by Daniel J. Solove. New Haven, CT: Yale University Press, 2007. 256pp. Cloth. $24.00. ISBN: 9780300124989.
Review by Alan Gaitenby, National Center for Technology and Dispute Resolution, Legal Studies Department, University of Massachusetts-Amherst. Email: gaitenby [at] legal.umass.edu.
“He or She who Knowingly Exposes Beware! The Law Affords Limited Protection When Those Exposures End up Online,” would be an apt sub-title to Daniel Solove’s effective and tight analysis of evolving tensions between reputational privacy and online expression. Following his excellent THE DIGITAL PERSON, Solove narrows focus and provides a very solid socio-legal analysis of the relationship between gossip, rumor, and reputation maintenance and the responses, both normative and legal, to evolving forms of online expression. The work would fit well in both undergraduate and graduate courses which examine information privacy and law and society.
Law’s relationship to information privacy and our reputations is relatively new, born when social norms were deemed no longer effective in protecting what society, or at least segment s thereof, saw as legitimately private. Warren and Brandeis (1890) famously called for tort law to be interpreted and expanded to protect information privacy – or that information individuals convey in contexts deemed private by prevailing social norms. Solove makes a similar call here, information privacy law needs to move beyond reliance on a binary secret (or private)/public paradigm where information we take reasonable measures to keep secret is generally protected by privacy law. The reliance on the binary suggests that most information we expose in inherently non-secret contexts – is likely to not be protected. In the face of rapidly evolving technologies and practices for observation and data capture / manipulation / communication, very little of what we “do” in non-secret contexts will be reasonably private. Solove argues that we actually have many socially supported privacy expectations in non-secret contexts – but that law must adjust to protect them adequately.
This doctrinal reality – some might call it a legal fiction – has not been a big deal for most of the American experience with information privacy. Generally, if you exposed yourself in ways that others observed and without taking special measures to do so, you reasonably ought to expect to have to bear the consequences of such exposure. However, most of what we do in public is hardly noteworthy, and nobody notices beyond the instantaneous sharing of experiential reality. Privacy, as we conduct ourselves in public, has depended upon the short shelf life of human memory, our relative lack of newsworthiness, and a dearth of means to conduct one to many communications. But, just as Warren and Brandeis were responding to evolving practices [*910] facilitated by information and communication technology, Solove suggests law must now respond to new social and technological practices that expand our collective memories and our potential newsworthiness at the risk of our reputational selves.
This book has two parts: Chapters 1 through 4 present an excellent treatment of gossip, rumor, and reputation in the internet age, and Chapters 5 through 7 survey information privacy law with Solove’s suggestions to deal with the challenge of reputational harm and the internet.
Chapter 1 presents graphic examples of challenges to existing models of reputation management when confronted with the pubescent internet and people loaded with internet-enabled tools and toys. For instance, social norm policing about dog ownership and waste disposal responsibilities in South Korea married with cell phone cameras and the internet morphed into a torrent of reputation damage for one particularly misfortunate dog owner. Norms and law about internet-facilitated mass exposure of individual(s) are as yet developing; in the meantime the wildfire quality of internet content sharing, coupled with the diverse population of sharers, mitigates against smooth evolution of a regulatory regime.
Chpater 2 explores the paradox of freedom of information and privacy in the context of internet expression. Public discourse and expression, as well as privacy and autonomy, are requisites of a free society, yet each are mutually restrictive, to greater or lesser degree. In the instance of internet expression and reputation management Solove sees privacy as more restricted, and information more freely flowing. Solove provides many examples of internet-supported applications being utilized to expose third party actors and thus attempt to influence interpretations of reputation of them. And when those reputations, or at least components thereof, are captured for prurient or other interests and spread like plague across the internet, the opportunity for profound harms escalates.
Chapter 3 examines gossip as part of our reputational stream of consciousness. Online gossip is the same social practice as offline, but with greater capacities to spread, and further remove each interpreter from original context. Solove provides examples of online exposures that more than likely were considered private and thus subject to discretion of at least one party. Largely he focuses on blogging and third party exposures – e.g., personal blogs that detail relationships and especially those involving sex (see the Washingtonienne on p.50), blogs about school / professors by students; blogs about students by professors, and blogs about professors by professors (a particularly funny one on p.58).
