The Current Situation
Perhaps the most seminal article of privacy is Samuel Warren and Louis Brandeis’ Harvard Law Review article The Right to Privacy from 1890. The authors wrote this article in response to the invention of new camera technologies that allowed for instantaneous photographs. 4 HARV. L. REV. 193, 195 (1890). Warren and Brandeis feared that such technologies would expose the private realm to the public, creating a situation in which “what is whispered in the closet shall be proclaimed from the house-tops.” Id. Their article argued that a tort remedy should be available for those whose privacy had been violated in such a way. Id. at 219. Warren and Brandeis demonstrated a major trend in legal thought that would achieve more prominence in the Internet Age: the need for formal legal and governmental structures to protect private and undesirable information about people from reaching the public.
The Internet has created a world of permanence, in which whispers in the closets are not only “proclaimed from the house-tops” but also never disappear. In Viktor Mayer-Schönberger’s Delete: The Virtue of Forgetting in the Digital Age, Mayer- Schönberger described how the digital age changed the status quo of society, which was “we remembered what we somehow perceived as important enough to expend that extra bit of effort on, and forgot most of the rest.” Viktor Mayer-Schönberger, Delete: The Virtue of Forgetting in the Digital Age 49 (2009). Four technological advances (digitization of information, cheap storage, easy retrieval, and the global reach of the Internet) have made all memories permanent. Id. at 52. This change has forced humans to constantly deal with their past, preventing them from growing and moving on.
The permanent past created by the Internet has increased the availability of information that can be used to judge people. Professor Lior Jacob Strahilevitz discusses the effect of this flood of information on reputation and exclusion in his article Reputation Nation: Law in an Era of Ubiquitous Personal Information. The ability of a Google search or social networking site to deliver personal information allow people to factor online and real world reputation into decision making in a way that was not feasible years ago. Lior Jacob Strahilevitz, Reputation Nation: Law in an Era of Ubiquitous Personal Information, 102 Nw. U. L. Rev. 1667, 1671 (2008). Strahilevitz discusses both the positive and negative ramifications of this information surplus but other scholars have focused on its negative effects on offline lives. Professor Daniel Solove in The Future of Reputation: Gossip, Rumor, and Privacy on the Internet describes many of these concerns. Solove relates many stories of the negative ramifications of online information, such a girl who refusal to pick up her dog’s waste led to her pictures becoming famous online. A commenter on a blog which discussed this picture stated “Right or wrong, the [I]nternet is a cruel historian.” Solove states that the ability of information, especially that which is considered scandalous or interesting, to spread quickly and become permanent has distorted how we judge people. Many different types of people (family, friends, employers, etc.) can evaluate other using personal information and gossip that many would consider to be unfair factors in such an evaluation. One inappropriate Facebook picture or malicious blog post can haunt someone for the rest of their lives.
Soloye notes that “disclosure can also be harmful because it makes a person a "pris-oner of [her] recorded past." People grow and change, and disclo-sures of information from their past can inhibit their ability to reform their behavior, to have a second chance, or to alter their life's direc-tion. Moreover, when information is released publicly, it can be used in a host of unforeseeable ways, creating problems related to those caused by secondary use. P. 533. Lior Strahilevitz aptly observes that disclosure involves spreading information beyond existing networks of information flow.311 The harm of disclosure is not so much the elimination of secrecy as it is the spreading of information beyond expected boundaries. P. 535. Daniel J. Solove, A Taxonomy of Privacy, University of Pennsylvania Law Review, Vol. 154, No. 3 (Jan., 2006), pp. 477-564, Stable URL: http://www.jstor.org/stable/40041279 .
