f/k/a . . . the archives

November 8, 2007

let’s gossip about The Future of Reputation

Filed under: Book Reviews,Haiku or Senryu,lawyer news or ethics — David Giacalone @ 9:09 pm

Daniel J. Solove , the Godfather of Cyber-Privacy, recently made a few fortunate webloggers an offer many of us couldn’t refuse: a free copy of his new book in exchange for a review at our weblog. The George Washington U. Law professor, who is a prime contributor to the popular and critically-acclaimed Concurring Opinions weblog, didn’t let my frank review of the novel Anonymous Lawyer, nor my coining of the word e-shaming, deter him from sending me a copy of The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale Univ. Press, October 2007; download Chapter 1 here for free; now the full text is available for free here).

When the snappily-covered book arrived over the weekend, Solove’s part of the deal was fully performed and I was stuck (also thrilled to see it was a thin volume). So, thus, and to wit, here is my review of The Future of Reputation, which “offers a fascinating account of how the Internet is transforming gossip, the way we shame others, and our ability to protect our own reputations,” and whose author “contends: unless we establish a balance between privacy and free speech, we may discover that the freedom of the Internet makes us less free.”

The Future of Reputation (Yale Univ. Press, Oct. 2007)

When I’m “reviewing” a book — whether orally for a friend or online for mass consumption — I implicitly start with two questions: 1) Was my time spent reading the book a good investment? and 2) Who (if anyone) is likely to benefit from (or enjoy) reading it?

The answer to #1 is easy: I’m glad I read this book cover-to-cover (well, okay, I skipped most of the footnotes). Although I’ve thought about many of the topics before, and discussed a few here at f/k/a, Dan Solove’s The Future of Reputation brings together the themes in useful and interesting ways, showing important connections and ramifications, and making me want to talk about them with friends (and foes) and to find solutions to the problems he raises. For example, now that it is all-too-easy to do: “Should people’s social transgressions follow them on a digital rap sheet that can never be expunged?” And, if your answer is “no”, what can and should the law do about it?

sleuthSm More important, having read his book, I want to sound the alarm Dan has raised, and I can now cite a respected and knowledgeable law professor if credentials are helpful. As Seton Hall Law Professor Frank Pasquale says in his post “Solove’s Future of Reputation” (October 17th, 2007):

“The lasting contribution of FutureRep is that Solove dons his other scholarly hat–as an interpreter of the humanities–to give us reasons why we should want to protect our privacy–and respect that of others.”

Confession: I even enjoyed reading many of the reviews of FoR, and I’m going to quote from and point to a few of them in this post. Inspiring thoughtful reviews is often the sign of a valuable book. The Future of Reputation is doing that, and many members of the public who wouldn’t be likely to pick up and peruse the volume will benefit from their summaries of the issues and themes, as well as their constructive criticism and suggestions for further study and inquiry. I hope Dan will continue to compile links to the better reviews and discussion at Concurring Opinions. [Update (Nov.10, 2007): Today, Dan started summarizing and responding to weblog reviews of FofR, including ours, here at Concurring Opinions.]

digital age
aging digits
on the keyboard

…………………………………. by dagosan

Question #2 takes a bit more thought. Here’s my answer to “Who (if anyone) is likely to benefit from (or enjoy) reading it?”

  • Everyone Who Cares About Kids (including future-oblivious young adults): If your child(ren), students, or young relatives post information about themselves online, or have friends who do, you need to read this book — and then perhaps read the kids The Future of Reputation Riot Act. Prof. Solove, using examples that are bizarre enough to keep youngsters interested, has a message that needs to be grasped by folk who often have little comprehension or care about the longterm consequences of today’s actions (think, e.g., tattoo sleeves):

magglass “From the dawn of time, people have gossiped, circulated rumors, and shamed others. These social practices are now moving over to the Internet, where they are taking on new dimensions. They transform from forgettable whispers within small local groups to a widespread and permanent chronicle of people’s lives. An entire generation is growing up in a very different world, one where people will accumulate detailed records beginning with childhood that will stay with them for life wherever they go. .”