Chapter 4 confirms that shame is still will with us online. One of gossip’s primary purposes is shaming, that is to structure the interpretation of reputation so that the target feels social stigma. Solove shows a few examples of the shaming effect online which are arguably value positive – e.g., the flasher caught on digital camera and subsequently identified and posted for all to “see.” But, not all instances are quite so normatively simple, particularly if mistakes are made or if data are [*911] interpreted radically out of context or in a state of fear, or in the worst case, where vigilantism takes over – e.g. see Solove’s treatment of Nuremberg files (pp.99ff). Online shaming can get out of control; there are no term limits on its impact, and due process is a foreign concept.
Chapter 5 begins the second part of the book with a traditional survey of information privacy, from evolution of yellow journalism through Warren and Brandeis and the “right to be let alone.” Solove sets out three approaches law can take: libertarian, authoritarian, and his favored hybrid of the two. Solove suggest a reinvigorated tort law to fill the middle ground, where informalism takes a more serious pre-litigation role, and libertarian strains of information freedom peacefully coexist with authoritarian influenced privacy protections. Solove does a really nice job telling the story of how reputation has been policed extralegally through norms – e.g. leading to duels – and ultimately how law “took over” after norms failed to address reputational harm adequately. The move from violence to courts occurred concomitantly with the evolution of effective defamation law and privacy torts – e.g., intrusion upon seclusion, public disclosure of private facts, false light, and appropriation. Recognizing litigation has particular drawbacks for privacy and reputation disputes – e.g., cost, transparency, and toil – Solove argues that we need to craft solutions that help people avoid courts if possible, but when not, courts are accessible and help achieve effective redress for reputational harm.
Chapter 6 explores the challenges of balancing free speech and protection from reputational harms, largely focusing on defamation and other so-called public disclosure torts. With respect to the internet, the law seems titled toward free speech over privacy; that is, speakers are not appropriately accountable for their actions according to Solove. His ultimate prescriptions are designed to alter that tenuous balance, giving more force to law to further protect individuals from reputational harm, yet he recognizes the inherent paradox – more reputational privacy protection means less free speech. To exemplify, Solove looks at the concept of anonymity online. Long established as a free speech right, anonymity protects speakers from forms of retribution, including insulating speakers from legal liability. Solove recognizes the need for continued protection of anonymous speech, but argues that with the internet and its potential to cause dramatic shifts in the paradigm of exposure / autonomy, anonymity protected as it always has been may be a problem. Solove proposes “traceable anonymity” for online utterances, and that the dilemma of online anonymity as it relates to reputational harms can be adequately addressed without losing all the benefits of anonymous speech. But, who is responsible for speech when uttered online? Most, if not all, online speech depends on a significant “chain” of actors, actions, and events. Online speech is no simple act. At present, those actors who facilitate online speech are generally free of legal liability for reputational harms – i.e., protection from third party liability, under section 230 of the Communication Decency Act and tort law generally unless they exert some palpable editorial control, or they were, [*912] or should have been, aware of potential problems with the speech.
In THE DIGITAL PERSON, Solove urged us to move beyond the secrecy paradigm dominating doctrinal interpretations of reasonable expectation of privacy. There are many things that we willingly do and say in non-secret settings with the expectation that those exposures are for the most part private, or at most public to a narrow few with limited interest and memory. In Chapter 7 Solove presents excellent examples of technically public speech – words and deeds – which were uttered under some expectations of privacy, and how the internet dramatically multiplied potential injuries from those utterances. The crux of the problem is that law is at odds with a rapidly evolving social reality, making privacy an even more profound legal fiction, increasingly subject to new technologies and practices which contribute to further limit our reasonable expectations of privacy. An example of where law has come to recognize the complexity and nuance of privacy / exposure discourse is in video voyeurism laws. If looked at in the abstract, and with a secret = private lens, such practices as “up-skirt” image capture and manipulation should be legal as the data are offered by the individual in a public setting (i.e. you should wear pants if you want privacy). However law has evolved to recognize that rigid adherence to the secrecy paradigm does not jibe with social expectations, that not everything that occurs “in public” is equally non-private.
Solove, Daniel J. 2004. THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE. New York: New York University Press.
Warren, Samuel and Louis D. Brandeis. 1890. “The Right to Privacy.” 4 HARVARD LAW REVIEW 193.
© Copyright 2007 by the author, Alan Gaitenby.