Identifying Difficult Problems in Cyberlaw - User contributions [en]

GROUP ONE

2010-11-27T04:46:30Z

Davidrbrody: /* Concerns and Responses to the Model */

=Introduction=

Perhaps the seminal article of privacy is Samuel Warren and Louis Brandeis’ Harvard Law Review article [http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html''The Right to Privacy''] from 1890. The authors wrote this article in response to the invention of new camera technology that allowed for instantaneous photographs. Warren and Brandeis feared that such technology 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.” Their article argued that a tort remedy should be available for those whose privacy had been violated in such a way. Warren and Brandeis's thesis exemplified a trend in legal thought that would achieve more prominence in the Internet Age: the need for normative, 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.” <ref>Viktor Mayer-Schönberger, ''Delete: The Virtue of Forgetting in the Digital Age'' 49 (2009)</ref>. Four technological advances (digitization of information, cheap storage, easy retrieval, and the global reach of the Internet) have made all memories permanent. <ref>''Id''. at 52.</ref> 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028875 ''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 utilize online and real world reputation when making decisions in a way that was not feasible years ago. Strahilevitz discusses both the positive and negative ramifications of this information surplus, but other scholars have focused on its negative effect on offline lives. Professor Daniel Solove in [http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text.htm 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 whose refusal to pick up her dog’s waste led to her picture becoming famous online. A commenter on a blog which discussed this picture stated “[r]ight 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 each 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 his life.

=Proposed Mid-term Content Management System=

==Our Approach==

Many proposals regarding online reputation and information share several characteristics: significant government intervention and a focus on dramatic short-term reputation harm. Regarding intervention, many 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 [http://www.law.ucla.edu/volokh/privacy.htm#SpeechOnMattersOfPrivateConcern ''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. Many proposals that involve the government restricting speech would likely face significant First Amendment roadblocks.

Often 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 content, such as a drunk picture or an inappropriate Facebook group on which an individual once posted. Such activities likely do not rise to the level warranting litigation or complete erasure of one's online identity, but they could negatively affect one’s professional and personal relationships. They are the equivalent of putting one's foot in one's mouth.

Our project departs from these proposals both in its focus and implementation. We have divided online reputation into three different types: short-term, medium-term, and long-term. Short-term harms are exemplified by those involved with the [http://jezebel.com/5652114/college-girls-power-point-fuck-list-goes-viral-gallery Duke sex powerpoint scandal], in which an incendiary piece of information creates immediate and dramatic ramifications for one’s reputation. Long-term reputational content is something that has been built over many years, such as one’s [http://pages.ebay.com/services/forum/feedback.html eBay rating]. Medium-term reputational content is not necessarily immediately recognized as harmful, but its 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 issues. In an online world in which everything is recorded for eternity, how do you accommodate a person's ability to mature and change?

Our proposal relies on a combination of a market- and norms-based approaches. Jonathan Zittrain creates a classification system for such approaches to online issues in his article [http://law.fordham.edu/assets/LawReview/Zittrain_Vol_78_May.pdf ''The Fourth Quadrant'']. This system uses two measures: how “generative” the approach 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 options. 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 blog’ 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 several potential approaches 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.

==Assumptions==

As discussed above, there are three distinct phases of reputation: short term, mid-term and long term. Our model is targeted solely at mid-term reputational issues. Short and long term issues will require other mechanisms and should be considered independently.

When composing our model, we had four core assumptions:
*1) All user-generated content should expire and cease to be publically available after a set length of time, unless is it actively renewed. This theory follows from Viktor Mayer-Schönberger’s work.
*2) The path of least resistance should result in the socially optimal outcome. This means that whenever a user follows default settings or acts in a lazy or apathetic fashion, the end result should be desirable. The model should make doing the “right” thing as easy as possible.
*3) Direct, personal communications between real people lead to more cooperative outcomes. A user can empathize and be more receptive to an individualized appeal from another person than he would be to an automated message. Building these sorts of communications into the system fosters a social norm of cooperation and understanding.
*4) The system should be content neutral so as to increase efficiency and avoid arbitrary implementation. If the system discriminated in how it treated content based on what type of content it was, then the process would get bogged down in the minutiae of moralistic review.

Our model will present a process by which content expires or renews, depending on how implicated parties intervene or abdicate. In the model, P is a user who initially posts content, Q is a user who is represented in the content, and R is a third-party bystander.