As criminal defense lawyer Scott H. Greenfield ably states at Simple Justice (“Book Review: The Future of Reputation,” Oct. 30, 2007):

“The first half of the book is quite a cautionary tale, to be read and digested by anyone who posts online, or knows anyone who posts online, or doesn’t know anyone and rarely leaves the house. The point is, no one is safe, and Dan backs up the claim with example after example. The only reason the stories are funny is because they aren’t about you. Yet.”

And, Kathleen Fitzpatrick got Solove’s message and issues this warning in her Barnes & Noble review of The Future of Reputation:

erasingSF Bizarrely, the threat that we faced in childhood, that some stupid thing we’d done in third grade would be placed on our “permanent record,” suddenly has the potential to be real — and available to anyone with a few minutes, a web browser, and access to Google.

Of course, it’s the stupid things we did when old enough to know better, but not wise enough to restrain ourselves, that should really worry us.

  • Libertarians and Free-Speech Absolutists who believe that, when it comes to speech, having No Laws and No Norms always increases our freedom and liberty: Prof. Solove argues that “protecting privacy — and restricting free speech in some cases — can actually advance the reasons why we protect free speech in the first place.” He notes that “this seems paradoxical, [and] some explanation is in order,” and thus spends a good many pages persuasively showing that “privacy often furthers the same goals as free speech” — including the enhancement of personal autonomy, democratic discussion and debate, and achieving truth in the marketplace of ideas.

. Therefore, The Future of Reputation insists that a balancing of free speech and privacy issues is necessary, and “speech of private concern should be given less protection than speech of public concern.” Among the many pertinent points made by Solove in FofR, you’ll find:

Invidual Autonomy Requires Privacy: “The disclosure of personal information [even when true] can severely inhibit a person’s autonomy and self-development. . . . Privacy allows people to be free from worrying about what everybody else will think, and this is liberating and important to free choice.”

Preserve the Privacy Torts: “Several scholars think that the Supreme Court should abolish the privacy torts when they conflict with free speech. . . . There are compelling reasons, however, why the Supreme Court is right not to eliminate the privacy torts, especially the public-disclosure torts.”

erasingSF Permanent Shaming Stifles Freedom: Beyond a tendency to impose excessive punishment for the “crime,” the indelible Digital Scarlet Letter — which can now be attached through internet gossiping and exposure of misdeeds — can greatly limit the freedom of shamed individuals. “Shame’s tendency to lead to withdrawal and alienation makes it troubling. Without allowing a wrongdoer to reenter community life, shame becomes quite destructive. Wrongdoers are not educated or simply taught a lesson. Their reputation is wounded, and they are left without a chance to become part of the community again.” This alienation hurts the subject of shame, as well as the society that loses the fruits of his or her full participation and contributions.

Our society and our Constitution protect speech for policy reasons — to promote certain goals and values — not because free speech is a deified (or reified) goal in itself. Therefore, I hope free-speech absolutists and those tending in that direction will attend to this book. If they bring an open mind to the discussion, they’ll benefit, and so will the rest of us.

  • Techno-Fatalists & Digi-Philes who accept every new form of privacy invasion as merely “the price of progress” (or of free enterprise), who are hypnotized into paralysis by repetition of the word “transparency,” or who believe there is nothing we can do about it: These folks need to read and heed Dan Solove’s warnings and his suggested solutions (and, like a good professor, he repeats them often to help them sink in). As a society, we can nurture appropriate norms and evolve news ones. As citizens of a Republic, and committed legal experts, judges and law makers, we can find workable legal solutions to at least some of the problems.

the gossip
her yard fills
with leaves

…………………………. byTom Painting – from his chapbook piano practice

In her review for the New York Sun, “The Web As Knitting Circle” (November 1, 2007) Christine Rosen says “As Mr. Solove’s thoughtful book reminds us, our technologies give us a heretofore-unknown level of control over information. But when it comes to our ability to manage information about ourselves — including the basic human need to defend our reputations — this control can prove illusory.” Solove doesn’t solve all the legal and social problems and threats to privacy, but Prof. Pasquale puts it well:

“His recommendations subtly weave together proposed changes in law, norms, and technology to help tame the reputational ramifications of persistently searchable, replicable, and unaccountable data stores.”

