn't newsworthy. It's one thing to silence a person from speaking about a piece of juicy gossip about someone else, but it is quite an extreme step to stop a person from talking about her own life.

But even if Cutler has a special right to speak about her own life -- whether newsworthy or not -- that doesn't mean that she can do so irresponsibly. The law should still require her to be careful not to damage the lives of others like Robert. To better think about these issues, let's look at a similar case. Susanna Kaysen was a well-known author, having written the book Girl, Interrupted, which was made into a movie costarring Angelina Jolie, who won an Oscar for her role. [50] Kaysen started having an affair with Joseph, a married man. She ultimately persuaded him to leave his wife, and he divorced in 1996 and moved in with Kaysen. At some point afterward, Kaysen started to experience severe vaginal pain. She went to doctor after doctor, but none was able to help her. Kaysen began to write a book about her experiences. She didn't tell Joseph about the subject of her book. In 1998 Kaysen broke it off with Joseph. Three years later, in 2001, she published her book, The Camera My Mother Gave Me, an autobiographical account of her terrible vaginal pain and how it affected her relationship with Joseph. She referred to Joseph at all times only as her "boyfriend" and altered some details about his life, such as where he was born and his occupation.

The book contained some graphic descriptions of their sex. In the book Joseph becomes impatient with Kaysen's condition and continually pesters her for sex, even resorting to "whining and pleading." Kaysen depicts Joseph in an unflattering light, as insensitive to her plight. In one scene where Joseph tries to have sex with Kaysen, she writes: "I felt he was trying to rape me. Because he hadn't seen how willing I was. All he could see was what he wanted."

When the book came out, many of Joseph's friends, family, and business clientele read the book and knew that Joseph was the "boyfriend." Joseph sued under the tort of public disclosure of private facts, claiming that his reputation was severely harmed. The court dismissed Joseph's case, concluding that the book was newsworthy. The topic of the effects of Kaysen's vaginal pain on her relationships was a matter "of legitimate public concern, and it is within this specific context that the explicit and highly personal details of the relationship are discussed." The court also noted that Kaysen had a "right to disclose her own intimate affairs." She was "telling her own personal story -- which inextricably involves [Joseph] in an intimate way." [51]

The court was right that Kaysen's and Joseph's lives were intertwined and that Kaysen has a right to talk and write about her own life. The most important consideration, however, should have been whether it was possible for Kaysen to avoid identifying Joseph. She did indeed take as many steps as possible to conceal the identity of Joseph, not only omitting his name but even altering details about his life to further prevent his identification. It wasn't possible to do much more. Therefore Kaysen appears to have exercised the appropriate level of care in the steps she took to protect Joseph from being identified. She should win for this reason.

Turning back to the Washingtonienne case, there's no need to stop Cutler from talking about her sex life. She just needs to do it a bit more thoughtfully, with more attention to the rights of the other person involved. All Cutler had to do was avoid using Robert's initials and avoid mentioning where he lived, as these were key clues that would make it possible to identify him.

But she's just a twenty-something amateur, one might say, so why should we expect her to exercise the care of a professional journalist? The answer is that the line between amateur and professional journalists is dissolving. The Internet gives amateurs a power similar to what professionals have -- to reach thousands, perhaps millions, of people. And with power should come some responsibility. While we can't expect bloggers to be perfect in all the steps they take to shield others' identities, we should hold them to a reasonable standard of care. Cutler was sloppy in handling Robert's identity when she blogged. As a result, she upended his life. This didn't have to happen. Cutler could still have written her story. And Robert's sex life could still have remained private. In many cases -- as in this one -- with a little bit of care, free speech and privacy can peacefully coexist.

ANONYMITY

Article III Groupie wasn't the typical groupie, obsessed with rock stars. Instead, her fixation was on federal judges. Named after Article III of the U.S. Constitution, which establishes the powers of the federal judiciary, Article III Groupie was a young law school graduate who created the blog Underneath Their Robes. Article III Groupie blogged about "scrumptious tidbits of news and gossip about federal judges." [52] She also dished out gossip about law clerks, recent law school graduates who assisted judges for yearlong stints. As Article III Groupie described her blog:

This weblog, "Underneath Their Robes" ("UTR"), reflects Article III Groupie's interest in, and obsession with, the federal judiciary. UTR is a combination of People, US Weekly, Page Six, The National Enquirer, and Tigerbeat, focused not on vacuous movie stars or famous teen idols, but on federal judges. Article III judges are legal celebrities, the "rock stars" of the legal profession's upper echelons.

This web log is a source of news, gossip, and colorful commentary about these judicial superstars!


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Article III Groupie's electronic face 

According to her self-description, Article III groupie graduated from a top law school and worked for "a large law firm in a major city, where she now toils in obscurity." She described herself as a "diva" and as a "federal judicial starf**ker. "

Little more was revealed about the elusive Article III Groupie. She said that in "her free time, she consoles herself through the overconsumption of luxury goods" and that her "goal in life is to become a federal judicial diva." Article III Groupie's identity was shrouded in secrecy. The only picture of the mysterious Article III Groupie was a small hand-drawn sketch.

Who was this Sex-in-the-City-type diva? How bizarre that she would be starstruck by the nerdy world of the federal judiciary! How exciting that someone -- anyone -- was even interested in this lonely corner of the world in the same way that groupies were into rock stars! Suffice it to say that Article III Groupie's blog was quite quirky and entertaining. She seduced the online legal world with her exuberance and audacity. Who else but Article III Groupie would dare to hold "hottie" contests for male and female judges? [53] Who else had the moxie to use such catty phrases as "judicial divas," "bench-slappery," "litigatrix," "bodacious babes of the bench," "judicial hotties" and "judicial prima donnas"?

Article III Groupie's gossipy blog was a big hit. It attracted an impressive array of readers, including federal judges themselves. It was U.S. Appeals Court Judge Alex Kozinski who anointed Article III Groupie with the nickname A3G. And U.S. Court of Appeals Judge Richard Posner admitted that he enjoyed the site: "It's occasionally a little vulgar, but this is America in 2005." [54]

One day, rather abruptly, A3G decided to unmask herself. The opportunity came when Jeff Toobin of the New Yorker wanted to interview A3G in person. A3G agreed to meet him for lunch. When Toobin saw A3G, his jaw dropped.

"So you're a guy?" Toobin gasped.

Yes, A3G was a man. His name was David Lat. Lat was a graduate of Yale Law School who had clerked for a conservative federal judge on the U.S. Court of Appeals for the 9th Circuit. I knew Lat personally; he was a classmate of mine at Yale Law School. But I had no idea Lat was A3G until I read it in Toobin's New Yorker article. To make matters more interesting, Lat worked as a federal prosecutor in Newark, New Jersey. [55] He regularly appeared in court before federal judges.

When Toobin's article revealed to the world A3G's true identity, it sent shockwaves throughout the legal community. This amazing disrobing quickly drew the attention of the mainstream media, and Lat's story was featured in scores of newspaper articles.

Lat had decided to be anonymous as a way of protecting his job while maintaining such a salacious blog. In an interview, Lat explained: "The law is a fairly conservative profession, and being known as a legal gossip-monger would not be good for my professional advancement. It also wouldn't help me in my lifelong ambition to become an Article III judge. Issuing snarky commentary about sitting federal judges won't put me on a fast track to the federal bench." [56] Beyond the inherent difficulties of juggling the blog with his law career, Lat regularly appeared in federal court representing the United States government. Without anonymity, the very judges he was calling "your honor" in the courtroom would know he was referring to them as "hotties" in the blogosphere. It was difficult to imagine how he could continue to represent the federal government in court.

Moreover, Lat's anonymity provided a sense of mystery to the blog. Now that mystery had vanished. The blog just wouldn't be the same without Lat's unique alter ego, A3G. One commentator wrote in a post about A3G at another legal blog: "This is terrible. I can't read that site knowing the author is a man." [57] Anonymity had allowed Lat to assume a new identity, a persona he carefully designed to be as distinct from himself as possible. One reader of his blog who knew him stated in an interview in the New York Times: "David was on this one side a hard-core Federalist Society type, who clerked for an extremely hard-right judge, and was way to the right of most of his associates. And he had this whole other side of flamboyant, theater-watching, Oscar-watching, shoe-loving, litigatrix. How do these two sides get reconciled?" [58]

Anonymity allows people to escape accountability for their words, but this comes at a cost -- the loss of authorship credit under one's real name. Lat wanted to have the praise and attention his female alter ego A3G was getting. He increasingly grew frustrated that he was toiling over the blog but getting little recognition for it. He wanted the attention the blog was attracting to be associated with his name. But the irony was that in his quest to get credit for the blog, he risked destroying the blog and even his career.

After revealing his identity, Lat braced himself for the firestorm that would ensue. After his identity was announced, his supervisors in the United States Attorney's office asked him to stop blogging immediately. Lat quickly locked his blog down, making it inaccessible to the public without a special password. Near the end of a stressful week, in which he wondered whether he would be fired, Lat met with his boss. He would be able to keep his job -- on the assumption that Underneath Their Robes would be kept underneath its password.

But Lat's story has a happy ending. A few weeks later, he left the U.S. Attorney's office to accept a job blogging full-time at Wonkette, the political gossip blog that had publicized Jessica Cutler's Washingtonienne blog. He later went on to launch a new legal gossip blog, Above the Law. Lat now blogs under his real name.

The Virtues of Anonymity

The saga of Article III Groupie demonstrates how easy it seems to be anonymous on the Internet. A person can readily create a blog under a pseudonym or can post anonymous comments to blogs or online discussion groups. According to a survey, 55 percent of bloggers use pseudonyms rather than their real identities. [59]

Anonymity can be essential to free speech. As the Supreme Court has noted: "Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all." [60]

Anonymous speech has a long history as an important mode of expression. Between 1789 and 1809, six presidents, fifteen cabinet members, twenty senators, and thirty-four congressmen published anonymous political writings or used pen names. It was common for letters to the editor in local newspapers to be anonymous. Ben Franklin used more than forty pen names during his life. [61] Mark Twain, O. Henry, Voltaire, George Sand, and George Eliot were all pseudonymous authors. Indeed, James Madison, Alexander Hamilton, and John Jay published the Federal Papers under the pseudonym Publius. Their opponents, the Anti-Federalists, also used pseudonyms. [62]

Anonymity allows people to be more experimental and eccentric without risking damage to their reputations. [63] Anonymity can be essential to the presentation of ideas, for it can strip away reader biases and prejudices and add mystique to a text. People might desire to be anonymous because they fear social ostracism or being fired from their jobs. Without anonymity, some people might not be willing to express controversial ideas. [64] Anonymity thus can be critical to preserving people's right to speak freely.

Accountability

Anonymity also has a dark side. As Adam Smith observed in The Wealth of Nations: "While [a 'man of low condition,' as opposed to a 'man of rank and fortune'] remains in a country village his conduct may be attended to, and he may be obliged to attend to it himself. In this situation, and in this situation only, he may have what is called a character to lose. But as soon as he comes to a great city, he is sunk in obscurity and darkness. His conduct is observed and attended to by nobody, and he is therefore likely to neglect it himself, and to abandon himself to every low profligacy and vice." [65] According to Smith, people behave differently when they can do so anonymously. People "of rank and fortune" are generally going to be noticed no matter where they are; but ordinary people will be noticed only in the small village. In the large city, a person becomes a face in the crowd and has achieved an anonymity of sorts in daily life. This anonymity, Smith observes, will tempt people to behave badly. When people are less accountable for their conduct, they are more likely to engage in unsavory acts.

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. When we talk about others, we affect not only their reputation but ours as well. If a person gossips about inappropriate things, betrays confidences, spreads false rumors and lies, then her own reputation is likely to suffer. People will view the person as untrustworthy and malicious. They might no longer share secrets with the person. They might stop believing what the person says. As U.S. Supreme Court Justice Antonin Scalia observed, anonymity can making lying easier; and the identification of speakers can help significantly in deterring them from spreading false rumors and can allow us to locate and punish the source of such rumors. [66]

Anonymity also facilitates deception. People can readily masquerade as other people in creating blogs and profiles. Harriet Miers was the first Supreme Court Justice nominee to have her own blog -- Harriet Miers's Blogg!!! [67] Her first entry:

OMG I CAN'T BELIEVE I'M THE NOMINEE! ! ! This is BIGGEST DAY OF MY LIFE! ! ! EVER !!!! OMGOMGOMG


Needless to say, it was fake. Miers is not alone. There was a blog called Luttig's Lair impersonating Judge J. Michael Luttig. [68] In one high school, some students created fake blog entries in another student's name, boasting about sexual adventures that never happened. [69] In another incident, an anonymous person created a fake Myspace profile for a twelve-year-old girl, using her real phone number and saying she was a stripper. [70] Anyone can sign up on a free blogging service and create a blog. In anybody's name. In your name. You might have a blog and not even know about it.

When people can avoid being identified, they can slip away from their bad reputations. In one instance, a woman joined an online chat group for eating disorders. She said she, too, suffered from an eating disorder, but she was eventually revealed to the group to be a fraud. After being booted from the group, she moved over to a group of sexual abuse victims. When revealed as a phony in that group, she reappeared in a group of people suffering from AIDS. [71] As sociologist Robert Putnam observes: "Anonymity and fluidity in the virtual world encourage 'easy in, easy out,' 'drive-by' relationships. The very casualness is the appeal of computer-mediated communication for some denizens of cyberspace, but it discourages the creation of social capital. If entry and exit are too easy, commitment, trustworthiness, and reciprocity will not develop." [72] In other words, anonymity inhibits the process by which reputations are formed, which can have both good and bad consequences. Not having accountability for our speech can be liberating and allow us to speak more candidly; but it can also allow us to harm other people without being accountable for it.

Thus anonymity is a form of privacy protection, yet it can also facilitate privacy violations. Anonymity can preserve privacy by allowing people to speak freely without being publicly identified, yet it can undermine privacy by allowing people to more easily invade the privacy of others. As the tension between anonymity and accountability demonstrates, along with the tension between privacy and free speech, the choice isn't as simple as one between freedom and constraint. Rather, it is a choice that involves freedom on both sides.
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Re: The Future of Reputation: Gossip, Rumor, and Privacy on

Postby admin » Thu Oct 10, 2013 6:24 am

PART 2 OF 2 (CH. 6 CONT'D.)

Wikipedia: The Power and Peril of Openness

The virtues and vices of anonymity are starkly implicated in Wikipedia, one of the most fascinating creations on the Internet. Created by Jimmy Wales in 2001, Wikipedia is an experiment in the power of collective knowledge. [73] Wikipedia is an online encyclopedia, whose authors collaborate with readers, who can volunteer information and edit entries. This exchange is made possible by "wiki," a Web-based application by which people can add and edit text collaboratively. It is named for the Hawaiian term wiki wiki, which means "quick."

By 2004, just a few years after its inception, Wikipedia had surpassed 1 million entries. By 2006 it had grown to 3.5 million entries. [74] Wikipedia is now the largest encyclopedia ever written, and it is available for free. As of late 2006 Wikipedia has become one of the most visited websites in the world. [75]

Unlike a regular encyclopedia, which quickly ages in its leather-bound covers, Wikipedia is dynamic, growing and changing each day. It is constantly updated. Anybody can edit and change a Wikipedia article. It relies on the collective wisdom of the Internet.

Most of us would be quite flattered to find an entry about ourselves on Wikipedia. Not so for John Seigenthaler. Seigenthaler was a lifelong journalist who fought for free speech and civil rights. He was an assistant to Bobby Kennedy when he was serving as attorney general during his brother John Kennedy's presidential administration. In 2005 Seigenthaler was in his late seventies and could look back on a long distinguished career. However, he was shocked to find a very different take on his life in his Wikipedia bio: "John Seigenthaler Sr. was the assistant to Attorney General Robert Kennedy in the early 1960's. For a brief time, he was thought to have been directly involved in the Kennedy assassinations of both John, and his brother, Bobby. Nothing was ever proven." [76]

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The Wikipedia logo, © & TM, all rights reserved, Wikimedia Foundation, Inc.

Seigenthaler was furious. In a USA Today editorial, Seigenthaler wrote:

I have no idea whose sick mind conceived the false, malicious "biography" that appeared under my name for 132 days on Wikipedia, the popular, online, free encyclopedia whose authors are unknown and virtually untraceable ....

At age 78, I thought I was beyond surprise or hurt at anything negative said about me. I was wrong. One sentence in the biography was true. I was Robert Kennedy's administrative assistant in the early 1960s. I also was his pallbearer. It was mind-boggling when my son, John Seigenthaler, journalist with NBC News, phoned later to say he found the same scurrilous text on Reference.com and Answers. com. [77]


Ironically, Seigenthaler had previously founded a center to protect the First Amendment right to free speech. Now he was being burned by it. Seigenthaler said that he still believed in free speech, but "what I want is accountability." [78]

Seigenthaler tried to track down the person who had posted the information, but to no avail. He located the Internet protocol (IP) address of the author and from that determined that the author's Internet service provider (ISP) was BellSouth Internet. An IP address is a unique number that is assigned to every computer connected to the Web. An example might look like this: 210.28.111.120. BellSouth Internet knew the name of the customer with the IP address but would not reveal it unless ordered by a court. Seigenthaler would have to file a defamation lawsuit against the person, but he wasn't interested in suing.

Eventually the misinformation was removed from Wikipedia, more than four months after it had been posted. Seigenthaler described the difficulty of cleaning up the stain of the rumor: "When I was a child, my mother lectured me on the evils of 'gossip.' She held a feather pillow and said, 'If I tear this open, the feathers will fly to the four winds, and I could never get them back in the pillow. That's how it is when you spread mean things about people.' For me, that pillow is a metaphor for Wikipedia." [79]

Enter Daniel Brandt, an outspoken critic of Wikipedia who had read about the case and was able to trace the IP address to a Nashville company. He then emailed the company asking for information about its services and got a response with the same IP address. Tipped off that the culprit was nearly in sight, a New York Times reporter called the company. This prompted the person to come forward, confess, and apologize to Seigenthaler. He explained that it was just a silly prank to rile a coworker. Because of the publicity, the person resigned from his job. [80]

In response to the Seigenthaler debacle, Wikipedia changed its open policy and required users to register before creating new articles. All users, whether registered or not, could still edit articles except certain ones that were frequently abused. For example, at the top of the Seigenthaler article is the following statement: "Because of recent vandalism, editing of this article by anonymous or newly registered users is currently disabled. Such users may discuss changes, request unprotection, or create an account." The Seigenthaler entry is now corrected, and the offensive information has long been removed. [81] But the cost of protecting the entry from abuse was to sacrifice some anonymity and openness.

One of the problems with anonymity is that it makes it harder to assess an author's reputation. An open system that allows people to edit anonymously is more easily abused because bad-faith authors are not held accountable. For some time, vandals have been attacking Wikipedia, deliberately adding falsehoods to articles. [82] The legal scholar Bruce Boyden observes: "All it takes is one dedicated person with low scruples, a grudge, and a little extra time on their hands, and the harms skyrocket." [83] And it's not just random miscreants who try to manipulate Wikipedia entries anonymously. Several employees of politicians were caught trying to doctor Wikipedia entries anonymously. One intern for U.S. Representative Martin Meehan deleted part of a Wikipedia entry about Meehan's early promises to serve only four terms (he was currently on his seventh term). At one point, the spate of abuses inspired Wikipedia to block federal congressional IP addresses from editing entries. [84] Even Jimmy Wales, the founder of Wikipedia, was caught anonymously editing his own Wikipedia entry. He deleted references to Larry Sanger as a cofounder of the encyclopedia. "I wish I hadn't done it. It's in poor taste," Wales confessed. "People have a lot of information about themselves but staying objective is difficult." [85]

The Seigenthaler case exposed some of the tensions at the heart of Wikipedia. When anybody can spread information online, it becomes harder to know what information to trust and what information not to trust. When we read entries in the Encyclopaedia Britannica, we know that they are written by experts and carefully vetted. Wikipedia entries are a collaborative exercise, and they can be written by those in the know as well as any fool stumbling along the information superhighway. People can just as easily introduce false information as true information.

The results can be extremely useful, yet sometimes unreliable. As the law professor Orin Kerr puts it, Wikipedia entries "seem to be a strange mix of accurate statements and egregious errors." [86] Wikipedia is more optimistic: "We assume that the world is full of reasonable people and that collectively they can arrive eventually at a reasonable conclusion, despite the worst efforts of a very few wreckers. It's something akin to optimism." [87] Pimples and all, Wikipedia is an example of the benefits of collective action. What is remarkable about Wikipedia is how often it works. In many cases, it serves as a terrific resource, but it also has a fair amount of dubious data.

Wikipedia entries matter so much because they often appear near the top of Google searches. And Wikipedia has enough good information to make the articles worth looking at. Ironically, it is because the articles have a lot of valid and useful information that their errors become so problematic. Nobody would even pay attention to Wikipedia if it contained mostly false data. Since it contains so much accurate information, Wikipedia encourages users to rely upon its articles and leaves them more readily deceived by the false information. Wikipedia dispenses with one of the primary features of ordinary encyclopedias. No longer must authors of entries have credentials. On the one hand, we trust a traditional encyclopedia entry because we trust the author. Authors have staked their reputations on their work. In contrast, Wikipedia entries can have dozens of authors, and we know little about them. Wikipedia lists a history of the edits by each author, but authors use pseudonyms like "Gopple" or "Taco," so we don't know who they are or what their expertise is. How much are we to trust a fact added by someone named "Gopple," about whom we know little else?

The irony, in the end, is that Wikipedia must defend its own reputation. It must ensure that its articles are dependable, for if they contain too much junk information, people might no longer find the site trustworthy. Wikipedia's reputation thus depends upon balancing openness and anonymity against accountability. The Seigenthaler case pushed Wikipedia toward a less anonymous system. But the more Wikipedia limits anonymity, the less free and open the project becomes. It's a difficult trade-off, one that lies at the core of so many of the thorny problems with online speech.

THE LAW OF ANONYMITY

Anonymity also implicates reputation in another way. The more people can spread falsehoods or invade privacy without accountability or fear of repercussions, the more likely they are to do so. Anonymous speech can cause reputational harm to others, and it can undermine the ability of those harmed to seek redress. Anonymity hobbles the pursuit of legal remedies for privacy violations and defamation. How, then, should we balance anonymity with accountability?

One way to strike a balance is to enforce traceable anonymity. [88] In other words, we preserve the right for people to speak anonymously, but in the event that one causes harm to another, we've preserved a way to trace who the culprit is. A harmed individual can 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.

Traceable Anonymity

Traceable anonymity is for the most part what currently exists on the Internet. Many people use the term anonymity rather imprecisely -- to refer to both anonymous speech (no name or identifier attached) and pseudonymous speech (using a pen name). In most cases such conflation is not problematic, and for convenience and readability, I use the term in the same way here.

But there's another dimension to anonymity that is not captured by the language we use -- traceability. Traceability involves the extent to which anonymous or pseudonymous postings can be traced to the author's true identity. Many people assume that when they are anonymous, they are untraceable, but this is often a myth. It is relatively easy to blog anonymously, but it is hard to be nontraceable. The reason has to do with the Internet Protocol, mentioned above. Whenever a user communicates over the Internet, her IP address is logged. For any session of Internet use, the ISP typically has information that links a particular customer with her IP address.

Suppose you write an anonymous comment on my blog saying something bad about me. At a minimum, I will know the IP address of the computer you posted from. I might even have information about the organization that assigned you your IP address. Thus I will know your ISP or the company where you work from and the city you were in when you posted. This is how Brandt traced the Seigenthaler defamer. If you post from work, your employer has information about which specific computer your post came from, and the comment may be traced back to your office computer. If you post from home, your ISP can connect your IP address to your account information. Thus even when you're anonymous, you can be tracked down.

Many people don't realize that their anonymous blogging or comments can be traced back to them. It is indeed possible to make yourself untraceable, but it involves significant care and know-how. [89] For example, anonymizing services are available to cloak your IP address.

But one mistake can leave your identity exposed. Even if you conceal your IP address, it is still possible to be traced. People often leave behind various snippets of personal information that when assembled can identify them. According to one study, "a large portion of the US population can be re-identified using a combination of 5-digit zip code, gender, and date of birth." [90] In 2006 AOL turned over twenty million search queries to researchers. AOL did not perceive a privacy problem because it did not include subscribers' names along with the queries. The New York Times, however, demonstrated that some subscribers could still be identified. A reporter analyzed the searches for one anonymous user and was able to zero in on the person. [91]

Most people don't do even a minimal job of avoiding traceability. And perhaps that's not so bad so long as the law provides adequate protection against others finding out their IP addresses or account information. In other words, 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. The law thus must draw a careful line between when it is appropriate to unmask an anonymous speaker and when it isn't.

Balancing Anonymity and Accountability

The First Amendment to the U.S. Constitution limits restrictions on anonymous speech. [92] According to the Supreme Court: "Despite readers' curiosity and the public's interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity." [93] When a person tries to identify anonymous speakers by requesting their records from their ISP, several courts have required heightened standards before ordering the unveiling. [94]

Suppose you invade my privacy or defame me by something you write anonymously on your blog. I can sue you in what has become known as a "John Doe" lawsuit. Since I don't yet know who you are, I sue you under the pseudonym you use or under "John Doe." I then must convince the judge that my case is strong enough to go forward. [95]

"John Doe" lawsuits provide a good compromise between anonymity and accountability, but the solution isn't perfect. Consider the case of Allegheny Energy Service. Yahoo! hosts message boards for all publicly traded companies. One of these companies was Allegheny Energy Service. [96] In 2003 Allegheny company officials discovered a rather unsettling posting on the Yahoo! board:

I work for this company (non-exempt) and have a lot of years under my belt. Yes, A.N. and his cronies turned his respectable Blue Chip into a POS [Piece of Shit]. He and they ruined a good chunk of my 401K. Now I have to delay retiring. They offered up all sorts of crap on a silver plated tray for us to swallow ....

Just like Allegheny Energy's Work Management horse manure which has done nothing more than take the tools out of workers' hands and created a non productive pile of dung. Another STUPID program that Allegheny Energy probably spent millions on for nothing, absolutely nothing. Then we were force fed "love thy n*gger" with Allegheny Energy's DIVERSITY program.


Allegheny's lawyers wanted to find out what employee had posted the racial slur. To find out, they filed a "John Doe" lawsuit against the anonymous poster, claiming a "breach of a duty of loyalty" to the company. The anonymous poster was not aware a lawsuit had been filed. Allegheny's attorneys then filed an "emergency motion" to prevent the poster from posting more messages. They claimed that Doe's posting violated the company's antiharassment policy. They subpoenaed Yahoo! to obtain its records about the poster's account. Yahoo! released the identity of the poster -- Clifton, an engineering technician who had been working for Allegheny Energy Service for sixteen years. Clifton had posted to the Yahoo! message board from home, using his wife's Yahoo! account. After establishing Clifton's identity, Allegheny dropped the "John Doe" lawsuit.

Company officials later called Clifton into a conference room and handed him a copy of his Yahoo! message board posting. The director of employee relations told Clifton that his racial slur violated Allegheny's diversity policy. Clifton was later fired for "placing a racially derogatory posting on the Yahoo message board in violation of Allegheny Energy's Positive Work Environment expectations."

This case raises several difficult issues about free speech, anonymity, and accountability. Allegheny Energy used a rather dubious technique to obtain Clifton's identity. Ordinarily, Allegheny Energy has no right to find out the identity of an anonymous speaker. But it obtained a subpoena for the speaker's identity with a legal action that appears to have been brought solely to unmask the speaker. Clifton was speaking outside of work, using his home computer, and trying to be anonymous. Does an employer have any justification for uncovering the identity of an employee who posts anonymously from home? On the other hand, Clifton's racial slur was quite offensive. If one of Allegheny Energy's employees is publicly making such comments, shouldn't an employer have the right to know? Should Clifton be able to make such remarks without being accountable for them?

As odious as Clifton's statements were, it wasn't invading anybody's privacy or defaming anyone. These were his personal views expressed on his own time. Moreover, Allegheny Energy appears to have filed a sham case just to find out Clifton's identity. Thus it is extremely important to establish high thresholds for making anonymity traceable. Otherwise, the promise of anonymity will begin to ring hollow. The law must restrict bad-faith lawsuits designed solely to unmask anonymous speakers.

WHO SHOULD BE RESPONSIBLE FOR HARMFUL SPEECH?

One of the most wonderful features of the Internet is its interactivity. On my blog, for example, anybody can post a comment. People can even do so anonymously if they want. Comments appear below my posts, and sometimes the discussion in the comments is much more interesting than the initial post. I have some power over the commentators. I can edit or delete comments I find irrelevant, uncivil, or offensive. I can require people to identify themselves rather than grant them anonymity. But I prefer to permit anonymous comments, as this encourages greater candor and more comments.

But anonymity can make it difficult to track down a commentator. If a person suffers a privacy violation or defamation as a result of a comment, can he hold me as well as the commentator responsible? This is a very important issue, one with dramatic repercussions for both free speech and the protection of reputation online.

The Plight of Kenneth Zeran

About a week after the Oklahoma City bombing in 1995, a person with the username "KenZZo3" posted an advertisement on an AOL bulletin board. [97] The advertisement was entitled "Naughty Oklahoma T-shirts." People could order shirts with slogans such as:

Visit Oklahoma ... It's a BLAST!!!
Putting the kids to bed ... Oklahoma 1995
McVeigh for President 1996


The message said interested people should call "Ken" at Kenneth Zeran's home phone number.

Zeran, however, hadn't posted the advertisement. He learned about the posting when he began receiving phone calls from irate people. Zeran called AOL and demanded that the posting be removed and that a retraction be posted. AOL removed the posting the following day but refused to post a retraction. The phone calls continued, and they were nasty and threatening. Zeran's business consisted of listing apartments on a monthly basis, and he had given out his phone number on the listings. He felt helpless, since changing his phone number would hurt his business.

Zeran discovered that a second posting had been made using a similar username to the previous one. The posting stated that some of the T-shirts had sold out, but that new T-shirts were available with additional offensive slogans. The new posting said that callers should ask for "Ken" and to "please call back if [the phone line was] busy." Zeran kept receiving threatening calls. He called AOL again to take down the new posting and to block future ones. The AOL operator told him that AOL was working on terminating the abuser's account. But the postings kept on coming. New advertisements touted odious Oklahoma City bombing bumper stickers and key chains. And the phone calls kept increasing. Within a few days, Zeran was receiving a call about every two minutes. When a copy of the advertisement was discovered by a local radio station, the broadcaster Mark Shannon read some of the T-shirt slogans over the air and urged listeners to call Zeran to express their outrage. A barrage of calls ensued, including death threats. Some of the calls were so menacing that the local police began to monitor Zeran's house.

Finally, the media began to report that the advertisement was a hoax, and the radio station issued an apology. The phone calls slowly began to abate, and about three weeks after the initial advertisement, Zeran was receiving only about fifteen calls per day -- a marked improvement. But the ordeal had taken its toll on Zeran, who was so shaken up that his doctor prescribed an antianxiety drug.

Nobody knows who posted the advertisements, but Zeran was determined to get some justice for his plight. He sued AOL for negligently failing to remove the defamatory postings. Zeran was suing AOL not directly for defamation but for taking an unreasonable delay in removing the defamatory postings.

