Digital Is Forever

One of the seeming paradoxes of the networked communications revolution is how converting information from tangible, physical form to streams of electronic bits makes that information less, rather than more, transitory and ephemeral. There are plenty of factors we might cite as contributing causes — the cost of mass storage is now tiny and still shrinking, connectivity (at least in the developed world) is increasingly robust, and communications architectures are springing up to take advantage of these capabilities. Letting information live “on the network,” as it were, as distinct from on the hard drive of any individual PC, extends its longevity to the theoretically infinite.

In some respects, this is an exciting and positive development. I’ve become a big user of Web 2.0-type services and online document storage. All my current photos live on Flickr, and I’m rapidly uploading my earlier archives. My e-mail (after scrubbing by Spamcop) ends up on Gmail. My university provides me with SSH-accessible file storage for my documents, and as the kinks continue to be worked out, I’m sure I’ll begin to rely more and more on services like Google Docs (née Writely) to create and manage my word-processing and spreadsheet output. Particularly for someone like me who owns and uses multiple computers, having my “workspace” preserved online, accessible from anywhere I can get a network connection, is quite liberating — it means I no longer have to worry about which computer has the most current version of a file I’ve been editing, and it saves me from buggy hardware. This, I think, is the kernel of truth at the heart of Sun’s old axiom, “the network is the computer.”

But the permanence of networked information has costs, too, which (like the benefits) are only beginning to be explored. Members of the generation just behind mine, who have grown up reflexively creating and posting information online, are learning that digital is forever — if you’re a job applicant (or even a camp counselor), anything that has ever been written by (or about) you online is, at least potentially, still there. (Back in my day, we used goofy aliases to hide our online identities; but I gather that practice has been fading.) Once information is online, it turns out, it may becomes quite hard ever to get it back offline again — the Wayback Machine preserves old web pages; Google Groups archives Usenet posts; and it’s only a matter of time before somebody comes up with the magic bullet that automatically archives IRC and IM conversations and makes them searchable. Even your deleted e-mails aren’t necessarily gone; they may still exist on backup tapes where law enforcement authorities can get them. The durability of digital content raises problems that touch on both informational security and individual privacy.

It’s in that context, as yet another illustration of the new problems of information persistence, that I found today’s NYT article, Expunged Criminal Records Live to Tell Tales (registration required, unless) so interesting. (Dan Solove blogs about the story here). This is one of those rare situations in which the legal system has a strong interest in the affirmative concealment of truthful, factual information — in this case, information about the criminal record of those convicted of (usually relatively minor) transgressions. Although that information can be legally ordered expunged or placed under seal, once the information escapes the control of the court that issued the original judgment, any subsequent redactions of the record might not be reflected (in much the way that Google doesn’t go back to its old backup tapes to remove e-mails that you deleted after the backup was created). The NYT fingers companies that purchase the judicial records for use in compiling commercial databases as the bad actors here, and Professor Solove proposes contract terms that would require the database companies to maintain synchronization between their records and the courts’. But the broader social issue — information, once released into “the wild,” tends to resist control — transcends this particular problem and can be expected to pose recurring headaches for policymakers in the future.

8 Responses to “Digital Is Forever”

  1. Tim,

    Re “Web 2.0-type services:” The “social” aspects of Web 2.0 are worthy of consideration in this discussion. To wit, the upside of Web 2.0 lies not only in ready, platform-independent access to your data, as you point out, but also in the new avenues for communication and connection this software opens up.

     del.icio.us e.g., is an interesting alternative to search because it returns a) information you wouldn’t necessarily have known was out there, to search for, and b) information bookmarked [i.e., effectively "recommended by"] the particular userbase in question (in this case, del.icio.us). And the list of intriguing aspects to social software goes on (but not here! smile)

    Also, re the “Members of the generation just behind [yours - and mine!], who have grown up reflexively creating and posting information online, [and who] are learning that digital is forever,” and the “problems [of] informational security and individual privacy” this is raising:

    It’s important to remember – and arguably even to highlight, and emphasize – that we are talking not only about a change in the durability and accessibility of certain types of information, but also about a cultural shift in ideas about, and expectations of informational security, and individual privacy. The end game here is clear: “Reasonable expectations,” as they are understood and interpreted in our court rooms, are going to change. I assume that this is already happening in ways that I am unaware of; but I see it happening in a much bigger way “real soon now….”