The system would be applied by social media websites that choose to apply it. There is no feasible method of mandating its use, nor is there a reason to. These websites will want to implement this system or one similar to it of their own accord. Here’s why:
*1) The system will make a website more desirable to users who value their privacy and reputations.
*2) The system creates a stickiness that will keep users coming back to the social media website that uses it.
*3) The system does not substantially impede a website's ability to profit from data mining, thus allowing it to promise greater privacy protections to its users without hurting the company’s source of revenue.

Finally, it is important to note that the system is not designed to be 100% effective at addressing all potentially problematic content. The goal is solely to create a process that is easy to implement, easy to understand, and will achieve the socially optimal result in the vast majority of cases.

==Model==
[[Image:New Model.jpg]]

*1) A user, P, is presented with preferences when he first uses the system. He can either use the presets chosen by the website or adjust the preferences to his taste. These preferences would determine his default actions for expirations, renewals, notifications, protests, etc.
*2) P posts content on the website.
*3) P chooses an expiration date for his content or uses his default expiration settings.
*4) The content might contain a representation of Q. Q can then be “marked” on the content by P, Q or R. To be “marked” means that Q is alerted that he is implicated in this content and is given the option to be notified when the content comes up for renewal.
*5) If no one is marked on the content, then P will, in accordance with his preferences, receive a notification 30 days prior to the content’s expiration date. P can then choose to renew the content or do nothing. If P does nothing, the content expires.
*6) If Q is marked but never opts in for notification, then the content is treated as if no one is marked.
*7) If Q is marked and opts in for notification, and if P chooses to renew the content, then Q will receive a notification that P chose to renew the content.
*8) Q can ignore this notification and the content will renew as per P’s decision.
*9) Alternatively, Q can “protest” P’s decision to renew the content. This means that Q would send a message to P saying that he doesn’t want the content renewed and explaining why. This protest would contain standard options that Q could select for his reasoning, but Q would also be required to compose a personalized message to P.
*10) P, upon receiving Q’s protest, can choose to move forward with the renewal (with or without modifying the content), halt the public renewal, or do nothing.
*11) If P does nothing, the content will expire, as per Q’s wishes.
*12) If P halts the public renewal, the content will still be kept in P’s private archive but will not be viewable to any other users.
*13) If P chooses to move forward with the renewal (with or without modifying the content), P must then send a response to Q explaining why P chose to renew the content over Q’s protest. This would also be a personalized message.
*14) Upon receiving P’s response, Q might be satisfied with P’s reasons or modifications. If Q does nothing, the content will renew.
*15) If Q is partially dissatisfied with P’s response, Q could chose to add an “asterisk” to the content. This would be a discrete message that viewers of the content would see, consisting of Q’s protest to P. The content would renew with the asterisk.
*16) If Q is substantially dissatisfied with P’s response, Q could appeal the renewal to an adjudication process. This process would determine whether or not the content renews.

==Explanation of the Model==

'''Users will set preferences or use default preferences for expiration and notification to streamline decisions.''' These will help triage content to prevent users from being deluged with notifications.
*For example, presets could allow users to auto-ignore, auto-opt in to notify, or auto-protest based on the identity of the other party. Certain groups might get trusted automatically, while others would be automatically suspect.
**E.g. If your mother marks you in a photo, you know that most of the time you probably don’t need to worry about its content.
*However, because the purpose of the system is to expire valueless content, users would not be allowed to set their preferences to auto-renew their content.

'''When P chooses an expiration date, P can opt to receive or not receive notice prior to expiration.''' Presumably, most content, being transitory, will be allowed to expire w/o notice (e.g. status posts, comments, tweets, etc). Thus, only truly substantive content would ever even require subsequent action by P or Q.

'''Only an actual person depicted by the content would have “standing” to be marked.'''
*This rule’s efficient application will compensate for its under-inclusivity. Trying to get 100% inclusivity for all affected users or content would make the perfect the enemy of the good.
*The rule will also help prevent large groups from ganging up to harass one person.

'''Captchas would be used to ensure that only real people will be able to mark content.'''

'''Q should not have the ability to prevent expiration.''' The content belongs to P; if he wants to expire it, that’s his right.

'''R should not have the ability to prevent either expiration or renewal.''' Being neither the owner of the content (P) nor someone implicated in the content (Q), a third party should have no rights to dictate what happens or doesn’t happen with the content.