Zeran's case ended when the U.S. Court of Appeals for the Fourth Circuit declared that AOL was immune from suit. [98] AOL could not be sued because Congress, concerned that ISPs and others might be responsible if one of their users made a defamatory statement, had passed a law immunizing the hosts of Internet communication forums from liability for things said by others using these forums.

Suppose a person makes a defamatory comment about you on my blog. You sue me because the statement appears on my blog. But I didn't make the statement -- all I did was provide the forum in which another person said it. Why would you want to sue me rather than the person who made the statement? Because I might have a very popular blog with tens of thousands of readers. I might be wealthy and the person making the statement might not be. Or the person might have posted anonymously, and I'm the only one who can be tracked down to sue. This is what happened in Zeran's case. AOL maintained the bulletin board. It had a lot of money, and the person who posted the bogus T-shirt ads was anonymous. So AOL was the natural target.

But ISPs such as AOL have millions of users. Should AOL be responsible if some of its users defame others or invade their privacy? Certainly not initially. After all, AOL is providing a rather open forum on its bulletin boards. All sorts of people can post messages, and AOL cannot possibly monitor every one. AOL is simply providing a place for people to talk -- a microphone and soapbox in cyberspace -- that's all. It shouldn't be responsible for what they say.

That was the logic Congress followed in 1996, when it passed Section 230 of the Communications Decency Act (CDA), immunizing ISPs and the hosts of online forums from liability for the speech of their users. The statute reads: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." [99] According to the court that heard Zeran's suit: "Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum." [100]

Section 230 was the law when Zeran sued AOL, so how could he possibly have a case? In defamation law, if I help you spread a defamatory statement, I can be liable under defamation law as a "distributor" if I know or have reason to know that the statement is defamatory. When the statement was first posted, AOL would clearly not be liable. But after Zeran told AOL that it was false and begged them to take it down, then AOL had reason to know it was defamatory. Since AOL didn't take it down until much later, Zeran argued that AOL should be liable for the time during which it knew about the bogus ad yet did nothing.

Does Section 230 immunize AOL even after it knows that somebody has posted a defamatory statement? Based on the way the statute is worded, this is a complicated question. Courts have wrangled over this issue, with most courts holding that Section 230 provides a broad immunity, waiving liability even after an ISP knows that a posting is defamatory. Unfortunately for Zeran, the court concluded that AOL was still immune. [101] Zeran was out of luck. He couldn't track down the anonymous person who posted the T-shirt ads. He couldn't sue AOL. He had no way to fight back.

AOL certainly doesn't have time to monitor every comment posted on its network. There are millions of communications by AOL users, and AOL cannot possibly police them all. But in this case, Zeran had informed AOL about the message. Should that affect the ISP's responsibilities? Despite Zeran's pleas, AOL acted slowly, and Zeran continued to suffer harm. Shouldn't the law provide some incentive to AOL to respond promptly to such a complaint? Under the court's interpretation of Section 230, AOL could ignore Zeran with impunity.

Immunity for Bloggers

Section 230 doesn't immunize bloggers for what they themselves say. At most, it may immunize them for comments to their posts written by others. To what extent should bloggers or websites that allow others to post comments be immune when one of the comments defames or invades a person's privacy?

On my blog, my coauthors and I allow anonymous comments. I had a firsthand experience with a defamatory comment to one of my blog posts. I wrote a post criticizing the bar exam, which all lawyers must pass in order to be licensed. An anonymous person wrote a nasty comment outing the identity of a pseudonymous blogger and stating several falsehoods about her. Here's the relevant part of the comment, in which I have changed her name and the name of her blog to protect her anonymity:

Does the [bar exam] test legal ability? Debatable. Jane Doe, aka Legal Blogger Girl, aka host of legalbloggergirl.com, would say no because she failed the NY bar 6 times in a row, mainly due to absurdly low [bar exam] scores.

Although Jane Doe is a proven liar and horrid test taker, I agree the [bar exam] should go.


Jane Doe blogged under the pseudonym Legal Blogger Girl. The anonymous commenter to my blog had revealed Jane Doe's actual identity, ruining her ability to be anonymous. And the statement about failing the bar seemed very likely to have been false.

Jane Doe emailed me requesting that I delete the comment. Although I couldn't be certain, I was fairly confident that it was false. It had little relevance to my post and seemed to be merely a nasty potshot. I had no trouble promptly deleting it. A few weeks later, I was surprised when Jane emailed me again to say that the comment was still there. Apparently, the anonymous commentator had reposted the comment. I deleted it again. This time, the commentator finally stopped.

Deleting the comment only took a few seconds, and I could readily see why Jane Doe wanted the comment gone. But what if I weren't sympathetic to her plight? If Section 230 gives me complete immunity, then it says that I could simply ignore her and be completely immune. After all, I didn't post the comment -- somebody else did. Why should I be responsible for what some anonymous person said?

Although somebody else made the comment, I provided him with the forum in which to do it. I allowed him to post his comment, and I allowed him to do it anonymously. I can easily shut off comments to my blog, but I like having comments because it creates a dialogue in which people can read and discuss my ideas. My blog has a fairly sizable readership, so it is a forum where people will be heard. I believe, therefore, that I have some responsibility to ensure that the website I control is not causing harm to others. The law should encourage me to take Jane Doe's complaint seriously and do what I can to prevent my website from causing her harm.

Many courts, however, interpret Section 230 as providing bloggers like me with blanket immunity for comments posted by others. That means that I could simply thumb my nose at Jane Doe. But there is an alternative way to interpret Section 230, a way I believe is preferable to blanket immunity. Section 230 might be read to grant immunity only before the operator of a website is alerted that something posted there by another violates somebody's privacy or defames her. If the operator of a website becomes aware of the problematic material on the site, yet doesn't remove it, then the operator could be liable. In other words, I certainly shouldn't be liable to Jane Doe for the comment, but if I refuse to take it down after she asks, then perhaps I should be liable. At that point, I know about the comment, I am on notice that it is causing harm to another, and instead of doing something about it, I'm embracing the comment by leaving it up on the website. As I stated in the previous chapter, however, legal liability must be modified to limit damages and encourage informal ways of resolving disputes.

This is an example of the difference between the libertarian and middle-ground approaches. When it is interpreted as granting broad immunity from lawsuits, Section 230 advances the libertarian approach, valuing free speech above all else. The middle-ground approach, in contrast, seeks to encourage people to work out the problem informally first, by spurring bloggers to remove harmful comments. If this informal process fails, a lawsuit can be brought, but otherwise, the law would function to serve as an impetus to get people to work it out among themselves.

Nude on the Net

In one case, a woman's ex-boyfriend impersonated her in a Yahoo! chat room. Anybody can sign up as a Yahoo! user for free and can use any name. The ex-boyfriend posted naked photos of the woman and included her email address and work phone number. His goal was to get men to start harassing her. When she discovered what happened, the woman was appalled. According to the woman, she wrote to Yahoo!, explaining that she didn't create this profile and wanted the photos removed. A month passed, and Yahoo! did nothing. She wrote to Yahoo! again. No response. Finally, she spoke with a Yahoo! employee, who promised to help her remove the photos. But the woman claims that Yahoo! still didn't get the photos taken down.

The woman sued Yahoo! but the court threw out the case because Yahoo! was immune under Section 230. [102] If Yahoo! or bloggers can be liable if, after being informed, they fail to remove a comment that is defamatory or invasive of privacy, then they might become too cautious and remove comments too quickly. This will have a negative impact on speech, because if a person doesn't like a comment about herself, ISPs or bloggers might be extra careful and remove it in order to avoid a lawsuit. The result would be a kind of heckler's veto, where a person could have a comment removed by complaining about it, whether justifiably or not.

On the other hand, if Yahoo! or bloggers ignore a person's complaints about harmful comments, then that person might be without much recourse. Shouldn't Yahoo! have removed the photos? This seems like an awful situation for the plaintiff -- nude photos of herself, as well as her contact information, are placed on the Internet and she is helpless in getting them removed. Is there such a big harm in forcing Yahoo! to remove them? Shouldn't people have some ability to halt the distribution of nude pictures or falsehoods or other personal information about themselves on the Internet? While the plaintiff shouldn't be entitled to obtain large money damages from Yahoo! the law should provide an incentive for Yahoo! to respond to legitimate take-down requests. Copyright law, for example, provides for a such a system when users of Internet service providers like Yahoo! post content that infringes upon copyright. Internet services providers are not liable if they remove copyright-infringing content posted by their users. [103] Notice and take-down systems can certainly be abused by people requesting removal of content that is not defamatory or invasive of privacy, but the law could address this problem by penalizing abusers.

Chase529

Chase Masterson is a well-known actress, having appeared in several television shows. Her real name is Christianne Carafano. One day, a profile with the name Chase529 appeared on Matchmaker.com, an Internet dating service. [104] The profile had four pictures of Carafano, along with her home address and phone number. The profile also had the following exchange:

Q: Have you had, or would you consider having a homosexual experience?

A: I might be persuaded to have a homosexual experience.

Q: What is your main source for current events?

A: Playboy/Playgirl.

Q: Finally, why did you call [Matchmaker.com]?

A: Looking for a one-night stand.


The answers to other questions were even more provocative:

Q: Try to describe the type of person you might be interested in meeting?

A: Hard and dominant in more ways than one. Must have strong sexual appetite.

Q: Describe your personality type?

A: I like sort of being controlled by a man in and out of bed.

Q: What's the first thing others notice about you?

A: My beauty.

Q: What is sexy?

A: A strong man with a dominating attitude with a yet controlling touch. [105]


People who responded to the profile received an automatic reply that gave out Carafano's home address and phone number.

Carafano didn't write the profile. It was written by an anonymous person in Berlin. Carafano wasn't even aware that the profile existed. She soon found out when she began to be contacted by people responding to the profile. Some of the responses were sexually explicit and threatening. Fearing for her safety and that of her son, Carafano moved out of her home and spent several months in hotels. An assistant to Carafano contacted Matchmaker and demanded that the profile be removed. Matchmaker blocked the profile from public view and deleted it soon afterward.

Carafano sued Matchmaker for invasion of privacy and defamation. Matchmaker argued that it was immune under Section 230 because it had not created the profile. The court agreed with Matchmaker. Although noting "the serious and utterly deplorable consequences that occurred in this case," the court noted that "Matchmaker did not play a significant role in creating, developing or 'transforming' the relevant information." [106]

The court's decision makes a lot of sense. Internet dating websites host tens of thousands -- sometimes millions -- of profiles. They are not responsible when a prankster creates a fake profile that invades another's privacy or is defamatory. So they should be immune when this happens. But unlike the broad interpretations of Section 230, once an Internet dating service is notified about a problem, it should respond or be liable. Matchmaker responded and removed the profile. Thus it should not be liable.

The Nazi Art Thief Who Wasn't

Ellen Batzel, an attorney in North Carolina, hired Bob Smith, a handyman, to do some work on her home. [107] Batzel loved to collect art, and she had many paintings in her collection.

The working relationship turned ugly, and Smith sued Batzel in small-claims court for payment for the repairs. Smith also decided to retaliate against Batzel outside the courts. He sent an email to the Museum Security Network about Batzel's art. The network consisted of a website and an email newsletter about stolen art. It had about one thousand readers, mainly those in the art and museum world, as well as law enforcement officials and journalists. It was run by Ton Cremers, who was the director of security at the Rijksmuseum in Amsterdam. Cremers received the following email:

From: Bob Smith [e-mail address omitted]
To: securma@museum-security.org
Subject: Stolen Art

Hi there,

I am a building contractor in Asheville, North Carolina, USA. A month ago, I did a remodeling job for a woman, Ellen L. Batzel who bragged to me about being the granddaughter of "one of Adolph Hider's right-hand men." At the rime, I was concentrating on performing my tasks, but upon reflection, I believe she said she was the descendant of Heinrich Himmler.

Ellen Batzel has hundreds of older European paintings on her walls, all with heavy carved wooden frames. She told me she inherited them.

I believe these paintings were looted during WWII and are the rightful legacy of the Jewish people. Her address is [omitted].

I also believe that the descendants of criminals should not be persecuted for the crimes of the fathers, nor should they benefit. I do nor know who to contact about this, so I start with your organization. Please contact me via email [ ... ] if you would like to discuss this matter.

Bob.


As the sole manager of the Museum Security Network, Cremers determined which of the emails he received would be forwarded to the group. He decided to send the email along to the group, and he added a message along with the email noting that "the FBI has been informed of the contents of [Smith's] original message."

Some of Cremers's readers were upset that he had forwarded Smith's email. One wrote to him:

Mr. Smith is completely out of line for suggesting that some woman with old paintings in her home has amassed a collection of paintings from Nazi war booty. His claims, evidence and assumptions were ridiculous and he was very disrespectful of this woman's privacy in offering this woman's address .... I think it was wrong for you to take this man's story seriously. Please respond.


Cremers replied that he considered Smith's message dubious, but he defended his decision to forward it. "What is worse," Cremers asked, "forwarding messages with strange contents or censor[ing] messages?"

A few months later, Batzel discovered the message. She was appalled. She wasn't descended from Nazis and had acquired her art from legitimate dealers. As a result of Cremers's posting Smith's email, Batzel lost some clients and had to defend herself against a campaign to get her disbarred.

Batzel sued Cremers for defamation. The court, however, dismissed the case against Cremers based on Section 230 immunity. Since Cremers did not write the email himself, he was just the conduit for it so long as he "reasonably believed" it was provided to him for posting on the Network. [108]

If this case hadn't involved the Internet, Cremers would have a much tougher defense. He would no longer be immune under Section 230. He could be liable for spreading the defamatory statement to others. But because he forwarded it over the Internet, he was immune.

The court's interpretation of Section 230 was quite broad. Smith wasn't merely posting a comment to a website or an online discussion group. Instead, he was emailing a tip to Cremers, who decided what was posted and what wasn't. By forwarding the email, Cremers became the speaker, much as he would have been had he heard a rumor and written about it to the group himself.

Judge Gould issued a powerful dissent in the case: "The majority rule licenses professional rumor-mongers and gossip-hounds to spread false and hurtful information with impunity. So long as the defamatory information was written by a person who wanted the information to be spread on the Internet (in other words, a person with an axe to grind), the rumormonger's injurious conduct is beyond legal redress." Judge Gould wrote that Section 230 was not intended to be stretched to immunize people for their "decisions to spread particular communications" and "cause trickles of defamation to swell into rivers of harm." Gould continued: "Congress wanted to ensure that excessive government regulation did not slow America's expansion into the exciting new frontier of the Internet. But Congress did not want this new frontier to be like the Old West: a lawless zone governed by retribution and mob justice." [109]

What Should the Law Do?

Although existing law lacks nimble ways to resolve disputes about speech and privacy on the Internet, completely immunizing operators of websites works as a sledgehammer. It creates the wrong incentive, providing a broad immunity that can foster irresponsibility. Bloggers should have some responsibilities to others, and Section 230 is telling them that they do not. There are certainly problems with existing tort law. Lawsuits are costly to litigate, and being sued can saddle a blogger with massive expenses. Bloggers often don't have deep pockets, and therefore it might be difficult for plaintiffs to find lawyers willing to take their cases. Lawsuits can take years to resolve. People seeking to protect their privacy must risk further publicity in bringing suit.

These are certainly serious problems, but the solution shouldn't be to insulate bloggers from the law. Unfortunately, courts are interpreting Section 230 so broadly as to provide too much immunity, eliminating the incentive to foster a balance between speech and privacy. The way courts are using Section 230 exalts free speech to the detriment of privacy and reputation. As a result, a host of websites have arisen that encourage others to post gossip and rumors as well as to engage in online shaming. These websites thrive under Section 230's broad immunity.

The solution is to create a system for ensuring that people speak responsibly without the law's cumbersome costs. The task of devising such a solution is a difficult one, but giving up on the law is not the answer. Blogging has given amateurs an unprecedented amount of media power, and although we should encourage blogging, we shouldn't scuttle our privacy and defamation laws in the process.

FREEDOM ON BOTH SIDES OF THE SCALE

Words can wound. They can destroy a person's reputation, and in the process distort that person's very identity. Nevertheless, we staunchly protect expression even when it can cause great damage because free speech is essential to our autonomy and to a democratic society. But protecting privacy and reputation is also necessary for autonomy and democracy. There is no easy solution to how to balance free speech with privacy and reputation. This balance isn't like the typical balance of civil liberties against the need for order and social control. Instead, it is a balance with liberty on both sides of the scale -- freedom to speak and express oneself pitted against freedom to ensure that our reputations aren't destroyed or our privacy isn't invaded.

As I have tried to demonstrate in this chapter, a delicate balance can be reached, but it is not an easy feat. In many instances, free speech and privacy can both be preserved by shielding the identities of private individuals involved in particular stories. With the Internet, a key issue for the law is who should be responsible for harmful speech when it appears on a website or blog. Much speech online can be posted by anybody who wants to comment to a blog post or speak in an online discussion forum. Commentators can cloak themselves in anonymity and readily spread information on popular blogs and websites. The law currently takes a broadly pro-free speech stance on online expression. As a result, it fails to create any incentive for operators of websites to exercise responsibility with regard to the comments of visitors. Balancing free speech with privacy and reputation is a complicated and delicate task. Too much weight on either side of the scale will have detrimental consequences. The law still has a distance to go toward establishing a good balance.
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Re: The Future of Reputation: Gossip, Rumor, and Privacy on

Postby admin » Sat Oct 12, 2013 5:43 am

PART 1 OF 2

Chapter 7: Privacy in an Overexposed World

In our overexposed world, is anything private anymore? Currently, the law recognizes as private only information that is completely secret. Information exposed to others is public. Privacy, however, is far more complicated, as it involves a cluster of nuanced expectations of accessibility, confidentiality, and control. If we are to protect privacy today, we need to rethink our understandings of privacy. This chapter is about how to do so.

PRIVACY IN PUBLIC

The Burning Man Festival is held each year in the barrens of the Nevada desert. Tens of thousands of people converge on a vast dusty area far away from the urban world to engage in a spiritual celebration of "radical self-expression." People dance, frolic, parade, act out skits, paint their bodies, sing, and create art. There is a lot of nudity. The festival is named for its concluding ritual, in which a forty-foot effigy of a man is set on fire. The Burning Man Festival has been an annual event since 1986. At first it drew fewer than two dozen people, but it has now grown to more than twenty-five thousand. [1]

In 2002 a website called Voyeur Video began to sell a dozen videos of nude participants at the festival. The videos, priced at $29.95, were peddled along with other classics such as Kinky Nude Beach Day and Springbreak Stripoffs. Voyeur Video fashioned itself not as a pornography company but as "a news company that reports on adult parties where people get naked and naughty." [2]

At the Burning Man festival, participants were allowed to make videos and take pictures, but only with the permission of festival organizers. Voyeur Video sought and was denied permission to videotape the event. [3] The company videotaped the festival anyway. The organizers sued. Among the many causes of actions were the Warren and Brandeis torts of appropriation and public disclosure. Video Voyeur backed down. It agreed to stop selling the videos and to turn them over to the Burning Man organizers.

The Burning Man case, although never fully litigated, raises several important questions about the nature of privacy. If a person is naked at a festival with twenty-five thousand others, how can that person claim privacy? Should the law recognize such claims?

The Law's Binary Understanding of Privacy

A husband and wife were engaged in a romantic embrace near an ice cream stand at a farmer's market. Their photo was snapped, and it appeared in the October 1947 issue of Harpers Bazaar in an article celebrating the splendor of love. The photo was also published in the May 1949 issue of Ladies' Home Journal. Although the photo depicted the couple in a moment of love, the couple wasn't in love with the fact that their intimacy was displayed in national magazines, and they felt humiliated and embarrassed. They sued the magazines for publicly disclosing private facts.

But the court threw out their case because the couple "had voluntarily exposed themselves to public gaze in a pose open to the view of any persons who might then be at or near their place of business." [4] According to the court, "There can be no privacy in that which is already public." The court reasoned that "the photograph did not disclose anything which until then had been private, but rather only extended knowledge of the particular incident to a somewhat larger public than had actually witnessed it at the time of occurrence."

One judge dissented in the case. He noted that "there is no news or educational value whatsoever in the photograph alone" and that a picture with models could readily have been used to illustrate the story. The judge went on to argue:

By plaintiffs doing what they did in view of a tiny fraction of the public, does not mean that they consented to observation by the millions of readers of the defendant's magazine. In effect, the majority holding means that anything anyone does outside of his own home is with consent to the publication thereof, because, under those circumstances he waives his right of privacy even though there is no news value in the event. If such were the case, the blameless exposure of a portion of the naked body of a man or woman in a public place as the result of inefficient buttons, hooks or other clothes-holding devices could be freely photographed and widely published with complete immunity.


The judge has a point. There is a difference between what is captured in the fading memories of only a few people and what is broadcast to a worldwide audience. The law, however, generally holds that once something is exposed to the public, it can no longer be private. Traditionally privacy is viewed in a binary way, dividing the world into two distinct realms, the public and the private. If a person is in a public place, she cannot expect privacy. If information is exposed to the public in any way, it isn't private. According to the Restatement of Torts, one of the most influential documents for courts applying the tort of public disclosure: "There is no liability when the defendant merely gives further publicity to information about the plaintiff which is already public. Thus there is no liability for giving publicity to facts about the plaintiff's life which are matters of public record." [5] As one court ruled, appearing in public "necessarily involves doffing the cloak of privacy which the law protects." [6]

In one case, a husband and wife were arrested in a bar and taken away in handcuffs. A television film crew filmed the arrest. It turned out that the arrest was based on mistaken identity. The couple called the television station and begged that the footage not be broadcast. No such luck. The footage was aired. The couple sued, but the court dismissed the case because the arrest was filmed in public and was "left open to the public eye." [7]

Thus, according to the prevailing view of the law, if you're in public, you're exposing what you're doing to others, and it can't be private. If you really want privacy, you must take refuge in your home.

The Challenge of New Technology

Image
The EarthCam website, displaying a feed from its live Times Square camera. Image courtesy of EarthCam, Inc.

Modern technology poses a severe challenge to the traditional binary understanding of privacy. Today data is gathered about us at every turn. Surveillance cameras are sprouting up everywhere. There are twenty-four-hour surveillance cameras in public linked to websites for anybody to view. Go to EarthCam and click on one of many major cities, such as Washington, D.C.,
Chicago, New York, or Seattle, among others. [8] In New York, for example, you can watch a camera that captures people walking down the sidewalk at 47th Street in Times Square.

Armed with cell phone cameras, everyday people can snap up images, becoming amateur paparazzi. Websites like Flickr allow people to post their photos and share them with the world. [9] Some people are posting a daily stream of photos, obsessively documenting every aspect of their lives. Beyond pictures, people are posting videos on the Internet for the world to watch. On YouTube, the leading video website, people around the globe are viewing more than one hundred million videos per day. On a daily basis, people add more than sixty-five thousand videos to YouTube. [10] Other variations of blogs are emerging, ones devoted primarily to pictures and video. A "moblog" is short for "mobile weblog." [11] Moblogs consist of postings based on what people capture in their mobile devices, such as cell phone cameras. Video blogs, or "vlogs" for short, consist of video feeds. According to one vlogger, everyone can "create media and have a distribution outlet for it that bypasses television and mainstream media." [12]

Today, privacy goes far beyond whether something is exposed to others. What matters most is the nature of the exposure and what is done with the information. There is a difference between casual observation and the more indelible recording of information and images. As the law professor Andrew McClurg points out, captured images have permanence, something fleeting memories lack. People can scrutinize a photo and notice details that they might not otherwise see when observing the scene as it unfolds. [13]

A second difference involves the degree of anonymity we expect in our everyday activities. As one prescient judge wrote, privacy can be "invaded through extensive or exhaustive monitoring and cataloguing of acts normally disconnected and anonymous." [14] We often engage in our daily activities in public expecting to be just a face in the crowd, another ant in the colony. We run into hundreds of strangers every day and don't expect them to know who we are or to care about what we do. We don't expect the clerk at the store to take an interest in what we buy. In other words, we're relatively anonymous in a large part of our lives in public. Identification dramatically alters the equation.

Suppose somebody followed you around in a drug store. The person assiduously scribbled down an inventory of what you bought. Or the person snapped a photo of the products you had in your basket as you were waiting at the checkout counter. Perhaps you wouldn't want the world to know you had bought hemorrhoid cream. Or perhaps you wouldn't be thrilled that others would know about your diarrhea problem or the kind of birth control you used. You bought all these things in public, and you exposed them to other people. Does this mean that you don't expect privacy in what you bought?

A third component of our expectations involves our understanding of context. Although we do things in public, we do them in a particular context before a particular set of people. As the information technology scholar Helen Nissenbaum points out, "it is crucial to know the context -- who is gathering the information, who is analyzing it, who is disseminating it and to whom, the nature of the information, the relationships among the various parties, and even larger institutional and social circumstances." [15] McClurg aptly notes that "a photograph permits dissemination of an image not just to a larger audience, but to different audiences than the subject intended." Moreover, "conduct which would be appropriate for one environment may be inappropriate or embarrassing in another." [16] We tell jokes to our friends we wouldn't tell to our grandmother. We realize that there are different social norms for different situations, and broadcasting matters beyond their original context takes away our ability to judge the situation appropriately.

Fourth, much of our daily lives occurs in realms that are neither purely public nor purely private. Instead, our activities often take place in the twilight between public and private. We used to speak on the phone at home or in closed phone booths, but with cell phones, we now carry out our conversations in a variety of public places. Suppose you're on a train and you have a cell phone conversation with a friend. The person sitting next to you secretly records your conversation and makes the recording available online. Despite the fact you exposed your conversation to people nearby, you didn't expect your conversation to be recorded and made available to the world.

Most of us have moments when we're in public where we would not want a photo taken of us, much less placed on the Internet. Most of us have times when we expose personal information to others but do not expect it to be shared more widely. We frequently have conversations in public that we don't expect to be overheard. When we chat in a restaurant, we don't expect others to be straining to eavesdrop on our discussion above the din of other dinner conversations. At most, we might expect one or two people to hear fragments of what we're saying, but we certainly don't expect to see a transcript of our conversation appear on the Internet.

Thus merely assessing whether information is exposed in public or to others can no longer be adequate to determining whether we should protect it as private. Unless we rethink the binary notion of privacy, new technologies will increasingly invade the enclaves of privacy we enjoy in public. Privacy is a complicated set of norms, expectations, and desires that goes far beyond the simplistic notion that if you're in public, you have no privacy.

Video Voyeurism

In some instances, the law is beginning to advance beyond the simplistic binary view of privacy. The rise of video voyeurism has pushed the law toward a greater recognition of different degrees of privacy. New technology has made video voyeurism easy. Anybody armed with a cell phone camera can quickly snap photos of others in the buff and post them online. In one incident, nude photos of a men's wrestling team at the University of Pennsylvania appeared on a website. One athlete said: "I pulled up the home page and I am looking at myself naked on the Internet. ... It is terrible because I have no control over it." [17]

Another practice is the taking of "upskirt" photos -- pictures taken up women's skirts. More than one hundred websites are devoted to providing upskirt photos or pictures of people showering or undressing. [18] To take these photos, all a person needs is a cell phone camera.

Several states have responded by passing laws with criminal penalties for video voyeurism. [19] Some initial attempts at creating these laws, however, failed because of the binary view of privacy. In one case, two men took upskirt photos of unsuspecting women in a mall. Both were convicted under a Washington video voyeurism statute. The Washington law defined the crime as taking photos "for the purpose of arousing or gratifying the sexual desire of any person" when the photo was taken "in a place where [the victim] would have a reasonable expectation of privacy." [20] The Washington Supreme Court, however, overturned the conviction because "although the Legislature may have intended to cover intrusions of privacy in public places, the plain language of the statute does not accomplish this goal." The court reasoned that "casual surveillance frequently occurs in public. Therefore, public places could not logically constitute locations where a person could reasonably expect to be safe from casual or hostile intrusion or surveillance." [21] The law was later amended to include both public and private places.

In 2004 Congress enacted the Video Voyeurism Prevention Act. [22] Congress criminalized video voyeurism, and it heeded the lesson from the Washington law, explicitly providing that the act would apply "regardless of whether [the victim] is in a public or private area." Unfortunately, Congress's act applies only on federal property, so you're safe from upskirt photos if you're walking in the Capitol Building or on other federal property. But if you're in the local mall, then you better hope that your state has a video voyeurism law, and if it does, that it has made clear that you can expect some level of privacy in public. The example of video voyeurism demonstrates that privacy expectations do not turn solely on place.

Many places aren't purely private or purely public. Suppose you're in a gym locker room and somebody snaps a photo of you undressing and posts it online. Is the locker room a public or a private place? It isn't entirely private, since it is open to other people, and you're undressing in front of many others. But although you're not in seclusion, you can expect that others won't take photos of you. Restrooms, stores, bars, and other places are open to the public, but this doesn't eliminate your expectations of privacy in those places. Expectations of privacy turn on norms. You expect privacy in the gym locker room because the norms are clear that it is inappropriate for others to snap your photo in this context. And in the Nevada desert, the participants of Burning Man have established a set of norms about how others are to use photos.

So we're back to the Burning Man festival. The Burning Man case illustrates that a claim of privacy is not the same as a claim of absolute secrecy. The participants of Burning Man obviously didn't mind being seen nude by other participants. They didn't even mind having their photos taken by others. What they didn't want was their images being exploited by pornographers. All-or-nothing notions of privacy fail to grasp the central difference between fellow festival goers and commercial exploiters for porn. There's a mutual camaraderie among festival goers that isn't shared with the pornographers. The Burning Man participants thus had nuanced expectations of privacy -- about how their information would be used within a limited circle of people.

The Difficulties of Recognizing Privacy in Public

The law should begin to recognize some degree of privacy in public. But there are difficulties with doing so. Suppose you witness an interesting event on the subway and you want to capture it on your cell phone camera to post on your blog. If the people you were photographing on the subway had privacy rights in public, you might need their permission to post the photo. And if they are engaging in a social taboo, they might not be eager to give you permission. Should you be allowed to post the picture anyway?

The abstract hypothetical I suggest above can apply to a number of situations already discussed in this book -- the dog poop girl and the New York City subway flasher. One might ask incredulously: So the dog poop girl engages in a nasty transgression and the law will stop people from taking her picture and exposing her misbehavior? Should the law give the creep who flashes on the subway a right to sue a person who took a photo of him in the act? These are potential implications of a robust recognition of privacy in public. The law need not go this far, but is there a logical stopping point? I've discussed some of the problems with online shaming, so perhaps protecting the dog poop girl or the subway flasher has significant benefits in curtailing the abuse of shaming. One might argue that only people engaged in illegal activities or severe norm violations lack privacy, but who is to judge this? The average person with a cell phone camera? It is difficult to stop shaming unless we protect privacy in public. Doing so doesn't mean absolute protection, just a limit on certain kinds of uses and disclosures. People can still snap pictures and turn them over to the police. People should be deterred, however, from taking matters into their own hands by placing the photos online.

When the law begins to recognize privacy in public, the tricky question is: How much? Would streakers in Times Square still have the right to claim privacy if people posted their photos on the Internet? At some point, what is done in public is indeed public. There are no easy answers, and the resolution will depend upon the norms and expectations in each circumstance. The virtue of the binary view of privacy is clarity. It is an easy rule to apply. Yet the simplicity of this view is its downfall -- it seems far too outmoded given new technology. Therefore, although it will be difficult, it is better to develop and protect a more nuanced notion of privacy.