  • CyberLaw Nerds and Groupies: As sentences like the one immediately above, suggest, this bunch gets pretty excited thinking about the intersection of technologies and law. Pasquale even called FofR “a fun read,” and Solove admits to being “giddy with excitement” over the issues raised by the evolving internet. It’s easy to spot this crowd, and this book is obviously for them — but, forget about waiting for Christmas to send it as a gift. They’ll have it read, and thoroughly highlighted, long before then.
  • Anyone who cares about her or his own Reputation (and has ever made a mistake, revealed too much, or been lied about or misunderstood by family, friends or foe): If you don’t understand that gossip online is much more dangerous than old-fashioned rumor-spreading and idle chitchat over coffee or on the phone, you need to read this book. Ditto, if you think that staying offline yourself insulates you from the problems raised by Dan Solove. As the book’s Synopsis suggests, if you care about your reputation, you need to consider:

What information about you is available on the Internet?

What if it’s wrong, humiliating, or true but regrettable?

Will it ever go away?

Once you’ve thought about it, you will surely agree with Dan Solove that (1) there must be a broadened scope of protection for privacy. It cannot merely be a binary question, where anything said or done in public automatically forfeits all privacy rights. In the age of the internet, our concept of protected privacy must take into account “a cluster of nuanced expectations of accessibility, confidentiality, and control.”

And (2) the law must “address the problems productively yet with moderation.” Neither “The Libertarian Approach” (with its great reluctance to hinder the flow of information) nor The Authoritarian Approach (“designed to employ strict controls over the spread of information”) is appropriate. The law would take a moderate path and “help shape the norms that govern the circulation of information.” However, Solove stresses that the law “works best when it can hover as a threat in the background but allow most problems to be worked out informally.”

  • Legal Policy Wonks: This book is the perfect playground and mosh pit for guys and gals who enjoy designing or critiquing statutory (or common law) legal solutions to important societal problems. Dan Solove has suggested an ample variety of potential legal changes (with lots of details both offered and lacking) to keep the wonks up late at night debating the proposals — talking them out, fleshing them out, or throwing them out. Of course, law students and professors, lawyers and legislative staffers, come readily to mind. But, you don’t need a law degree to be intrigued by the proposals in The Future of Reputation, and to have a contribution to make in the discussion this book should inspire and provoke. While admitting that “the law is far from a magic elixir,” Solove’s Suggestions for better protecting privacy and reputation include:
  • denying webloggers immunity under Section 230 of the Communications Decency Act, for defamatory statements posted by commentors, once the target puts the weblog proprietor on notice of the defamation and asks for a take-down
  • greatly expanding the right/duty of confidentiality for information that is private and not newsworthy
  • requiring, in order to avoid inappropriate and excessively expensive lawsuits, that “a plaintiff first exhaust informal mechanisms for dealing with the problem,” and
  • limiting monetary damages
  • borrowing lessons from copyright law in how to control the spread of information

first glass of wine
Google keeps asking
“Did you mean . . . . “

…………………………………. by dagosan

It’s rare that I want a non-fiction book to be longer, but The Future of Reputation would have been more satisfying if it went into more depth on many of the issues it raises (and especially on the solutions offered) — if only in appendices for readers needing further explanation. For example:

Dan speaks of wanting the law to “cast a wider net, yet have a less painful bite,” and of using the law to shape norms rather than imposing direct prohibitions. But, laws that create wider nets of responsibility and impose new restrictions are unlikely to be effective if their “bite” doesn’t draw some blood or leave a scar. Likewise, new norms usually only make an impression and change behavior when there is a genuine downside to ignoring their prescriptions and proscriptions.