'''Users could maintain a private archive of their content that will not expire, subject to their preferences.''' Many users use online social media websites as multimedia diaries of their lives. Users should have the option of permanently retaining all of their own content for private viewing. But they should not be able to keep such information publicly viewable without going through the system.
*Our chief concern is controlling mid-term reputational effects. Thus, if something is private, it cannot substantively affect someone else’s reputation and does not need to be constrained.

'''No one will be able to search for asterisks.''' Asterisks serve to explain content that Q finds objectionable. By their very nature, asterisks will be associated with controversial content. If a user could search for an asterisk then these asterisks would serve as homing beacons for the very content that Q wants to disappear in the first place.

'''The adjudication process might be styled after either the Uniform Domain-Name Resolution Policy (“UDRP”) or eBay’s adjudication process.''' It is likely that this process would be contracted out to established 3rd parties. Allowing this service to be contracted out to the market will allow different methods to develop competitively to foster innovation and efficiency.
*It should be noted that the adjudication process is the only part of the model that will take a substantive look at the nature of the content.

==Concerns and Responses to the Model==

'''1. How do we prevent a deluge of expiration notifications and other notifications from the process?'''

'''Concern''': The model is likely to create a considerable amount of email notification both for P and for Q. Online social media users are generating content everyday so the flow will be constant. This flood of emails could discourage some walled gardens from implementing the model if they fear their users will abandon their network, because their mailbox is constantly flooded. Are users going to take concerns seriously when they receive so many of them over short periods of time?

'''Response''': Like in every architectural design (both physical and technological), there are tradeoffs. The benefit of the model is that it facilitates interactions and keeps users constantly apprised about content they generate and content generated about them. The con is reflected in the benefit: they are constantly kept apprised, which means they are constantly being notified. Asides from the benefit of being aware, there are some tools users could employ to avoid mailbox flooding.

Users could use their default settings to have content scheduled to expire, expire automatically, without notification. They could do this for all their content and select it as a default or they could manage pictures, status updates, posts, etc. individually. The more tailored their control over the system, the more easily users could manage their data and notifications. Content generators seeking to avoid notification from those marked to their content, could also benefit from the use of default settings. Perhaps they could set their default settings such if someone would like the content taken down, it would automatically defer to that user. The walled garden settings could also permit individuals to differentiate by user or group. For example, a default setting could look something like: I do not want to be notified if Family and Good Friends object to content being renewed and I will defer to their requests, but I would like to be notified if Pete Campbell or someone from the High School group objects.

'''2. Should there be a modified system for children? Should this system only exist for children? Should there only be one period of atonement for coming of age?'''

'''Concern''': Minors are arguably the most susceptible to generate content they later regret, is embarrassing, or could effect them in the future. They are also on the whole not as mature as the rest of the population and should be further protected from the permeability of content generated about them online. Similar to how the criminal records of minors are often expunged in the legal system, should the model guarantee minors greater protection or should the model only exist for minors?

'''Response''': Individual walled gardens are best situated to determine the individual needs of their users. While the authors of this model maintain that the model should apply universally, there is no doubt that minors are perhaps the most in need of the model. That said, individual sites that will adopt this model can best determine how they want to implement it and to what population of their users they would like to make it available to.
Perhaps there could be variations in the model for children, such as no renewal after valid complaints on the content or the availability of content expiration more frequently or when the minor comes of age. This question, however, we believe is better resolved by individual walled gardens.

'''3. Should expired content be deleted forever? Are there ways to preserve one’s content?'''

'''Concern''': One of the primary reasons individuals post content online is to share and preserve it in digital form. The model favors the deletion of information and could cause content that would have otherwise remained available for storing or sharing to be removed. What if the individuals generating the content or featured in the content want to preserve it for themselves, friends, or future generations?

'''Response''': There are ways to preserve one’s content. Users under the model will be allowed to have a private archive. But other methods could be used as well. Expired content generated by individuals could be stored in another private mechanism: both online and offline. The most secure way to retain your personal data would be off a could and stored on a personal hard drive, but perhaps a user would like to have their content in a cloud. Either way, there are multiple devices currently where users can store data that is not publicly available.

'''4. What happens if people circumvent the process and simply repost the material?'''

'''Concern''': While in theory the model may work well, what is to stop users wanting to avoid the effort of the process from simply agreeing to delete their content and reposting it again or allowing everything to expire, only to repost it again in a few years, months, days, minutes, or seconds?

'''Response''': Like any law or system, there will always be those that look for loopholes and areas of the technological court that are poorly defended. The additional affirmative effort required by users to repost content is in itself a moderate discouragement. Furthermore, the establishment of a model and the social norms governing its usage also serve to discourage users from running a red light even when they think they will not get caught. However, it is undeniable that for at least a sector of online users, the additional effort required to repost content and norms alone are not enough.