Accessibility of Information

In 2006 Facebook (a social network website consisting of millions of high school and college students) launched a feature called News Feed that instantly alerted users whenever their friends added information or photos to their profiles. Facebook users constantly update their profiles, adding new text and new images. They might update their roster of friends. The News Feed feature immediately notified all of a person's friends about each new change in that person's profile.

News Feed was met by an enormous outcry from users, who vociferously objected to the extensiveness of the exposure. According to one of the users, "Facebook is becoming the Big Brother of the Internet recording every single move." [23] "It's just so unnecessary," another user complained. "You don't have to know everything your friends do and the changes they make .... It's kind of creepy." [24] As one user expounded: "Before News Feed, yes, you could see the profile, and you could see the pictures, and you could see the comments, and you could see the relationship status, but the users felt that it was just for people who cared, and who wanted to know. But now, all of this information was thrown down the throats of everyone, and it was very strange." [25] Shortly after the change, a protest group called "Students Against Facebook News Feeds" emerged on Facebook. [26] People joined the group in droves. Within days, the number of protesters had swelled to more than seven hundred thousand. [27]

Facebook quickly responded. Mark Zuckerberg, the creator of Facebook, wrote an open letter to Facebook users: "We really messed this one up. When we launched News Feed and Mini-Feed we were trying to provide you with a stream of information about your social world. Instead, we did a bad job of explaining what the news features were and an even worse job of giving you control of them. I'd like to try to correct those errors now." [28]

The Facebook privacy debacle is especially interesting because it had nothing to do with the exposure of new information. No new secrets about Facebook users were being revealed. The information that the users complained about was already available on their profiles -- posted voluntarily by themselves. Instead, all the new system did was alert users to that new information. In other words, the Facebook system was merely making existing information more accessible. Perhaps this explains why Facebook officials were so surprised by the backlash. After all, Facebook users are not a bunch who seem very concerned about their privacy. Why, then, was there such a vehement reaction?

The Facebook change brought users an increased awareness of the privacy dangers of the Internet. Although Facebook users might think it is too quaint to expect all of their secrets to remain in the bag, this doesn't mean that they don't care about privacy. They just see privacy differently. What many of the Facebook users objected to was the increased accessibility of their personal data -- the fact that others would be alerted to every new update to their profiles immediately. Privacy can be violated not just by revealing previously concealed secrets, but by increasing the accessibility to information already available. The desire for privacy is thus much more granular than the current binary model recognizes. Privacy involves degrees, not absolutes. It involves establishing control over personal information, not merely keeping it completely secret. As the computer security expert Bruce Schneier argues: "People are willing to share all sorts of information as long as they are in control. When Facebook unilaterally changed the rules about how personal information was revealed, it reminded people that they weren't in control." [29]

For example, suppose you had a spat with a friend and wanted to eliminate that person from your circle of friends on Facebook. You might not want this change to be announced prominently to all your other friends. You might want the change to be made quietly, where it might be noticed by a few friends, or by no one besides you and the former friend. In other words, you might want some changes to fly under the radar. The binary view of privacy doesn't recognize the wide swath of middle ground between the realms of absolutely public and absolutely private. Increasingly, however, our lives occupy this middle ground. That's why I believe we must abandon the binary view of privacy and develop a more nuanced view.

CONFIDENTIALITY

Aleksey was an ambitious twenty-three-year-old student at Yale University. Desiring to be an investment banker, he applied to UBS, a global financial company. His application, however, was rather unusual. First of all, his resume was rather long -- eleven pages in all. Even more peculiarly, he sent along a seven-minute video of himself entitled "Impossible Is Nothing."

The video begins with Aleksey being interviewed as if he were a famous individual. The interviewer calls Aleksey a "model of personal development and inspiration to many around you," then asks, "How do some people like yourself become very proficient in their fields faster than most?" "Well, thank you," Aleksey replies. "I guess the first thing people need to understand is that success is a mental transformation; it is not an external event."

Throughout the video, with an aloof and serious tone, Aleksey pontificates about his philosophy of success. "Ignore the losers," Aleksey says, "bring your A-game, your determination and your drive to the field, and success will follow you." In other pearls of advice, Aleksey declares that "failure cannot be considered an option," and that "luck doesn't jump into anyone's lap."

The video frequently cuts to scenes demonstrating Aleksey's athletic prowess. He performs a series of rather unusual skills for an investment banker position. Aleksey lifts massive dumbbells, bench presses 495 pounds, serves a 140-mph tennis ball, does an acrobatic ski jump, and concludes by breaking a stack of bricks with a karate chop.

"If you're going to work, work," Aleksey declares. "If you're going to train, train. If you're going to dance, then dance, but do it with passion." The video then cuts to Aleksey dancing with a scantily clad woman to Chayanne's "Solamente Tu Amor." The video concludes with Hans Zimmer's "The Way of the Sword" playing over end credits.

Needless to say, Aleksey wasn't hired by UBS. But his video was forwarded around Wall Street, and it soon wound up on YouTube. In a short time, hundreds of thousands of people had downloaded it. Aleksey sent requests to websites to take the video down, but in vain. [30] Aleksey had become an Internet sensation. One media website in the United Kingdom declared Aleksey's video the "greatest CV ever filmed." [31] The mainstream media pounced on the story. The New York Post called his video a "six-minute ego-mercial." [32] An article in the New York Times declared that Aleksey "may be the most famous investment-banking job applicant in recent memory." [33] Throughout the blogosphere, people accused Aleksey of being a pathological liar, of faking the feats in the video, and of plagiarizing in a book he had self-published. At DealBook, a blog sponsored by the New York Times, [34] commentators to a post by journalist Andrew Sorkin declared:

That kid should be snipped of his degree. It seems reasonably clear that he has lived a life of lies.

Another victim of a self-absorbed, dishonest and Idol-worshipping American culture.


What an insufferable, self-absorbed, arrogant and self-aggrandizing jerk. In other words, a perfect fit for Wall Street.
Aleksey appeared on television media shows to respond to his worldwide mockery. On MSNBC, Aleksey stated in an interview that he was shocked to see his video and resume spread across the Internet. His resume contained his phone number and email address, and he was receiving harassing cell phone calls and thousands of nasty emails. [35] At Harvard students threw an Aleksey theme party, with people dressing up in karate uniforms and dancing attire. [36] The blog Gawker anointed Aleksey with the tide of "pioneer Douchebag." [37] In an interview on ABC's 20/20, Aleksey stated that he thought he had no chance now for a career on Wall Street. "So far," he said, "it's been like going through hell." [38]

Did Aleksey get what he deserved? Perhaps such a pompous person should be put in his place. But at what cost? On Sorkin's DealBook post, other commentators questioned whether it was appropriate for Aleksey's resume and video to be leaked on the Internet:

I am deeply disturbed [that] a resume sent in confidence to a highly respected firm had been made public and that confidence [was] broken. Should we all worry about where [our resumes] end up once sent to the firm of our choice?

Although the kid is obviously a ridiculous egomaniac and not a particularly good liar, the real guilty party here is UBS.

This fellow is being subjected (in Clarence Thomas' immortal words) to a "hightech lynching." Whether or not he embellished or misrepresented anything in his job app or his resume or anything else in his life, it's beyond the pale to have the entire snarky Internet ... pile on him in public.


In all fairness to UBS, the precise story of how the video and resume got leaked is unclear. UBS issued a statement about the matter: "As a firm, UBS obviously respects the privacy of applicants' correspondence and does not circulate job applications and resumes to the public. To the extent that any policy was breached, it will be dealt with appropriately." [39]

Assuming Aleksey's application was leaked by somebody at UBS, is the application really private? One could argue that Aleksey's application was no longer private after he sent it to UBS. However, there is a significant difference between a few employees at UBS having a chuckle over Aleksey's application and the entire world making Aleksey the butt of their jokes. Although the video wasn't completely secret since Aleksey exposed it to some people at UBS, the general public wasn't Aleksey's intended audience. Should the law respect Aleksey's desire to expose his personal information selectively? Or since he revealed his information to others, can he continue to claim that it is private?
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Re: The Future of Reputation: Gossip, Rumor, and Privacy on

Postby admin » Sat Oct 12, 2013 5:44 am

PART 2 OF 2 (CH. 7 CONT'D.)

Should We Assume the Risk of Betrayal?

Suppose your spurned ex-lover decides to post the intimate details of your relationship online. Or imagine that a trusted friend reveals your deepest secrets on her blog. This is increasingly happening online. Jessica Cutler's Washingtonienne blog is a prime example. The private information about people on the Internet often doesn't come from strangers but from friends, family members, coworkers, and others.

If you tell something to your doctor, you expect her to keep it confidential. It's an unwritten expectation, something that is rarely explicitly said but that is generally understood. Indeed, doctors are under ethical obligations to keep patient information confidential. People don't expect their doctor to be blogging about them on the sly.

Confidentiality differs substantially from secrecy. Secrecy involves hiding information, concealing it from others. Secrecy entails expectations that the skeletons in one's closet will remain shut away in the darkness. In contrast, confidentiality involves sharing one's secrets with select others. Confidentiality is an expectation within a relationship. When we tell others intimate information, we expect them to keep it confidential. Sharing personal data with others makes us vulnerable. We must trust others not to betray us by leaking our information.

The importance of confidentiality has been recognized since antiquity. Ethical rules have long existed for physicians to maintain the confidentiality of their patients' information. The Hippocratic Oath, circa 400 B.C., provides that doctors "will keep silence" about what their patients tell them. [40] Confidentiality is essential for certain communications to take place. Mark Twain explained most vividly why confidentiality is so important: "The frankest and freest and privatest product of the human mind and heart is a love letter; the writer gets his limitless freedom of statement and expression from his sense that no stranger is going to see what he is writing. Sometimes there is a breach-of-promise case by and by; and when he sees his letter in print it makes him cruelly uncomfortable and he perceives that he never would have unbosomed himself to that large and honest degree if he had known that he was writing for the public." [41]American law currently plays Jekyll and Hyde with regard to protecting confidentiality. Sometimes, the law strongly protects confidentiality. For example, the law provides potent protections for patient-physician confidentiality. As one court put it: "There can be no reticence, no reservation, no reluctance when patients discuss their problems with their doctors." [42] The law protects the confidentiality of people's discussions with their attorneys to "encourage full and frank communication." [43] The law also protects marital communications between spouses, a protection that dates as far back as ancient Jewish and Roman law. [44]

But in many cases, the law turns a blind eye to breaches of confidentiality, holding that we must assume the risk that we'll be betrayed. Most courts have not protected communications between parents and children. [45] As a result, parents and children can be forced to testify against each other in court. [46] In criticizing this doctrine, one court declared: "Forcing a mother and father to reveal their child's alleged misdeeds ... is shocking to our sense of decency, fairness, or propriety." [47]

The law often holds that if you share a secret with others, you assume the risk that they will betray you. [48] In one case from 1970, for example, General Motors began a campaign to dig up dirt on Ralph Nader, who had been criticizing the safety of GM's cars. Among other things, GM sent people to find out Nader's secrets by talking with his friends and acquaintances. GM also made harassing phone calls, wiretapped his telephone, and kept him under extensive surveillance when in public. Although the court held that some of GM's tactics were improper, it concluded that there was nothing wrong with trying to get Nader's friends to betray his secrets. If a person shares information with another, the court declared, "he would necessarily assume the risk that a friend or acquaintance in whom he had confided might breach the confidence." [49] Although the law protects spouses from having to testify against each other, it often does not provide a remedy when one spouse (or ex-spouse) writes a tell-all book about the other.

In contrast, the law in England strongly protects against betrayal of confidence. People can be liable for disclosing secrets that are entrusted to them in confidence. [50] In one English case, a man who had a homosexual affair with the actor Michael Barrymore told the details to a reporter for the paper The Sun. The court protected Barrymore: "When people enter into a personal relationship of this nature, they do not do so for the purpose of it subsequently being published in The Sun, or any other newspaper. The information about the relationship is for the relationship and not for a wider purpose." [51] According to the court: "The fact is that when people kiss and later one of them tells, that second person is almost certainly breaking a confidential arrangement." [52]

In another English case, the actors Michael Douglas and Catherine Zeta-Jones made an exclusive deal with OK! magazine to publish the photos of their wedding. Guests were told that they weren't allowed to take photos. But not to be outdone, Hello! magazine had a photographer masquerade as a guest and secretly snap pictures. The court ruled that Hello! had engaged in a breach of confidence. [53]

The United States has a breach-of-confidentiality tort, although it is much weaker than the tort in England. [54] In the United States, the number of relationships understood to be confidential is small. Beyond doctors, lawyers, clergy, and a few others, the information you tell others is often not legally protected. You might trust a best friend with your secrets, but your friend can betray you without breaking the law. Boyfriends, girlfriends, family members, colleagues, and others are under little obligation to keep your information private.

Beyond those you trust the most with your information, you also routinely put your trust in people you barely know. For example, you expect the store clerk not to broadcast your purchases to the world. Day in, day out, we depend upon people keeping our information confidential. And yet these people are generally not understood to have a legal duty to do so.

The companies you share information with are also frequently not understood to owe you a legal duty of confidentiality. Unless you live in a shack in the woods, a significant amount of your most intimate information is shared in some way with others. Your ISP knows what websites you are visiting. Your phone company knows whom you're calling. Your credit card company knows how you're spending your money. Although we trust these companies with our personal information, the law only sometimes imposes upon them an obligation to keep it confidential.

Why is the American breach-of-confidentiality tort so much weaker than the English version? One reason is that the breach-of-confidentiality tort became overshadowed by the other privacy torts. In their 1890 article that inspired the privacy torts, Warren and Brandeis were skeptical of the ability of confidentiality law to protect privacy. At the time, there was a rather robust law protecting confidential relationships. But Warren and Brandeis steered the law in a new direction. As we have seen, Warren and Brandeis had in mind the taking of candid photographs by strangers. In this situation, they noted, there was no confidential relationship. The law thus had to recognize a new protection of privacy, one that would provide remedies against strangers. Although Warren and Brandeis never explicitly rejected confidentiality, it was often overlooked by lawyers and judges who focused only on the other privacy torts instead.

The law should more expansively recognize duties of confidentiality. A large amount of the information about us that finds its way online isn't put there by strangers. It is spread by people's spurned lovers, their ex-spouses, their enemies, and in some cases, their friends. Perhaps we should recognize implicit promises of confidentiality when we share intimate information with others. You don't sign a confidentiality agreement with your doctor or lawyer before you start talking about your symptoms or your legal case. It's implied. We frequently expect confidentiality when we share intimate information. We place our trust in others to keep our secrets. So why not establish that when you tell somebody a secret, there's an implied promise that it's confidential? Although the tort of breach of confidentiality is not nearly as well developed as the tort in England, there is no reason why it can't evolve to provide stronger privacy protection.

Of course, there must be limits to how broadly the law should reach. People gossip all the time. As Benjamin Franklin once quipped, "Three may keep a secret if two are dead." [55] If the law became involved every time people gossiped, it would become far too entangled in our lives. Gossip is so frequent that we'd be constantly litigating. But the law should provide a remedy for gossip when it is spread widely or made permanent. As discussed earlier, Internet gossip is especially damaging. So the law can try to keep gossip off the Internet and confined to whispering tongues.

Social Network Theory

Not all information is confidential. Often the cat is already out of the bag. At that point, there are no obligations of confidentiality. But how do we know when the cat has escaped?

Rarely do we keep complete secrets. Indeed, when we tell someone a secret, we still call it a "secret" even though another person now knows it. Courts have a difficult time determining when a secret is no longer a secret. Suppose I tell it to one thousand people. Can I really claim it is a secret anymore? At some point, it's too late -- my secret becomes public information.

In one case, Jane Doe came back to her apartment and saw the corpse of her murdered roommate lying on the floor. She also caught a glimpse of her roommate's killer as he fled. [56] Since the killer was still at large -- and since Jane was an eyewitness, the police withheld her identity from the public. But somehow it got leaked to a journalist, who named her in a newspaper article about the murder. Jane sued under the public-disclosure tort. The newspaper argued that Jane's identity wasn't private because she told some of her neighbors, friends, and family members about witnessing the murder. Thus the secret was known to a few people. But the court wisely disagreed with the newspaper, concluding that Jane had not "rendered otherwise private information public by cooperating in the criminal investigation and seeking solace from friends and relatives."

In another case, a couple conceived using in vitro fertilization. Artificial means of conception were against the teachings of their religion, so the couple kept the information confidential from members of their congregation and local community. But employees at the hospital knew about their in vitro fertilization and so did other couples at the hospital undergoing similar procedures. On one occasion, a party was thrown for the in vitro couples. A television crew filmed the event, and despite the couple's best efforts to avoid being filmed, their images were nevertheless broadcast on television. The couple sued under the public-disclosure tort. The court held that the couple retained an expectation of privacy because "attending this limited gathering ... did not waive their right to keep their condition and the process of in vitro private, in respect to the general public." [57]

In another incident, an HIV-positive individual told nearly sixty other people about his condition. They included family, friends, doctors, and members of an HIV support group. At one point, the person agreed to appear on a television show, but only with his face obscured. Unfortunately, the obscuring process was botched, and the individual was identifiable. He sued. The television company argued that he lost any expectation of privacy by telling so many people. But the court concluded that the individual still expected privacy because the people he told weren't likely to spread the information since they "cared about him ... or because they also had AIDS." [58]

In all these cases, courts concluded that although people exposed their secrets to several others, they still could claim that the information was private. But many other courts have concluded otherwise. In one case a Colombian judge indicted Pablo Escobar, the infamous drug lord of Colombia. Escobar put a million dollar bounty on the judge's head. After receiving numerous death threats, she fled to Detroit. She told a few people there about her identity, but otherwise, she kept it quiet. The media, however, reported her story and revealed her address. She sued for public disclosure. The court threw out her case because she had exposed her identity "to the public eye." [59]

In another case, a woman told four coworkers about encounters with her child that had "sexual overtones." The court concluded that she no longer expected privacy in the information because she had shared it with four others in the office. [60]

How many people must know before the cat's out of the bag? Simply doing a head count of how many people know the information is the wrong approach. If something can remain private despite being known by four other people, why not five? Or ten? Or fifty? When is the exposure so great that we should say that the information is public and no longer private?

There is no magic number. Instead, as the law professor Lior Strahilevitz suggests, we should look to social networks. [61] As we have seen, people relate to each other in various groups or cliques. It is generally likely that our information will stay within the groups we associate with and not leave these boundaries. Instead of counting how many other people know certain information, we should focus on the social circles in which information travels. We all associate in various social circles. We have our groups of friends, the people where we work, our families. We share information within these groups. Rarely does gossip leap from one group to another. People in one social circle will often not know or care about a person in a completely different circle.

We're all separated by only a few links, but a degree of separation can be a chasm when it comes to the flow of gossip. As Strahilevitz notes, a "rural farmer in Omaha and a banker in Boston may be separated by only a few links, and yet they will live their entire lives oblivious to each other's existence." Suppose the farmer has a friend (Bob) who has a friend (Jane) who knows the banker. The farmer tells Bob about their mutual friend Jack's adulterous affair. Bob may tell Jane about it, but probably only if Jane knows Jack. Otherwise, why would Jane care? Strahilevitz observes that the information won't spread beyond the farmer's immediate social circle. Indeed, it probably won't even spread to the farmer's friends who don't know Jack, let alone friends of friends. Only if the information is "particularly sordid, humorous, or memorable" will it spread further. If it does spread, those who don't know Jack will care only about the salacious details, not about his identity. Thus as the story radiates beyond those who know Jack, his name is likely to be dropped.

Social network theory often focuses primarily on connections, but networks involve more than nodes and links. There are norms about information sharing that are held within certain groups, such as norms of confidentiality. My colleagues at the law school where I teach constitute a social circle. Gossip travels quickly throughout the faculty, in part because we all work in the same building and encounter each other throughout the year. But while we might not be very careful about keeping secrets about our colleagues from our fellow colleagues, we're less likely to share gossip with students. Our relationships with students are more formal than our relationships with other colleagues, so gossip is not to be a likely topic of conversation. Many faculty might be wary of embarrassing a colleague by spreading rumors among the students. So despite close proximity between professors and students, despite many links between nodes, information might not spread evenly throughout a network because of norms.

In other words, certain groups guard secrets more tightly. Other times, secrets will not leave the group simply because outsiders won't be interested. The adage "What happens in Vegas stays in Vegas" aptly describes the phenomenon. What is gossiped about in certain groups often stays within those groups.

As Strahilevitz argues, we should examine how information is likely to travel. Information should be considered private if it remains within a confined group -- even if that group is rather large. Once it has traversed too many social circles, then it is no longer private. But if the information is confined in a particular social circle, and a person takes it beyond these boundaries, that's when the law should assign liability -- to the person who crossed the boundary.

According to Strahilevitz, the case in which the person's HIV status was still private despite being known to sixty others was correctly decided because the circles in which the person spread the information would readily respect the privacy of HIV-positive individuals. This isn't the kind of information that people typically spread about others, especially those who also suffer from the disease. Given these facts, Strahilevitz contends that the information was not likely to spread beyond the particular circle.

Image
This diagram depicts three social groups in a network. The circle around the group in the center represents a boundary of information flow. Information circulating in the center group will rarely jump beyond that group even though some people in the group are linked to others in different groups.

Strahilevitz argues that the court was wrong, however, in the case involving the judge whose life was threatened by Pablo Escobar: "According to the court, [the woman] used her real name when shopping in stores or eating in restaurants, which waived an expectation of privacy in her identity. Under a network theory approach, these acts, combined with her notoriety in Colombia, would not have eliminated her reasonable expectation of privacy in her identity." The people she used her real name with were a few individuals she had "fleeting contact" with, such as people she encountered when shopping and at restaurants. These individuals were unlikely to care enough about who she was to spread news of her identity. Nor were they likely to "put two and two together" and realize that she was the woman with the bounty on her head. Her "general obscurity in Detroit properly engendered a reasonable expectation of privacy with respect to her shopping and visiting restaurants." [62]

Applying social network theory to the law of privacy doesn't require special expertise in sociology. We all have pretty good intuitions about how gossip travels. We readily understand that information can traverse quickly within certain groups but not spread beyond. It is this key intuition, one we know from experience and that is confirmed by social network theory, that privacy law needs to better understand and incorporate. When information is contained within a particular group and a person causes it to leap the boundary, then this is a privacy violation even if the original group is large. So a big group of people can know a secret, and it can still be deemed private because it is not expected to circulate beyond that group.

From Realspace to the Internet

Even if information is already circulating orally as gossip among a few people, putting it online should still be understood as a violation of privacy -- even if it is read only by people within one's social circle. In other words, a person might expose your secrets in her blog but defend herself by saying: "But only a few of my friends read my blog." The difficulty is that putting the information online increases dramatically the risk of exposure beyond one's social circle. Placing information on the Internet is not just an extension of water cooler gossip; it is a profoundly different kind of exposure, one that transforms gossip into a widespread and permanent stain on people's reputations.

There has been a long-standing recognition that written gossip can be more pernicious than oral gossip. In the late eighteenth century, for example, politicians frequently circulated gossip about each other. President Thomas Jefferson was a master at spreading gossip about his foes. Despite the crudeness of the practice, there was an "etiquette of gossip." [63] One of the primary rules was that gossip should never be put to pen, since letters and papers often found their way into the wrong hands, and even worse, could become exposed to the public. As the historian Joanne Freeman observes, written gossip was particularly dangerous because it could transform "one man's gossip into fodder for someone else's gossip." [64] Elites were careful about gossip; they understood its power and they tried to keep it in check as much as possible.

Today the line in the sand is the Internet. When gossip spreads to the Internet, it can spiral out of control. Even if it is posted on an obscure blog, information can still appear in a Google search under a person's name. Therefore the law should view the placing of information online as a violation of privacy -- even gossip that had previously been circulating orally in one particular social circle.

How Far Should Liability Be Extended?

Social network theory explains why placing gossip on the Internet changes it so dramatically. The Internet allows information to traverse boundaries more rapidly and spread much farther. But when should liability end? Suppose that Jack posts private details about Jill's love life on his blog. Jack's blog has a small readership. Marty, a blogger from a popular blog, with hundreds of thousands of readers, thinks that the story is interesting and posts excerpts of Jack's post. Who should be liable -- Jack, Marty, or both?

Only Jack should be liable for damages. He's the one who breached the gossip boundary and spread the information to the Internet. Once the information is on the Internet, however, it would be impractical and problematic to hold liable others beyond the person who initially placed it there. A line must be drawn at cyberspace; once information is out on the Internet, those subsequently discussing and disseminating it should not be liable. To conclude otherwise would seriously chill the freewheeling and lively discussion that rapidly erupts across the blogosphere.

While this rule has its difficulties, it is the most practical approach. How is Marty to know how many others have read Jack's blog? At some point, liability must stop. When information is on the Internet, many people may readily link to it, talk about it, copy it, repost it, and so on. Putting gossip on the Internet is like throwing meat to alligators. People snap it up in a frenzy. Without protection from liability, people would be severely chilled in their blogging. They would never know when the information they have found on the Internet is really safe to blog about. Therefore only the person who first posts the gossip should be liable for damages. Those repeating the information should not be liable for damages -- but they should be required to remove at least the last names of the harmed individuals if asked. If a reasonable request for suppression of personal information is denied, a victim should be able to seek legal recourse against bloggers and others who continue to broadcast identifiable information they find elsewhere on the Net.

The Danger of Too Much Confidentiality

One of the problems with confidentiality -- and with privacy more generally -- is that it impedes the spread of true information. If we protect confidentiality, we take away information that might be helpful in assessing people's reputations. In one example, a nurse was fired by a hospital for making serious errors. The nurse negotiated for the hospital to agree not to disclose any information about his performance on the job. The nurse then applied for a job at another hospital. That hospital sought a reference from the nurse's former place of employment. Despite promising confidentiality, the former hospital told the other one the reasons for firing the nurse. After a legal challenge, the court upheld the agreement as valid. [65] Was the former hospital in the wrong? Should it be liable for giving out an honest evaluation of the nurse's performance? After all, it served the public interest by accurately providing information about a bad nurse whose errors could harm or kill future patients. It provided correct information that was helpful in assessing the nurse's qualifications. Confidentiality would have allowed the nurse to escape from his past. Should the law permit the withholding of such important information?

This case reveals the cost of confidentiality -- sometimes the restriction of truth can cause harm to others. Hard cases exist, but most information on the Internet does not rise to this level. The law protects confidentiality even in some difficult cases because of the larger value of ensuring trust between people and encouraging candid conversations.

CONTROL

Dr. Laura Schlessinger hosted a popular national radio call-in show. She had conservative views, sternly espousing her moral judgments about sex, marriage, parenting, and abortion. She once declared that the best mothers are ones who stay at home, that being gay is a "biological error," and that women having sex outside marriage are "presenting themselves virtually as unpaid whores." [66] Dr. Laura, as she often has been called, published many books, including Ten Stupid Things Women Do to Mess Up Their Lives, The Proper Care and Feeding of Husbands, and How Could You Do That?! The Abdication of Character, Courage, and Conscience, among others.

In 1998 a website called Club Love posted about twelve photos of Schlessinger in the nude, taken about twenty-five years earlier when she was in her twenties. The website was run by Internet Entertainment Group, the same porn company that attempted to distribute a video of Pamela Anderson and Brett Michaels having sex. [67] The photos had been taken by Bill Ballance, who had introduced Schlessinger to radio back in 1974. Ballance had begun a brief affair with Schlessinger after she separated from her first husband, whom she later divorced. He kept the photos tucked away for years, then suddenly decided to sell them to Internet Entertainment Group.

One of the photos included a shot with Schlessinger in a spreadeagle pose. The website enabled people to click on any part of Schlessinger's anatomy and enlarge it for closer viewing. Internet Entertainment Group called the photos "The Dirty Dozen." [68] Soon after the photos were publicized, more than seventy other websites posted copies. [69]

Dr. Laura was distraught. She had strong words for Ballance: "I am mystified as to why, 23 years later, this 80-year-old man would do such a morally reprehensible thing." [70] She immediately sued and obtained a temporary restraining order against Internet Entertainment Group from posting the photos. But shortly afterward, the judge lifted the order on free-speech grounds. Before the case went any further, Dr. Laura dropped it.

Dr. Laura wasn't the only one upset. Internet Entertainment Group was also up in arms -- against the other websites that it claimed were copying its photos. Copyright in a photo is owned initially by the person who takes the photo, not by the person whose photo is taken. When Ballance sold the photos, Internet Entertainment Group acquired the copyright. Seth Warshavsky, the head of Internet Entertainment Group, said: "We shut those sites down. We own the copyright to those photos and we intend to protect that copyright. If anyone, including Dr. Laura herself, tries to print those pix, we will shut them down." [71] That's right -- Internet Entertainment Group's copyright even gives it the ability to control how Dr. Laura herself uses the photos.

While some might cheer this comeuppance of the harsh champion of family values, Internet Entertainment Group obtained the photos through Ballance's breach of confidentiality. It seems fairly clear that Schlessinger believed that the photos were to be kept by Ballance in confidence and not sold for profit. Copyright law gives Internet Entertainment Group a vigorous set of legal protections to control the use of the photos. The law gives Schlessinger much less control. Should the law be this way?

A System of Controlling Information

A problem with the binary view of privacy is that it is an all-or-nothing proposition. We often don't want absolute secrecy. Instead, we want to control how our information is used, to whom it is revealed, and how it is spread. We want to limit the flow of information, not stop it completely. Moreover, different people have different entitlements to know information about others. We might want to keep a person's HIV-positive status from her employer, but what about that person's spouse? Or people with whom the person had unprotected sex? In some cases, the law could say that some people should be entitled to know information but others shouldn't be.

But is control over information really feasible? If we expose information to others, isn't it too difficult for the law to allow us still to control it? Perhaps the law is reticent about granting control because of the practical difficulties. Information spreads rapidly, sometimes like a virus, and it is not easily contained. But in other contexts, the law has developed a robust system of controlling information. For example, copyright law recognizes strong rights of control even though information is public. The Copyright Act protects "original works of authorship fixed in any tangible medium of expression." [72] Copyright law protects a wide range of works: movies, books, music, software, art, and photographs, among other things. To obtain copyright protection, one need not lock one's work behind closed doors. I expose copyrighted material to the public all the time. You're reading this book, which is copyrighted. My exposing the book to you doesn't eliminate my protection. You can't do whatever you want to with my book, such as photocopy it cover to cover and start selling bootleg copies in the streets of New York. But you can do some things with it. You can copy it for your own use. You can lend the book to others. You can quote from it. The copyright system focuses on the use of information -- it allows certain uses and prohibits others. And it does so regardless of whether the information has been publicly exposed.

Moreover, copyright law provides protection even when a work can be readily copied. I don't have to take any steps to protect my work. Even if you can easily make copies and sell it, the law doesn't allow you to. In fact, the law even creates liability when others facilitate your violating my copyright protection. If you infringe upon my copyright, the law provides me with a powerful set of remedies. I can obtain a court order to forbid you from continuing to use my material improperly. I can sue for damages. Under certain circumstances you might also be subject to criminal penalties.