I assume Dan doesn’t want to give specifics that would scare away the freedom-loving, often self-absorbed denizens of the internet he is trying to convert into responsible citizens. But, without more detail and discussion of how laws and legal principles would be shaped — so as to impose discipline on the likes of bloggers, angry consumers, jilted lovers, and social network entrepeneurs — practical-minded lawyers, judges and law-makers are left unconvinced that the Moderate Approach will really have significant moderating effects.

The Future of Reputation says “The law should increase its recognition of duties of confidentiality.” Dan writes:

“When we share information with friends, family, and even 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.”

Frankly, being told that lawyers and doctors have to keep confidences, so the rest of us should, too, is not sufficient explanation. The law has created limited rules of professional confidentiality because we as a society have something to gain from clients, patients, and penitents being fully truthful with lawyers and doctors and priests. Despite this, those confidentiality protections are often circumscribed, limited in application, and under attack. [We don't even require blanket confidentiality now within a marriage, but merely allow a spouse to invoke it when being asked to divulge information about the other spouse.] The lawyer-client analogy simply doesn’t get us very far. There does not seem to be an analogous reason to motivate individuals to tell the whole truth about their personal situations to families, lovers, and friends. Before imposing penalties for the disclosure of “confidential” information, we need more justification and more details on how it might work in practice.

I’d also wish Dan helped us understand better whether it is possible to ever remove information completely from the Internet. Can search engines resurrect old gossip from

Although he notes that gossip can have benefits and isn’t always hurtful, Dan Solove pretty much wants to remove gossip from the internet (or at least give affected individuals the power to have it removed), and says “People should avoid Internet shaming,” and bloggers should “ask permission before speaking about others’ private lives” or “posting pictures.” I’d like working definitions of terms such as “gossip,” “shaming” and “private lives,” and more explanation of just how the law would/could differentiate between “newsworthy” facts about the lives of individuals and “personal information” that we can insist be kept private and off the internet. Both gossip and shaming can play useful or neutral roles [see our prior posts "good gossip bad gossip" (Nov. 7, 2007) and "e-shaming and lawyer conduct" (March 2005)]. Until we understand better what Dan wants to ban from cyberspace, I can only embrace his proposals very tentatively.

searching my name –
she finds an advocate and
a sex offender

……………………………………………. by dagosan

Like Kathleen Fitzpatrick, I believe it’s “a bit jarring when, late in the book, Solove points to current copyright law as a model for how private information might be controlled. In her Barnes & Noble review, she notes that:

umpireS “[Solove] acknowledges that the ‘balance of freedom and control’ in copyright law ‘has been the subject of considerable debate and controversy,’ but he doesn’t consider the difference between the control of information for profit-making purposes and for purposes of maintaining personal privacy. Copyright law and privacy issues make odd bedfellows; is the suggestion that we ‘own’ the details of our private lives?”

I’m not a copyright expert (nor even a neophyte), but I believe that body of law offers no protection to facts qua facts — it doesn’t protect information, it protects the artist’s creative “work”. We need more input on how copyright law might inform privacy law. Perhaps some experts in that field will review the book and help us sort it out.

Likewise, Scott H. Greenfield ‘s doubts about requiring an attempt at alternative dispute resolution prior to bringing a lawsuit to protect internet privacy rights seem justified (and I was a mediation pioneer and strong advocate of avoiding litigation). In his book review at Simple Justice, Scott says:

“Boiled down, Dan would require putative plaintiffs and defendants to engage in informal efforts to resolve problems (mediation and/or arbitration) before litigation. How would one compel this? Who would mediate? What would happen with the ongoing ruination of a person’s life while they were awaiting an appointment with a mediator? There are no answers.”

