Have you Googled yourself lately? Has your employer? Your date? Your mother? How concerned should you be about what they might find? According to legal scholar and blogger Daniel Solove, author of The Future of Reputation, you might want to be a bit more concerned than you probably are. Here’s why:
Somebody you’ve never met can snap your photo and post it on the Internet. Or somebody that you know very well can share your cherished secrets with the entire planet. Your friends or coworkers might be posting rumors about you on their blogs. The personal email you send to others can readily be forwarded along throughout cyberspace, to be mocked and laughed at far and wide. And your children might be posting intimate information about themselves on the Web — or their friends or enemies might be revealing your family secrets.
It’s hard not to note the paranoia of this vision, which resembles the “MySpace: Threat or Menace?” stories lately clogging the media . But Solove has a point: there is a potential “dark side” to our new abilities to publish on the Internet via blogs, photo-sharing services, and video sites, found in the threat that such technologies could pose to our privacy. In an era in which anyone can easily publish anything about anyone else, individual control over one’s reputation could become difficult. In fact, such free-wheeling ability to say anything, often with the protection of a pseudonym, can result in viral forms of public shaming and the spread of vicious gossip. It might not have happened to us, but it’s happened to people like us, who were mostly minding their business until the blogosphere seized upon some embarrassing detail from their private lives, publishing it for all to see — and ridicule.
Perhaps, Solove acknowledges, our concerns about privacy might diminish as we move into an age in which sharing the intimate details of our lives online becomes the norm. But it’s also possible that public exchange of the kind of information that we have previously kept within much closer social circles will result in a society that is both “oppressive and uncontrollable, where people are vulnerable to having their reputations destroyed in an instant, where mistakes in one’s past can forever thwart opportunities in one’s future.” Recent concerns about privacy violations — such as the wiretapping of private citizens by the government and other intrusive forms of surveillance — have often been met with an insistence that if one doesn’t have anything to hide, one has nothing to fear. Solove disagrees; even when we aren’t up to something that we don’t want the public to see, we still require privacy in order to think and act freely, without a constant sense of self-censorship.
Solove’s primary concern, to use a term popularized by the French theorist Michel Foucault, is a new kind of digital panopticon, a system within which we no longer require a “Big Brother” looking over our shoulders, because we are all constantly monitoring one another — and as a result, monitoring ourselves. “Should people’s social transgressions follow them on a digital rap sheet that can never be expunged?” Solove asks in his introduction. A worthy question; the Internet creates an environment in which a person can become famous overnight, but more often than not that fame is based on something that the person would just as soon forget, preferring that it be allowed to pass into obscurity. Bizarrely, the threat that we faced in childhood, that some stupid thing we’d done in third grade would be placed on our “permanent record,” suddenly has the potential to be real — and available to anyone with a few minutes, a web browser, and access to Google.
In the first half of the book, Solove focuses on the Internet’s transformation of gossip and shaming rituals, creating a potential crisis for many in controlling their reputations; in the second half, he explores the possible legal remedies for those whose privacy is violated, and the concerns about free speech that such legal remedies raise. The Future of Reputation seeks a balance, arguing that “we must protect privacy to ensure that the freedom of the Internet doesn’t make us less free,” but also that we must “balance the protection of privacy against freedom of speech.”
With such sharp focus on the spread of personal information through online gossip Solove tends to overlook another potential threat to our privacy — the corporate ownership of much of the information that we publish on the Internet. Even scholars such as danah boyd, one of the most enthusiastic defenders of social networking systems, are concerned about the privacy implications of, for instance, Facebook’s opening of its records to Google searches. The problem that such scholars have pointed to, however, is not the mere presence of the data online, but the corporate control of access to it, and the commercial or governmental purposes to which it might be put. For instance, Facebook’s terms of service include the following:
All content on the Site and available through the Service, including but not limited to designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement (the “Site Content”), are the proprietary property of the Company, its users or its licensors with all rights reserved.
Much of that “site content” is uploaded by users, who may or may not recognize the rights they’re handing over to the company. Perhaps Facebook will never do anything with the pictures I uploaded from last night’s party — but if they do, will I have any ability to stop them?
It’s thus a bit jarring when, late in the book, Solove points to current copyright law as a model for how private information might be controlled. He acknowledges that the “balance of freedom and control” in copyright law “has been the subject of considerable debate and controversy,” but he doesn’t consider the difference between the control of information for profit-making purposes and for purposes of maintaining personal privacy. Copyright law and privacy issues make odd bedfellows; is the suggestion that we “own” the details of our private lives?
Moreover, blurring the relationship between privacy and intellectual property could have quite chilling effects on personal creativity and expression. Solove acknowledges that forum hosts faced with legal action for privacy violations might become nervous and remove information too quickly, but he doesn’t follow through with this note as far as one might like. For instance, he might have explored the ways that hair-trigger responses to DMCA takedown notices have at moments not served the protection of intellectual property but instead assisted in the corporate infringement on the rights to free speech. While takedown requests from individuals who feel themselves defamed or feel their privacy rights violated by speech about them on the Internet are unlikely to produce the same kinds of knee-jerk responses, largely because individuals and their lawyers present a far smaller threat than do major corporations, the possibility of such infringements on the freedom of expression remain.
In the end, The Future of Reputation argues that we need to develop commonly held cultural norms for the treatment of private information in the blogosphere. And there should be legal remedies for those whose rights have been violated and whose informal attempts to seek resolution have failed. “The law,” he argues, “is a puny instrument compared with norms.” It’s also a blunt instrument, one that can create greater problems than those it tries to solve. Solove’s attempt to find a solution in a “middle path between information libertarianism and authoritarian control is compelling, but perhaps most useful is his highlighting of the problem in the first place. In the future, we may all be famous for fifteen minutes, but the Internet can preserve that fame — or infamy — forever. We might do well to consider, with Solove, what we lose when we give up our privacy, and what aspects of freedom to communicate are worth preserving.