Walled gardens could develop software that is able to detect when content is reposted or identify content that is posted as the same as other content that was previously posted. Other individuals featured in the reposted content could be allowed to file a complaint with the walled garden notifying them that the content posted had already expired or was somewhere in the process of expiration.

'''5. Will this have a chilling effect on speech?'''

'''Concern''': Individuals that do not want to be over-flooded with complaints or notifications might avoid posting content that is arguably beneficial to society, simply because they know some individuals might object and they do not want to deal with the burdensome process of responding to complaints.

'''Response''': While the model in its current state might prevent content from being renewed, it certainly should not prevent individuals from originally posting the content. Individuals could set their default settings to avoid receiving notification of marking. They would thus only encounter resistance when renewing the content.

'''6. Who has standing to mark themselves to content?'''

'''Concern''': If there are no minimum requirements for standing, then content generators could be flooded by complaints and notifications form individuals that have no direct reputational stake in the content. Content that is political or otherwise controversial could be deluged with marks in order to get the content generator to remove.

'''Response''': Standing should be limited to those individuals directly featured in the content. If it is a picture, then the individual must be in the picture. If it is text, then the individuals name should be mentioned in the text. Walled gardens should establish some mechanism for verifying that those marking themselves to content actually have the standing to do so. In walled gardens such as Facebook that might be easier to accomplish, but perhaps facial recognition software can be employed or some other mechanism that can verify who markers are and whether they have indeed have standing. Perhaps the process could be outsourced to mechanical turks?

'''7. What about pictures that have social or even historical value, but where the originator of the material either does not recognize such value or does not want to put forth the additional effort to preserve it.'''

'''Concern''': A model that favors the expiration and possible deletion of content online carries the risk of permanently deleting or creating greater access barriers to content that has social and historical value either currently or in the future.

'''Response''': A model favoring the expiration and public deletion of user generated content could certainly result in the loss of some content that has social and historic value. But this is not a new problem. Famous authors often leave manuscripts unpublished upon their death and often leave clear instructions that such material should not be published. Famous artwork is often kept in the hands of private owners and is not made available for the public at large to see.

It has always been the job news corporations and media to cover events of historical significance and obtain licensing or copyright release upon citizens who capture events of historical or social significance. It is arguably only in the last few years through the Internet that user generated content has been elevated to its current importance and presence in the public media.

Furthermore, this model should not be applied to certain institutions. Traditional news media and even current semi-news media sites should not be subject to expiration dates. Archives of newspapers and important events and news should remain available indefinitely.
Moreover, this model does not cause the deletion of material. It simply might discourage its prolonged existence online. So while the costs of acquiring content of social and historic value might have increased, they are not insurmountable.

Finally, it should be noted that this model is attempting only to address the medium-term issues. Problems of historical value are long-term issues that will likely need to be addressed and integrated into systems targeting those long-term issues. Ultimately the short-term, medium-term and long-term systems should be compatible and integrated, but we can only take one step at a time.

'''8. Are we creating an environment that discourages responsibility?'''

'''Concern''': If content we generated or that is generated about us is more easily purged from the public Internet, then people will be less accountable for their actions and perhaps even act more recklessly. Furthermore, they will continue to commit follies, because the consequences are not as permanent. People should take responsibility for their actions rather than rely on deletion.

'''Response''': The above is a matter of preference. It is true that in at least some cases bad actors will make poor choices because their misgivings are more forgiven under this model, but we would argue that a good majority of bad actors are not considering the consequences of their actions at all in the moment. Perhaps getting burned by the current system could influence their behavior in the future, but the reputational damage suffered by the individual might be steeper than the lesson learned. Furthermore, it is not as if the individual was being isolated from the worse immediate effects of his follies. It is only the more longer term effects that the model shields him partially from.

'''9. What is the adjudication process? Should there even be an adjudication process?'''

'''Concern''': If the content generated and the marked individual does not come to a mutual agreement or solution, then what happens? Are we left back at square one?

'''Response''': There are several things that could happen. First, nothing could happen. This could be a system based solely on the contact hypothesis and social psychology research that suggests that individuals are more likely to say yes to another’s individualized request for aid or help. In a large percentage of cases, the model resolves the problem without the need for some other mechanism than the mere facilitation of interaction between two human beings.