To those questions, I would add: Are we going to require telephonic or internet-based ADR, for parties who do not (miraculously) happen to live in the same area? I also wonder if Prof. Solove has considered how the typical injured person will afford the expense of mediation, not to mention the much more formalized option of arbitration. We need more flesh on these bones before concluding that Dan’s middle ground approach will offer any real deterrent to those who injure the reputation or invade the privacy of others in cyberspace.

Wishing The Future of Reputation had more explication and specification in no way keeps me from recommending it strongly to both those who understand the dangers it describes and, especially, to those who don’t. Scott Greenberg captured my own feelings last week:

“While The Future of Reputation may not produce any iable cure, it is more than worthwhile to read to understand and appreciate the illness. Reputation makes it evident that we who live in the age of the internet have much more at risk than we realize, and to the extent it’s possible, it is up to us, our friends and acquaintances, and even our enemies, to create a new set of norms that will allow us to survive with some vestige of privacy, and maybe even some dignity, intact. For this alone, Reputation is important and should be read by parents, children, and especially anyone who thinks this could never touch them.”

Thanks to Dan Solove for sending me The Future of Reputation. I hope he’ll use the book’s website as a place to answer some of the questions raised by his reviewers, and perhaps to present proposals made and developed by others. The stakes are high, and I’m going to be driving my kith and kin crazy over the holiday season telling them about the issues raised in The Future of Reputation. Someday, they’ll thank me and Dan for sounding the alert.

ashamed– honest flip
eating then going to bed
I hear the winter prayers

……………………………………… by ISSA, translated by David G. Lanoue

empty bottle
a few words
I would like to take back

……………………………..……… by John StevensonQuiet Enough (2004)

phone old p.s. For other f/k/a posts treating issues raised in The Future of Reputation, see “e-shaming and lawyer conduct” (March 2005); “Ethics for the Web? Lean Don’t Lie” (January 19, 2004); “did shakespeare want to kill all the journalists? bloggers?” (Nov. 8, 2004); and “the heedless snowman” (Dec. 27, 2004)

Afterthoughts & Updates:

(Nov. 9, 2007): Add corporate General Counsel to the list of folks who should buy this book and make its contents widely know. See “GCs to Employees: Think Before You Send” (Fulton County Daily Report/Law.com, Nov. 9, 2007). Due to electronic discovery, the message for employees from their GCs is: “E-mails, text messages, BlackBerry communications all are potential time bombs if not worded thoughtfully and with discipline. . . . [A]bove all . . . never say anything in an e-mail that you wouldn’t want to see displayed on a giant screen in a court room in front of a judge and jury even years from now.”

1 Comment

  1. David,

    Thanks for the excellent and thoughtful review. The reason my solutions are sketched out so broadly is that I wanted to write for a non-legal audience and not get too bogged down in the kinds of policy details that make professors notorious.

    The part of my solution regarding confidentiality is still in the process of being developed. I recently published an article with Neil Richards on the breach of confidentiality tort, Privacy’s Other Path: Recovering the Law of Confidentiality, 96 Georgetown Law Journal 123 (2007). We discuss the English version of the tort a lot, and that version does cover friends and family and has developed into a workable jurisprudence. Neil and I plan to write some follow-up articles that will sketch the full contours of the tort and examine some of the normative issues.

    I do indeed plan to link to and respond to some of the reviews of my book on my blog once a few more are posted.

    Regarding Kathleen Fitzpatrick’s review, I generally liked her review but was a bit annoyed that she seemed to think I was arguing that privacy ought to be protected like copyright. I explicitly stated (not once, but twice) that this was precisely not what I was arguing. I was only invoking copyright to counter the argument that it is impossible for the law to provide robust control over information. In my other work, I have argued that privacy should not be understood as a property right. So that part of the Fitzpatrick review ticked me off quite a bit, since I deliberately tried to be careful about what I was saying in the book.

    More thoughts to follow. Your review is very interesting and thought-provoking, and I greatly appreciate your sharing your reactions about my book.

    Dan

    Comment by Daniel J. Solove — November 8, 2007 @ 9:51 pm

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