A Stanford Law Review Symposium on cyberspace and privacy provides a number of instructive articles on legal and theoretical prescriptions for privacy problems on the internet. Privacy As Intellectual Property? Pamela Samuelson, Stanford Law Review, Vol. 52, No. 5, Symposium: Cyberspace and Privacy: A New Legal Paradigm? (May, 2000), pp. 1125-1173, http://www.jstor.org/stable/1229511(suggesting that information privacy law needs to impose minimum standards of commercial morality on firms engaged in the processing of personal data and proposes that certain default licensing rules of trade secrecy law may be adapted to protect personal information in cyberspace); The Death of Privacy? A. Michael Froomkin, Stanford Law Review, Vol. 52, No. 5, Symposium: Cyberspace and Privacy: A New Legal Paradigm? (May, 2000), pp. 1461-1543, http://www.jstor.org/stable/1229519 (discussing privacy-destroying technologies and leading attempts to craft legal responses to the assault on privacy-including self-regulation, privacy-enhancing technologies, data-protection law, and property-rights based solutions); Information Privacy/Information Property, Jessica Litman, Stanford Law Review, Vol. 52, No. 5, Symposium: Cyberspace and Privacy: A New Legal Paradigm? (May, 2000), pp. 1283-1313, Stable URL: http://www.jstor.org/stable/1229515 (exploring property and common law solutions to protecting information privacy); Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object, Stanford Law Review, Vol. 52, No. 5, Symposium: Cyberspace and Privacy: A New Legal Paradigm? (May, 2000), pp. 1373-1438, http://www.jstor.org/stable/1229517 (arguing that the debate about data privacy protection should be grounded in an appreciation of the conditions necessary for individuals to develop and exercise autonomy in fact, and that meaningful autonomy requires a degree of freedom from monitoring, scrutiny, and categorization by others); Jonathan Zittrain, What the Publisher Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted Privication, Stanford Law Review, Vol. 52, No. 5, Symposium: Cyberspace and Privacy: A New Legal Paradigm? (May, 2000), pp. 1201-1250, http://www.jstor.org/stable/1229513 (discussing how “trusted systems” technologies might allow more thorough mass distribution of data, while allowing publishers to retain unprecedented control over their wares).
Many academics have proposed ways to deal flood of personal information and gossip in a way that prevents their effect on everyday life. The ensuring categorizations represent the best fit, but all contain elements of many of the categories.
Warren and Brandeis’ seminal suggestion of a tort remedy for those whose privacy had been invaded has been seen as a potential solution to the issue of unwanted information on the Internet.
Daniel Solove argues that the law should expand its recognition of duties of privacy. This expansion would allow the law to see the placing of certain information online as a violation of privacy. Solove also proposes that only the initial entity who posts gossip online, not subsequent posters, should be liable.
Daniel J. Soloye also develops justifications for protections against the disclosure of private information. Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections against Disclosure, Source: Duke Law Journal, Vol. 53, No. 3 (Dec., 2003), pp. 967-1065 Stable URL: http://www.jstor.org/stable/1373222. He argues that speech of private concern is less valuable than speech of public concern and that the propriety of disclosures depends upon their purpose, not merely on the type of information disclosed. He also responds to the argument that gossip is valuable because it helps educate us about human nature and argues that the value of concealing one's past can, in many circumstances, outweigh the benefits of disclosure. He further argues that privacy protects against certain rational judgments that society may want to prohibit (such as employment decisions based on genetic information).
Lior Jacob Strahilevitz proposes a revised standard of distinguishing between public and private facts in privacy torts using insights gleaned from the empirical literature on social networks and information dissemination. Lior Jacob Strahilevitz, A Social Networks Theory of Privacy, The University of Chicago Law Review, Vol. 72, No. 3 (Summer, 2005), pp. 919-988 Stable URL: http://www.jstor.org/stable/4495516. He argues that judges can use this research to determine whether an individual had a reasonable expectation of privacy in a particular fact that he has shared with one or more person. He argues that if the plaintiff's previously private information would have been widely disseminated regardless of the defendant's actions in a particular case, the information in question was public, and if not, the tort law ought to deem the information private. Essentially, he argues that an individual has a reasonable expectation of privacy where there is a low risk that the information will spread beyond the individual's social network.