Copyright and privacy are both ways of controlling information. As the law professor Jonathan Zittrain notes, "there is a profound relationship between those who wish to protect intellectual property and those who wish to protect privacy." [73] The legal scholar Lawrence Lessig observes, "Just as the individual concerned about privacy wants to control who gets access to what and when, the copyright holder wants to control who gets access to what and when." [74] In privacy discussions, however, there seems to be a much lesser recognition of control. Control in the privacy context is seen as outlandish or impossible. Copyright law demonstrates otherwise. It reveals that the law is willing and able to control information.

Of course, copyright law isn't always effective at keeping information under control. People routinely violate copyright law, and as Zittrain notes, it is hard to control intellectual property when it can be so readily copied and transferred. [75] Despite these limitations, however, copyright law still has significant effects on the way information is disseminated and used.

I invoke copyright law not as a means to regulate privacy but merely to demonstrate that the law can and does afford a vigorous system of control over information. With regard to privacy, the law needs better ways to allow people to exercise control over their personal data. I have discussed a few dimensions of such control already -- a greater recognition of privacy in public and of duties to keep people's information confidential. The key question, of course, is how much control. Too much control over personal information can be just as bad as too little.

Copyright law's balance of freedom and control has been the subject of considerable debate and controversy. Several scholars, including Lessig, have criticized copyright law for providing too much control. [76] Copyright protections, for example, can impede me from creating works that use parts of others' works. For example, I might want to create my own Star Wars books and movies, using the characters George Lucas created, such as Darth Vader and Luke Skywalker. Copyright law bars me from doing this without Lucas's permission. Copyright's protections are so strong that even the First Amendment right to freedom of expression yields before them. [77] Copyright law's zealous protection of control over information can stifle creativity and free speech. In the context of privacy protection, the law need not foster the same level of control that copyright law affords. The key point is that the law is capable of providing a system for controlling information -- even when information is not concealed from public view.

Refurbishing the Appropriation Tort

The closest privacy law comes to copyright is the appropriation tort. This tort, as described earlier, prevents the use of someone else's name or likeness for financial benefit. [78] Unfortunately, the tort has developed in a way that is often ineffective in protecting against the privacy threats we are facing today. Although the original rationale of the tort was to protect a person's privacy, the tort has in many cases been transformed into a kind of property right. Many of the successful cases involve celebrities whose identities have been used to endorse particular products without their consent. According to Jonathan Kahn, the "early association of appropriation claims with such intangible, non-commensurable attributes of the self as dignity and the integrity of one's persona seems to have been lost, or at least misplaced, as property-based conceptions of the legal status of identity have come to the fore." [79] An early 1905 case -- the first state court to recognize the tort -- explained the tort as protecting a person's freedom: "The body of a person cannot be put on exhibition at any time or at any place without his consent. The right of one to exhibit himself to the public at all proper times, in all proper places, and in a proper manner is embraced within the right of personal liberty. The right to withdraw from the public gaze at such times as a person may see fit, when his presence in public is not demanded by any rule of law, is also embraced within the right of personal liberty." [80] The court declared that the use of a person's identity against his will was akin to seizing his liberty, making him temporarily "under the control of another," with the effect "that he is no longer free, and that he is in reality a slave." [81]

But this meaning of the tort gradually became lost over the years. By 1960 the renowned torts scholar William Prosser explained that the injury redressed by the appropriation tort was "not so much a mental one as a proprietary one." [82] Thus appropriation used to focus primarily on protecting people's dignity, but now it centers around the profit-value of one's identity. We want to control information, however, not just to profit from it.

The appropriation tort is often limited to instances in which a person's identity is exploited for commercial gain. The tort doesn't apply when people's names or likenesses are used in news, art, literature, and so on. As one court noted, the tort doesn't apply to "factual, educational and historical data, or even entertainment and amusement concerning interesting phases of human activity." [83] The appropriation tort thus protects against my using your name or picture to advertise my products, but it allows me to use your name and picture when writing about you. I can write your unauthorized biography, for example, and you will not be able to sue me for appropriation. [84] I can use your picture in a news story about you. This limitation is a fairly big one. The appropriation tort would rarely apply to the discussion on the Internet of people's private lives or the posting of their photos.

The appropriation tort might be expanded to encompass a broader set of problematic uses of information about a person, but such an expansion would have to address some difficult issues. How much control do we want to give people over their images? An approach consistent with the newsworthiness test of the public disclosure tort would counsel that the appropriation tort apply when people's photos are used in ways that are not of public concern.

IS PRIVACY LAW UP TO THE TASK?

In this chapter, I've proposed that American privacy law adopt more nuanced understandings of privacy. Privacy law should recognize privacy in public, and it should better protect confidentiality. More generally, the law should allow individuals to exercise greater control over their personal information, even after it has been exposed to the public or to other people.

But are my recommendations too radical for our law? After all, law develops rather conservatively. It wears a bow tie, and it doesn't like change. Nevertheless, little by little, the law does evolve. The concepts discussed in this chapter -- privacy in public, confidentiality, and control -- are already present in American law, as well as in the law of many other countries. The law is beginning to recognize privacy in public places. A tort for breach of confidentiality exists in many countries -- England, Australia, New Zealand, Canada, and others. [85] The tort exists in America, too, but it has not yet blossomed to its fullest potential. And the law recognizes the concept of control over information rather robustly in other contexts -- perhaps too much in the copyright context. Thus there is plenty of legal precedent for privacy law to recognize more nuanced understandings of privacy. The seed certainly exists; the question is whether we'll let privacy law grow to respond to the new challenges we face.
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Re: The Future of Reputation: Gossip, Rumor, and Privacy on

Postby admin » Mon Oct 21, 2013 7:52 pm

Chapter 8: Conclusion: The Future of Reputation

What will the future hold for our reputation? I have explored in this book the ways our reputations are shaped by the exposure of personal information. We love to talk about each other, and the information we circulate has profound consequences for how people are judged. In many instances, revealing another's personal information can be beneficial to society. It enables communities to enforce norms. It educates us about the lives of others. It allows us to better assess others' reputations. But it also can be problematic. Gossip can unfairly stain a person's reputation; it often exists as a bundle of half-truths and incomplete tales. False rumors can wreak havoc on reputations. And shaming can spin out of control. We cling to only a limited degree of control over our reputation, but this control can make a world of difference. By concealing information about our private lives and our violations of social taboos, and by preventing damaging falsehoods about us from circulating, we can make ourselves less vulnerable to misunderstanding, misjudgment, or unfair condemnation.

The problems escalate when anybody can spread information far and wide over the Internet. Whispering voices and babbling tongues become permanent records readily found in an online search. Increasingly, people are gossiping and shaming others online, as well as exposing their own tawdry secrets. And increasingly, people are googling one another, including employers who are using the information they find online for hiring decisions.

We are witnessing a clash between privacy and free speech, a conflict between two important values that are essential for our autonomy, self-development, freedom, and democracy. We must do something to address the problem, but if we err too much in one direction or the other, the situation could become much worse. In this book, I have attempted to provide a framework for how we can rework the law to make it a useful instrument in balancing privacy and free speech. I have suggested delicate compromises that involve making some modest sacrifices on both sides.

WHAT THE LAW CAN DO, AND WHAT IT CAN'T

Throughout history, most societies have devised ways for people to protect their reputations from gossip and rumor. We have progressed from brawls to duels to law. In the nineteenth century, in response to new technologies posing new threats to privacy, Samuel Warren and Louis Brandeis proposed a way that the law could help provide protection. Their approach, which allowed people to sue others for invading privacy, was a modest middle-ground approach, one that I argued we should continue to use today.

The alternatives are unworkable or unpalatable. A libertarian approach would leave the law out of it, but such an approach would do little to address the problem. And the threat to privacy by the increasing spread of personal information online is too significant to ignore. An authoritarian approach, which involves direct restrictions on Internet expression, would be too oppressive and stifling of free speech. Lawsuits are a middle-ground solution, one that is far from flawless, yet the best among a set of imperfect choices.

But improvements are needed in the existing law for this approach to work effectively. In the framework I have sketched in the previous few chapters, the law should encourage informal attempts at resolving privacy disputes. To do so, law must function as a credible threat yet lawsuits must be a last resort, a measure that provides redress only in egregious cases or when informal ways to resolve disputes don't exist or have failed.

We should expand the law's recognition of privacy so that it covers more situations. We must abandon the binary view of privacy, which is based on the archaic notion that if you're in public, you have no claim to privacy. Instead, we must recognize that privacy involves accessibility, confidentiality, and control. We often expose information to many others, but we nevertheless expect that it has only a certain level of accessibility. The law should also increase its recognition of duties of confidentiality. When we share information with friends, family, and even with strangers, an implicit expectation often exists that they will keep it to themselves. The law should protect and reinforce these expectations. More broadly, the law should afford people greater control over their personal information. Too often, the law clings to restrictive notions of privacy that render it impotent to address contemporary problems. For example, victims of privacy invasions must suffer further injury when pursuing legal redress when their names enter the public record; this undermines their right to pursue a remedy. People should be permitted to keep their names confidential in privacy cases. Updating and expanding the legal understandings of privacy will assuage the law's current handicaps in grappling with privacy issues.

Another part of the equation is reconciliation of the rights of free speech and of privacy. Free speech isn't absolute, and privacy can further the same goals as free speech. In many instances, we can protect both privacy and speech by allowing people to tell their stories anonymously. And a blogger who knows about a statement on his site that is defamatory or invasive of privacy should be obliged to take it down. Unfortunately, the law currently immunizes people for comments on their blogs, even when they know about the harmfulness of the information and ignore pleas to do anything about it.

Thus the law must expand in its recognition of privacy interests and reach a more careful balance between privacy and free speech, one that doesn't give free speech an undue advantage. With these changes, the law can serve to encourage people to be more aware of the consequences of their speech, and it can force people to work out disputes over defamation and invasion of privacy informally. Redefining the limits on the law's reach -- expanding the understanding of privacy, for example, and cutting back on overly broad immunities in the name of free speech -- is necessary for the law to achieve this goal.

Taking these steps, however, must be accompanied by limitations on some of the troubling costs that the law produces. Law involves many interlocking parts, and tinkering with one part can throw another part out of line. Since lawsuits can be costly and chilling of speech, we must counterbalance any expansion in the law's reach. Plaintiffs should first be required to pursue informal solutions with the spreaders of the information. A case should proceed to lawsuit only if the speaker doesn't take reasonable steps to address the harm or if the damage is irreparable. Perhaps parties should even be required to seek alternative dispute resolution before going to court. Mediation and arbitration might serve as cheaper ways to determine the merits of a person's complaint and what measures, if any, a speaker should take to rectify the situation.

My proposals for addressing the problem rectify it primarily through informal nonmonetary means. In many instances, people sue primarily for vindication and to stop the dissemination of the harmful information. Money damages are often not the primary goal. The virtue of the Internet, unlike print media, is that online content can readily be edited and names can be removed. As discussed before, in some cases, all it will take is for a person's name to be edited out of the story. [1] In other cases, the information will have spread too far for there to be a plausible way to clear it from the Internet. Where possible, the law can encourage people to work out their problems among themselves, which will often provide quick and inexpensive results. In some cases money damages might still be appropriate, but for quite a large number of situations, the pursuit of financial redress will be neither practical nor effective.

Other steps can be taken to improve the protection of privacy online. The creators of websites should be encouraged to build in mechanisms for dispute resolution and to establish meaningful ways for people to protect their privacy. For example, social network websites could require people to promise confidentiality as one of the terms of membership. The websites could have users agree to a basic set of rules for respecting others' information. In other words, people should be given choices over how to control the dissemination of their personal information, and those reading people's profiles should be aware of (and bound to) those preferences. When people take efforts to keep information limited in one domain or network, the law should strive to protect those efforts.

Another promising development is the rise of services like ReputationDefender, a company that helps people find and remove harmful information about themselves online. According to the company's website:

We will find the unwelcome online content about you or your loved ones, even if it is buried in websites that are not easily examined with standard online search engines. And if you tell us to do so, we will work around the clock to get that unwelcome content removed or corrected. [2]


Such services can help make informal ways of resolving the problem more effective and efficient.

On social network websites, people share information with a network of friends. Users can make their profiles available within certain networks (their school, their friends, and so on) but not generally available to all users. The law can protect a user's ability to keep information within her social network and prevent others from betraying confidence and revealing that information to others outside the network. For example, the law could bar a prospective employer from trying to gain access to an applicant's profile uninvited.

With the appropriate improvements, the law can help us make significant headway by encouraging the development of ways to resolve disputes over privacy, rumor mongering, and shaming online. We can reach a reasonable balance between privacy and free speech. The task is complicated, as it requires a combination of legal reforms and considerable fine-tuning of the law. But with the framework I'm proposing in this book, the law can play an effective role.

The Limits of Law

There is, of course, a limit to how much the law can do. The law is an instrument capable of subtle notes, but it is not quite a violin. Part of the solution depends upon how social norms develop with regard to privacy. The law's function is to lurk in the background, to ensure that people know that they must respect confidentiality or the privacy even of people in public. In the foreground, however, norms will largely determine how privacy shall be protected in the brave new online world. In a fascinating study, the law professor Robert Ellickson went to Shasta County, a rural area in California, to study the behavior of ranchers. He discovered that many disputes arose because of stray cattle, and that although there were laws to address the issue, the ranchers had adopted their own set of norms to deal with it. For example, Ellickson noted, "Ranchers who suffer trespasses [by wayward cattle] virtually never file claims against others' insurance companies. An adjuster for the company that insures most Shasta County ranchers stated that he could not recall, in his twenty years of adjusting, a single claim by a rancher for compensation for trespass damage." A rancher would often take care of another rancher's cows that strayed onto his land until his neighbor picked them up. During that time the rancher would feed and house the cow. Although the law permitted ranchers to recover the costs for taking care of the stray cow, the ranchers never did. The norm was that you should take care of your neighbor's cow if it strayed onto your land. According to Ellickson: "People may supplement, and indeed preempt, the state's rules with rules of their own." [3] The ranchers had a well-developed system of norms, and they didn't need to resort to the law.

What do ranchers and cattle disputes have to do with the Internet? Ellickson's study illustrates a more general insight about the law and norms. The law is a puny instrument compared with norms. As the law professor Tracey Meares observes, "Social norms are better and more effective constraints on behavior than law could ever be." [4] Although the law can't supplant norms, it can sometimes help to shape them. With the ranchers, the law was something they could have resorted to if they were unhappy with the norms. But the norms worked, and the law was rarely needed.

Blogosphere Norms vs. Mainstream Media Norms

Currently, bloggers are much less restrained than the mainstream media in what they write about. The mainstream media have established ethical guidelines (albeit loose ones) to protect people's privacy, but the norms of the blogosphere are still in their infancy. In the nineteenth century, the media routinely focused on the sex scandals of politicians, but reporters and editors became much more restrained during the first half of the twentieth century. [5] As the historian John Summers observes: "Partisan rivals and 'paul pry' journalists continued to gossip uncharitably about [President Grover] Cleveland, yet both averted their gaze from his successor, Benjamin Harrison, whose moral worthiness suffered no significant assaults. The aloof William McKinley also enjoyed a gossip-free administration. So, too, did William Howard Taft and Woodrow Wilson escape from the discomfort of entering public debate about their sexual peccadilloes." [6]

Ethical codes for journalists sprang up in the early twentieth century. These codes urged that gossip about the private lives of public figures should not get front page attention, that reputations should not "be torn down lightly," that attacks on a person's reputation should not be published before the person had the opportunity to be heard, and that "a newspaper should not invade private rights or feelings without sure warrant of public right as distinguished from public curiosity." [7] President John F. Kennedy benefited greatly from the media's reluctance to report on people's private lives, as the media avoided reporting on his many sexual infidelities. [8]

Today this norm has changed, as was emphatically demonstrated by the extensive reporting on President Clinton's affairs. Although the media readily plunder the private lives of politicians, they continue to exercise great restraint with politicians' children. President Clinton actively worked to keep his daughter, Chelsea, away from the media, and the media generally cooperated. [9] When Chelsea attended Stanford University, the editors of the Stanford Daily even resolved to fire any member of its staff who disclosed information about Chelsea to the public. [10] The press has also exercised restraint for President Bush's daughters, and when one daughter was arrested for underage drinking, the media was deeply divided about the extent of coverage to give to the story. [11] These norms exist in spite of great public interest in the children's lives.

Another long-standing media norm is extending anonymity to rape victims. For example, in August 2002, two teenage girls were kidnapped and raped. While they were captive, their names and photographs were widely broadcast to assist in the search. Once they were found alive, most of the media ceased displaying their names and photographs. [12] Although this norm is widely followed, there are occasional violators, a recent example being the radio commentator who disclosed the identity of National Basketball Association star Kobe Bryant's alleged sexual assault victim. [13]

Media self-restraint is difficult to achieve because the media are far from a monolithic entity. There are many different styles of journalism, and a vast number of media entities cater to different tastes. If the New York Times will not report it, the National Enquirer will. As a result, certain segments of the media -- such as tabloids -- may routinely run stories that a majority of the media does not consider newsworthy. The media also have a tendency to follow the crowd. If one media entity begins reporting on a story, others often quickly follow suit. [14]

But the mainstream media have developed at least some norms of restraint in order to protect privacy. While the norms need shaping and strengthening, they are at least partially developed. The blogosphere has less-well-developed norms, and it needs to establish a code of ethics. People should delete offensive comments quickly if asked. People should ask permission before speaking about others' private lives. Someone who speaks about another person's private life without her consent should take steps to conceal her identity. People should avoid posting pictures of other people without getting their consent. People should avoid Internet shaming.

These rules are easier stated in theory than developed or enforced in practice. The blogosphere is growing rapidly, with people entering the online media community daily. With so many different bloggers, and with so many new ones joining the ranks each day, the norms of the blogosphere are not stable. The law can help shape norms in the blogosphere, however, by threatening to become involved if such norms don't evolve.

One of the key contributions the law can make is to foster greater awareness of the difference between the offline and online spread of information. People are viewing the Internet as a mere extension of their offline world. Many people who enter the blogosphere are using it to gossip just as they do in realspace. The boundary between online and offline is blurring, but it is an important line to keep clear. Online, information is permanent and more easily spread. The law must make the boundary between online and offline more salient in people's minds.

Establishing norms, of course, is a difficult task, and the law can do only so much. The norms of those speaking online are quite varied, and the law is unlikely to create unanimity in attitudes and behavior. We must be realistic in our expectations about what the law can do. At best, the law will be able to provide modest guidance and direction. It can nudge norms in the right direction. But the law is far from a magic elixir.

THE SELF-EXPOSURE PROBLEM

Although gossip and rumors are spread without the targets' knowledge or consent, an increasingly large number of people are putting their own personal information online. I have argued that it is justified for the law to try to stop people from gossiping about others, but how ought the law to respond to people's gossip about themselves?

The great nineteenth-century philosopher John Stuart Mill articulated a key principle that still resonates today: "The only part of the conduct of any one for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute." [15] In other words, if your conduct hurts others, the law should regulate it to rectify or prevent the harm. But if your conduct affects only yourself, then the law should leave you alone.

Applied to the issues discussed in this book, the law should be most involved when people are violating the privacy of other people. But it should be less involved when people are merely self-disclosing personal information. The law becomes too authoritarian if it prevents people from voluntarily revealing their own personal information.

Mill's principle, of course, isn't perfect, as our actions are rarely entirely self-contained. When teenagers expose too much of their own personal information online, it can affect their friends and families. Children's public indiscretions can embarrass their parents and siblings, and parental public indiscretions can cause humiliation to children. But by and large, although no person is an island, the law should respect people's wishes to expose themselves online if they desire.

Should anything be done about the children and teenagers who are discussing their private lives on blogs and social network sites? Children and teens are not fully mature; they might not understand the long-term consequences of what they are doing. If the law can't stop them from exposing their lives online, then is there any way to address the problem?

Do People Want Privacy Anymore?

Perhaps there isn't a problem. What if a teen's decision to expose her intimate secrets on the Web isn't the product of lack of maturity but instead is a manifestation of generational differences?

In today's world of reality television, the law professor Anita Allen wonders whether people expect privacy anymore: "Our parents may appear on the television shows of Oprah Winfrey or Jerry Springer to discuss incest, homosexuality, miscegenation, adultery, transvestitism, and cruelty in the family. Our adopted children may go on television to be reunited with their birth parents. Our law students may compete with their peers for a spot on the MTV program The Real World, and a chance to live with television cameras for months on end and be viewed by mass audiences." [16]

Beyond television, people, especially high school and college students, are rushing to post a treasure trove of data about themselves online. Perhaps the emerging generation is just not that concerned about privacy. In a survey of the users of the social network site Facebook, almost 90 percent said that they had never read Facebook's privacy policy. [17] Nearly 60 percent of Facebook users said that they weren't very concerned about privacy, with a little more than 30 percent saying that they were somewhat concerned, and only 9.7 percent saying that they were very concerned. [18] One researcher even created an automatic script that asked hundreds of thousands of Facebook users to be added as a friend, thus allowing full access to their profile information. About 30 percent said yes. As the professors Ralph Gross and Alessandro Acquisti note, these 30 percent "are willing to make all of their profile information available to a random stranger and his network of friends." [19] Studies like these suggest that although people express some concern over privacy, it is not always reflected in their behavior.

A Nuanced View of Privacy

People's views about privacy, however, are much more complicated than the rather simplistic notions of privacy in existing law and policy. If we see people exhibiting themselves before the public without inhibition, our natural reaction is to think that they obviously don't want privacy. But the reality is more nuanced. Recall the Facebook incident discussed in the previous chapter. Facebook added the News Feed feature alerting people's friends about the up-to-the-minute changes made in their profiles. And users got quite upset over this change, viewing it as invasive of privacy.

I think that two lessons can be gleaned from the Facebook incident. First, Facebook users didn't want absolute secrecy for their information; they were concerned about the extensiveness of the exposure. They wanted a certain level of exposure and were angry when the News Feed feature upset their established balance. Second, the Facebook incident may also reflect the fact that many people just don't appreciate the extensiveness of their exposure online. Although they may understand that what they put online is widely exposed, they might not really grasp the consequences.

Part of the problem is that the Internet makes it hard to visualize the breadth of our exposure. Placing information on a website and writing blog posts and comments feels more akin to chatting with friends, writing a diary, or talking on the telephone than like broadcasting live on television, publishing a novel, or addressing a crowded auditorium. This difficulty is compounded by the often ambivalent desire we have for concealment and exposure. Some teenagers have contradictory ambitions for their posts. One teenager interviewed for a story in the New York Times Magazine explained that "he wanted his posts to be read, and feared that people would read them, and hoped that people would read them, and didn't care if people read them." [20] Although at first blush the teenager's statement doesn't make much sense, its self-contradictions actually capture the ambivalent attitudes of many bloggers. Writing blog posts is exciting in many ways. It can be cathartic. It can be fun to express oneself openly. People enjoy venturing their deepest secrets, hoping for a sense of acceptance or understanding or even just a bit of attention. One blogger wrote: "Maintaining a blog with no one visiting or commenting would be [as] sad as a clown doing a show with no one watching." [21]

Blogging can be like writing a diary, only with the hope that others might read it. By blogging, you're putting yourself out there, often unfiltered and unedited. And because you can't see or touch your audience, because you blog in the solitude of your room, in front of your computer late at night, it doesn't seem like exhibitionism. There's no bright spotlight. It's just you and your computer. Blogging has an uncanny way of encouraging you to doff your inhibitions. Most of the time you wonder: Is anybody listening? Often, the answer is no. People feel as though they're exposing themselves on a stage before an empty auditorium. But with the Internet, in an instant, the spotlights could come on and the auditorium could be overflowing with people. The Electronic Frontier Foundation, in a guide to blogging safely, notes: "If you blog, there are no guarantees you'll attract a readership of thousands. But at least a few readers will find your blog, and they may be the people you'd least want or expect. These include potential or current employers, coworkers, and professional colleagues; your neighbors; your spouse or partner; your family; and anyone else curious enough to type your name, email address or screen name into Google or Feedster and click a few links." [22] A top law school recently provided blogging advice to its students: "We urge you to take the long view and the adult view of what you write. THINK about the words you send out into the world, and imagine what they would make you look like when you -- and surely some of you will -- find yourself under review at a confirmation hearing for a professional position you dearly desire." [23]

Get Me an Editor ... or Not

One of the main differences between blogs and mainstream media publications is style. Blog posts are edgy, not polished and buffed into the typical prefabricated write-by-the-numbers stock that often gets produced by the mainstream media. Discourse on the Internet is pungent. In many respects, this is a virtue. Just as the key to robust free speech is battling attempts at censorship, the key to robust blogging is, I think, battling internal censors. I often fire off posts about whatever half-baked (even quarter-baked) idea happens to be buzzing in my head at a particular moment.

But blog posts are created with no editors and published with no time delays. There's little time to cool down before sounding off. Just click the Publish button and unleash it to the world ... then think about the consequences later. It goes without saying that this is a recipe for some problems. That nude picture a teenager puts up in a moment of indiscretion -- it can be forever present, forever regretted. One girl chronicled her mental breakdown on her blog, describing her self-mutilation, sexual experiences, and family turmoil. When she thought the better of it, she removed the posts from her blog. [24]

Another part of the problem is that blogs and social network websites are the "in" technology that children have integrated into their lives. They are a means of socialization and communication. Just as conversations migrated to the telephone and then to email and instant messaging, now they are migrating to social network websites. The problem is that these sites are not designed in ways to emphasize the potential harms to privacy and other consequences. Cyberspace is the new place to hang out, the perils of exposure notwithstanding. The pressure to fit in, to do what everybody else is doing, overrides concerns about privacy.

In the end, I believe that people still want privacy, but privacy in the digital age is much more complicated than its old-fashioned equivalent. Rarely can we completely conceal information about our lives, but that doesn't mean that we don't expect to limit its accessibility, ensure that it stays within a particular social circle, or exercise some degree of control over it. Moreover, although it would be too authoritarian for the law to stop people from expressing themselves online, there are things that can be done to provide them with more protection.

THE POWER OF ARCHITECTURE

The technological design of the websites has an enormous impact on people's privacy. Lawrence Lessig and Joel Reidenberg emphasize the importance of Internet "architecture" -- the code used to structure our choices on the Web. [25] Architecture can shape people's behavior. [26] Physical architecture, such as buildings, can affect the way we live and interact with our peers. Spaces can be designed to encourage people to be more open, to communicate with each other more frequently. Or spaces can be designed to encourage solitude. Like physical spaces, virtual spaces on the Internet are also designed environments. Social network websites are a structured form of interaction, created according to rules set up by those who create the site. The design choices social network websites make will have profound effects on the way their users interact with each other.

Changing the Defaults

One of the primary problems with social network websites is that they are designed to encourage people to expose a lot of information with very little thought about the consequences. The default privacy setting on MySpace, for example, is that anybody in the public can view one's profile.

Image
A section of the Myspace privacy settings. Under "Who Can View My Full Profile," the option selected by default is "Public."

Likewise, although Facebook allows users to restrict who can see their information, the default setting allows everybody to see it. [27] Unless a user changes the default settings, her profile will be accessible to millions of people. The default settings on many social network websites privilege openness over privacy. According to one study, although Facebook "provides users with a very granular and relatively sophisticated interface to control the searchability and visibility of their profiles," the users "tend to not change default settings." [28] In another study, two researchers concluded: "As a whole, users are familiar with the privacy features Facebook offers, and choose not to use them." [29]

Simply changing default settings might protect a lot of people. The settings or preferences screen on various websites may constitute one of the most important influences on the shape of privacy in the future. The law should not force companies to set specific defaults, but the companies should be encouraged to think about how the design of their websites affects privacy.

The Concept of "Friend"

As discussed earlier in this book, social network sites often have a very loose concept of "friend." The sites divide a person's social universe into "friends" and everybody else. Of course, a person's social network is far more complex, but it must be translated into the terms established by the social network websites. Because social network websites lack a more granular set of categories for social relationships, they encourage users to share information with others who otherwise would not be privy to it. Two scholars who study social network websites, Judith Donath and danah boyd, astutely observe: "By making all of one's connections visible to all the others, social network sites remove the privacy barriers that people keep between different aspects of their lives." To illustrate this phenomenon, they tell the story of a high school teacher who joined Friendster. To protect her privacy, she allowed her profile to be viewed only by "friends." But then one of her students found out she was on Friendster and asked to be added as a friend. This put her in an awkward position for several reasons. Her only choices were to acknowledge the student as a friend or to completely rebuff the student. No intermediate category existed for their relationship. Donath and boyd observe: "She had originally joined with some friends, many of whom had created 'crazy, fun' profiles, including suggestive testimonials, risque photographs, and references to wild times at the Burning Man festival. ... Although she could edit her own profile to be quite sedate, her friends' profiles were not. Accepting her student's friendship request would reveal her full network to her class, while saying 'no' felt rude and distancing."

We live complex lives, and we often inhabit many very different social circles. Donath and boyd note that "sometimes simply encountering people from different aspects of someone's life can be quite revealing. The discomfort can be felt both by the performer caught in two roles and the observer." [30] The difficulty with social network websites is that they view a person's relationships as one unified social network, when in fact people have a rather elaborate set of connections. Each connection involves different levels of exposure and different ways of sharing information. And while we may share information freely among one social circle, we may not want information to bleed between the different social circles we occupy simultaneously. But social network websites tear down these boundaries. They present a simplified picture of people's social network that eliminates the many nuanced barriers to information flow. To participate, people must often share information beyond the limits they would ordinarily establish in the real world.

The law shouldn't force websites to alter their design. This would be too authoritarian. But it is important for websites to consider the consequences that their architectural choices will have on the lives of millions of people.

Employer Responsibilities

Although there isn't a lot the law can do to address the self-exposure problem, the law can operate to help protect people in some limited contexts. Chris Hoofnagle, a researcher at Berkeley Law School, proposes the regulation of employers who would google prospective employees. [31] Under federal law, if an employer asks a credit-reporting agency to conduct a background check on a prospective employee, the employer has certain obligations to the applicant. For example, if information in the report dissuades the employer from making a job offer, he must reveal that to the applicant. [32] The purpose of this requirement is to allow the applicant a chance to explain. Perhaps the report was in error. Perhaps there's a reasonable explanation. With the use of search engines like Google, employers can conduct amateur background checks without any legal protections. There is no requirement that employers tell applicants that they were googled. What often happens is that an applicant is simply not called in for an interview, or if interviewed, is simply not invited back for further consideration. As we have seen, employers are increasingly using Google as well as searching social network websites to find out about applicants. But a lot of the information online isn't accurate. Another problem is that information about a different person with the same name can be mixed in. A requirement that employers who conduct online searches of applicants notify them about the search will at least give applicants a chance to be heard.

Of course, such a requirement could readily be violated. It would be difficult to prove that an employer had googled an applicant. But even if enforcement was problematic, many employers would probably respect a requirement to notify applicants. Moreover, such a rule would help establish a norm. And in such a difficult area to navigate, creating a norm would be a significant step forward.

