Summary: Daniel Solove’s The Future of Reputation, Ch. 5-8

• New technology makes old problems of privacy more complex (Godkin: curiosity was the “chief enemy of privacy in modern life”).
• 1890: Lawyers Samuel Warren and Louis Brandeis wrote “The Right to Privacy,” advocating that the law could provide solutions to violation of privacy. In particular, they laid grounds for a tort remedy – being able to sue others who have wronged you.
• 3 types of legal approaches: 1) Libertarian – Internet is a free zone, and the law should keep out. 2) Authoritarian – Government should have strict control over the spread of information. 3) Moderate – Law should help shape the norms that govern circulation of information, and individuals should be the ones initiating lawsuits.
•  “Every society needs some mechanism to resolve reputational harms” (dueling was the solution in prior ages).
• 2 laws today (referring to USA): 1) law of privacy – intrusion upon seclusion, public disclosure of private facts, false light and appropriation. 2) law of defamation – libel and slander.
• “Law works best when it can hover as a threat in the background but allow most problems to be worked out informally.”
• “US Constitution’s First Amendment (right to free speech) protects false speech not for its own sake but as a means of protecting true speech.”
• US Supreme court gives less protection to commercial speech of “legitimate public concern” (newsworthiness test) than to private speech.
• Free speech is important because: 1) individual autonomy – allows BOTH freedom to express your uniqueness and the privacy to be able to do so without being afraid of public reaction. 2) democracy – free speech contributes to public discussion on important issues. 3) marketplace of ideas – free speech contributes to promotion of truth, or free trade in ideas.
• Privacy and free speech can peacefully co-exist.
• What are the implications of anonymity on the Internet? – to be discussed in class by Group 4.
• John Doe lawsuit – you can sue to find out who posted a certain comment (usually unsuccessful in court).
• Section 230 states that Internet or website hosts cannot be sued for others’ comments despite receiving explicit requests from people to remove distasteful posts.
• How do you feel about “there can be no privacy in that which is already public”?
• US law sees privacy as mostly binary – either something is public or it’s private; it doesn’t matter to how many people, in what context, etc.. So if you do anything outside of your home, and it ends up on the front page of tomorrow’s newspaper, there is nothing you can do about it.
• However, even when we are in public either physically or online, we perceive ourselves as anonymous or in a social context in which our activities are private.
• Video Voyeurism Prevention Act is only applicable on federal property.
• Many of us also think of privacy when it comes to increasing accessibility of information we have already made available about ourselves online (ie. I have a FB profile, but I don’t necessarily want my business in everyone’s news feeds).
• How do you determine if a breach of confidentiality among people is grounds for a lawsuit?
• Lior Strahilevitz suggests a social network theory – if you have shared your secrets or private details with random people outside of relevant social networks then it justifies making that information public because you have revealed it yourself to outsiders.
• But taking confidential information to the Internet should automatically be grounds for a breach of implicit contract because there are no social network limitations online (even if I post about you on a blog where we have mutual friends, there is no guarantee that it can’t spread further).
• Solove suggests that the law should treat privacy with more strictness like intellectual property (copyright laws).
• Some more possible problems of privacy online: blogging norms are less restrained than those of mainstream media, websites purposely set default settings of least privacy, employers can do entire background searches on Google.
• Although the law can be tweaked to still protect privacy while encouraging free speech, ultimately informal dispute resolution among parties and education to the rising generation about netiquette is more viable than trying to sue everyone.

See summary of Solove’s The Future of Reputation, chapters 1-4 here.

Works Cited

Solove, Daniel J. The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. New Haven: Yale UP, 2007. Print.