Second, there could be a final arbitration or mediation facilitated by a third party. This third party could be in house or could be outsourced. A good example of out sourcing to a third party would be SquareTrade. SquareTrade conducted dispute resolution for eBay a few years back and was quite successful in doing so. The benefits of using an outsourced third party would be that if something had to be taken down, walled gardens would potentially be able to continue asserting their Section 230 Communications Decency Act shield by not directly or editing content on their site.

A third option would be for the walled garden to generate its own dispute resolution process. The site could do so by hiring a panel specifically assigned to do just that. The site could elect particular members of the site to vote (however, this might cause more unwanted attention to the content an individual necessarily wants eradicated).

'''10. Should certain institutions be exempt from expiration dates?'''

'''Concern''': There is certain content on the net that society would be hurt if expired: like news media organizations and websites.

'''Response''': We only intend this model to be applied by walled gardens of social media and only on user generated content.

=Literature Review=

Solove notes that “disclosure can also be harmful because it makes a person a "prisoner of [her] recorded past." People grow and change, and disclosures of information from their past can inhibit their ability to reform their behavior, to have a second chance, or to alter their life's direction. 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. P. 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 with the flood of personal information and gossip in a way that mitigates their effects on everyday life. The ensuing categorizations represent the best fit, but many elements overlap.

==Tort==

[http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html 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.

[http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text/futureofreputation-ch7.pdf 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.

Solove 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.

==Norms==

James Grimmelmann in [http://works.bepress.com/cgi/viewcontent.cgi?article=1019&context=james_grimmelmann 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 align 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.

[http://futureoftheinternet.org/reputation-bankruptcy 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 could be compatible with all categories depending upon how he further defines it.

Lauren Gelman in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520111 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 that 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 users accessing the information.

==Technological==

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; expiration dates can only be extended by social mandate. <ref> ''Id''. at 184-192.</ref>

==Regulatory==

Frank Pasquale in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=888327 Rankings, Reductionism, and Responsibility] and in [http://www.law.umaryland.edu/academics/journals/jbtl/issues/3_1/3_1_061_Pasquale.pdf Asterisk Revisited: Debating a Right of Reply on Search Results] proposes 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.

The [http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html 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.”

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1462&format=HTML&aged=0&language=EN&guiLanguage=fr

http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html

http://redtape.msnbc.com/2010/11/eu-to-create-right-to-be-forgotten-online.html

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. <ref>Cass Sunstein, ''On Rumors'' 78-79 (2009).</ref> 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.

[http://volokh.com/posts/1176705254.shtml 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.

==Market==

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

Bonneau and Prebusch conclude that “the market for privacy in social networks is dysfunctional in that there is significant variation in sites’ privacy controls, data collection requirements, and legal privacy policies, but this is not effectively conveyed to users.” They also find that “privacy is rarely used as a selling point, even then only as auxiliary, nondecisive feature.” Bonneau and Prebusch advocate “a privacy communication game, where the economically rational choice for a site operator is to make privacy control available to evade criticism from privacy fundamentalists, while hiding the privacy control interface and privacy policy to maximize sign-up numbers and encourage data sharing from the pragmatic majority of users.” Their proposal is in tension with our model insofar as it would make privacy policies even more inaccessible to users; our proposal seeks to market privacy as a selling point based on user-preferences and principles of reputation-management, while protecting the ability of site operators to use member data.

==Property==

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.

==Other Research==
http://www.pewinternet.org/Reports/2010/Reputation-Management.aspx

A May 2010 Pew Internet and American Life study suggests that privacy is highly valued by the next generation of social networking users. The report found that “Young adults, far from being indifferent about their digital footprints, are the most active online reputation managers in several dimensions. For example, more than two-thirds (71%) of social networking users ages 18-29 have changed the privacy settings on their profile to limit what they share with others online.” In addition, “When compared with older users, young adults are more likely to restrict what they share and whom they share it with. Mary Madden, one of the coauthors, stated that “Contrary to the popular perception that younger users embrace a laissez-faire attitude about their online reputations, young adults are often more vigilant than older adults when it comes to managing their online identities.”