Education

At the end of the day, if people want to expose themselves to the world, there's only so much that can be done to stop them. Self-disclosure is nevertheless a problem, as teenagers and college students are often revealing too much information and later regretting that they cannot take it back. Education is the most viable way to shape people's choices in this regard. For example, one study indicated that people have a lot of misunderstandings about who is able to search their Facebook profiles. Although most Facebook users are "aware of the true visibility of their profile ... a significant minority is vastly underestimating the reach and openness of their own profile." [33] We need to spend a lot more time educating people about the consequences of posting information online. In a survey conducted in 2006, "two thirds of parents had never talked with their teen about their MySpace use, and 38 percent of them had never seen their child's MySpace profile." [34] Teenagers and children need to be taught about privacy just like they are taught rules of etiquette and civility.

TO THE END OF THE INTERNET

A television commercial that I find immensely amusing opens with a guy surfing the Internet on his computer. He clicks the mouse, and all of a sudden, a computerized voice from his PC says: "You have reached the end of the Internet. You have seen all that there is to see." It's a commercial for high-speed broadband. The message is that the advertised broadband service is so fast that you can see the entire Internet.

Of course, the humor in this is that you can't exhaust the Internet. It's too big. Every day it grows by millions of new Web pages and blog posts. The Internet is akin to the endless library imagined by the writer Jorge Luis Borges. In his story "The Library of Babel," Borges wrote of a library with an "infinite number of hexagonal galleries." Initially, "when it was announced that the library contained all books, the first reaction was unbounded joy." But then people discovered the rub: finding the right book could take centuries, and many books were totally incomprehensible. [35] And so it is with the Internet. Unlike the hapless users of Borges's library, we Internet users have what has become known as "the search" -- the ability to use search engines like Google to help us find the information we're looking for. Google's great innovation has been not only to comb the Internet to bring back as many relevant pieces of information as possible but also to rank them in an order calculated to reflect their relative usefulness. [36]

But "the search" is just in its infancy. John Battelle, the author of a popular book on Internet searching, observes: "As every engineer in the search field loves to tell you, search is at best 5 percent solved -- we're not even in the double digits of its potential." [37] For example, a large part of the Internet has not been combed or cataloged by Google. The so-called invisible Web remains, which "comprises everything that is available via the Web, but has yet to be found by search engines." [38] Google searches the epidermis of the Web, but lots of content still remains undiscovered. [39] What will happen when the search improves?

The Internet is still quite young. In the first chapter of this book, I likened the Internet to a teenager, beginning to test out its new freedom and powers yet still in the early days of its development. The Internet is growing up rapidly, and no end is in sight. Nor is there any end to the issues in this book. Right now, the next great innovations are probably being created in somebody's dorm room or garage. After all, that's where Facebook and Google began.  [40] What's ahead will be amazing. It makes me giddy with excitement to think about it -- but also a bit frightened.

Will people be blogging and using social network websites a decade from now? Who knows? But people will almost certainly be spending a lot of time online. And it is a safe bet that people will be exposing details about their lives, as well as gossiping, shaming, and spreading rumors. The technologies may change, but human nature will remain the same.

Although the Internet poses new and difficult issues, they are variations on some timeless problems: the tension between privacy and free speech, the nature of privacy, the virtues and vices of gossip and shaming, the effect of new technologies on the spread of information, and the ways in which law, technology, and norms interact. New technologies do not just enhance freedom but also alter the matrix of freedom and control in new and challenging ways.

The questions are immensely complex, and there are no easy answers. Just when we think we're smoothing problems out, new technology adds another wrinkle. But we can take steps to protect privacy if we make an effort. We must. After all, it's just the beginning.  
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Re: The Future of Reputation: Gossip, Rumor, and Privacy on

Postby admin » Mon Oct 21, 2013 10:45 pm

PART 1 OF 2

Notes

CHAPTER 1. INTRODUCTION


1. Don Park, Korean Netizens Attack Dog-Shit-Girl, Don Park's Daily Habit, June 8, 2005, http:/ /www.docuverse.com/blog/donpark/EntryViewPage.aspx?guid=e5e366f9-050f -4901-98d2-b4d26bedC3eI.

2. Jonathan Krim, Subway Fracas Escalates into Test of Internet's Power to Shame, Wash. Post, July 7, 2005, at DI.

3. Park, KoreanNetizens Attack, supra.

4. As of May 2006, the newspaper with the largest circulation in the United States is USA Today, with a circulation of 2,272,815. Other circulation figures: New York Times, 1,142,464; Chicago Tribune, 579,079; Boston Globe, 397,288. See Katharine Q. Steele, U.S. Newspaper Circulation Fell 2.5% in Latest Period, N.Y. Times, May 9, 2006. These are among the largest newspapers. Most have considerably smaller circulations. About half of the top hundred newspapers have circulations under 200,000, and papers close to the bottom of the top hundred list have circulations not much above 100,000. For a useful chart of newspaper circulation figures, see NYU School of Journalism, The State of Blogging at America's 100 Largest Newspapers, March I, 2006, http:/ /journalism.nyu.edu/pubzone/blueplate/issuel/ top100.html.

5. LAWRENCE LESSIG,CODE AND OTHER LAWS OF CYBERSPACE 58 (1999).

6. Steve Johnson, Dog Poop Girl Gets Online Whiplashing, DoggieNews.com, July 11, 2005, http://www.doggienews.com/2005/07/dog-p ... ashing.htm .

7. http://www.blogdogs.com/.

8. http://www.poopreport.com/.

9. Subway Turd Terrorist Gets Dubbed "Dog-Shit-Girl," PoopReport.com, June 30, 2005, http://www.poopreport.com/BM newswire/ 1353.html.

10. Cass R. Sunstein, Social Norms and Social Roles, 96 Colum. L. Rev. 903, 914 (1996).

11. See comments to Don Park, Korean Netizens Attack Dog-Shit-Girl, Don Park's Daily Habit, June 8, 2005, http://www.docuverse.com/blog/donpark/E ... wPage.aspx ?guid=e5e366f9-050f -4901 -98d 2-b4d 26bedeJeI.

12. Quoted in Jonathan Krim, Subway Fracas Escalates into Test of Internet's Power to Shame, Wash. Post, July 7, 2005, at DI.

13. Samantha Henig, The Tale of Dog Poop Girl Is Not So Funny After All, Columbia Journalism Review, July 7,2005, http://www.cjrdaily.org/archives/ooI660.asp.

14. JOHN BATTELLE, THE SEARCH 73-86 (2005). The technology behind Google was developed in 1996, but the company wasn't created until 1998.

15. Neil Swidey, A Nation of Voyeurs: How the Internet Search Engine Google Is Changing What we Can Find Out About Each Other and Raising Questions About Whether we Should, Boston Globe Magazine, Feb. 2, 2003, at 10.

CHAPTER 2. HOW THE FREE FLOW OF INFORMATION LIBERATES AND CONSTRAINS US

1. An early version of the printing press was invented in China in A.D. 600. See PAUL LEVINSON, THE SOFT EDGE: A NATURAL HISTORY OF THE FUTURE OF THE INFORMATION REVOLUTION 22 (1997). Gutenberg's invention sparked mass production of manuscripts in the West.

2. GINI GRAHAM SCOTT, MIND YOUR OWN BUSINESS: THE BATTLE FOR PERSONAL PRIVACY37- 38 (1995); ROBERT ELLIS SMITH, BEN FRANKLIN'S WEB SITE: PRIVACY AND CURIOSITY FROM PLYMOUTH ROCK TO THE INTERNET I02-20 (2000).

3. For a discussion of how blogs are transforming journalism, see DAN GILLMOR, WE THE MEDIA (2004).

4. Daniel W. Drezner & Henry Farrell, The Power and Politics of Blogs, Aug. 2004, at 4, http://www.danieldrezner.com/research/blogpaperfinal. pdf.

5. HUGH HEWITT, BWG 37-42 (2005).

6. Drezner & Farrell, The Power and Politics of Blogs,supra, at 14, 15-16.

7. Jennifer Vogelsong, For Better or for Worse, Teens Are Leading the Way When It Comes to Journaling Online, York Daily Record, July 17, 2005.

8. Drezner & Farrell, The Power and Politics of Blogs, supra (over 10 million blogs in 2004); Carl Bailik, Measuring the Impact of Blogs Requires More than Counting, Wall St. Journal Online, May 26, 2005, http://online.wsj.com/public/article/0,,SBm685593 903640572-1 ZI yf _FU 605JAeIW 460ycF 3f TH4_20060526 ,oo.html ?mod-tff _main_tff_top (31.6 million blogs in 2005).

9. David Sifry, The State of the Blogosphere: August 2006, Sifry's Alerts, Aug. 7, 2006, http://www.sifry.com/alerts/archives/000436.html.

10. Id.

11. http:/ /www.dailyrotten.com/.

12. http:/ /www.wonkette.com/.

13. http://gawker.com/.

14. http:/ /ovetheardinnewyork.com.

15. http://www.thesuperficial.com.

16. http:/ /www/thesneeze.com/mt-archives/cat_steve_dont_eat_it.php.

17. http:/ /www.cryingwhileeating.com.

18. http:/ /www.wibsite.com/wiblog/dull/.

19. http://belledejour-uk.blogspor.com. For a discussion of the blog, see Jason Deans, Channel 4 to Dramatise "Call-Girl" web Diaries, The Guardian, Jan. 20, 2005, http:// www.guardian.co.uk/print/0,3858,5107415-1II748,00.html.

20. Web Therapy, The Guardian, Feb. 8, 2005, http://www.guardian.co.uk/print/0,3858 ,5121805- 111748,00.html.

21. http:/ / roughdrafy. typepad.com/dotmoms.

22. Jeffrey Rosen, Your Blog or Mine? N. Y. Times Magazine, Dec. 19, 2004.

23. Todd Eastham, Internet Is Bulletin Board for Katrina Victims, Reuters, Sept. 4, 2005.

24. http:/ /www.xanga.com/ieem.aspx?user= To T0247&tab=weblogs&uid=261268578.

25. Kerry Burke, Scott Shifrel & Melissa Grace, Victim's E-Journal Led to Slay Suspect, N.Y. Daily News, May 17, 2005, http://www.nydailynews.com/front/story/310320p-265498c .html.

26. GLENN REYNOLDS, AN ARMY OF DAVIDS 44, 92, 95 (2006).

27. Beantown Becomes Blogtown: At the Democratic Convention, Online Journalism Arrives, Wall St. Journal, July 26, 2004.

28. Donna Smith, Blogs Seen as Powerful New Tool in U.S. Court Fight, Reuters, July 8, 2005·

29. REYNOLDS, ARMY OF DAVIDS, supra, at 9.

30. G. Jeffrey MacDonald, Teens: It's a Diary. Adults: It's Unsafe, Christian Science Monitor, May 25, 2005.

31. Id.

32. Robert J. Samuelson, A web of Exhibitionists, Newsweek, Sept. 20, 2006.

33. Giles Turnbull, The Seven-Year-Old Bloggers, BBC News, June 14, 2004, http:// news.bbc.co. uk! I/hi/ magazine/ 3804 773.stm.

34. Social Network, Wikipedia, Feb. 8, 2007, httpp://en.wikipedia.org/wiki/Social_network.

35. For a general introduction to social networks, see DUNCAN J. WATTS, SIX DEGREES: THE SCIENCE OF A CONNECTED AGE (2002); ALBERT-LASZLO BARABASI, LINKED (2002); MALCOLM GLADWELL, THE TIPPING POINT (2000).

36. WATTS, SIX DEGREES, supra, at 38-40.

37. JOHN GUARE, SIX DEGREES OF SEPARATION: A PLAY(1990).

38. Quoted in Anick Jesdanun, MySpace Rises as New Online Star, Associated Press, Feb. 12, 2006.

39. Reuters, Myspace, Seventeen Launch Parents Education Program, Sept. 24, 2006.

40. Michelle Andrews, Decoding Myspace, U.S. News & World Report, Sept. 18, 2006.

41. Samuelson, web of Exhibitionists, supra.

42. Andrews, Decoding Myspace, supra.

43. Ralph Gross & Alessandro Acquisti, Information Revelation and Privacy in Online Social Networks (The Facebook Case), ACM Workshop on Privacy in the Electronic Society, Nov. 7, 2005, at §2.1.

44. Judith Donath & danah boyd, Public Displays of Connection, 22 BT Technology Journal 71, 72 (2004).

45. Id.

46. Gross & Acquisti, Information Revelation, supra, at §2.1.

47. Libby Copeland, Click Clique: Facebook's Online College Community, Wash. Post, Dec. 28, 2004.

48. Id.

49. Harvey Jones & Jose Hiram Soltren, Facebook: Threats to Privacy, Dec. 14, 2005, at 4, http:// ocw.mit.edu/NR/rdonlyres/Electrical-Engineering-and-Computer-Science/ 6-805Fall-2005/8EE6DICB-A269-434E- BEF9- D5C4B4C67895/0/facebook.pdf.

50. Id. at 14.
51. Gross & Acquisti, Information Revelation, supra, at §3.3.

52. Id.

53. Fred Sturzman, Student Life on the Facebook, Jan. 8, 2006, http://chimprawk.blogspot .com/2006/01/student -life-on-facebook.html.

54. Seth Kugel, A Web Site Born in U.S. Finds Fans in Brazil, N.Y. Times, Apr. 10, 2006, at CI.

55. Anthony Hempell, Orkut at Eleven Weeks: An Exploration of a New Online Social Network Community, Apr. 16, 2004, http://www.anthonyhempell.com/papers/orkut/.

56. http://www.orkut.com/About.aspx.

57. Nandini Vaish, Netting New Friends: Online Social Networking Is Catching on in India in a Big Way with Some Unusual Results, India Today, Dec. 4, 2006, at 74.

58. Savita V, India-Specific e-communities on the Rise, The Economic Times, Dec. 7, 2006, http://economictimes.indiatimes.com/ articleshow/733381.cms.

59. http://www.nexopia.com; http://www.piczo.com.

60. http://www.adoos.com.

61. http://www.passado.com; Reuters.NetworkingSitePassado Plans to Expand, Dec. 11, 2006.

62. http://www.bebo.com; Mark Ward, Teen Craze Over Networking Sites, BBC News, Dec. 20, 2006.

63. Sara Kehaulani Goo, A Search for Ourselves, Wash. Post, Dec. 20, 2006, at DoI.

64. Leo Lewis, Mixi Prepares to Cater for Flood of Baby Boomers, Financial Times, Dec. 6, 2006, at 28; Tim Kelly, Mixi Mixes It Up in Asia, Forbes, Oct. 16, 2006. Mixi is located at http://mixi.jp/.

65. http://mop.com/; http://www.cuspace.com/.

66. Barbara Grady, Cyworld Enters MySpace Territory, San Mateo County Times, Aug. 15, 2006.

67. http://us.cyworld.com/.

68. Grady, Cyworld, supra.

69. Hwang Si-young, Cyworld Faces Challenges in Overseas Expansion, Korea Herald, Dec. 10, 2006.

70. Id.

71. http://www.dogster.com/; http://www.catster.com/.

72. http://www.hamtrerster.com/.

73. Ben McGrath, Oops, New Yorker (June 30, 2003).

74. STEVEN L. NOCK, THE COSTS OF PRIVACY: SURVEILLANCE AND REPUTATION IN AMERICA 2 (1993).

75. Proverbs 22:1.

76. WILLIAM SHAKESPEARE, OTHELLO, act II, sc. iii.

77. ARTHUR MILLER, THE CRUCIBLE 133 (Penguin ed. 2003) (originally published in 1953).

78. John Adams, Discourses on Davila: A Series of Papers on Political History, in 6 THE WORKS OF JOHN ADAMS 234 (Charles Francis Adams, ed. 1854).

79. C. H. COOLEY, HUMAN NATURE AND THE SOCIAL ORDER (1902); see also J. Sidney Shrauger & Thomas J. Schoeneman, Symbolic Interactionist View of Self-Concept: Through the Looking Glass Darkly, in THE SELF IN SOCIAL PSYCHOLOGY25, 25 (Roy F. Baumeister, ed. 1999); ARNOLD M. LUDWIG, How Do WE KNOW WHO WE ARE? A BIOGRAPHY OF THE SELF 54 (1997). Dianne M. Tice observes: "In 1902, Cooley proposed the 'looking glass self' as a metaphor for how the self-concept is determined by the views of others, and many subsequent theorists and researchers have reconfirmed that other people's perceptions constitute an important part of the self and exert a strong influence on individuals' conceptions of themselves." Diane M. Tice, Self-Concept Change and Self-Presentation: The Looking Glass Self Is Also a Magnifying Glass, in THE SELF IN SOCIAL PSYCHOLOGY, supra, at 195, 215.

80. NOCK, COSTS OF PRIVACY, supra, at 124.

81. FRANCIS FUKUYAMA, TRUST: THE SOCIAL VIRTUES AND THE CREATION OF PROSPERITY 26 (1995). For more about trust, see TRUST AND RECIPROCITY (Elinor Ostrom & James Walker, eds. 2003); ERIC M. USLANER, THE MORAL FOUNDATIONS OF TRUST (2002); RUSSEL HARDIN, TRUST AND TRUSTWORTHINESS (2002); TRUST IN SOCIETY (Karen S. Cook, ed. 2001); TRUST: MAKING AND BREAKING COOPERATIVE RELATIONS (Diego Gambetta, ed. 1988); ADAM B. SELIGMAN, THE PROBLEM OF TRUST (1997); Helen Nissenbaum, Securing Trust Online: Wisdom or Oxymoron?, 81 B.U. L. Rev. 635 (2001).

82. NOCK, COSTS OF PRIVACY, supra, at 124.

83. AVNER GREIF, INSTITUTIONS AND THE PATH TO THE MODERN ECONOMY: LESSONS FROM MEDIEVAL TRADE 58-89 (2006).

84. ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY (2000).

85. Associated Press, The Decline of Manners in the U.S., Oct. 14, 2005.

86. FUKUYAMA,T RUST, supra, at 310; Pamela Paxton, Trust In Decline? Contexts (Winter 2005).

87. Carol A. Heimer, Solving the Problem of Trust, in TRUST IN SOCIETY 40, 65 (Karen S. Cook, ed. 2001).

88. NOCK, COSTS OF PRIVACY, supra, at 3.

89. MARSHALL McLUHAN, THE GUTENBERG GALAXY 31 (1962) ("The new electronic interdependence recreates the world in the image of a global village."); see also MARSHALL McLUHAN & BRUCE R. POWERS, THE GLOBAL VILLAGE: TRANSFORMATIONS IN WORLD LIFE AND MEDIA IN THE 21ST CENTURY (1989).

90. Ostrowe v. Lee, 175 N.E. 505, 506 (N.Y. Ct. App. 1931).

91. The quotation is from Theodore Tilton, husband of Elizabeth Tilton, who had a scandalous extramarital affair with the famous preacher Henry Ward Beecher during the late nineteenth century. Tilton is quoted in RICHARD WIGHTMAN Fox, TRIALS OF INTIMACY: LOVE AND Loss IN THE BEECHER-TILTON SCANDAL 35 (1999).

92. Rosenblatt v. Baer, 383 U.S. 75, 86 (1966).

93. Robert C. Post, The Social Foundations of Defamation Law: Reputation and the Constitution, 74 Calif. L. Rev. 691, 694 (1986) (quoting J. HAWES, LECTURES ADDRESSED TO THE YOUNG MEN OF HARTFORD AND NEW HAVEN 95 (1828)); see also THOMAS STARKIE, A TREATISE ON THE LAW OF SLANDER, LIBEL, SCANDALUM MAGNATUM, AND FALSE RUMOURS (1826).

94. See id. at 707-8.

95. Id. at 711.

96. Nicholas Emler, Gossip, Reputation, and Social Adaptation, in GOOD GOSSIP II7, II9 (Robert F. Goodman & Aaron Ben-Ze' ev, eds. 1994)

97. SHAKESPEARE, OTHELLO, supra, act II, sc. iii, II. 261-66.

98. RICHARD A. POSNER, THE ECONOMICS OF JUSTICE 271 (1983).

99. Richard A. Epstein, The Legal Regulation of Genetic Discrimination: Old Responses to New Technology, 74 B.U. L. Rev. I, 12 (1994).

100. Barbara Mikkelson & David P. Mikkelson, Tommy Rot, Urban Legends Reference Pages, May 6, 2006, http://www.snopes.com/racial/business/Hilfiger.asp; Tommy Hilfiger "Racist" Rumor Is Fashionable Again, About.com, http://urbanlegends.about.com/ library/weekly/ aa121698. htm.

101. ABC News, Misidentified Bryant Accuser Fires Back, ABCNews.com, Sept. 30, 2004, http://abcnews.go.com/GMAlprint?id=124910; Jill Lieber & Richard Willing, Teen Misidentified as Bryant's Accuser Fights Back, USA Today, July 28, 2003.

102. ABC News, Misidentified Bryant Accuser, supra.

103. Lieber & Willing, Teen Misidentified, supra.

104. Jennifer 8. Lee, Net Users Try to Elude the Google Grasp, N.Y. Times, July 25, 2002.

105. Richard A. Posner, Bad News, N.Y. Times, July 31, 2005.

106. David Linhardt, Employers Screen Applicants With Facebook, University Daily Kansan, Jan. 30, 2006.

107. Alan Finder, For Some, Online Persona Undermines a Resume, N.Y. Times, June 11, 2006.

108. Id.

109. Id.

110. O. Kharif, Big Brother Is Reading Your Blog, Business Week Online, Feb. 28, 2006.

111. Bree Sposato, MySpace Invaders, N.Y. Magazine, Nov. 21, 2005.

112. Ivan Tribble, Bloggers Need Not Apply, Chronicle of Higher Education, July 8, 2005.

113. Associated Press, Official Sues Students Over MySpace Page, Sept. 22, 2006.

114. Heather Armstrong: Bloggers on Blogging, Rebecca's Pocket (Aug. 2005), http://www .rebeccablood.net/bloggerson/heatherarmstrong.html.

115. http://www.dooce.com.

116. Heather Armstrong, I Have Something to Say, Dooce.com, Feb. 12, 2002, http://www .dooce.com/ archives/ daily/ 02_12_2002.html.

117. Heather Armstrong, Collecting Unemployment, Dooce.com, Feb. 26, 2002, http://www.dooce.com/archives/daily/02_26_2002.html.

118. Scott Jaschik, You May Have Been YouTubed, Inside Higher Ed, Sept. 6, 2006, http://insidehighered.com/ news/ 2006/ 09/ 06/youtube.

119. Sara Kehaulani Goo, YouTubers Ponder Google,Wash. Post, Oct 11, 2006.

120. http://www.icann-nce.org/pipermail/disc ... 06826.html. The website at this URL has been removed from the Internet.

121. Alan Feuer & Jason George, Internet Fame Is Cruel Mistress for Dancer of the Numa Numa, N.Y. Times, Feb. 26, 2005,at AI.

122. Id.

123. http://www.newnuma.com.

124.The facts about the Little Fatty incident are from Raymond Zhou, Fatty -- The Face That Launched 1,000 Clicks, China Daily, Dec. 11, 2006, http://www.chinadaily.com .cn/cndy/2006-11/15/content_733158.hrm; Clifford Coonan, The New Cultural Revolution: How Little Fatty Made It Big, The Independent, Dec. 27, 2006; Jane Macartney, Face of "Little Fatty" Finds Fame Among Chinas web Users, The Times, Nov. 21, 2006; Reuters, "Little Fatty" an Instant Internet Phenomenon in China, Dee. 8, 2006. To see more of the images, visit http://www.slideshare.net/debasish/litt ... s-internet -hero.

125. The video was posted at http://www.waxy.org/archive/2003/05/13/finding_.shtml.

126. Tu Thanh Ha, "Star Wars Kid" Cuts a Deal With His Tormentors, Globe and Mail, April 7, 2006.

127. For more background about the story, see Amy Harmon, Fame Is No Laughing Matter for the "Star WarsKid," N.Y. Times, May 19, 2003, at C3.

128. Daily Log: Star Wars Kid, Waxy.org, Apr. 29, 2003, http://www.waxy.org/archive/ 2003/04/29/star_ war.shtml.

129. Quoted in Stewart Kirkpatrick, Shame and Misfortune, The Scotsman, Apr. 29, 2004.

130. Harmon, Fame Is No Laughing Matter, supra.

131. Amanda Paulson, Internet Bullying, Christian Science Monitor, Dec. 30, 2003; Jan Wong, 15 Minutes of Shame, Globe & Mail, May 7, 2005.

132. Ha, "Star WarsKid" Cuts a Deal, supra; Tu Thanh Ha, Parents File Lawsuit Over Star WarsKid Video, Globe and Mail, July 23, 2003.

133. Ghyslain Raza, Wikipedia, http://en.wikipedia.org/wiki/Ghyslain_Raza.

134. Carl Bailik, How Big an Internet Star Was the “Star Wars” Kid?Wall St. Journal Online, Dec. 14, 2006, http://online.wsj.com/public/article/SB ... 9031-HC7A4 Ifkyv8bz__bUCj6CT8PHus_20071215.html. According to one estimate by a U.K. firm, the Star Wars Kid video has been viewed about 900 million times. Bailik casts considerable doubt on these statistics. But it is probably safe to say that the video has been viewed more than 100 million times. On video websites such as YouTube, numerous versions of the video are posted, and the views of them amount to about 100 million. Id. Several years ago, Ghyslain’s “lawyer said in a court filing that the video
was so widely circulated that one Internet site solely dedicated to the two-minute clip recorded 76 million visits by October, 2004.” Ha, “Star Wars Kid” Cuts a Deal, supra.

135. Only the Very Best Videos of . . . The Star Wars Kid, Screaming Pickle, http://screaming pickle.com/humor/legends/StarWarsKid/.

136. Put the Star Wars Kid in Episode III, http://www.petitiononline.com/Ghyslain/petition .html.

137. http://www.petitiononline.com/mod_perl/ ... i?Ghyslain.

138. Daily Log: Star Wars Kid TV Tribute Roundup, Waxy.org, Mar. 20, 2005, http://www .waxy.org/archive/2005/03/20/star_war.shtml.

139. Marie-Chantale Turgeon, 10 Reasons to Blog, http://www.meidia.ca/archives/2005/06/ 10_reasons_to_b.php?l=en.

140. Eve Fairbanks, The Porn Identity, New Republic, Feb. 6, 2006.

CHAPTER 3. GOSSIP AND THE VIRTUES OF KNOWING LESS

1. April Witt, Blog Interrupted, Wash. Post Magazine, Aug. 15, 2004, at W12.

2. Id.

3. Jessica Cutler’s blog, Washingtonienne, has been taken off the Internet. Archived copies of the blog are still available online. The blog Wonkette has posted an archived copy. See The Lost Washingtonienne,Wonkette, http://www.wonkette.com/archives/the -lost-washingtonienne-wonkette-exclusive-etc-etc-004162.php. The blog is also reproduced in its entirety in Robert’s legal complaint against Jessica.

4. Julie Bosman, First With the Scoop, if Not the Truth, N.Y. Times, Apr. 18, 2004.

5. Wonkette is located at http://www.wonkette.com. At the time Wonkette linked to Jessica’s blog, it had fewer daily visitors. Although it was already quite popular at the time, its coverage of Jessica’s blog helped to catapult Wonkette to higher levels of popularity.

6. Witt, Blog Interrupted, supra.

7. Quoted in Wonkette, Washingtonienne: Eliminated by Process, May 21, 2004, http:// www.wonkette.com/archives/washingtonien ... 009677.php.

8. Witt, Blog Interrupted, supra.

9. Ana Marie Cox, Washingtonienne Speaks!! Wonkette Exclusive!! Must Credit Wonkette!! The Washingtonienne Interview!! Wonkette, May 21, 2004, http://www.wonkette.com/ politics/media/washingtonienne-speaks-wonkette-exclusive-must-credit-wonkette-the -washingtonienne-interview-9693.php.

10. http://www.jessicacutleronline.com/.

11. Witt, Blog Interrupted, supra.

12. Ana Marie Cox, Biography Page, Ana Marie Cox Website, http://www.anamariecox .com/bio.html.

13. In the interest of full disclosure, I have provided advice to Robert’s counsel subsequent to his filing of the lawsuit. Before providing advice, I made it clear that I would continue to publicly express my opinions about the case regardless of whether they were critical of Robert’s positions in the case. The opinions expressed about the case in this book are solely my own.

14. Internal Affairs: Playboy.com Poses Questions to the Infamous Washington, D.C., Sex Blogger, Playboy.com, Aug. 31, 2004, http://www.playboy.com/commerce/email/cyber club/08_31_04/story/dcintern_pop.html.

15. Witt, Blog Interrupted, supra.

16. Orin Kerr, When Professors Read Pseudonymous Student Blogs, Volokh Conspiracy, Apr. 26, 2005, http://volokh.com/archives/archive_2005 ... 1114540880.

17. Anonymous George Washington University Law School Student, Hoist By My Own Petard, Idlegrasshopper, Apr. 20, 2005, http://idlegrasshopper.blogspot.com/2005/04/ hoist-by-my-own-petard.html.

18. Former Boston Herald Columnist Fired from Teaching Job, Associated Press, July 19, 2005.

19. More Midterm Meltdowns, The Phantom Professor, Feb. 25, 2005, at http://phantom prof.blogspot.com/2005_05_01_phantomprof_archive.html. This post has been removed from the website.

20. Office Hours, The Phantom Professor, May 3, 2005, http://phantomprof.blogspot.com/ 2005_05_01_phantomprof_archive.html.

21. Scott Jaschik, The Phantom Professor, Inside Higher Education, May 11, 2005, http://www.insidehighered.com/news/2005/05/11/phantom.

22. Id.

23. Colleen McCain Nelson, SMU Blogger Unmasked, Unemployed, Dallas Morning News, May 15, 2005.

24. Id.

25. Jaschik, Phantom Professor, supra.

26. Id.

27. Id.

28. Id.

29. Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure, 53 Duke L.J. 967, 1005–6 (2003); see also David Bauder, Identifying Rape Victims Troubles Media, Ft. Lauderdale Sun-Sentinel, Aug. 3, 2002, at 3A.

30. Fernanda B. Viegas, Bloggers’ Expectations of Privacy and Accountability: An Initial Survey, Journal of Computer-Mediated Communication, vol. 10, issue 3 (2005), http:// jcmc.Indiana.edu/vol10/issue3/viegas.html.

31. Quoted in id.

32. Eric Hsu, Students’ Web Sites Put Schools in Quandary, Bergen (N.J.) Record, July 24, 2005.

33. H. J. Cummins, When Blogs and Jobs Collide, Minneapolis Star Tribune, Aug. 14, 2005.

34. Bob Sullivan, Kids, Blogs, and Too Much Information, MSNBC.com, Apr. 29, 2005, http://www.msnbc.msn.com/id/7668788/.

35. Malcolm Gladwell, The Tipping Point 7, 9, 30–33, 35, 58–59 (2000).

36. Id. at 25.

37. Albert-László Barabási, Linked 31, 34 (2002).

38. Aaron Ben Ze’ev, The Vindication of Gossip, in Good Gossip 1, 22, 24 (Robert F. Goodman & Aaron Ben-Ze’ev, eds. 1994)

39. Jörg R. Bergmann, Discreet Indiscretions: The Social Organization of Gossip 21–22 (1993).

40. Keith Devlin, The Math Gene 255 (2000).

41. Sally Engle Merry, Rethinking Gossip and Scandal, in Reputation: Studies in the Voluntary Elicitation of Good Conduct 47 (Daniel B. Klein, ed. 1997).