Comment: Strahilevitz’s proposal would be useful in modernizing privacy tort laws. However, like all tort remedies, it primarily addresses disclosed information that has already caused serious harm. Our proposal, by contrast, seeks to prevent reputational injuries before they occur through a comprehensive, wholesale information-management process.
James Grimmelmann in Saving Facebook stresses that any solution to privacy concerns on Facebook must comport with how users perceive their social environment. Solutions like restrictions on certain uses of social media or strong technical controls on who can see what information will not work because they do not comport with the nuances of social relationships and the desire of young people to subvert attempts to control their behavior. Conversely, solutions that take into account what Facebook users’ expectation of privacy are and how they interact with their online friends will have a greater chance for success.
Jonathan Zittrain proposes the concept of “reputation bankruptcy”, in which an individual would be able to wipe out the entirety of one’s online reputation, both the good and bad aspects of it:
“Like personal financial bankruptcy, or the way in which a state often seals a juvenile criminal record and gives a child a “fresh start” as an adult, we ought to consider how to implement the idea of a second or third chance into our digital spaces. People ought to be able to express a choice to de-emphasize if not entirely delete older information that has been generated about them by and through various systems: political preferences, activities, youthful likes and dislikes.”
Zittrain suggests that the lack of selectivity would help prevent excessive use of this tool.
- Zittrain’s proposal is compatible with all categories depending upon how he further defines it.
Frank Pasquale in Rankings, Reductionism, and Responsibility and in Asterisk Revisited: Debating a Right of Reply on Search Results proposes a government regulation of search results that would give individuals a right of reply. The asterisk would lead to the individual in question’s own statement on the undesirable result. Our model includes a similar right of reply at the phase when the status of renewed data is contested; that is, when a content creator renews data that implicates one or more parties against their objection. The model allows the party to opt for an asterisk that can provide context for the objectionable image.
Lauren Gelman in Privacy, Free Speech, and “Blurry-Edged” Online Networks argues for a norms-based approach to privacy online. She describes the online world as having “blurry edges” in the sense that information online that is intended for a select group of people can be accessed by the entire online community. She proposes a technological solution in which information an individual posts online can include tags stating that individual’s preferences regarding privacy and how the information may be used. Gelman asserts that online users will likely accept this request if it is presented immediately upon accessing the information.
Viktor Mayer-Schönberger’s solution shares Grimmelmann’s focus on user-expectations, as Mayer-Schönberger seeks to establish in the online world our natural expectation of forgetting. He proposes the application of expiration dates to information, whereby creator(s) set expiration dates for their data. Mayer-Schönberger allows for government involvement to determine when expiration dates could be changed or who should be involved in setting the date. Also, this system allows for no gradual decay or modification; expansion dates can only be extended by social mandate. 184-192.
The European Union is considering an online “right to be forgotten.” Users will able to tell websites to remove all personal information the website has about them. If a website did not comply, it could face official punishment. On November 4th, 2010, the European Commission announced that it will propose new legislation in 2011 to strengthen EU data protection and unveiled a series of proposals as part of its overall strategy to protect personal data. Vice-President Viviane Reding, EU Commissioner for Justice, Fundamental Rights and Citizenship, called the protection of personal data a fundamental right. With respect to personal data online, the European Commission stated that “[p]eople should be able to give their informed consent to the processing of their personal data . . . and should have the "right to be forgotten" when their data is no longer needed or they want their data to be deleted.”
Cass Sunstein in his book On Rumors suggests the creation of a notice and take down procedure for falsehoods similar to the Digital Millennium Copyright Act. Cass Sunstein, On Rumors 78-79 (2009). Sunstein describes this as a “right” rather than a norm, demonstrating the need for government action. Also, this proposed notice and takedown system only deals with falsehoods, not with embarrassing information that is true.