A study by scholars at the University of Berkeley Center for Law & Technology, Center for the Study of Law and Society, and the University of Pennsylvania - Annenberg School for Communication found privacy norms that are consistent with our model. For instance, “Large proportions of all age groups have refused to provide information to a business for privacy reasons. They agree or agree strongly with the norm that a person should get permission before posting a photo of someone who is clearly recognizable to the internet, even if that photo was taken in public. They agree that there should be a law that gives people the right to know
“everything that a website knows about them.” And they agree that there should be a law
that requires websites and advertising companies to delete “all stored information” about
an individual.” Page 11. Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864

[[Image: Right to Delete.jpg]]<ref>Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864.</ref>

Drive-Thru Arbitration in the Digital Age: Empowering Consumers through Binding ODR [article]
Baylor Law Review, Vol. 62, Issue 1 (2010), pp. 178-244 Schmitz, Amy J. 62 Baylor L. Rev. 178 (2010)

Many articles discuss privacy and data management in the context of online commercial transactions. See, e.g. Milne, G. R. and Culnan, M. J. (2004), Strategies for reducing online privacy risks: Why consumers read (or don't read) online privacy notices. Journal of Interactive Marketing, 18: 15–29. doi: 10.1002/dir.20009 (concluding that reading is related to concern for privacy, positive perceptions about notice comprehension, and higher levels of trust in the notice); Consumer Online Privacy: Legal and Ethical Issues, Eve M. Caudill and Patrick E. Murphy, Journal of Public Policy & Marketing Vol. 19, No. 1, Privacy and Ethical Issues in Database/Interactive Marketing and Public Policy (Spring, 2000), pp. 7-19 (article consists of 13 pages), Published by: American Marketing Association Stable URL: http://www.jstor.org/stable/30000483 (reviewing ethical theories that apply to consumer privacy and offering specific suggestions for corporate ethical policy and public policy).

=Notes=
<references />

GROUP ONE

2010-11-27T04:30:51Z

Davidrbrody: /* Concerns and Responses to the Model */

=Introduction=

Perhaps the seminal article of privacy is Samuel Warren and Louis Brandeis’ Harvard Law Review article [http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html''The Right to Privacy''] from 1890. The authors wrote this article in response to the invention of new camera technology that allowed for instantaneous photographs. Warren and Brandeis feared that such technology 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.” Their article argued that a tort remedy should be available for those whose privacy had been violated in such a way. Warren and Brandeis's thesis exemplified a trend in legal thought that would achieve more prominence in the Internet Age: the need for normative, 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.” <ref>Viktor Mayer-Schönberger, ''Delete: The Virtue of Forgetting in the Digital Age'' 49 (2009)</ref>. Four technological advances (digitization of information, cheap storage, easy retrieval, and the global reach of the Internet) have made all memories permanent. <ref>''Id''. at 52.</ref> 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028875 ''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 utilize online and real world reputation when making decisions in a way that was not feasible years ago. Strahilevitz discusses both the positive and negative ramifications of this information surplus, but other scholars have focused on its negative effect on offline lives. Professor Daniel Solove in [http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text.htm 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 whose refusal to pick up her dog’s waste led to her picture becoming famous online. A commenter on a blog which discussed this picture stated “[r]ight 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 each 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 his life.

=Proposed Mid-term Content Management System=

==Our Approach==

Many proposals regarding online reputation and information share several characteristics: significant government intervention and a focus on dramatic short-term reputation harm. Regarding intervention, many 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 [http://www.law.ucla.edu/volokh/privacy.htm#SpeechOnMattersOfPrivateConcern ''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. Many proposals that involve the government restricting speech would likely face significant First Amendment roadblocks.

Often 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 content, such as a drunk picture or an inappropriate Facebook group on which an individual once posted. Such activities likely do not rise to the level warranting litigation or complete erasure of one's online identity, but they could negatively affect one’s professional and personal relationships. They are the equivalent of putting one's foot in one's mouth.

Our project departs from these proposals both in its focus and implementation. We have divided online reputation into three different types: short-term, medium-term, and long-term. Short-term harms are exemplified by those involved with the [http://jezebel.com/5652114/college-girls-power-point-fuck-list-goes-viral-gallery Duke sex powerpoint scandal], in which an incendiary piece of information creates immediate and dramatic ramifications for one’s reputation. Long-term reputational content is something that has been built over many years, such as one’s [http://pages.ebay.com/services/forum/feedback.html eBay rating]. Medium-term reputational content is not necessarily immediately recognized as harmful, but its 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 issues. In an online world in which everything is recorded for eternity, how do you accommodate a person's ability to mature and change?

Our proposal relies on a combination of a market- and norms-based approaches. Jonathan Zittrain creates a classification system for such approaches to online issues in his article [http://law.fordham.edu/assets/LawReview/Zittrain_Vol_78_May.pdf ''The Fourth Quadrant'']. This system uses two measures: how “generative” the approach 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 options. 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 blog’ 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 several potential approaches 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.