42. Nicholas Emler, Gossip, Reputation, and Social Adaptation, in Good Gossip, supra, at 117, 135.

43. Karen J. Brison, Just Talk: Gossip, Meetings, and Power in a Papua New Guinea Village 11 (1992). When gossip occurs behind people’s backs, rumors often “circulate unchecked” and are hard to combat if “diffuse and hidden.” Id. at 12.

44. Diane L. Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and Brandeis’s Privacy Tort, 68 Cornell L. Rev. 291, 333–34 (1983).

45. This argument is frequently raised in support of outing gays. See, e.g., Kathleen Guzman, About Outing: Public Discourse, Private Lives, 73 Wash. U. L.Q. 1531, 1568 (1995) (“Outers offer up the victim as a ‘sacrificial lamb’ to portray themselves as purifying redeemers, able to solve the problems of discrimination.”). Outing gays, the argument goes, will help alter society’s perception of gays by demonstrating that mainstream people or role models are gay. For more background on outing, see John P. Elwood, Note, Outing, Privacy, and the First Amendment, 102 Yale L.J. 747, 776 (1992) (arguing that outing to establish a person as a gay role model should be outweighed by privacy rights, whereas outing to point out the hypocrisy of public officials should be permitted).

46. Brison, Just Talk, supra, at 112.

47. Martin Heidegger, Being and Time 158 (Joan Stambaugh, trans. 1996) (originally published in 1953).

48. Patricia Meyer Spacks, Gossip 4 (1985).

49. Brison, Just Talk, supra, at 12. Professor Cynthia Kierner observes that gossiping was a way to “jockey for social position” in postrevolutionary America. Cynthia A. Kierner, Scandal at Bizarre: Rumor and Reputation in Jefferson’s America 64 (2004).

50. Robert Post, The Legal Regulation of Gossip: Backyard Chatter and the Mass Media, in Good Gossip, supra, at 65, 65.

51. Paul M. Schwartz, Internet Privacy and the State, 32 Conn. L. Rev. 815, 843 (2000).

52. Id. at 842–43.

53. Richard A. Posner, The Economics of Justice 232–34 (1981).

54. Steven L. Nock, The Costs of Privacy: Surveillance and Reputation in America 11–12 (1993).

55. Id. at 124.

56. Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America 8 (2000); see also Lawrence Lessig, Privacy and Attention Span, 89 Geo. L.J. 2063, 2065 (2001).

57. Karel Capek, The Last Judgment, in Tales from Two Pockets 159–60 (Norma Comrada, trans. 1994) (1929).

58. William H. Gass, Fiction and the Figures of Life 45 (1979); see also Georg Simmel, The Sociology of Secrecy and of Secret Societies, 11 American Journal of Sociology 441, 442 (1906) (we “never can absolutely know another” but form our conception of others based on “fragments”).

59. William James, The Principles of Psychology 282 (Harvard U. Press edition 1983) (originally published in 1890). Virginia Woolf embraced this pluralistic conception of selfhood in her novel Orlando: “Biography is considered complete if it merely accounts for six or seven selves, whereas a person may well have as many as a thousand.” Virginia Woolf, Orlando: A Biography (1928).

60. Erving Goffman, The Presentation of Self in Everyday Life (1959); see also Alan Westin, Privacy and Freedom 33 (1967).

61. Roy F. Baumeister, An Overview, in The Self in Social Psychology 1, 8 (Roy F. Baumeister, ed. 1999).

62. Quoted in Philip Roth, In Defense of Intimacy: Milan Kundera’s Private Lives, Village Voice, June 26, 1984, at 42.

63. Joseph Bensman & Robert Lilienfeld, Between Public and Private: Lost Boundaries of the Self 174 (1979).

64. Id. at 49.

65. Milan Kundera, Testaments Betrayed 260–61 (1995).

66. Hannah Arendt, The Human Condition 22–24 (1958).

67. Arnold M. Ludwig, How Do We Know Who We Are? A Biography of the Self 49 (1997).

68. Erving Goffman, Stigma: Notes on the Management of Spoiled Identity 96 (1963).

69. Id.

70. Ludwig, How Do We Know Who We Are? supra, at 117.

71. Thomas Nagel, Concealment and Exposure & Other Essays 7 (2002).

72. Goffman, Stigma, supra, at 3, 7–9, 30.

73. Susan Sontag, Illness as Metaphor and AIDS and Its metaphors 38, 143, 6, 58 (1990).

74. Stan Karas, Privacy, Identity, Databases, 52 Am. U. L. Rev. 393, 427 (2002).

75. Paul M. Schwartz, Privacy and the Economics of Personal Health Care Information, 76 Tex. L. Rev. 1, 29 (1997).

76. See, e.g., Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 Harv. L. Rev. 1003 (1995) (reviewing market-based theories of racial discrimination).

77. Pauline T. Kim, Genetic Discrimination, Genetic Privacy: Rethinking Employee Protections for a Brave New Workplace, 96 Nw. U. L. Rev. 1497, 1500, 1538 (2002).

78. R.I.P. Jennicam, BBC, Jan. 1, 2004, http://news.bbc.co.uk/2/hi/uk_news/magazine/ 3360063.stm.

79. Alan F. Westin, Privacy and Freedom 35 (1967).

80. Amitai Etzioni, The Limits of Privacy 196 (1999).

81. Fred Cate, Privacy in the Information Age 30 (1997).

82. Robert C. Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, 77 Calif. L. Rev. 957, 968 (1989).

83. Robert C. Post, Three Concepts of Privacy, 89 Geo. L.J. 2087, 2092 (2001).

84. Peter Gay, Schnitzler’s Century: The Making of Middle-Class Culture, 1815–1914, at 273 (2002).

85. Arnold H. Modell, The Private Self 95 (1993). Notes to Pages 68–72 217

86. Lawrence M. Friedman, Name Robbers: Privacy, Blackmail, and Assorted Matters in Legal History, 30 Hofstra L. Rev. 1093, 1112 (2002).

87. John Dewey, Experience and Nature 167 (Jo Ann Boydston, ed. 1987) (originally published in 1925); see also John Dewey, Human Nature and Conduct 97 (Jo Ann Boydston, ed. 1988) (originally published in 1922) (discussing “the difference between a self taken as something already made and a self still making through action”). As the psychologist Carl Schneider notes, protection against disclosure is similar to the skin of a fruit or the shell of an egg. Carl D. Schneider, Shame, Exposure, and Privacy 37 (1992); see also David L. Bazelon, Probing Privacy, 12 Gonz. L. Rev. 587, 590 (1977) (“[P]rivacy shelters the emerging individual’s thoughts from public disclosure and control so that the fear of being watched, exposed, ridiculed, or penalized does not crush the seeds of independent thinking before they can mature.”).

88. Friedrich Dürrenmatt, The Assignment 24 (Joel Agee, trans., Random House 1988).

89. Secretary’s Advisory Committee on Automated Personal Data Systems, U.S. Dep’t of Health, Education & Welfare, Records, Computers, and the Rights of Citizens (1973), http://aspe.os.dhhs.gov/datacncl/1973pr ... acemembers .htm.

90. See generally T. Markus Funk, The Dangers of Hiding Criminal Pasts, 66 Tenn. L. Rev. 287 (1998) (arguing that expunging certain juvenile crimes from a person’s record is a mistake).

91. Sarah Bilder, The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce, 61 Mo. L. Rev. 743, 756–57 (1996).

92. See Funk, Hiding Criminal Pasts, at 288 (suggesting that state laws permitting the expunging of juvenile criminal records are “grounded on a belief that juveniles will outgrow their reckless youthful behavior”).

93. People v. Price, 431 N.W.2d 524, 526 (Mich. Ct. App. 1988).

94. Merry, Rethinking Gossip and Scandal, supra, at 47.

95. Leora Tanenbaum, Slut! Growing Up Female with a Bad Reputation xvi, xv (2000).

96. Anita L. Allen, Why Privacy Isn’t Everything: Feminist Reflections on Personal Accountability 2 (2003).

CHAPTER 4. SHAMING AND THE DIGITAL SCARLET LETTER

1. Nate Kushner, Laura K. Krishna Is Just a Dumb Kid With a Nice Mom, A Week of Kindness, March 30, 2005, http://www.aweekofkindness.com/blog/archives/2005/ 03/laura_k_krishna_1.html. Kushner changed Laura’s real last name to Krishna after pleas from Laura and her mother to take the information offline.

2. PZ Myers, A Plagiarist Gets Her Comeuppance, Pharyngula, Mar. 29, 2005, http:// pharyngula.org/index/weblog/comments/a_plagiarist_gets_her_comeuppance/. Myers’s blog is now located at http://scienceblogs.com/pharyngula/.

3. http://peoriacrackhouse.blogspot.com.

4. Post of July 22, 2005 by Anonymous, Peoria Crack House, http://peoriacrackhouse. blogspot.com/2005_07_01_peoriacrackhouse_archive.html.

5. Tracy Connor, Hunt Perv Caught in a Flash, N.Y. Daily News, Aug. 26, 2005.

6. Photo Finish for Flashers, N.Y. Daily News, Aug. 28, 2005.

7. Man Caught on Camera Phone Flashing Subway Rider, Associated Press, Sept. 1, 2005.

8. Kevin Poulsen, Camera Phone Has Life After Theft, Wired, Aug. 29, 2005, http://www .wired.com/news/privacy/0,1848,68668,00.html.

9. Id.

10. JohnsGoat, Long Island Trash . . . , Long Island Press Electronic Bulletin Board, Aug. 21, 2005, http://www.longislandpress.com/bb/viewtopic.php?p=2037. The post and comments have been removed and can no longer be found on the Internet. I have an archive copy of the post and comments on file.

11. Poulsen, Camera Phone Theft, supra.

12. JohnsGoat, Long Island Trash, supra.

13. Michael B. Conforti, To Catch a Thief: Cell Phone Theft Spawns E-Harassment, Long Island Press, Sept. 1, 2005, http://longislandpress.com/?cp=162&show=article&a_id =5538.

14. JohnsGoat, Long Island Trash, supra.

15. Id.

16. Id.

17. Jim Heid, The Apple Store Squatter Saga Continues, Jim Heid’s Macintosh Digital Hub, July 11, 2005, http://www.macilife.com/2005/07/apple-s ... -continues .html.

18. Steve Rubel, Is Anyone’s Privacy Safe from the Bloggers, MicroPersuasion, Aug. 3, 2005, http://www.micropersuasion.com/2005/08/ ... _priv.html.

19. For background about norms, see Robert Ellickson, Order Without Law (1991); Lawrence Lessig, The Regulation of Social Meaning, 62 U. Chi. L. Rev. 943 (1995); Richard McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 Harv. L. Rev. 1003 (1997); Richard McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338 (1997); Cass Sunstein, Social Norms and Social Roles, 96 Colum. L. Rev. 903 (1996); Lior Strahilevitz, How Changes in Property Regimes Influence Social Norms: Commodifying California’s Carpool Lanes, 17 Ind. L.J. 1231 (2000); Robert C. Ellickson, The Evolution of Social Norms: A Perspective from the Legal Academy, in Social Norms 35, 35 (Michael Hechter & Karl- Dieter Opp, eds. 2001).

20. Richard Weste, The Booke of Demeanor and the Allowance and Disallowance of Certaine Misdemeanors in Companie (c. 1619). Quoted in Norbert Elias, The Civilizing Process 112 (1994).

21. Rachel Metz, Cell-Phone Shushing Gets Creative, Wired.com, Jan. 18, 2005, http://www.wired.com/news/wireless/0,1382,66310,00.html.

22. Christine Rosen, Our Cell Phones, Ourselves, New Atlantis (Summer 2004).

23. Id.

24. The commercials are available at http://icpm.8m.com/.

25. Henry David Thoreau, Walden and Other Writings 113 (Barnes & Noble, Inc. 1993) (originally published in 1854).

26. Alain Corbin, Intimate Relations, in A History of the Private Life, vol. 4, From the Fires of Revolution to the Great War 605 (Michelle Perrot, ed., Arthur Goldhammer, trans. 1990); Michelle Perrot, The Family Triumphant, id. at 143.

27. Anita L. Allen, Lying to Protect Privacy, 44 Vill. L. Rev. 161, 162 (1991).

28. Metz, Cell-Phone Shushing, supra. The cards are available at http://www.coudal.com/ shhh.php.

29. Carl D. Schneider, Shame, Exposure, and Privacy 22–26 (1992).

30. http://rudepeople.com.

31. http://platewire.com.

32. Jennifer Saranow, The Snoop Next Door, Wall St. Journal, Jan. 12, 2007, at W1.

33. http://flickr.com/photos/uno4300/345254682/; http://flickr.com/photos/nojja/2050 62960/; http://flickr.com/photos/caterina/59500/.

34. See, e.g., Orn B. Bodvarsson & William A. Gibson, An Economic Approach to Tips and Service Quality: Results of a Survey, 36 Social Science Journal 137–47 (1999); Orn B. Bodvarsson & William A. Gibson, Economics and Restaurant Gratuities: Determining Tip Rates, 56 Amer. J. Econ. Sociology, 187–204 (1997); April H. Crusco & Christopher G. Wetzel, The Midas Touch: The Effects of Interpersonal Touch on Restaurant Tipping, 10 Personality & Social Psychology Bulletin 512–17 (1984); Mary B. Harris, Waiters, Customers, and Service: Some Tips About Tipping, 25 Journal of Applied Social Psychology 725–44 (1995).

35. Ofer H. Azar, The Social Norm of Tipping: A Review, Journal of Economics, at 3 (2005) http://econwpa.wustl.edu:80/eps/othr/pa ... 503013.pdf.

36. http://www.bitterwaitress.com.

37. http://www.bitterwaitress.com/std/index ... =1&id=2135.

38. http://www.bitterwaitress.com/std/index ... =1&id=2120.

39. Katherine Rosman, Leak Chic: Everybody’s an Anonymous Source These Days, Wall St. Journal, Dec. 15, 2005.

40. http://www.hollabacknyc.blogspot.com.

41. http://dontdatehimgirl.com/.

42. http://dontdatehimgirl.com/about_us/index.html.

43. http://dontdatehimgirl.com/faqs/.

44. Edwin Powers, Crime and Punishment in Early Massachusetts, 1620–1692, at 200 (1966).

45. Mark Spatz, Comment, Shame’s Revival: An Unconstitutional Regression, 4 U. Pa. J. Const. L. 827, 831 (2002).

46. Powers, Crime and Punishment, supra, at 270 (1966); Raphael Semmes, Crime and Punishment in Early Maryland 70 (1938).

47. Lawrence M. Friedman, Crime and Punishment in American History 40 (1993).

48. Francis Watt, The Law’s Lumber Room 48, 56 (1898).

49. William Andrews, Punishments in Oldentime: Being an Historical Account of the Ducking Stool, Brank, Pillory, Stocks, Drunkard’s Cloak, Whipping Post, Riding the Stang, etc. 5 (Research Publications 1990 on microfiche) (originally published in 1881).

50. Dan Markel, Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate, 54 Vand. L. Rev. 2157, 2169 (2001).

51. Nathaniel Hawthorne, The Scarlet Letter 46, 47 (Barnes & Noble edition, 1998) (originally published in 1850).

52. Barbara Clare Morton, Bringing Skeletons Out of the Closet and Into the Light: “Scarlet Letter” Sentencing Can Meet the Goals of Probation in Modern America Because It Deprives Offenders of Privacy, 35 Suffolk U. L. Rev. 97, 102–4 (2001); Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 Mich. L. Rev. 1880, 1912–15 (1991).

53. Morton, Skeletons, supra, at 102–4.

54. Markel, Shaming Punishments, supra, at 2169.

55. Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan, trans., Pantheon edition 1977).

56. Jeff Stryker, Using Shame as Punishment: Have Sex, Get Infamous, S.F. Chronicle, Mar. 13, 2005.

57. Dan M. Kahan, What Do Alternative Sanctions Mean? 63 U. Chi. L. Rev. 591, 632 (1996).

58. John Borland, Privacy Jam on California Highway, CNET, May 13, 2004, http://news .com.com/Privacy+jam+on+California+highway/2100-1038_3-5212280.html.

59. Eugene Volokh, Appalling Service from Dell, Volokh Conspiracy, Nov. 23, 2005, http://volokh.com/posts/1132781578.shtml.

60. Matthew Fordahl, Sony to Release Patch to Reveal Hidden Copy-Protection Software, Associated Press, Nov. 2, 2005.

61. Mark Russinovich, Sony Rootkits and Digital Rights Management Gone Too Far, Mark’s Sysinternals Blog, Oct. 31, 2005, http://blogs.technet.com/markrussinovich/archive/ 2005/10/31/sony-rootkits-and-digital-rights-management-gone-too-far.aspx.

62. Kim Hart, Angry Customers Use Web to Shame Firms, Wash. Post, July 5, 2006, at D1.

63. Lior Jacob Strahilevitz, “How’s My Driving?” for Everyone (and Everything?), 81 N.Y.U. L. Rev. 1699, 1708–09 (2006).

64. The programs Strahilevitz recommends are a lot more controlled than much of the online shaming currently taking place.

65. Martha C. Nussbaum, Hiding from Humanity: Disgust, Shame, and the Law 230, 235 (2004).

66. Id. at 235. For more on shame, see William Ian Miller, Humiliation (1993); Shame, Social Research, vol. 70, issue 4 (Winter 2003).

67. Bernard Williams, Shame and Necessity 78 (1993) (“The basic experience connected with shame is that of being seen, inappropriately, by the wrong people, in the wrong condition. It is straightforwardly connected with nakedness.”).

68. See Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 412 (1997).

69. Nussbaum, Hiding from Humanity, supra, at 234.

70. Ivan Moreno, Pot Smokers on the Web, Rocky Mountain News, Apr. 28, 2006, http:// www.rockymountainnews.com/drmn/local/ar ... 79,00.html.

71. http://www.colorado.edu/police/420_Phot ... /index.htm. The website has been removed from the Internet. I have a copy of the website in my files.

72. H. G. Reza, When Blame Knocks on the Wrong Door, L.A. Times, Aug. 25, 2005.

73. http://www.revengeworld.com.

74. http://www.revengeworld.com/About.cfm.

75. Rebecca Riddick, Website Encourages Blacklist of Med-Mal Plaintiffs, Law.com, July 25, 2006, http://www.law.com/jsp/article.jsp?id=1153744532499.

76. Robert D. Cooter, Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant, 144 U. Pa. L. Rev. 1643 (1996).

77. Ofer H. Azar, The Social Norm of Tipping: Does It Improve Social Welfare? Journal of Economics, at 4 (2005), http://econwpa.wustl.edu:80/eps/othr/pa ... 03/0503013 .pdf.

78. Lawrence E. Mitchell, Understanding Norms, 49 U. Toronto L.J. 177, 243 (1999).

79. Borland, Privacy Jam, supra.

80. http://www.carpoolcheats.org/. The website is now completely removed from the Internet. Quotations from the website can be found at Borland, Privacy Jam, supra.

81. http://www.christiangallery.com/atrocity/.

82. Frederick Clarkson, Journalists or Terrorists?, Salon.com, May 31, 2001, http://archive .salon.com/news/feature/2001/05/31/nuremberg/index.html.

83. Rene Sanchez, Abortion Foes’ Internet Site on Trial, Wash. Post, Jan. 15, 1999, at A3.

84. Sharon Lerner, The Nuremberg Menace, Village Voice, Apr. 4–10, 2001, http://www.villagevoice. com/news/0114,lerner,23570,1.html.

85. Doctor Says Anti-Abortion Web Site Endangered Her Life, Associated Press, Jan. 8, 1999, http://www.cnn.com/US/9901/08/abortion.trial.03/.

86. Planned Parenthood v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc).

87. Strahilevitz, “How’s My Driving?” supra, at 1708.

88. Gustave Le Bon, The Crowd: A Study of the Popular Mind 1 (1896).

89. Cass R. Sunstein, Group Judgments: Statistical Means, Deliberation, and Information Markets, 80 N.Y.U. L. Rev. 962, 1004 (2005).

90. Howard W. French, Online Throngs Impose a Stern Morality in China, N.Y. Times, June 3, 2006.
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PART 2 OF 2 (Notes Cont'd.)

CHAPTER 5. THE ROLE OF LAW

1. David Brin, The Transparent Society 8–9 (1998).

2. Quoted in Daniel J. Solove, Marc Rotenberg & Paul M. Schwartz, Information Privacy Law 635 (2d ed. 2006).

3. Robert Ellis Smith, Ben Franklin’s Web Site: Privacy and Curiosity from Plymouth Rock to the Internet 108–9 (2000).

4. Id. at 108–10.

5. Charles Dickens, Martin Chuzzlewit 318 (Penguin edition 1975) (originally published in 1843–44).

6. Gini Graham Scott, Mind Your Own Business: The Battle for Personal Privacy 37–38 (1995).

7. Henry James, The Reverberator 62 (1888).

8. Quoted in Smith, Ben Franklin’s Website, supra, at 117. For an extensive and interesting account of gossip about U.S. presidents and politicians, see Gail Collins, Scorpion Tongues: Gossip, Celebrity, and American Politics (1998).

9. Janna Malamud Smith, Private Matters 81 (1997).

10. Richard Wightman Fox, Trials of Intimacy: Love and Loss in the Beecher- Tilton Scandal 20–21 (1999).

11. John D’Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America 162–63 (2d ed. 1997). Other accounts state that Woodhull was motivated by more personal reasons. One commentator concludes that “Woodhull published the story because she was angry at one of Beecher’s sisters, who opposed including her in the suffrage leadership.” Collins, Scorpion Tongues, supra, at 68.

12. Smith, Private Matters, supra, at 73–94.

13. Fox, Trials of Intimacy, supra, at 33.

14. Daniel J. Solove, Reconstructing Electronic Surveillance Law, 72 Geo. Wash. L. Rev. 1264, 1272 (2004).

15. Smith, Ben Franklin’s Website, supra, at 124.

16. E. L. Godkin, The Rights of the Citizen: IV. To His Own Reputation, Scribner’s Magazine (1890); see also E. L. Godkin, The Right to Privacy, The Nation, Dec. 25, 1890. For more background about Godkin, see Elbridge L. Adams, The Right to Privacy and Its Relation to the Law of Libel, 39 Am. L. Rev. 37 (1905); Dorothy J. Glancy, The Invention of the Right to Privacy, 21 Ariz. L. Rev. 1 (1979).

17. Don R. Pember: Privacy and the Press 21 (1972).

18. See Samuel D. Warren & Louis D. Brandeis, The Watuppa Pond Cases, 2 Harv. L. Rev. 195 (1888); Samuel D. Warren & Louis D. Brandeis, The Law of Ponds, 3 Harv. L. Rev. 1 (1889).

19. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).

20. William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 383, 423 (1960).

21. James Barron, Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890): Demystifying a Landmark Citation, 13 Suffolk U. L. Rev. 875, 893 (1979).

22. Smith, Ben Franklin’s Web Site, supra, at 118–19.

23. Warren & Brandeis, The Right to Privacy, supra, at 196, 195.

24. Smith, Private Matters, supra, at 76 (1997).

25. Id. at 196–97.

26. See Neil M. Richards & Daniel J. Solove, Privacy’s Other Path: Recovering the Law of Confidentiality, 96 Geo. L.J. (forthcoming Nov. 2007). The article is available online at http://ssrn.com/abstract=969495.

27. See Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235 (Minn. 1998) (noting that Minnesota was one of the few states that had not recognized the privacy torts, but reversing course and embracing the torts). The only states not recognizing any of the privacy torts are North Dakota and Wyoming. Robert M. O’Neil, The First Amendment and Civil Liability 77 (2001).

28. Harry Kalven, Jr., Privacy in Tort Law: Were Warren and Brandeis Wrong? 31 L. & Contemp. Probs. 326, 327 (1966).

29. Alfred C. Yen, Western Frontier or Feudal Society?: Metaphors and Perceptions of Cyberspace, 17 Berkeley Tech. L.J. 1207 (2002).

30. John Perry Barlow, Declaration of the Independence of Cyberspace, Feb. 18, 1996, http://homes.eff.org/~barlow/Declaration-Final.html.

31. David R. Johnson & David Post, Law and Borders: The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996).

32. James Grimmelman, Accidental Privacy Spills: Musings on Privacy, Democracy, and the Internet, LawMeme, Feb. 19, 2003, http://research.yale.edu/lawmeme/modules.php ?name=News&file=article&sid=938.

33. Letter of Laurie Garrett, Feb. 17, 2003, in comments to Could This Be True? MetaFilter, Feb. 11, 2003, http://www.metafilter.com/mefi/23493.

34. Grimmelman, Accidental Privacy Spills, supra.

35. Michelle Andrews, Decoding Myspace, U.S. News & World Report, Sept. 18, 2006.

36. ACLU v. Miller, 977 F. Supp. 1228 (N.D. Ga. 1997).

37. Jennie C. Meade, The Duel, http://www.law.gwu.edu/Burns/rarebooks/exhibits/duel .htm.

38. Barbara Holland, Gentlemen’s Blood: A History of Dueling 22 (2003).

39. Cynthia A. Kierner, Scandal at Bizarre: Rumor and Reputation in Jefferson’s America 40 (2004).

40. Quoted in Alison L. LaCroix, To Gain the Whole World and Lose His Own Soul: Nineteenth-Century American Dueling as Public Law and Private Code, 33 Hofstra L. Rev. 501, 517 (2004).

41. Quoted in Douglas H. Yarn, The Attorney as Duelist’s Friend: Lessons from the Code Duello, 51 Case W. Res. L. Rev. 69, 113 (2000).

42. Meade, The Duel, supra.

43. William Blackstone, Commentaries on the Laws of England, vol. IV, at *199 (1768).

44. C. A. Harwell Wells, Note, The End of the Affair? Anti-Dueling Laws and Social Norms in Antebellum America, 54 Vand. L. Rev. 1805, 1807, 1831–32 (2001).

45. Kierner, Scandal at Bizarre, supra, at 39.

46. Quoted in Holland, Gentlemen’s Blood, supra, at 3.

47. As Hamilton explained: “The ability to be in the future useful, whether in resisting mischief or effecting good, in those crises of our public affairs which seem likely to happen, would probably be inseparable from a conformity with public prejudice in this particular.” Alexander Hamilton, quoted in Meade, The Duel, supra.

48. Van Vechten Veeder, The History and Theory of Defamation, 3 Colum. L. Rev. 546, 548 (1903).

49. Kierner, Scandal at Bizarre, supra, at 40.

50. Wells, Anti-Dueling Laws, supra, at 1823.

51. Holland, Gentlemen’s Blood, supra, at 3.

52. Kierner, Scandal at Bizarre, supra, at 39, 41.

53. Id. at 45.

54. Id. at 44, 42, 61.

55. LaCroix, Dueling, supra, at 511–12, 454, 547–50, 552. Lawrence Lessig notes that although legal prohibitions on dueling were ineffective, another type of legal sanction “might actually have been more effective.” People engaging in duels were restricted from holding public office. Since holding public office was “a duty of the elite,” the restriction gave gentlemen a reason for “escaping the duel” without “appealing to selfinterest or the rules of commoners.” Lessig, however, concedes that “even this sanction was ineffective for much of the history of the old South” because legislatures “would grandfather all duels up to the time of the legislation and would repass the grandfather legislation every few years.” Lawrence Lessig, The Regulation of Social Meaning, 62 U. Chi. L. Rev. 943, 971–72 (1995).

56. Wells, Anti-Dueling Laws, supra, at 1839.

57. David S. Parker, Law, Honor, and Impunity in Spanish America: The Debate Over Dueling, 1870–1920, 19 Law & Hist. Rev. 311, 319, 325 (2001).

58. LaCroix, Dueling, supra, at 515.

59. John Lyde Wilson, The Code of Honor, or Rules for the Government of Principals and Seconds in Duelling 6 (1858), quoted in LaCroix, Dueling, supra, at 559.

60. LaCroix, Dueling, supra, at 565.

61. Madison v. Yunter, 589 P.2d 126, 130 (Mont. 1978).

62. Quoted in Joanne B. Freeman, Slander, Poison, Whispers, and Fame: Jefferson’s “Anas” and Political Gossip in the Early Republic, 15 Journal of the Early Republic 25, 31 (1995).

63. Quoted in id. at 30.

64. Veeder, History, supra, at 563.

65. Rodney A. Smolla, The Law of Defamation §1:2, at 1–4 (2d ed. 2000).

66. Veeder, Defamation, supra, at 548.

67. Restatement (Second) of Torts §559.

68. Id. at §578.

69. Zechariah Chafee, Government and Mass Communication 106–7 (1947).

70. Rodney A. Smolla, Dun & Bradstreet, Hepps, and Liberty Lobby: A New Analytic Primer on the Future Course of Defamation, 75 Geo. L.J. 1519 (1987).

71. See Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235 (Minn. 1998) (finally recognizing a common-law tort action for invasion of privacy, noting that Minnesota remained one of the few holdouts).

72. Restatement (Second) of Torts §652B.

73. Id. at §652E.

74. Id. at §652C.

75. Id. at §652C comment (c).

76. Id. at §652D.

77. Rodney A. Smolla, Accounting for the Slow Growth of American Privacy Law, 27 Nova L. Rev. 289, 289 (2002).

78. Richard A. Posner, Overcoming Law 545 (1995).

79. Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997).

80. Mike, Todd Hollis and Defamation Suits, Crime & Federalism, June 8, 2006, http://fed eralism.typepad.com/crime_federalism/2006/06/todd_hollis_and.html

81. Comment ofmtneergal to Robert J. Ambrogi, Don’tSueHerBoy, Law.com Inside Opinions: Legal Blogs, June 30, 2006, http://legalblogwatch.typepad.com/legal_blog _watch/2006/06/dontsueherboy.html.

82. Comment of Big Larry to Robert J. Ambrogi, id.

83. Laura Parker, Jury Awards $11.3M Over Defamatory Internet Posts, USA Today, Oct. 11, 2006.

84. Jacob A. Stein, Defamation, Washington Lawyer (Nov. 2001).

85. Lyrissa Barnett Lidsky, Silencing John Doe: Defamation and Discourse in Cyberspace, 49 Duke L.J. 855, 857 (2000).

86. Robert N. Bellah, The Meaning of Reputation in American Society, 74 Cal. L. Rev. 743, 744 (1986).

87. Jerome A. Barron, The Search for Media Accountability, 19 Suffolk U. L. Rev. 789, 789–90 (1985).

88. Lyrissa Barnett Lidsky, Defamation, Reputation, and the Myth of Community, 71 Wash. L. Rev. 1, 14 (1996).

CHAPTER 6. FREE SPEECH, ANONYMITY, AND ACCOUNTABILITY

1. John Milton, Areopagitica (George H. Sabine, ed. 1954) (originally published in 1644).

2. U.S. Const. amend. I.

3. Cohen v. California, 403 U.S. 15, 24–25 (1971).

4. New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964).

5. Chaplinksy v. New Hampshire, 315 U.S. 568, 572 (1942).

6. New York Times Co. v. Sullivan, 376 U.S. 254, 271–72 (1964).

7. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

8. Id. at 342.

9. New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).

10. Randall P. Bezanson, The Developing Law of Editorial Judgment, 78 Neb. L. Rev. 754, 774–75, 763–64 (1999).

11. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340–41 (1974).

