I’m sorry, Dan, but I couldn’t help but come to this book with unrealistically high expectations. After all, the author of A Taxonomy of Privacy, The Digital Person, and A Model Regime of Privacy Protection brings to the table a pretty good, well, reputation. Unfortunately, this latest book offers not so much a definitive knock-down solution to the problems of privacy and reputation online (you see what kind of a standard I’m holding you to, now), as, well, some basically good ideas that are already out there.
Of course, many of those ideas are out there thanks to Dan Solove himself, but this is a tough town, and what have you done for me lately? The basic problem here is that this book is a summa of a lot of Solove’s thinking about online privacy, particularly as articulated in his blogging. For those of us who’ve been playing along at home, well, this book isn’t for us. It’s for all the rest of those folks out there, who haven’t thought much, if at all, about the dangers of the rapid spread of rumor and innuendo in the online age. Curse you all, for making it necessary for a perfectly good academic to write a general-audience book. But if you listen to what he has to say, you’ll learn much, and we’ll all be better off.
Most of the recommendations in The Future of Reputation are good solid sense and I won’t dwell on them:
* Victims of defamation or privacy intrusions online should be required to take reasonable steps to get the original poster to take the material offline before they can sue. But that requirement would be waived if doing so would be futile because the cat is irreparably out of the bag.
* Section 230, as interpreted by some courts, goes too far when it immunizes actors who choose to allow false and hurtful material to remain online, even though they could easily remove it and know that it’s both harmful and unjustified.
* Lior Strahilevitz’s social networks theory of privacy gives us a useful, workable middle ground between treating all information as only either public or secret.
* Suits for privacy and defamation torts should more often allow plaintiffs to keep their names out of the public record.
* Social networking sites could often do a better job at asking, or indeed, requiring users to make sure that what happens in Vegas, stays in Vegas.
The one place where he loses me is in some of his discussion of the New York Subway Flasher. This fellow exposed himself to a woman on the subway, who took a photo and posted it to Flickr. (The photo looked disturbingly like a former meta-meta-boss of mine, but that turned out to be an unfortunate coincidence.) Lots of linkage ensued, and also a Daily News cover.
Solove treats the story as an example of shaming vigilantism, akin to Dog Poop Girl. In part, it was. But let’s not overlook the fact that part of the point of the publicity was to try to catch the perv-perp. It worked, too. Other women recognized the picture and came forward. He turned out to have a previous indecent exposure conviction, and he was arrested and convicted for this one. While Solove is right to be concerned about people taking the law into their own hands, the law itself here worked because of the massive widespread online distribution of this mug’s picture.
The more interesting part of the book, for me, was the first half, wherein the author discusses principles and problems, rather than solutions. What struck me most is that the privacy chapter is a failure, while the shaming chapter is a success.
I want to have a strong theory of privacy. I really do. And yet, I’m getting increasingly uncomfortable with a lot of the standard justifications of strong personal privacy. When you think about it, and I mean really think about it, what exactly is the privacy interest in preventing people from taking pictures of me on the toilet? Solove runs through many of the standard theories—bad judgments based on incomplete knowledge, contextual identities, identity change over time, irrational reasoning by others, preservation of diverse behaviors, second chances, autonomy, the oppressive feeling of being watched, and others.
But they all feel incomplete, or misdirected. If people make misjudgments about me based on incomplete information, isn’t the solution to supply them with the full context, not to take away what little information they do have about me? If we’re talking about others’ irrational reasoning about me, isn’t the problem the irrationality, not the information used as an input to it? If we’re concerned about identity change over time, isn’t it sufficient for me to say that my identity is changing, so please update your priors? And so on and so forth. It’s not that the concerns feel wrong. It’s just that the privacy violation always seems to be secondary to some deeper way in which society is messed-up. Privacy protection is the law of the second-best.
I’m starting to think that it turns out be very hard to make an argument for strong privacy within many of the frameworks we lawprofs are accustomed to use. Individual autonomy is an attractive liberal-democratic value. But it’s other people who hem in my autonomy unfairly; private information is just an enabler. It’s tempting to say that private information is somehow part of your personality, and is therefore yours. But saying so is also, so far as I can tell, philosophically incoherent and utterly useless in explaining is what the boundaries of the private ought to be. And as for economic efficiency, it’s all unanswerable empirical questions. Maybe society does have a strong interest in knowing what dark deeds I’ve been up to. If you think of all the joy that the Star Wars Kid has brought to millions of Internetizens, you can make a reasonable economic case that the poor kid should have been compelled, at gunpoint if need be, to make the video and release it to the world.
The answer to this puzzle may lie in the very next chapter. When the book turns to vigilante shaming campaigns, suddenly the ethical arguments feel firmly grounded again. The book opens with the image (yes, literally, on page 3) of Dog Poop Girl for a reason. The point is that while some shame over letting your dog poop on the subway and refusing to clean it up is appropriate, an Internet-wide campaign of shame is out of all proportion to the offense. These attacks—and Solove documents a nice range of cases, from mild in-person rebukes to the terrifying Nuremberg Files—have none of the due process controls that keep legal responses (at least in theory) tethered to the severity of the wrong.
More than that, there’s something frightfully ugly about them. People get irrationally, scarily angry when they join in making fun of (or screaming at) someone’s original misbehavior online. The various posts and comments Solove quotes show a profoundly uncharitable, indeed often actively malicious, streak. More than once, I started reading one of his stories with a feeling of righteous anger, only to feel abashed, and them a little ashamed myself, as I saw what extremes of emotion other people who’d given into that same righteous rage went to. These are mobs, he notes (one quoted commeter says “lynch mobs”), and they do not show humanity at its finest.
This, then, may be a more convincing theory of privacy. It’s harder to say why I have an interest in preventing you from taking pictures of me on the toilet than it is to say that your interest in seeing those pictures is illegitimate. You’ll use it to express disgust and sadism, to laugh at me and to take pleasure in my degradation. That’s bad. It oughtn’t be encouraged. As between my desire to keep a matter secret and your desire to use that matter to harm me for their own amusement, we can break the tie on the grounds that my desire is civilized but yours isn’t. (My concern with the standard theories of privacy is precisely a sense that they might not offer a principled way of breaking this tie in general.)
It’s possible to make this move—from looking at the victim to looking at the victimizer—across other standard explanations of privacy. The theory of privacy as personhood as it is sometimes stated may be silly, but there’s something more to the idea that living in a society often means that others have the power to effectively define who you are. Unless we give you some wiggle room, they’ll unfairly tell you who you are by treating you in certain ways.
Or, take the idea that people make irrational conclusions based on incomplete information. It can often be hard (especially in a society committed to free speech) to stop them from jumping to conclusions, so privacy regulations are a second-best way of keeping them from getting a jumping-off point. The confusion only enters when we think that the harm is the leak of information itself, rather than the ill-motived things people do with the information. I say ill-motived because in many cases there’s a kind of disregard involved: a lack of sufficient concern for another to bother thinking carefully about the whole person behind one embarrassing detail.
My point, perhaps, is just that it seems a more satisfying explanation for the kind of thinking we normally engage in where privacy is concerned than the usual philosophico-legal suspects who get trotted out any time the word “privacy” comes up. By thinking carefully about online privacy and online mobs, Solove helped me articulate this idea of privacy as a way to prevent the formation of mobs. It may be unoriginal, or bunkum, but it’s interesting. And that’s good enough for me.
Only three stars, though. I said I had unrealistically high expectations.