Daniel J. Solove on Reputation at ASU

Daniel J. Solove

Author, The Future Of Reputation

ASU Sandra Day O’Connor College of Law

how gossip shame and rumor are affected by the internet. Blogs for “concurring opinions” Internet leading to world of greater freedom and self realization, but a dark side. Dog Poop Girl and the Star Wars Kid

A cyberposse can amass with millions of people from around the world to mete out justice

Net enhances freedom and autonomy, but makes us less free.

Generational focus to his talk. “Generation Google” Going to live the rest of their lives with a detailed record of their lives accessible from anywhere.

The future of reputation: gossip and rumor more indelible and widespread than ever. Cause for celebration? Can’t hide secrets, can make better judgments about people, information wants to be free, better to have more data.

Solove disagrees. May lead to worse judgments – info taken out of context, leading to hasty and unfair judgments. Interesting irony about libertarian norms of internet – they can lead to inhibitions on freedom and slavery to people’s past indiscretions.

What should the law do?

Three broad directions: Libertarian, Authoritarian, Middle Ground.

Libertarian- current hands off norms of internet.

Authoritarian: a lot of restrictions on employee blogging, etc. are overblown and may be unconstitutional.

Middle Ground: law should create incentives for people to work things out. Strenghen possibility of lawsuits but ensure there aren’t lawsuits. Laws of defamation and privacy weakened, and ineffective in online context. Strenthen the law but limit rush to file suits by limiting damages, require mediation, penalties for abusive lawsuits. But need serious threat of law to encourage people to work things out informally.

Law bogged down by antiquated notions of privacy. Binary privacy: public and private realms. If anything disclosed in public, it’s public everywhere for all purposes. If you don’t want that, keep info within your home.

But surveillance cameras, cell phone cameras, change things. What was obscure and anonymous in public can now be identified and spread everywhere- what you buy in the drugstore.

Confidentiality: any disclosure, tough luck. In UK, people you give confidential info to have a duty to keep it confidential if there’s an expectation/relationship. Notion that once disclosed, people have impunity to spread is problematic.

Person who takes a photo has strong copyright protection, person in the photo has weak privacy protection. Weird outcomes. Privacy law has a can’t-do attitude very contrary to copyright notions of what law can do.

Law over-protects free speech. Communications Decency Act Section 230 protects ISPs re content posted by other people. Immunizes you not just for publisher liability but also distributor liability, which goes too far – even if you know the info is defamatory or invasive.

Juicy Campus, a former site that encouraged anonymous gossip, behind 230 immunity. Better approach is to have distributor liability to take down defamatory speech.

quick analysis: Solove thinks too much power has been given to copyright, especially when used to achieve privacy outcomes in lieu of good privacy tools. Many of his reputational concerns, though, stem from the thought that values really won’t change despite the evidence of the Facebook generation, that Americans are hypocritical enough to keep punishing people for things they themselves have done.

I think it’s inarguable, though, that notions of what is and isn’t shameful, or private, have changed enormously even prior to ubiquitous cellphone cameras, and they will continue to do so. Will there be any sort of consensus zone of the private or shameful? Yes: I think Dog Poop Girl says “shameful/not private.”

Star Wars Kid is a hard counterexample, though: he was mocked by people just like him, and the cost to him was high. Will we all have our 15 minutes of Star Wars Kid mockery in our formative years? Maybe so..

Q&A: Solove defends internet anonymity as socially valuable, says traceability for lawbreakers solves the problem. Yay!.

Told him about scans_daily: he said that there should be legal sanctions for using copyright to bully speech, and that scans_daily should fall under a properly broad fair use doctrine.