    Matthew

  2. “The end game here is clear: “Reasonable expectations,” as they are understood and interpreted in our court rooms, are going to change.”

    I think you are certainly right about the cultural shift and it dismays me somewhat. Tim’s “younger generation” understands at most in an intellectual way that “digital is forever.” But they do not “get” the true consequences of how permanent accessibility of small indiscretion or foolishness changes everything. We all need the space to be foolish largely unobserved and unremembered — especially as teenagers.

    My bigger fear is that the real-world consequences of “digital is forever,” as they come into focus, will trigger a different cultural reaction down the line: instead of embracing a modicum of sensible discretion in communication and data exchange, might we swing the pendulum too far the other way to an inhibited discourse that thwarts the promise of much of “Web 2.0″?

  3. [...] Tim Armstrong, former Berkman fellow and now a prof at the U of C, writes: “… the permanence of networked information has costs, too, which (like the benefits) are only beginning to be explored. Members of the generation just behind mine, who have grown up reflexively creating and posting information online, are learning that digital is forever — if you’re a job applicant (or even a camp counselor), anything that has ever been written by (or about) you online is, at least potentially, still there. (Back in my day, we used goofy aliases to hide our online identities; but I gather that practice has been fading.) Once information is online, it turns out, it may becomes quite hard ever to get it back offline again — the Wayback Machine preserves old web pages; Google Groups archives Usenet posts; and it’s only a matter of time before somebody comes up with the magic bullet that automatically archives IRC and IM conversations and makes them searchable. Even your deleted e-mails aren’t necessarily gone; they may still exist on backup tapes where law enforcement authorities can get them. The durability of digital content raises problems that touch on both informational security and individual privacy.” [...]

  4. [...] Of course, this works better if your mother was a household name. But now all of us leave behind a digital trail that can be sniffed in the future. All of us on Info/Law worry about the costs of this permanent trail, most recently Tim’s musings here (the privacy tag has more). Surely this kind of virtual attic, storing not just our own mementoes of our lives but others’ intersecting stories as well, is one of the benefits. [...]

  5. “We all need the space to be foolish largely unobserved and unremembered”

    Well, as someone who has literally just, smile, posted a comment to a blog entry elsewhere in cyberspace that I’ve already realized is quite foolish, I couldn’t sympathize more!

    Interestingly, however, this forces me to confront (at least one example of) my own particular foolishness, and challenges me to accept it, or to change it, or to deal with it in some way. I can assure you that this is uncomfortable, but I am not at all sure that it’s a Bad Thing per se.

    Moreover, you can imagine a world in which people have a very different relationship to their own foolishness than they do today. This might be a very Good Thing.

    I am imagining greater tolerance of, and empathy for (at least minor) indiscretions, and/or lapses of judgment. This would obviously mitigate the urge toward inhibition that you fear. It would also, arguably, be a step toward a more integrated sense of self, and sense of the world in which we live.

    I definitely(!) don’t consider your concerns unfounded; but I do see these dynamics as being quite complex – and often running in multiple directions at the same time.

  6. [...] This is really wonderful news, particularly the part about bringing the Review’s older printed material into the modern era of digital permanence. But I still think that Larry Solum’s “three cheers for the Northwestern University Law Review” is too generous by a factor of one cheer. [...]

  7. Legal Blogs Discuss Expunctions…

    I was not alone in commenting on the recent New York Times story about expunctions. Here are some other posts about the same article from around the legal blogosphere.Michael Pinard’s post focuses primarily on housing and employment problems…

  8. [...] There has been tons of discussion, on this blog and more generally, about the great degree to which our private information is now available on the internet to anyone who cares to look (on our blog alone, see e.g. Tim’s thoughts here and here, mine here, and Derek’s here). As a result of this phenomenon, prospective employers now use search engines to learn things about job applicants that cannot be discerned from the usual routine of cover letter, resume, interview, and references. The general American reaction is that this is a new reality of the internet age, which may persuade people to display a little less of themselves online, may expand employers’ tolerance of certain off-hours conduct, and may create demand for services that claim to clean up one’s undesirable information found online. (Probably all three…) [...]