==Assumptions==

As discussed above, there are three distinct phases of reputation: short term, mid-term and long term. Our model is targeted solely at mid-term reputational issues. Short and long term issues will require other mechanisms and should be considered independently.

When composing our model, we had four core assumptions:
*1) All user-generated content should expire and cease to be publically available after a set length of time, unless is it actively renewed. This theory follows from Viktor Mayer-Schönberger’s work.
*2) The path of least resistance should result in the socially optimal outcome. This means that whenever a user follows default settings or acts in a lazy or apathetic fashion, the end result should be desirable. The model should make doing the “right” thing as easy as possible.
*3) Direct, personal communications between real people lead to more cooperative outcomes. A user can empathize and be more receptive to an individualized appeal from another person than he would be to an automated message. Building these sorts of communications into the system fosters a social norm of cooperation and understanding.
*4) The system should be content neutral so as to increase efficiency and avoid arbitrary implementation. If the system discriminated in how it treated content based on what type of content it was, then the process would get bogged down in the minutiae of moralistic review.

Our model will present a process by which content expires or renews, depending on how implicated parties intervene or abdicate. In the model, P is a user who initially posts content, Q is a user who is represented in the content, and R is a third-party bystander.

The system would be applied by social media websites that choose to apply it. There is no feasible method of mandating its use, nor is there a reason to. These websites will want to implement this system or one similar to it of their own accord. Here’s why:
*1) The system will make a website more desirable to users who value their privacy and reputations.
*2) The system creates a stickiness that will keep users coming back to the social media website that uses it.
*3) The system does not substantially impede a website's ability to profit from data mining, thus allowing it to promise greater privacy protections to its users without hurting the company’s source of revenue.

Finally, it is important to note that the system is not designed to be 100% effective at addressing all potentially problematic content. The goal is solely to create a process that is easy to implement, easy to understand, and will achieve the socially optimal result in the vast majority of cases.

==Model==
[[Image:New Model.jpg]]

*1) A user, P, is presented with preferences when he first uses the system. He can either use the presets chosen by the website or adjust the preferences to his taste. These preferences would determine his default actions for expirations, renewals, notifications, protests, etc.
*2) P posts content on the website.
*3) P chooses an expiration date for his content or uses his default expiration settings.
*4) The content might contain a representation of Q. Q can then be “marked” on the content by P, Q or R. To be “marked” means that Q is alerted that he is implicated in this content and is given the option to be notified when the content comes up for renewal.
*5) If no one is marked on the content, then P will, in accordance with his preferences, receive a notification 30 days prior to the content’s expiration date. P can then choose to renew the content or do nothing. If P does nothing, the content expires.
*6) If Q is marked but never opts in for notification, then the content is treated as if no one is marked.
*7) If Q is marked and opts in for notification, and if P chooses to renew the content, then Q will receive a notification that P chose to renew the content.
*8) Q can ignore this notification and the content will renew as per P’s decision.
*9) Alternatively, Q can “protest” P’s decision to renew the content. This means that Q would send a message to P saying that he doesn’t want the content renewed and explaining why. This protest would contain standard options that Q could select for his reasoning, but Q would also be required to compose a personalized message to P.
*10) P, upon receiving Q’s protest, can choose to move forward with the renewal (with or without modifying the content), halt the public renewal, or do nothing.
*11) If P does nothing, the content will expire, as per Q’s wishes.
*12) If P halts the public renewal, the content will still be kept in P’s private archive but will not be viewable to any other users.
*13) If P chooses to move forward with the renewal (with or without modifying the content), P must then send a response to Q explaining why P chose to renew the content over Q’s protest. This would also be a personalized message.
*14) Upon receiving P’s response, Q might be satisfied with P’s reasons or modifications. If Q does nothing, the content will renew.
*15) If Q is partially dissatisfied with P’s response, Q could chose to add an “asterisk” to the content. This would be a discrete message that viewers of the content would see, consisting of Q’s protest to P. The content would renew with the asterisk.
*16) If Q is substantially dissatisfied with P’s response, Q could appeal the renewal to an adjudication process. This process would determine whether or not the content renews.