Orrin Kerr suggests conditioning the immunity for websites under section 230 of the Communications Decency Act on whether the site owner prevented search engine bots from taking up its content. If a search engine did pick up the content, the website would be liable for the content the search engine displays. Under this suggestion, the objectionable content would still exist, it just could not be found through a search engine.
Joseph Bonneau and Soren Prebusch at the University of Cambridge conducted the first thorough analysis of the market for privacy practices and policies in online social networks in their article, The Privacy Jungle: On the Market for Data Protection in Social Netowrks. Economics of Information Security and Privacy 2010, 121-167, DOI: 10.1007/978-1-4419-6967-5_8, The Privacy Jungle:On the Market for Data Protection in Social Networks Joseph Bonneau and Sören Preibusch http://preibusch.de/publications/social_networks/privacy_jungle_dataset.htm
Paul M Schartz has proposed a model for propertized personal information that would help fashion a market that would respect individual privacy and help maintain a democratic order. His proposal includes 5 elements: “limitations on an individual's right to alienate personal information; default rules that force disclosure of the terms of trade; a right of exit for participants in the market; the establishment of damages to deter market abuses; and institutions to police the personal information market and punish privacy violations.” Property, Privacy, and Personal Data, Paul M. Schwartz, Harvard Law Review Vol. 117, No. 7 (May, 2004), pp. 2056-2128. http://www.jstor.org/stable/4093335.
- Link to Stanford property articles.
Our Approach Many of these proposals share several characteristics: significant government intervention and a focus on dramatic short-term reputation harm. Regarding intervention, many of the aforementioned scholars devote a portion of their articles and books to discussing various legal problems with their proposals, namely First Amendment challenges. Eugene Volokh in his article Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You discusses how broad information privacy regulations would not be allowable under the First Amendment and how allowing such regulations could create negative legal and social ramifications. The aforementioned proposal, many of which involve the government restricting speech, would likely face significant First Amendment roadblocks.
Some of these proposals focus on the highly objectionable material that would warrant liability or a complete erasing of one’s online reputation. Yet, these approaches do not address the embarrassing yet legal and mundane, such as a drunk picture or a inappropriate Facebook group an individual once posted on that the individual was not concerned about at the time. Such activities likely do not rise to the level warranting litigation or complete erasure of an online identity, but they could negatively affect one’s professional and personal relationships.
Our project departs from these proposals both in its focus and implementation. We have catalogued reputational harms that one can suffer online into three different types:: short-term, medium-term, and long-term. Short-term harms is exemplified by those involved with the Duke sex powerpoint scandal, in which an incendiary piece of information creates immediate and dramatic ramifications for one’s reputation. Long-term harms are things that affect reputation that has been built over many years, such as one’s eBay rating. Medium-term harms are not necessarily immediately recognized as harmful, but their ramifications may come up when establishing a relationship or looking for a job. For example, someone as a freshman in college may have a picture of themselves drunk on Facebook which may not be an issue now but could become one when he looks for a job in several years. Our proposal will address these medium-term harms.
Our proposal relies on a combination of a market- and norms-based approach. Jonathan Zittrain creates a classification system for such approaches to online issues in his article The Fourth Quadrant. This system uses two measures: how “generative” it is and how “singular” it is. The former judges the separation if any between those who create and implement the approach and those who are affected by it. The “singular” qualification evaluates whether the approach is the only one available or one of many. An undertaking that is created and operated by the entire community and is the only one of its kind utilized in the online realms falls into what Zittrain terms the “fourth quadrant.” Our system will be created and implemented by the social networks’ and blogs’ entire community, both their operators and users. The government will not implement or enforce anything. Since our system is optional for websites, it initially will be one of many approach is dealing with the medium-term harms to reputation. However, our hope will be that its advantages and benefits will allow it to become a popular system and, therefore, eventually become of the fourth quadrant.
We believe that a market and norms-based approach avoids the First Amendment issues, is more responsive to the needs of users and internet service providers, and is more likely to be implemented as a bottom up approach that can be tailored to meet the specific preferences of different demographics interfacing with different forms of online expression.