The Future of Reputation

1. The Future of Reputation Prepared by: Mary Bodach Richard Izzo Theresa Ozark

2. One minute, you’re on a train… …the next minute, you’re on the Internet.

3. How did I get there? Violation of social norms or the law

4. How did I get there? Loss of control of information

5. How did I get there? Loss of private self on Internet

6. How did I get there? Loss of private self in public space

7. How did I get there? Loss of private self in private space

8. About Daniel J. Solove • John Marshall Harlan Research Professor of Law at the George Washington University Law School • Author of several books on privacy law, including The Future of Reputation (2007) • Serves on the advisory boards of the Electronic Frontier Foundation and the Future of Privacy Forum • Blogs at Concurring Opinions

9. Solove’s approach • Reasoned – Grounded in legal precedent • Balanced – Privacy v. Free Speech • Moderate – “Middle ground” between free speech and privacy • Intended for general audience – lacks legal jargon

10. What we will discuss: • Private vs. public spheres • History of reputation & privacy • The role of law in privacy vs. freedom of information • Solove’s solutions

11. Private vs. Public Spheres How many of you… …have peed in the shower? …pick your nose in public?

12. Private sphere Public sphere • Personal hygiene • Romantic / sexual activity • Family matters • Your health • Your mental state • Workplace / school • Marital / family status • Leisure activities • Your current physical state • Your fashion tastes

13. What are private and public selves? • Erving Goffmann - we play different roles in different environments • Arnold Ludwig – The private and public selves can be separate, but are equally genuine • AmitaiEtziani – privacy is a “realm” where people “can legitimately act without disclosure and accountability to others” (71)

14. Muddying the private & public • JenniCam – private life made public on the Internet • Reality TV – private life (or as it was promoted) made public on television • Concept of a public private life became not only acceptable, but fashionable.

15. Privacy in public • The ease of image capturing • Rise of video voyeurism • How should privacy in public be defined?

16. Technology & privacy today The evolution of photography over the last 125 years makes privacy in the public sphere increasingly difficult, if not impossible. • Video surveillance cameras • Cell phones & portable video cameras • Flickr, Facebook, and YouTube

17. History of Reputation • Shaming • Dueling • Penny Presses • Photography

18. Shaming – 1600-1700s • Punishments for violating moral codes included branding and public humiliation • Most effective in small communities • “…shame lost some of its power as the population expanded…” (91)

19. Dueling • Begun in Europe, spread to America • Extralegal means of settling personal disputes • Duels were conducted over gossip, slander, or loss of honor • Declined as legal paths became preferred method of settling disputes

20. Penny Press – 1800s • Affordable newspapers published for wide consumption • Filled with news of scandals, gossip, and outright fiction • First penny press newspaper in U.S.: The Sun, published in New York (1833) • “Yellow journalism” – became popular after Civil War

21. Photography • Eastman Kodak introduced cheaper, easier to use snap camera (1888) • Fast exposure time made candid photography possible

22. Backlash against new technologies • E. L. Godkin – social commentator, editor-in-chief of New York Evening Post • In 1890, inveighed against the loss of privacy and the popularity of printed gossip • Proposed what he considered an “imperfect solution”

23. “The Right to Privacy” • Written by Samuel D. Warren and Louis D. Brandeis in 1890 in the Harvard Law Review • Considered the foundation of modern privacy law • Frequently cited as precedent on the subject

24. Warren & Brandeis - Problems • “Gossip is no longer the resource of the idle and the vicious, but has become a trade” (Warren & Brandeis, 196). • “Warren and Brandeis looked into the future and foresaw the paparazzi” (Solove, 109).

25. Warren & Brandeis - Solution “An action of tort for damages in all cases. Even in the absence of special damages, substantial compensation could be allowed for injury to feelings as in the action of slander and libel” (Warren & Brandeis, 219).

26. Legal Approaches to Privacy Libertarian approach • Internet is a “free zone; law should stay out • Social norms rooted during Internet’s early development • Embraces openness and the flow of information • Does not protect privacy Authoritarian approach • Uses censorship to stop flow of “problematic information” • Appeals to lawmakers as a popular political issue • Can stifle free speech • Usually found unconstitutional on 1st amendment grounds

27. Tort law remedies • Defamation law — prevents the spread of false information about a person • Two types: • Slander (oral) • Libel (print)

28. Invasion of privacy torts • Invasion of privacy torts – developed as result of Warren & Brandeis article • Four types: • intrusion upon seclusion • false light • public disclosure of private facts • appropriation

29. Problems with privacy and defamation laws • Expensive & time-consuming • Potentially abusive – used to attack legitimate criticism or satire • Counterproductive — suit can further publicize the privacy violation • Free speech can be stifled • Ineffective – only 13 percent of defamation plaintiffs prevail in court

30. Views of free speech • Absolutism – 1st amendment bars any attempt to regulate free speech, no matter how harmful or distasteful • Balancing: value of free speech important but not absolute • courts analyze a law under a level of constitutional “scrutiny” • newsworthiness: designed by Louis Brandeis

31. Privacy vs. Newsworthiness • The Supreme Court concluded that “not all speech is of equal 1st Amendment importance.” (129) • “The newsworthiness element public-disclosure tort is designed to protect free speech.” (129) • “…information that involves matters of public concern is protected; information that merely provokes our prurient curiosity is not.” (132)

32. Importance of free speech • Individual autonomy: people should have the freedom to express themselves • Democracy: free speech is vital • The marketplace of ideas: free speech enables us to find the truth

33. Anonymity • Virtues of anonymity: can be essential to free speech and privacy • Accountability: Anonymity tempts bad behavior and facilitates deception • The Law of Anonymity: You can be traced

34. Confidentiality • Can a person assume confidentiality when sending out an application or sharing secrets with friends? • Doctors, lawyers, and priests protect their clients’ confidentiality, and this is enshrined in law – should similar assumptions be made with anyone else?

35. Section 230 Section 230 of the Communications Decency Act (1996) • Immunized internet service providers (ISPs) from lawsuits if their users defame, libel, or harass others • Under this rule, ISPs are under no pressure to respond to complaints from victims of harassment, defamation, or libel other than the possibility of bad publicity

36. Zeran v. America Online (1997)

37. Solove’s Solutions • Legal solutions to privacy violations • Changing privacy default settings • Establishing social norms on the Internet • Education

38. Solove’s Middle Ground • “…the law should encourage informal attempts at resolving privacy disputes” (190). • Try mediation and arbitration; use the court as a final option • “…the law should afford people greater control over their personal information” (191). • “People should be permitted to keep their names confidential in privacy cases” (191). • “…cut back on overly broad immunities in the name of free speech” (191).

39. Change default privacy settings Current default privacy settings on Facebook Proposed default privacy settings on Facebook

40. Internet Social Norms • Establish a code of ethics • Delete offensive comments quickly if asked • Ask permission before speaking about others’ private lives; conceal their identity otherwise • Avoid posting pictures of other people without their consent • Avoid Internet shaming

41. Education • “Education is the most viable way to shape people’s choices…” (204) • “Teenagers and children need to be taught about privacy just like they are taught rules of etiquette and civility.” (204)

42. The Future of Reputation • “There is no easy solution…to balance free speech with privacy and reputation” (160) • “…it is a balance with liberty on both sides of the scale.” (160)

43. Evaluation • Occasionally difficult to follow, particularly the second half of the book • Historical inaccuracies • Numerous examples for each legal matter

44. Discussion Q & A • Do people want privacy anymore, and what are the implications for those of us who value it? • How do privacy considerations in this book apply to librarianship? • Do you think Solove’s solutions are practical?