12. Id. at 341 (quoting Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J. concurring)).

13. William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 423 (1960).

14. Thomas I. Emerson, The System of Freedom of Expression 556 (1970).

15. Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking About You, 52 Stan. L. Rev. 1049, 1050–51 (2000).

16. Laurent B. Frantz, The First Amendment in the Balance, 71 Yale L.J. 1424, 1424 (1962); Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 Sup. Ct. Rev. 245, 246.

17. Konigsberg v. State Bar of Cal., 366 U.S. 36, 61, 63 (1961) (Black, J., dissenting).

18. Hugo L. Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865, 867 (1960).

19. Elizabeth S. Black, Hugo Black: A Memorial Portrait, The Supreme Court Historical Society (1982), http://www.supremecourthistory.org/04_l ... mes/04_c17 _j.html.

20. T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943, 943 (1987).

21. See, e.g., Sable Communications, Inc. v. FCC, 492 U.S. 115, 126 (1989) (striking down a ban on indecent dial-a-porn services under strict scrutiny).

22. Gerald Gunther, The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972).

23. Volokh, Freedom of Speech, supra, at 1083–84.

24. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758 (1985) (“We have long recognized that not all speech is of equal First Amendment importance.”). Cass Sunstein has argued that a workable system of free speech depends upon “making distinctions between low and high value speech, however difficult and unpleasant that task may be.” Cass R. Sunstein, Low Value Speech Revisited, 83 Nw. U. L. Rev. 555, 557 (1989).

25. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978).

26. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758–59 (1985) (quoting First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978)).

27. Although the Supreme Court has applied strict scrutiny to restrictions on speech of public concern, it has not done so to restrictions on speech of private concern. See, e.g., Florida Star v. B.J.F., 491 U.S. 524, 532 (1989) (refusing “to hold broadly that truthful publication may never be punished consistent with the First Amendment. Our cases have carefully eschewed reaching this ultimate question.”); Bartnicki v. Vopper, 532 U.S. 514, 529 (2001) (noting that the Court has “repeated refusal to answer categorically whether truthful publication may ever be punished consistent with the First Amendment.”).

28. Diane L. Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and Brandeis’s Privacy Tort, 68 Cornell L. Rev. 291, 294, 362 (1983).

29. See, e.g., C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 990–1009 (1978) (explaining three theoretical models addressing the scope of First Amendment speech protection); Richard H. Fallon, Jr., Two Senses of Autonomy, 46 Stan. L. Rev. 875 (1994) (asserting and applying two theories relating to the autonomy-based First Amendment doctrine); Martin H. Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591, 593 (1982) (“[F]ree speech ultimately serves only one true value, which I have labeled ‘individual self-realization.’ ”).

30. Sean M. Scott, The Hidden First Amendment Values of Privacy, 71 Wash. L. Rev. 683, 723 (1996).

31. See Paul M. Schwartz, Privacy and Democracy in Cyberspace, 52 Vand. L. Rev. 1609, 1665 (1999) (noting that privacy shapes “the extent to which certain actions or expressions of identity are encouraged or discouraged”).

32. Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object, 52 Stan. L. Rev. 1373, 1426 (2000); see also Anita L. Allen, Uneasy Access: Privacy for Women in a Free Society 44 (1988) (“The value of privacy is, in part, that it can enable moral persons to be self-determining individuals.”); Ruth Gavison, Privacy and the Limits of Law, 89 Yale L.J. 421, 455 (1980) (“Privacy is also essential to democratic government because it fosters and encourages the moral autonomy of the citizen, a central requirement of a democracy.”).

33. Richard S. Murphy, Property Rights in Personal Information: An Economic Defense of Privacy, 84 Geo. L.J. 2381, 2397 (1996).

34. Alan F. Westin, Privacy and Freedom 37 (1967).

35. See Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People 26, 154–55 (1960).

36. Owen M. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405, 1411 (1986).

37. Quoted in John H. Summers, What Happened to Sex Scandals? Politics and Peccadilloes, Jefferson to Kennedy, 87 Journal of American History 825, 826 (2000).

38. As Keith Boone contends: “Privacy seems vital to a democratic society [because] it underwrites the freedom to vote, to hold political discussions, and to associate freely away from the glare of the public eye and without fear of reprisal.” C. Keith Boone, Privacy and Community, 9 Soc. Theory & Prac. 1, 8 (1983).

39. John Stuart Mill, On Liberty 18 (David Spitz, ed. 1975) (originally published in 1859).

40. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

41. Frederick Schauer, Reflections on the Value of Truth, 41 Case W. Res. L. Rev. 699, 706 (1991); see also Anita L. Allen, The Power of Private Facts, 41 Case W. Res. L. Rev. 757, 766 (1991) (arguing that allocations of power can sometimes be more valuable than the protection of true speech); Julie E. Cohen, Privacy, Ideology, and Technology: A Response to Jeffrey Rosen, 89 Geo. L.J. 2029, 2036 (2001) (“The belief that more personal information always reveals more truth is ideology, not fact, and must be recognized as such for informational privacy to have a chance.”). For a critique of Schauer’s position, see Erwin Chemerinsky, In Defense of Truth, 41 Case W. Res. L. Rev. 745 (1991).

42. Pearse v. Pearse, 63 Eng. Rep. 950, 957 (Ch. 1846) (Bruce, V.C.).

43. Restatement (Second) of Torts §652D.

44. Id. at § 652D cmt. d.

45. Id. at § 652D cmt. h.

46. See Michaels v. Internet Entertainment Group, Inc., 5 F. Supp. 2d 823, 837 (C.D. Cal. 1998) (acknowledging the president of Internet Entertainment Group’s estimate that the company would lose one third of its $1,495,000 subscription revenue without the Bret Michaels and Pamela Anderson sex video).

47. Barber v. Time, Inc. 159 S.W.2d 291, 295 (Mo. 1942).

48. Shulman v. Group W. Productions, Inc., 955 P.2d 469 (Cal. 1998).

49. Zimmerman, Requiem, supra, at 357 (recognizing the argument that editors of an article have a right to strengthen the force of their evidence by naming names).

50. Bonome v. Kaysen, 32 Media L. Rep. 1520 (Mass. Super. 2004).

51. Id.

52. http://underneaththeirrobes.blogs.com/.

53. Article III Groupie, Hotties in the Holding Pen: Untimely SFJ Nominations, Underneath Their Robes, July 17, 2004, http://underneaththeirrobes.blogs.com/main/2004/06/ greetings_welco.html.

54. Jeffrey Toobin, SCOTUS Watch, New Yorker, Nov. 21, 2005, http://www.newyorker .com/talk/content/articles/051121ta_talk_toobin

55. Jonathan Miller, He Fought the Law. They Both Won, N.Y. Times, Jan. 22, 2006, at sec. 14NJ, at 1.

56. Will Baude, The Other 10 Questions for Article III Groupie, Crescat Sententia, Aug. 29, 2005, http://www.crescatsententia.org/archive ... tml#005865.

57. Comment to Orin Kerr, Article III Groupie Comes Out of the Closet, Volokh Conspiracy, Nov. 14, 2005, http://volokh.com/posts/1131979281.shtml.

58. Miller, He Fought the Law, supra.

59. Amanda Lenhart & Susannah Fox, Bloggers: A Portrait of the Internet’s New Storytellers, Pew Internet & American Life Project, July 19, 2006, http://www.pewinternet.org/ pdfs/PIP%20Bloggers%20Report%20July%2019%202006.pdf.

60. Talley v. California, 362 U.S. 60 (1960).

61. Smith, Ben Franklin’s Web Site, supra, at 41–43.

62. McIntyre v. Ohio Elect. Comm’n, 514 U.S. 334, 342–43 (1995).

63. Gary T. Marx, Identity and Anonymity: Some Conceptual Distinctions and Issues for Research, in Documenting Individual Identity 311, 316, 318 (Jane Caplan and John Torpey, eds. 2001).

64. A. Michael Froomkin, Flood Control on the Information Ocean: Living with Anonymity, Digital Cash, and Distributed Databases, 15 J.L. & Comm. 395, 408 (1996).

65. Adam Smith, The Wealth of Nations 854 (Modern Library edition 1994) (originally published in 1776).

66. McIntyre v. Ohio Election Comm’n, 514 U.S. 334, 382 (1995) (Scalia, J. dissenting).

67. http://harrietmiers.blogspot.com/.

68. http://jmluttig.blogspot.com/.

69. Joyce Pellino Crane, Internet Bullying Hits Home for Teen: Anonymous Attacks a Growing Concern, Boston Globe, June 30, 2005.

70. Margaret K. Collins, Push to Criminalize False Info on Web, NorthJersey.com, Sept. 20, 2006/.

71. Denise Grady, Faking Pain and Suffering on the Internet, N.Y. Times, Apr. 23, 1998, at G1.

72. Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community 177 (2000).

73. Katharine Q. Seelye, Rewriting History: Snared in the Web of a Wikipedia Liar, N.Y. Times, Dec. 4, 2005. Wikipedia is located at http://en.wikipedia.org/.

74. Ken S. Myers, Wikimmunity: Fitting the Communications Decency Act to Wikipedia, 20 Harv. J.L. & Tech. 163 (2006).

75. Alexa.com keeps track of the current most visited websites around the world. See http://www.alexa.com/site/ds/top_500.

76. John Seigenthaler, A False Wikipedia “Biography,” USA Today, Nov. 29, 2005, http:// www.usatoday.com/news/opinion/editorial ... edit_x.htm.

77. Id.

78. Katharine Q. Seelye, A Little Sleuthing Unmasks Writer of Wikipedia Prank, N.Y. Times, Dec. 11, 2005.

79. Seigenthaler, False Wikipedia “Biography,” supra.

80. Seelye, A Little Sleuthing, supra.

81. John Seigenthaler, Sr., Wikipedia, Sept. 30, 2006, http://en.wikipedia.org/wiki/John _Seigenthaler_Sr.

82. Simon Freeman, Wikipedia Hit By Surge in Spoof Articles, The Times (London), Dec. 15, 2005, http://www.timesonline.co.uk/article/0, ... 68,00.html.

83. Comment to Daniel J. Solove, Fake Biographies on Wikipedia, Concurring Opinions, Dec. 1, 2006, http://www.concurringopinions.com/archi ... aphie.html.

84. Yuki Noguchi, On Capitol Hill, Playing WikiPolitics, Wash. Post, Feb. 4, 2006, at A1.

85. Evan Hansen, Wikipedia Founder Edits Own Bio, Wired News, Dec. 15, 2005, http:// www.wired.com/news/culture/0,1284,69880,00.html.

86. Orin Kerr, More on Wikipedia (Plus Updates), Volokh Conspiracy, Oct. 18, 2004, http://volokh.com/posts/1098119066.shtml.

87. Wikipedia, Wikipedia: Replies to Common Objections, Dec. 20, 2006, http://en .wikipedia.org/wiki/Wikipedia:Replies_to_common_objections.

88. Tal Z. Zarsky, Thinking Outside the Box: Considering Transparency, Anonymity, and Pseudonymity as Overall Solutions to the Problems of Information Privacy in the Internet Society, 58 U. Miami L. Rev. 991, 1028, 1032, 1044 (2004).

89. The Electronic Frontier Foundation, a digital rights organization, created a manual to help people better protect themselves from being traced. Electronic Frontier Foundation, How to Blog Safely (About Work or Anything Else), Apr. 6, 2005, http://www.eff .org/Privacy/Anonymity/blog-anonymously.php.

90. Ralph Gross & Alessandro Acquisti, Information Revelation and Privacy in Online Social Networks (The Facebook Case), ACM Workshop on Privacy in the Electronic Society, Nov. 7, 2005, at §4.2.

91. Michael Barbaro & Tom Zeller, Jr., A Face Is Exposed for AOL Searcher No. 4417749, N.Y. Times, Aug. 9, 2006, at A1.

92. See Talley v. State of California, 362 U.S. 60, 64 (1960).

93. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1994).

94. See, e.g., Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999); Dendrite International, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. Super. A.D. 2001); Doe v. Cahill, 884 A.2d 451 (Del. 2005).

95. In some cases, courts have required that people demonstrate that their case is strong enough to defeat a summary judgment motion. The plaintiff “must introduce evidence creating a genuine issue of material fact for all elements of a defamation claim within the plaintiff’s control.” See Doe v. Cahill, 884 A.2d 451, 462–63 (Del. 2005).

96. The facts are taken from the complaint in Clifton Swiger v. Allegheny Energy, Inc. (E.D. Pa.).

97. The facts in this section are taken from Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997); Zeran v. America Online, Inc., 958 F. Supp. 1124 (E.D. Va. 1997); and Zeran v. Diamond Broadcasting, Inc., 203 F.3d 714 (10th Cir. 2000).

98. Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).

99. 47 U.S.C. §230(c)(1).

100. Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).

101. Id.

102. Barnes v. Yahoo! Inc., 2005 WL 3005602 (D. Oregon 2005

103. The Digital Millennium Copyright Act, 17 U.S.C. §512.

104. Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003).

105. Appellants Reply Brief, Carafano v. Metrosplash.com, Inc. No. 02-55658, 2003 WL 22023295 (Feb. 11, 2003).

106. Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir. 2003).

107. The facts are taken from Jori Finkel, The Case of the Forwarded E-mail, Salon.com, July 13, 2001, http://archive.salon.com/tech/feature/2 ... curity_net work/index.html; Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).

108. Batzel v. Smith, 333 F.3d 1018, 1035 (9th Cir. 2003).

109. Id. at 1038, 1040 (Gould, J. dissenting).

CHAPTER 7. PRIVACY IN AN OVEREXPOSED WORLD

1. Jerome Burdi, Burning Man Gets Hot over Steamy Videos, Court TV, Aug. 26, 2002, http://archives.cnn.com/2002/LAW/08/26/ctv.burning.man/.

2. Evelyn Nieves, A Festival with Nudity Sues a Sex Web Site, N.Y. Times, July 5, 2002. Burning Man’s suit was filed before the Video Voyeurism Prevention Act was introduced. Among the claims were intrusion, appropriation, public disclosure, breach of contract, and trespass.

3. Id.

4. Gill v. Hearst Pub. Co., 253 P.2d 441 (Cal. 1953).

5. Restatement (Second) of Torts §652D (comment c).

6. Cefalu v. Globe Newspaper Co., 391 N.E.2d 935, 939 (Mass. App. 1979).

7. Penwell v. Taft Broadcasting, 469 N.E.2d 1025 (Ohio App. 1984).

8. http://www.earthcam.com/.

9. http://flickr.com/.

10. YouTube Serves Up 100 Million Videos a Day Online, Reuters, July 16, 2006.

11. http://en.wikipedia.org/wiki/Moblog.

12. Katie Dean, Blogging +Video = Vlogging, Wired.com, July 13, 2005, http://www.wired .com/news/digiwood/0,1412,68171,00.html.

13. Andrew Jay McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C. L. Rev. 989, 1041–42 (1995).

14. Nader v. General Motors Corp., 255 N.E.2d 765, 772 (N.Y. App. 1970) (Brietel, J. concurring).

15. Helen Nissenbaum, Privacy as Contextual Integrity, 79 Wash. L. Rev. 119, 144–45 (2004).

16. McClurg, Privacy Law, supra, at 1041–43.

17. Marcia Chambers, Colleges: Secret Videotapes Unnerve Athletes, N.Y. Times, Aug. 9, 1999, at D4.

18. Clay Calvert, Voyeur Nation: Media, Privacy, and Peering in Modern Culture (2000).

19. See, e.g., La. Rev. Stat. Ann. §14:283; N.J. Stat. Ann. §2C:18-3; N.Y. Penal Law §250.45.

20. RCW 9A.44.115.

21. Washington v. Glas, 54 P.3d 147 (Wash. 2002)

22. 18 U.S.C. §1801.

23. Quoted in Anick Jesdanun, Facebook Feature Draws Privacy Conerns, Associated Press, Sept. 7, 2006.

24. Dave Wischnowsky, Facebook Alienates Users, Chicago Tribune, Sept. 8, 2006.

25. Peter Meredith, Facebook and the Politics of Privacy, Mother Jones, Sept. 14, 2006.

26. Quoted in Jesdanun, Facebook Feature, supra.

27. Wischnowsky, Facebook Alienates Users, supra.

28. Mark Zuckerberg, An Open Letter from Mark Zuckerberg: Creator of Facebook, Sept. 8, 2006. The letter appeared on the Facebook website when users logged in. It has since been removed.

29. Bruce Schneier, Lessons from the Facebook Riots, Wired, Sept. 21, 2006.

30. Lisa Lerer, How Not to Get a Job, Forbes, Oct. 13, 2006.

31. The Greatest CV Ever Filmed, Oct. 10, 2006, http://www.metro.co.uk/weird/article .html?in_article_id=20878&in_page_id=2&expand rue.

32. Paul Tharp, Wannabe Banker’s Video Resume Backfires, N.Y. Post, Oct. 12, 2006.

33. Michael J. de la Merced, A Student’s Video Résumé Gets Attention (Some of It Unwanted), N.Y. Times, Oct. 21, 2006.

34. Comments to Andrew Ross Sorkin, The Resume Mocked Around the World, DealBook, Oct. 19, 2006, http://dealbook.blogs.nytimes.com/2006/ ... ume-mocked -round-the-world-vayner-speaks/.

35. Interview with Aleksey, Rita Cosby Live, MSNBC, Oct. 23, 2006.

36. Creepy Orwellian Trance of Aleksey Vayner Fails to Generate Fun, IvyGate Blog, Nov. 20, 2006, http://ivygateblog.com/blog/2006/11/cre ... f_aleksey_ vayner_fails_to_translate_into_fun.html.

37. Douchebag Hall of Fame: The Inevitable Charter Member, Gawker, Oct. 16, 2006, http://www.gawker.com/news/douchebag-ha ... f-fame-the -inevitable-charter-member-207845.php.

38. Interview with Aleksey on ABC, 20/20, Dec. 29, 2006.

39. Merced, Student’s Video Résumé, supra.

40. “Whatsoever things I see or hear concerning the life of men, in my attendance on the sick or even apart therefrom, which ought not to be noised abroad, I will keep silence thereon, counting such things to be as sacred secrets.” Hippocratic Oath, quoted in Daniel J. Solove, Marc Rotenberg & Paul M. Schwartz, Information Privacy Law 350 (2d ed. 2006).

41. Mark Twain, The Autobiography of Mark Twain xxxv (Charles Neider, ed.).

42. Hammonds v. AETNA Casualty & Surety Co., 243 F. Supp. 793, 801 (D. Ohio 1965).

43. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

44. Wendy Meredith Watts, The Parent-Child Privileges: Hardly a New or Revolutionary Concept, 28 Wm. & Mary L. Rev. 583, 592 (1987); Glen Weissenberger, Federal Evidence §501.6, at 205–9 (1996).

45. In re Grand Jury, 103 F.3d 1140, 1146 (3d Cir. 1997) (“The overwhelming majority of all courts—federal and state—have rejected such a privilege.”).

46. See, e.g., State v. DeLong, 456 A.2d 877 (Me. 1983) (refusal to testify against father); Port v. Heard, 594 F. Supp. 1212 (S.D. Tex. 1984) (refusal to testify against son); United States v. Jones, 683 F.2d 817 (4th Cir. 1982) (refusal to testify against father in grand jury).

47. In re A&M, 61 A.2d 426 (N.Y. 1978).

48. The Supreme Court has held that in Fourth Amendment law, people lack a reasonable expectation of privacy when they trust others with their information. See, e.g., Smith v. Maryland, 442 U.S. 735, 744 (1979) (a person “assumes the risk that the [phone] company [will] reveal to the police the numbers he dialed.”). Undercover agents are not regulated by the Fourth Amendment because people assume the risk of betrayal. See Hoffa v. United States, 385 U.S. 293, 302 (1966); Lewis v. United States, 385 U.S. 206, 210–11 (1966).

49. Nader v. General Motors, Inc., 225 N.E.2d 765, 770 (N.Y. 1970).

50. See, e.g., Argyll v. Argyll [1967] 1 Ch. 302 (1964) (spouse liable for breach of confidence); Stephens v. Avery, [1988] 1 Ch. 449 (1988) (friend liable for breach of confidence); Barrymore v. News Group Newspapers, [1997] F.S.R. 600 (1997) (lover liable for breach of confidence).

51. Barrymore, supra, at 602.

52. Id. at 600, 601.

53. Douglas v. Hello! Ltd, [2003] 3 All Eng. Rep. 996.

54. Neil M. Richards & Daniel J. Solove, Privacy’s Other Path: Recovering the Law of Confidentiality, 96 Geo. L.J. (forthcoming Nov. 2007). The article is available online at http://ssrn.com/abstract=969495.

55. Benjamin Franklin, Poor Richard’s Almanac (July 1735) quoted in John Bartlett, Bartlett’s Familiar Quotations 309:15 (Justin Kaplan, ed., Little Brown, 16th ed. 1992).

56. Times Mirror Co. v. Superior Court, 244 Cal. Rptr. 556 (Cal. Ct. App. 1988).

57. Y.G. v. Jewish Hospital, 795 S.W.2d 488 (Mo. Ct. App. 1990).

58. Multimedia WMAZ, Inc. v. Kubach, 443 S.E.2d 491 (Ga. 1994).

59. Duran v. Detroit News, Inc., 504 N.W.2d 715 (Mich. Ct. App. 1993).

60. Fisher v. Ohio Department of Rehabilitation and Correction, 578 N.E.2d 901 (Ohio Ct. Cl. 1988).

61. Lior Jacob Strahilevitz, A Social Networks Theory of Privacy, 72 U. Chi. L. Rev. 919 (2005).

62. Id. at 952, 967.

63. Joanne B. Freeman, Slander, Poison, Whispers, and Fame: Jefferson’s “Anas” and Political Gossip in the Early Republic, 15 Journal of the Early Republic 25, 33 (1995).

64. Id.

65. Giannecchini v. Hospital of St. Raphael, 780 A.2d 1006 (Conn. Super. 2000).

66. Dr. Laura Schlessinger, Men Leave Because Liberal Feminism Gives Permission, New Orleans Times Picayune, July 11, 1999, at E7; Dr. Laura’s Anti-Female Rant, N.Y. Post, Sept. 14, 2006.

67. Patrizia DiLucchio, Dr. Laura, How Could You?, Salon.com, Nov. 3, 1998, http:// archive.salon.com/21st/feature/1998/11/03feature.html.

68. Id.

69. Polly Sprenger, Dr. Laura Drops Her Suit, Wired, Dec. 15, 1998, http://wired-vig .wired.com/news/politics/0,1283,16843,00.html.


70. Marcus Errico, Dr. Laura Dishes on Nude Photos, E Online, Nov. 4, 1998, http://www .eonline.com/print/index.jsp?uuid=3159acb0-ee3e-454a-ab74-ac7f972390c6&content Type=newsStory.

71. DiLucchio, Dr. Laura, supra.

72. 17 U.S.C. §102(a).

73. Jonathan Zittrain, What the Publisher Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted Privication, 52 Stan. L. Rev. 1201, 1203 (2002).

74. Lawrence Lessig, Privacy as Property, 69 Social Research 247, 250 (2002).

75. Zittrain, What the Publisher Can Teach the Patient, supra, at 1206–12.

76. See, e.g., Lawrence Lessig, The Future of Ideas 107–11 (2001); Raymond Shih Ray Ku, Consumers and Creative Destruction: Fair Use Beyond Market Failure, 18 Berkeley Tech. L.J. 539, 567 (2003) (“[C]onsumer copying does little to reduce the incentives for creation because, for the most part, the creation of music is not funded by the sale of copies of that music.”); Mark A. Lemley, Beyond Preemption: The Law and Policy of Intellectual Property Licensing, 87 Cal. L. Rev. 113, 124–25 (1999) (“[G]ranting property rights to original creators allows them to prevent subsequent creators from building on their works, which means that a law designed to encourage the creation of first-generation works may actually risk stifling second-generation creative works.”); Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 Yale L.J. 283, 295 (1996) (“An overly expanded copyright also constitutes a material disincentive to the production and dissemination of creative, transformative uses of preexisting expression.”).

77. Eldred v. Ashcroft, 537 U.S. 186, 190 (2003) (declaring that copyright is “compatible with free speech principles.”).

78. Restatement (Second) of Torts §652C.

79. Jonathan Kahn, Bringing Dignity Back to Light: Publicity Rights and the Eclipse of the Tort of Appropriation of Identity, 17 Cardozo Arts & Ent. L.J. 213, 223 (1999).

80. Pavesich v. New England Life Insurance Co., 50 S.E. 68, 70 (Ga. 1905).

81. Id. at 80.

82. William Prosser, Privacy, 48 Cal. L. Rev. 383, 406 (1960).

83. Paulsen v. Personality Posters, Inc., 299 NYS2d 501 (1968).

84. Rosemont Enterprises, Inc. v. Random House, Inc., 294 N.Y.S.2d 122 (1968).

85. See Hosking v. Runting, [2004] NZCA 34, at [46] (“As the law currently stands, a successful action requires information that is confidential, communication of that information to another in circumstances importing an obligation of confidence and unauthorised use or disclosure.”); International Corona v. Lac Minerals, [1989] 2 S.C.R. 574 (stating elements of breach-of-confidentiality tort); ABC v. Lenah, [2004] HCA 63, at [34] (discussing the breach-of-confidentiality tort).

CHAPTER 8. CONCLUSION

1. Google keeps a cache of old versions of websites, so even after a name is removed from a website, it still exists in Google’s cache and is accessible to a person doing a search. But the cache is refreshed at regular intervals, so it will eventually disappear. There is also a project called the Internet Archive that saves old versions of the Internet. See http:// www.archive.org. But information can be removed from the Internet Archive upon request. See Frequently Asked Questions, http://www.archive.org/about/faqs.php.

2. ReputationDefender, http://www.reputationdefender.com/. For more about the company, see Ellen Nakashima, Harsh Words Die Hard on the Web, Wash. Post, Mar. 7, 2007, at A1.

3. Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes 62, 54, 5 (1991).

4. Tracey Meares, Drugs: It’s a Question of Connections, 31 Val. L. Rev. 579, 594 (1997).

5. John H. Summers, What Happened to Sex Scandals? Politics and Peccadilloes, Jefferson to Kennedy, 87 Journal of American History 825, 825 (2000).

6. Id. at 835.

7. Id. at 842.

8. See Rodney A. Smolla, Free Speech in an Open Society 134 (1992) (“When the press avoided reporting on the sexual liaisons of John Kennedy, however, it engaged in a paternalistic decision that the behavior was not probative of Kennedy’s fitness for public life.”); Jeffrey B. Abramson, Four Criticisms of Press Ethics, in Democracy and the Mass Media 229, 234 (Judith Lichtenberg, ed. 1990) (“There was also the nonreporting of the love lives of Lloyd George, Franklin Roosevelt, Dwight Eisenhower, John Kennedy, and Martin Luther King, Jr.”).

9. See Ellen O’Brien, Chelsea Comes of Age, but Not Before Our Eyes, Boston Globe, Sept. 4, 1994, at 1; Joan Ryan, Clintons Let Go—Chelsea Enters Stanford, S.F. Chron., Sept. 20, 1997, at A1; see Howard Kurtz, First Daughter’s Privacy No Longer Off Limits, Chi. Sun-Times, Nov. 27, 1998, at 32 (“For six years the media followed an unspoken pact to avoid coverage of Chelsea Clinton, allowing the president’s daughter to grow up outside the harsh glare of publicity.”).

10. Ryan, Clintons Let Go, supra.

11. See, e.g., Gail Collins, The Children’s Crusade, N.Y. Times, May 1, 2001, at A23 (arguing that “it’s always news when the offspring of important elected officials break the law,” but noting that when “there’s no legal issue involved, it’s a judgment call”); Joanne Ostrow, Don’t Beat About the Bush Kids, Denver Post, June 10, 2001, at K1 (questioning whether “the media [went] overboard in reporting Jenna Bush’s recent underage drinking citation”).

12. David Bauder, Identifying Rape Victims Troubles Media, Sun-Sentinel (Ft. Lauderdale), Aug. 3, 2002, at 3A; Richard Roeper, Case Shows Absurdity of Media’s Rape ID Policy, Chi. Sun-Times, Aug. 5, 2002, at 11.

13. See id. (“So the media were tripping all over themselves trying to stick to policy—but hardly anyone questioned whether the policy itself is outdated.”); Chris Frates, L.A. Radio Show Names Bryant’s Accuser, Denver Post, July 24, 2003, at B1.

14. J. M. Balkin, How Mass Media Simulate Political Transparency, 3 Cultural Values 393, 402 (1999).

15. John Stuart Mill, On Liberty 11 (Norton edition, David Spitz, ed. 1975) (originally published in 1859).

16. Anita L. Allen, Coercing Privacy, 40 Wm. & Mary L. Rev. 723, 737 (1999).

17. Harvey Jones & José Hiram Soltren, Facebook: Threats to Privacy, Dec. 14, 2005, at 20–21
http://ocw.mit.edu/NR/rdonlyres/Electri ... ence/6-805 Fall-2005/8EE6D1CB-A269-434E-BEF9-D5C4B4C67895/0/facebook.pdf.

18. Id. at 20.

19. Ralph Gross & Alessandro Acquisti, Information Revelation and Privacy in Online Social Networks (The Facebook Case), ACM Workshop on Privacy in the Electronic Society, Nov. 7, 2005, at §4.4.

20. Emily Nussbaum, My So-Called Blog, N.Y. Times Magazine, Jan. 11, 2004.

21. Marie-Chantale Turgeon, 10 Reasons to Blog, http://www.meidia.ca/archives/2005/06/ 10_reasons_to_b.php?l=en.

22. Electronic Frontier Foundation, How to Blog Safely (About Work or Anything Else), May 31, 2005, http://www.eff.org/Privacy/Anonymity/bl ... mously.php.

23. Quoted in Brian Leiter, Top Law School Warns Students: Watch What You Post! Sept. 1, 2005, http://leiterlawschool.typepad.com/leit ... hool_.html.

24. Nussbaum, So-Called Blog, supra.

25. See Lawrence Lessig, Code and Other Laws of Cyberspace 5–6, 236 (1999); Joel R. Reidenberg, Rules of the Road for Global Electronic Highways: Merging Trade and Technical Paradigms, 6 Harv. J. L. & Tech. 287, 296 (1993); see also Joel R. Reidenberg, Lex Informatica: The Formulation of Information Policy Rules Through Technology, 76 Tex. L. Rev. 553 (1998).

26. Lessig, Code, supra, at 5–6, 236. For a discussion of how physical architecture can influence behavior, see Neal Kumar Katyal, Architecture as Crime Control, 111 Yale L.J. 1039 (2002).

27. Jones & Soltren, Facebook, supra, at 6.

28. Gross & Acquisti, Information Revelation, supra, at §3.5.

29. Jones & Soltren, Facebook, supra, at 20.

30. Judith Donath & danah boyd, Public Displays of Connection, 22 BT Technology Journal 71, 78 (2004).

31. Conversation with Chris Hoofnagle, December 2006.

32. Fair Credit Reporting Act, 15 U.S.C. §1681b(b).

33. Alessandro Acquisti & Ralph Gross, Imagined Communities: Awareness, Information Sharing, and Privacy on the Facebook, Privacy Enhancing Technologies Workshop (PET), 2006, §4.4, at 13.

