The Future of Reputation: Solove's Middle-of-the-Road Approach...
In the scholarship on Internet privacy, a new subfield has emerged which focuses on Reputation. In an age of digital social-networking, our reputations - and the means by which they're shaped - are significantly transformed. Information about ourselves that was once "scattered, forgettable, and localized" is now becoming "permanent and searchable". Whatever social transgressions we might have, or whatever gossip about us circulates, - whether true or not, - in the past these would have eventually been forgotten and our lives would move on. However, today with Google archiving everything about us forever, and making it all easily searchable, these permanent "digital rap sheets" follow us and impede our ability later in life to be who we want to be. As one blog commentator wrote, "Right or wrong, the Internet is a cruel historian".
Think of what teenagers and college students post on Facebook. Is it fair that a Digital Scarlet Letter comprised of embarassing gossip, which may or may not be accurate, follow them for the rest of their lives? How can privacy law play a role in determining fairness?
The principle book on the subject is The Future of Reputation: Gossip, Rumor, and Privacy on the Internet by Daniel J. Solove. It explores the online reputation dilemma in-depth citing numerous examples and teases out the complexity of how a reasonable expectation of privacy can be preserved even at a time when so many people voluntarily share revealing details about themselves in public cyber spaces.
Solove then takes a legal approach in proposing what ought to be done about the problem - sort of. He takes issue with privacy law as it currently exists being too binary - meaning that the law generally holds that once something is exposed to the public, it can no longer be considered private. While insisting that the law definitely has an important role to play, it works best, he says, when it can hover as a threat in the background but still allow most problems to be worked out informally - through mediation and binding arbitration. Specifically, the law can act as a credible threat yet also keep lawsuits in check by, first, limiting damages, and second, by requiring that plaintiffs must exhaust all informal, or "alternative dispute resolution", mechanisms before a case would go to court. By doing so, "the law should cast a wider net, yet have a less painful bite". He labels this a "middle-of-the-road" approach that takes into consideration a more "nuanced" view of privacy.
Now bring this back to reality and think of Facebook. Certainly, it's far too simplistic for the law to only recognize that if you're in public then you have no privacy. Solove is absolutely right in pointing out how inadequate that statement is in a modern Facebook context. Privacy can no longer be thought of as binary, but as "a complicated set of norms, expectations, and desires". Indeed, we should expand the law's recognition of privacy so that it covers more situations.
But here's where Solove loses me. After giving detailed reasons for why the law should be reformed and recommendations for how to do it, he then says that the law really isn't the primary solution at all. Social norms are. He supports Lior Strahilevitz' claim that "information should be considered private if it remains within a confined group - even if that group is rather large". Information should not be taken beyond the social circle in which it was originally shared. He goes on to say that "we all have pretty good intuitions about how gossip travels" and it is this key intuition that's at the heart of social norms on the issue.
Does anyone else see a major problem in defining privacy based on confined social circles? Don't many, if not all, of our social circles often overlap?
Relying on "intuition" weakens Solove's argument considerably. If the law truly is a "puny instrument" compared to norms, then why stake out a legal approach in the first place? Only at the very end of the book does he explore norm-based solutions, and they're pretty hokie, at that, citing things like better education, changing the opt-out defaults on websites, and bloggers adhering to a voluntary code of ethics.
His legal argument is the better one, and I would've been more satisfied if he had just left it at that. There was no need to hedge his bet.
That said, The Future of Reputation is still perhaps the single best canonical book exploring the subject of online reputation, and it's definitely worth reading. My only criticism is that, despite making an awful lot of terrific thought-provoking statements, in the end I'm left a bit confused, scratching my head over what it is that he's actually suggesting.