34. Michelle Andrews, Decoding Myspace, U.S. News & World Report, Sept. 18, 2006.

35. Jorge Luis Borges, The Library of Babel, in Collected Fictions 112, 112, 115 (Andrew Hurley, trans. 1998) (story originally published in 1941).

36. John Battelle, The Search: How Google and Its Rivals Rewrote the Rules of Business and Transformed Our Culture 65–93 (2005).

37. Id. at 252.

38. Id. at 254.

39. Albert-Lásló Barabási, Linked 164–65 (2002). For more about search engines, see Frank Pasquale, Rankings, Reductionism, and Responsibility, 54 Clev. St. L. Rev. 115 (2006). 40. Ellen Lee, Social Sites Becoming Too Much of a Good Thing, S.F. Chron., Nov. 2, 2006 at A1 (discussing creation of Facebook); Battelle, Search, supra, at 77–90
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Re: The Future of Reputation: Gossip, Rumor, and Privacy on

Postby admin » Mon Oct 21, 2013 10:54 pm

Index

Note: Boldface page numbers refer to illustrations.

Abortion doctors, 100–101
Above the Law, 139
Absolutism, 127–28, 191
Accessibility of information, and privacy,
169–70, 191
Accountability: and reputation, 31–
32; and norm violations, 33; and
anonymity, 139, 140–42, 143,
146, 148–49
Acquisti, Alessandro, 26–27, 197
Actual malice, 126
Adams, John, 30, 118
AIDS, 70, 141
Allegheny Energy Service, 148–49
Allen, Anita, 74, 85, 197
Alternative dispute resolution, 124,
192
American Coalition of Life Activists
(ACLA), 100
Anderson, Pamela, 132, 183
Anonymity: and sexual assault victims,
36, 59, 195; in blogs, 59,
139, 141, 147, 149–50; and
shaming, 92, 101; and authoritarian
approach to privacy law, 113;
in lawsuits, 120, 121, 148; and
privacy/free speech balance, 136–
46, 191; and accountability, 139,
140–42, 143, 146, 148–49;
virtues of, 139–40; and openness,
142–46; law of, 146–49; traceable
anonymity, 146–47, 149; expectations
of, 165
AOL, 150–53
Apple Story Lady, 83–84
Appropriation tort, 119, 162, 186–
87
Arbitration, 124, 192
Arendt, Hannah, 68
Armstrong, Heather, 39
Article III Groupie, 136–39, 137
Australia, 188
Autonomy, 130, 132, 134, 160
Azar, Ofer, 99

Ballance, Bill, 183–84
Barabási, Albert-László, 62
Barlow, John Perry, 110–11
Barron, Jerome, 122
Barrymore, Michael, 175
Battelle, John, 204–5
Batzel, Ellen, 157–59
Beecher, Henry Ward, 107, 212n91
Ben Ze’ev, Aaron, 63
Berstein, Carl, 134
BitterWaitress, 87–88, 90
Black, Hugo, 127–28
Blackstone, William, 114
Blogger (website), 20, 21
Blogosphere: as norm-enforcing tool,
6; norms of, 9, 194–96; size of, 21;
error-correction machinery of, 37,
195; democratizing nature of, 48–
49; and ethics, 59, 195; and linking,
62; and customer complaints,
93; and defamation law, 121
Blogs (Web logs): and privacy, 1–2,
191, 198–99; circulation of, 2; instant
gratification of blogging, 5;
dissemination of information on,
11; mainstream media distinguished
from, 19–20, 23–24, 194–
96, 199–200; and self-expression,
19, 49; interactive nature of, 20–
21, 149–50; requirements for, 20–
21; increase in posts, 21, 22; types
of, 21–23; and journalism, 23–24;
as diaries, 24, 59, 198–99; employers’
monitoring of, 38; and
sex, 50–54; and gossip, 51, 52,
59, 181; anonymity in, 59, 139,
141, 147, 149–50; and linking,
61–62, 78; and ethics, 69; immunity
for bloggers, 153–54, 159,
160, 191; variations of, 164
Boone, Keith, 228n38
Borges, Jorge Luis, 204
Boston University, 55–56
boyd, danah, 27, 202
Boyden, Bruce, 144
Brandeis, Louis: and privacy, 108–
9, 190; and privacy law, 109–10,
113, 119–20; and tort remedies,
110, 113; and public disclosure,
128, 129, 162; and appropriation,
162; and confidentiality law,
176
Branding, 91, 95
Brandt, Daniel, 144, 147
Brazil, 28
Breach-of-confidentiality tort, 175–
76, 188, 234n85
Brin, David, 105
Brin, Sergey, 9
Brison, Karen, 64, 65
Bryant, Kobe, 36–37, 195
Burning Man Festival, 161–62, 167–
68, 231n2
Burr, Aaron, 115, 115
Bush, George W., 195, 235n11
Büyükkökten, Orkut, 28

Canada, 28, 188
Capek, Karel, 67
Carafano, Christianne, 155–57
Cardozo, Benjamin, 33
Carpool Cheats, 99–100
Cate, Fred, 72
Cell phone cameras, 33, 80, 164,
166, 168
Cell phone thief, 80–83, 82, 94
Cell phone use, norms of, 85, 86,
166
Censorship: and authoritarian approach
to privacy law, 112–13;
and privacy/free speech balance,
131; and blogs, 199
Children, 24, 197, 200, 204
China, 28–29, 43–44, 101–2
Citizen journalism, 8, 9
Cleveland, Grover, 107, 194
Clinton, Bill, 194–95
Clinton, Chelsea, 195, 235n9
Cohen, Julie, 130
College life, and blogs, 54–58
Commercial speech, 128
Communications Decency Act
(CDA), Section 230, 152–54, 155,
156–59, 191
Concurring Opinions, 61–62, 62
Confidentiality: and privacy law,
170–83, 187, 191, 193; and risk
of betrayal, 173–76; breach-ofconfidentiality
tort, 175–76, 188,
234n85; and social networks,
176–81; extension of liability for
breach of, 181–82; dangers of too
much confidentiality, 182–83; and
control, 184
Consumer Action, 93–94
Context: and personal information,
66–67; and complicated self, 68–
70; and privacy, 72, 165; and reputation,
74
Control: Internet’s potential for, 4–
5; social control, 6, 32, 65, 72; of
reputation, 11, 33–35, 189; of
personal information, 29, 170,
184–86, 188; of gossip, 65; of Internet
shaming, 94, 96, 101–2;
and privacy law, 183–87, 188,
191; and appropriation tort, 186–
87
Cooley, C. F., 30–31
Cooter, Robert, 98
Copyright Act, 185
Copyright law, 155, 184, 185–86,
188, 234n76
Corporations, shaming of, 93–94,
95
Coudal, Jim, 86
Cox, Ana Marie, 52, 53–54
Cremers, Tom, 157–58
Customer service, and shaming, 93–
94
Cutler, Jessica, 50–54, 74, 124,
130–31, 134–36, 139, 173,
214n13
Cyworld, 28–29

Daily Rotten, 21
Damages, limits to, 122, 124, 154,
155, 192
Day, Benjamin, 106
DealBook, 171–72
Declaration of Independence of Cyberspace,
110–11
Defamation. See Reputation
Defamation law: and personal information,
113; history of, 116; and
reputation, 116, 117, 118, 120,
121, 122; and rumors, 118, 158–
59; false light compared to, 119;
and blogs, 120–21, 191; and
threat of lawsuits, 123; limitation
in scope of, 125, 126; and Section
230 immunity, 152, 154, 155,
156, 157, 158, 191
Democracy, and privacy/free speech
balance, 130–31, 132, 160,
228n38
Democratic National Convention
(2004), 24, 53–54
Dewey, John, 73
Diaries, blogs as, 24, 59, 198–99
Dickens, Charles, 106
Disclosure, 74. See also Public disclosure
Discrimination, 70
Doctors Know Us, 98
Dog poop girl, 1–2, 3, 5–8, 49, 78,
92, 94, 168
Donath, Judith, 27, 202
Don’t Date Him Girl, 89–90, 121
Dooced, 39–40
DotMoms, 23
Douglas, Michael, 175
Draplin, Aaron, 86
Drezner, Daniel, 19–20
Dueling, 114–17, 115, 190, 224–
25n55
Due process, and shaming, 96–98
Dürrenmatt, Friedrich, 73

EarthCam, 164, 164
Eastman Kodak Company, 107–8,
108
Edison, Thomas, 107
Electronic Frontier Foundation, 199,
230n89
Eliot, George, 140
Ellickson, Robert, 193–94
Emerson, Thomas, 127
Emler, Nicholas, 63
Employment: and information on Internet,
38–40, 190, 203; and disease,
70–71
Encyclopaedia Britannica, 145
England, 174–76, 188
Epstein, Richard, 35
Escobar, Pablo, 178, 180
Etiquette, 84–85, 92
Etzioni, Amitai, 71
Europe, 28, 87, 114, 120

Facebook, 24, 27, 38, 169–70, 197,
198, 201, 204, 205
Fairbanks, Eve, 49
False light, 119
Farrell, Henry, 19–20
First Amendment: and censorship,
113; and defamation law, 118,
125, 126; and privacy law, 119–
20; and absolutism, 127–28; balancing
approach, 128–29; and
Seigenthaler, 143; and anonymous
speech, 148; and copyright laws,
186
Fiss, Owen, 131
Flickr, 87, 164
Fourth Amendment, 233n48
Fox News, 97
France, 114
Franklin, Benjamin, 131, 140, 176
Freedom: effect of free flow of information
on, 4, 17, 65–66; of Internet,
4–5, 6, 17; and privacy/free
speech balance, 12; and reputation,
30
Freeman, Joanne, 181
Free speech: and defamation law,
118, 119; and privacy law, 119;
good versus bad speech, 125–29,
227n24; threats to, 125; private
versus public concern, 128–29,
227n27; value of, 129–30; and individual
autonomy, 130; and
anonymity, 140. See also First
Amendment; Privacy/free speech
balance
Friedman, Lawrence, 72–73, 91
Friend Space, 26
Friendster, 24, 38, 202
Fukuyama, Francis, 31

Garrett, Laurie, 111–12
Gass, William, 67
Gawker, 22, 172
Gay, Peter, 72
Gays, outing gays, 216n45
General Motors, 174
George Washington University, 54–
55
Georgia, 113
Germany, 28
Gladwell, Malcolm, 60–61, 63, 89
Global village, 33, 37
Godkin, E. L., 107–8, 109, 110
Goffman, Erving, 68, 69, 70
Google: unforgiving memory of, 8;
as search engine, 9–13, 48, 204–5;
search prompt of, 10; and information
fragments preserved on Internet,
17, 33; and social network
site profiles, 27; and YouTube, 40;
and background checks, 41, 190,
203; and Wikipedia, 145; and
gossip, 181; cache of old versions
of websites, 234n1
Gossip: on Internet, 4, 11–12, 33,
59–60, 62–63, 74, 75, 113, 124,
176, 181–82, 190; history of, 11,
13, 33, 60, 65, 74, 105, 108,
216n49; and reputation, 32, 63–
64, 181, 189, 190; and blogs, 51,
52, 59, 181; good/bad qualities of,
63–65, 74, 205; and rumors, 64;
and truth, 64–65; and privacy,
109; and privacy law, 112, 127;
and dueling, 114, 116; newsworthiness
of, 132; and speaking
about one’s life, 134; and Section
230 immunity, 159; and social
networks, 179, 180; written versus
oral gossip, 181; and mainstream
media, 194; and selfexposure
problem, 196
Gould, Judge Ronald, 158–59
Greif, Avner, 31
Grimmelmann, James, 112
Gross, Ralph, 26–27, 197
Guare, John, 25
Gutenberg, Johann, 18, 208n1

Hamilton, Alexander, 115, 115,
116, 140, 224n47
Harrison, Benjamin, 194
Hawthorne, Nathaniel, 11, 91
Hearst, William Randolph, 106
Heidegger, Martin, 64
Henry, O. (pseud. William Sydney
Porter), 140
Henry IV, king of France, 114
Hilfiger, Tommy, 36
Hippocratic Oath, 173, 232n40
Holla Back NYC, 89
Holmes, Oliver Wendell, Jr., 131
Hoofnagle, Chris, 203
Horsley, Neal, 100–101
“How’s My Driving?” programs, 94,
101
Hurricane Katrina, 23, 122

Identifying information, and newsworthiness,
133–34
Identity: and reputation, 31, 33; and
second chances, 73; shame’s effect
on, 94–95
India, 28
Individual autonomy, 130, 132,
134, 160
Information: permanence and
searchability of, 4, 7–8, 17, 33,
42, 165; dissemination of, 11;
consequences of information fragments,
17, 38, 67, 96; and privacy
law, 17, 112–13, 125, 161; and
forms of media, 18; control of, 35,
184–86; quality of, 35–38, 41;
less versus more information, 65–
73; and defamation law, 117; and
First Amendment, 127; identifying
information, 133–34; accessibility
of, 169–70, 191. See also Personal
information
Instapundit, 23
Internet: and privacy, 1–2, 110; free
dimensions of, 4–5, 6, 17; gossip
on, 4, 11–12, 33, 59–60, 62–63,
74, 75, 113, 124, 176, 181–82,
190; permanence and searchability
of information on, 4, 7–8, 11, 33,
42, 165; rumors on, 4, 11, 118,
124; shaming on, 4, 6, 11, 78–83,
92–99, 101–2, 168, 190, 195; details
about lives on, 9–10; and
reputation, 30, 74; and global village,
33; quality of information
on, 35–38, 41, 48; and error correction,
37, 123, 124, 192; linking
function of, 61–62, 78; legal approaches
to privacy law, 110–13,
196; and defamation law, 118;
and traceable anonymity, 146; interactivity
of, 149; consequences
of exposure, 198, 199–200; architecture
of, 200–204; extent of,
204–5. See also Blogosphere;
Blogs (Web logs)
Internet Entertainment Group, 183–
84
Internet protocol, 143, 144, 147,
148
Intrusion upon seclusion, 119
Italy, 28, 114

Jackson, Andrew, 114
James, Henry, 106
James, William, 68–70
Japan, 28
Jay, John, 140
Jefferson, Thomas, 181
JenniCam, 71
“John Doe” lawsuits, 120, 121, 148
Johnson, David, 111
Johnson, Samuel, 115
Journalism: citizen journalism, 8, 9;
and blogs, 23–24; ethics of, 36,
59, 78, 194, 195; yellow journalism,
106–7, 108, 109. See also
Mainstream media
Judgments: and context, 66–67; rational
and irrational judgment,
70–71
Juvenile records, expungement of,
73

Kahn, Jonathan, 186
Kansas City, Missouri, 92
Kaysen, Susanna, 135–36
Kennedy, John F., 142, 194, 235n8
Kennedy, Robert, 142–43
Kerr, Orin, 54–55, 145
Kierner, Cynthia, 115, 116, 216n49
Kirk, Rita, 58
Kodak camera, 107–8, 108, 109
Kozinski, Alex, 137–38
Kundera, Milan, 68
Kushner, Nate, 76–78

LaCroix, Alison, 116
Lat, David, 138–39
Law: role in privacy/free speech balance,
12, 13, 120–23, 125, 190–
96; and reputation, 34; and
norms, 84, 196, 205; and shaming,
92, 94, 96, 98; of anonymity,
146–49; and confidentiality, 174–
76; limits of, 193–94, 196; norms
compared to, 193–94; and self-exposure
problem, 196–200. See
also Defamation law; Privacy law
Lawsuits: and role of law, 113, 120–
23, 190, 191; and reputation disputes,
115, 116, 117, 122; “John
Doe” lawsuits, 120, 121, 148;
threat of, 120, 123, 152, 190; and
exhausting informal mechanisms,
123–24, 154, 190, 191–92. See
also Tort remedies
Le Bon, Gustave, 101
Lessig, Lawrence, 4, 185, 200, 224–
25n55, 234n76
Letterman, David, 71
Libel, 118, 122, 126
Lidsky, Lyrissa, 122
Liner, Elaine, 57–58
Literacy, 18
Little Fatty, 43–44, 44
LiveJournal, 24
Local government, and shaming, 78–
79
Looking glass self, 31, 211n79
Love, Courtney, 39
Lucas, George, 48, 186
Ludwig, Arnold, 69
Luttig, J. Michael, 141

Madison, James, 140
Maghribi traders, 31–32
Mainstream media: and blog stories,
2; size and scope of, 18–19; blogs
distinguished from, 19–20, 23–24,
194–96, 199–200; journalistic
ethics of, 36, 59, 78, 194, 195;
error-correction machinery of, 37,
78; and Star Wars Kid, 46–47;
and Washingtonienne, 53; blogs as
rivals to, 61; and JenniCam, 71;
limits of expression within, 91;
and norm enforcement, 97; and
Article III Groupie, 138; norms of,
194–96
Malkin, Michelle, 52
Marital communication, 174
Marketplace of ideas, and
privacy/free speech balance, 131–
32
Massachusetts, 92
Masterson, Chase, 155–57
Matchmaker.com, 156–57
McClurg, Andrew, 165
McKinley, William, 194
McLuhan, Marshall, 33
McNealy, Scott, 105
Meares, Tracey, 194
Media. See Mainstream media
Mediation, 124, 192
Medical malpractice, 98
Meehan, Martin, 144–45
Meiklejohn, Alexander, 130–31
Men, women’s websites for shaming,
89–90
Merry, Sally Engle, 74
MetaFilter, 111–12
Michaels, Bret, 132, 183
Miers, Harriet, 141
Milgram, Stanley, 25
Mill, John Stuart, 131, 196
Miller, Arthur, 30
Milton, John, 125
Minnesota, 223n27, 225n71
Mitchell, Lawrence, 99
Moblogs (mobile weblogs), 164
Modell, Arnold, 72
Moon hoax, 106
Movable type, 18–19, 18, 19, 19
Murdock, Rupert, 26
Museum Security Network, 157–58
MySpace, 24, 26–27, 28, 38, 39,
141, 200, 201, 204

Nader, Ralph, 174
Nagel, Thomas, 69
Newspapers, history of, 18, 106–7,
108, 109
Newsworthiness test, 129, 132–36
New York City subway flasher, 80,
83, 92, 94, 168
New Yorker, 30, 138
New York Post, 171
New York Times, 144, 147, 171, 195
New York Times v. Sullivan (1964),
126
New Zealand, 188
Nissenbaum, Helen, 165
Nock, Steven, 30, 32
Norms: and privacy, 2, 49, 71, 72,
167, 169, 193; enforcement of, 6–
7, 9, 12, 64, 85–87, 95, 97, 98–
99, 189; of blogosphere, 9, 194–
96; history of, 13, 85; and reputation,
31, 116; changing of, 32, 65,
85; and shaming, 32, 83–90, 92,
94, 102; and gossip, 63–64, 65;
and public versus private self, 69;
and law, 84, 196, 205; internalization
of, 98–99; and Internet users,
110–11; and middle-ground approach
to privacy law, 113; development
of, 122; and context, 165;
of confidentiality, 179; law compared
to, 193–94; and outing
gays, 216n45
North Dakota, 223n27
Nuremberg Files, 100–101
Nussbaum, Martha, 94–95, 96

Oakland, California, 92
Openness: of Internet, 111; and
anonymity, 142–46; and default
settings, 201

Page, Larry, 9
Park, Don, 1, 2, 6, 8, 11
Parker, David, 117
Patient-physician confidentiality,
173, 174
Peoria Crack House, 79–80, 83
Personal email, exposure of, 2, 29–
30
Personal information: exposure of,
2, 29; on social network websites,
24, 26, 27; control of, 29, 170,
184–86, 188; and reputation, 30,
189; less versus more of, 65–73;
Personal information (continued)
and shaming, 79; and defamation
law, 113; speaking about one’s
life, 134–36; suppression of, 182;
and self-exposure problem, 196–
200, 203–4
Phantom Professor, The, 56–58, 56
Pharyngula, 77
Planned Parenthood, 101
PlateWire, 86–87
Politics, 20, 24, 59, 130–31, 144–
45
Porter, William Sydney (Henry, O.),
140
Posner, Richard, 35, 37, 66, 120,
138
Post, David, 111
Post, Robert, 34, 65, 72
Poulson, Kevin, 81
Prisons, and shaming, 92
Privacy: and blogs, 1–2, 191, 198–
99; and Internet, 1–2, 110; and
norms, 2, 49, 71, 72, 167, 169,
193; conception of, 4, 7–8, 11; expectations
of, 7–8, 49, 165, 166,
167, 168, 169, 177, 178, 180,
197, 233n48; and public places,
7–8, 12–13, 161–70; and Google
searches, 9–11; and reputation,
35, 72, 114–20; and ethics of
mainstream media, 36, 59; posting
of private information online, 37–
38; and establishment of trust, 66;
public versus private self, 68–70;
and societal scrutiny, 71–72; and
context, 72, 165; and second
chances, 72–73, 218n87; threats
to, 105–8; and yellow journalism,
106–7, 108, 109; and gossip, 109;
and accessibility of information,
169–70, 191; self-exposure problem,
196–200; nuanced view of,
198–99. See also Privacy law
Privacy/free speech balance: conception
of, 4; and Internet’s rapid
spread of information, 11; role of
law in, 12, 13, 120–23, 125, 190–
96; tension in, 12, 142, 190, 205;
history of, 13; and control of reputation,
35; blogs’ role in, 58; and
authoritarian approach to privacy
law, 113, 120; and privacy invasion,
119–20; and absolutism,
127–28, 191; and newsworthiness
test, 129, 132–36; and publicdisclosure
test, 129–32; and democracy,
130–31, 132, 160,
228n38; and individual autonomy,
130, 132, 160; and marketplace
of ideas, 131–32; and
anonymity, 136–46, 191; and
harmful speech, 149–59
Privacy law: role for, 12, 13, 120–
24, 125, 190–96; and information,
17, 112–13, 125, 161; history
of, 108–10; and new technology,
109, 110, 163–66, 169, 205;
authoritarian approach to, 110,
112–13, 190, 196, 200, 203; libertarian
approach to, 110–12,
154, 190; middle-ground approach
to, 110, 113, 120, 154,
190; and reputation, 117, 119–20;
public disclosure of private facts,
119, 126–27, 128, 129, 132–36,
162–63; and strict scrutiny, 128,
227n27; and Section 230 immunity,
155, 156, 191; and public
places, 161–70, 187, 188, 193; binary
understanding of privacy,
162–63, 166, 167, 169, 170, 184,
190; and video voyeurism, 166–
68; and confidentiality, 170–83,
187, 191, 193; and control, 183–
87, 188, 191
Private citizens, and defamation law,
126
Prosser, William, 109, 127, 187
Prostitution solicitation, 92
Pseudonymous speech, 146
Public debate, 20, 126, 131
Public disclosure, of private facts,
119, 126–27, 128, 129, 132–36,
162–63
Public figures, 126, 194
Public places: and privacy, 7–8, 12–
13, 161–70; social network websites
as, 26, 27; and public roles,
68; and privacy law, 161–70, 187,
188, 193
Public versus private self, 68–70
Pulitzer, Joseph, 106
Putnam, Robert, 32, 141

Randolph, John, 115
Randolph, Richard, 115–16
Randolph, William, 116
Rehabilitation, 73, 95
Reidenberg, Joel, 200
Reingold, Howard, 8–9
Reputation: threat to control of, 4;
control of, 11, 33–35, 189; and
personal information on Internet,
30, 189; and accountability, 31–
32; and trust, 31–32, 66, 116; and
gossip, 32, 63–64, 181, 189, 190;
fragility of, 34, 36–37, 49; and rumors,
34, 36–37, 74, 189, 190;
and privacy, 35, 72, 114–20; and
shaming, 94, 95–96; and dueling,
114, 115–17; and defamation law,
116, 117, 118, 120, 121, 122; and
privacy law, 117, 119–20; and
public disclosure of private facts,
135; and anonymity, 140, 141,
144, 145–46, 150; and privacy/free
speech balance, 160; and confidentiality,
182; and public figures, 194
ReputationDefender, 192
Responsibility: and shaming, 6–7;
and role of law, 124; for harmful
speech, 149–59
Restatement of Torts, 132, 163
Revenge World, 98
Revere, Paul, 61
Reynolds, Glenn, 23–24
Rhode Island, 92
Ringley, Jennifer, 71
Rosen, Jeffrey, 66–67
Rudeness, 32, 94
Rude People, 86
Rumors: on Internet, 4, 11, 118,
124; history of, 11, 105; and reputation,
34, 36–37, 74, 189, 190;
and gossip, 64; and libertarian approach
to privacy law, 112; and
dueling, 114, 116; and defamation
law, 118, 158–59; and anonymity,
140, 141, 144; and Section 230
immunity, 159; and privacy/free
speech balance, 193
Russinovich, Mark, 93

Sand, George, 140
Sanger, Larry, 145
Scalia, Antonin, 140–41
Schlessinger, Dr. Laura, 183–84
Schneider, Carl, 218n87
Schneier, Bruce, 170
Schwartz, Paul, 65
Scott, Sean, 130
Screaming Pickle, The, 47–48
Secrecy, 173, 177, 178, 179
Section 230 immunity, 152–54, 155,
156–59, 191
Seigenthaler, John, 142–44, 145,
146, 147
Seigenthaler, John (son), 143
Self-conception, and reputation, 31,
211n79
Self-exposure problem, 196–200,
203–4
Selfhood, 68–70, 73, 217n59
Sex: and blogs, 50–54; and norms,
85; and reputation, 116; and individual
autonomy, 130; and speaking about one’s life, 135, 136; and
mainstream media, 194
Sexual assault, and journalistic
ethics, 36, 59, 195
Shakespeare, William, 30, 34
Shaming: on Internet, 4, 6, 11, 78–
83, 92–99, 101–2, 168, 190, 195;
and extent of punishment, 7, 95–
96; history of, 11, 13, 78, 90–92,
105; function of, 12, 205; and
norm enforcement, 12, 85–87, 90;
and norms, 32, 83–90, 92, 94,
102; and alienation, 94–95; and
reputation, 94, 95–96; and lack of
due process, 96–98; and vigilantism,
99–101, 102; and privacy
law, 123; and Section 230 immunity,
159; and privacy/free speech
balance, 193
Shannon, Mark, 151
SHHH card, 86, 86
Six degrees of separation, 25–26
Slander, 118, 126
Slashdot, 62
Small village, global village compared
to, 32, 33, 37
Smith, Adam, 140
Smith, Bob, 157–58
Smith, Robert Ellis, 107
Smolla, Rodney, 119–20
Snap camera, 107–8, 109
Social control, 6, 32, 65, 72
Social epidemics, 60–61
Social networks, 25, 26, 60–61, 63,
176–81, 180, 202
Social network websites: dissemination
of information on, 11, 193;
personal information shared on,
24, 26, 27; concept of, 25–26;
and social ties, 26–28; as worldwide
phenomenon, 28–29; employers’
use of, 38; and selfexpression,
49; and authoritarian
approach to privacy law, 113;
and confidentiality requirements,
192; architecture of, 200–204; default
settings of, 200–201, 201;
and socialization, 200; concept of
“friend,” 202–3
Sontag, Susan, 70
Sony BMG, 93
Sorkin, Andrew, 171–72
South, dueling in, 114, 116–17
Southern Methodist University, 56–
58
South Korea, 28
Spacks, Patricia Meyer, 65
Spain, 28
Star Wars Kid, 44–48, 45, 49, 98,
124, 213–14n134
Stigma, 70
Strahilevitz, Lior, 94, 178–80,
221n64
Strict scrutiny, 128, 227n27
Summers, John, 194
Sunstein, Cass, 6, 227n24
Superficial, 22
Surveillance cameras, 163–64

Tabloids, 106, 195
Taft, William Howard, 194
Taiwan, 28
Tanenbaum, Leora, 74
Teacher, Jim, 24
Technorati, 21, 22
Teenagers, 21, 24, 39, 42, 196–97,
198, 204
Telephone, 107. See also Cell phone
use
Thomas, Clarence, 172
Thoreau, Henry David, 85
Tice, Dianne M., 211n79
Tilton, Elizabeth, 107, 212n91
Tilton, Theodore, 107, 212n91
Tipping, norms of, 87–89, 99
Tipping point, and gossip, 60–61,
62
Toobin, Jeff, 138
Tort remedies: for privacy invasion,
110, 113, 119–20, 127, 129–30,
132, 225n71; for defamation,
118, 126; appropriation tort, 119,
162, 186–87; breach-ofconfidentiality
tort, 175–76, 188,
234n85. See also Lawsuits
Traceable anonymity, 146–47, 149
Trust: and reputation, 31–32, 66,
116; decline in, 32; and quality of
information, 35; and background
checks, 41; establishment of, 66;
and second chances, 73; and
anonymity, 141, 145; and confidentiality,
175, 176
Truth: and gossip, 64–65; determination
of, 66; and public versus
private self, 68–69; and defamation
law, 118, 126, 127; and public
disclosure of private facts, 119,
126–27; and privacy/free speech
balance, 131, 132
Twain, Mark, 140, 173–74
UBS, 170–73

Underground Newspaper, 59–60
Underneath Their Robes, 136–39
United Kingdom, 28
University of Colorado, 96–97
Upskirt photos, 166, 167
U.S. Constitution, 113. See also First
Amendment; Fourth Amendment
U.S. Supreme Court, 34, 118, 126,
127–29, 139, 148, 227n27,
233n48

Vengeance, and shaming, 98
Video voyeurism, 166–68
Video Voyeurism Prevention Act,
167, 231n2
Vigilantism, and shaming, 99–101,
102
Vlogs (video blogs), 164
Volokh, Eugene, 93, 127, 128
Volokh Conspiracy, The, 54–55, 93
Voltaire, 140
Voyeur Video, 162, 231n2

Wales, Jimmy, 142, 145
Warren, Samuel: and privacy, 108–
9, 190; and privacy law, 109–10,
113, 119–20; and tort remedies,
110, 113; and public disclosure,
128, 129, 162; and appropriation,
162; and confidentiality law, 176
Warshavsky, Seth, 184
Washington, 167
Washingtonienne, 50–53, 124, 130–
31, 136, 139, 173, 214n3
Waxy.org, 46, 48
Westin, Alan, 71
Wikipedia, 47, 142–46, 143
Wilson, John Lyde, 117
Wilson, Woodrow, 194
Winfrey, Oprah, 36
Witchcraft, 34
Wonkette, 22, 52–54, 139, 214nn3,
5
Woodhull, Victoria, 107, 223n11
Woodward, Bob, 134
Woolf, Virginia, 217n59
Wyoming, 223n27

Xanga, 24

Yahoo! chat rooms, 154–55
Yahoo! message boards, 148–49
Yellow journalism, and privacy,
106–7, 108, 109
YouTube, 39–40, 164, 171,
213n134

Zeran, Kenneth, 150–53
Zeta-Jones, Catherine, 175
Zimmerman, Diane, 64, 129
Zittrain, Jonathan, 185
Zuckerberg, Mark, 27, 169
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Re: The Future of Reputation: Gossip, Rumor, and Privacy on

Postby admin » Mon Oct 21, 2013 10:56 pm

About the Author

Daniel J. Solove is associate professor, George Washington University Law School, and an internationally known expert in privacy law. He is frequently interviewed and featured in media broadcasts and articles, and he is the author of The Digital Person: Technology and Privacy in the Information Age. He lives in Washington, D.C., and blogs at the popular law blog http://www.concurringopinions.com.
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