==Explanation of the Model==

'''Users will set preferences or use default preferences for expiration and notification to streamline decisions.''' These will help triage content to prevent users from being deluged with notifications.
*For example, presets could allow users to auto-ignore, auto-opt in to notify, or auto-protest based on the identity of the other party. Certain groups might get trusted automatically, while others would be automatically suspect.
**E.g. If your mother marks you in a photo, you know that most of the time you probably don’t need to worry about its content.
*However, because the purpose of the system is to expire valueless content, users would not be allowed to set their preferences to auto-renew their content.

'''When P chooses an expiration date, P can opt to receive or not receive notice prior to expiration.''' Presumably, most content, being transitory, will be allowed to expire w/o notice (e.g. status posts, comments, tweets, etc). Thus, only truly substantive content would ever even require subsequent action by P or Q.

'''Only an actual person depicted by the content would have “standing” to be marked.'''
*This rule’s efficient application will compensate for its under-inclusivity. Trying to get 100% inclusivity for all affected users or content would make the perfect the enemy of the good.
*The rule will also help prevent large groups from ganging up to harass one person.

'''Captchas would be used to ensure that only real people will be able to mark content.'''

'''Q should not have the ability to prevent expiration.''' The content belongs to P; if he wants to expire it, that’s his right.

'''R should not have the ability to prevent either expiration or renewal.''' Being neither the owner of the content (P) nor someone implicated in the content (Q), a third party should have no rights to dictate what happens or doesn’t happen with the content.

'''Users could maintain a private archive of their content that will not expire, subject to their preferences.''' Many users use online social media websites as multimedia diaries of their lives. Users should have the option of permanently retaining all of their own content for private viewing. But they should not be able to keep such information publicly viewable without going through the system.
*Our chief concern is controlling mid-term reputational effects. Thus, if something is private, it cannot substantively affect someone else’s reputation and does not need to be constrained.

'''No one will be able to search for asterisks.''' Asterisks serve to explain content that Q finds objectionable. By their very nature, asterisks will be associated with controversial content. If a user could search for an asterisk then these asterisks would serve as homing beacons for the very content that Q wants to disappear in the first place.

'''The adjudication process might be styled after either the Uniform Domain-Name Resolution Policy (“UDRP”) or eBay’s adjudication process.''' It is likely that this process would be contracted out to established 3rd parties. Allowing this service to be contracted out to the market will allow different methods to develop competitively to foster innovation and efficiency.
*It should be noted that the adjudication process is the only part of the model that will take a substantive look at the nature of the content.

==Concerns and Responses to the Model==

'''1. How do we prevent a deluge of expiration notifications and other notifications from the process?'''

'''Concern''': The model is likely to create a considerable amount of email notification both for P and for Q. Online social media users are generating content everyday so the flow will be constant. This flood of emails could discourage some walled gardens from implementing the model if they fear their users will abandon their network, because their mailbox is constantly flooded. Are users going to take concerns seriously when they receive so many of them over short periods of time?

'''Response''': Like in every architectural design (both physical and technological), there are tradeoffs. The benefit of the model is that it facilitates interactions and keeps users constantly apprised about content they generate and content generated about them. The con is reflected in the benefit: they are constantly kept apprised, which means they are constantly being notified. Asides from the benefit of being aware, there are some tools users could employ to avoid mailbox flooding.

Users could use their default settings to have content scheduled to expire, expire automatically, without notification. They could do this for all their content and select it as a default or they could manage pictures, status updates, posts, etc. individually. The more tailored their control over the system, the more easily users could manage their data and notifications. Content generators seeking to avoid notification from those marked to their content, could also benefit from the use of default settings. Perhaps they could set their default settings such if someone would like the content taken down, it would automatically defer to that user. The walled garden settings could also permit individuals to differentiate by user or group. For example, a default setting could look something like: I do not want to be notified if Family and Good Friends object to content being renewed and I will defer to their requests, but I would like to be notified if Pete Campbell or someone from the High School group objects.

'''2. Should there be a modified system for children? Should this system only exist for children? Should there only be one period of atonement for coming of age?'''

'''Concern''': Minors are arguably the most susceptible to generate content they later regret, is embarrassing, or could effect them in the future. They are also on the whole not as mature as the rest of the population and should be further protected from the permeability of content generated about them online. Similar to how the criminal records of minors are often expunged in the legal system, should the model guarantee minors greater protection or should the model only exist for minors?

'''Response''': Individual walled gardens are best situated to determine the individual needs of their users. While the authors of this model maintain that the model should apply universally, there is no doubt that minors are perhaps the most in need of the model. That said, individual sites that will adopt this model can best determine how they want to implement it and to what population of their users they would like to make it available to.
Perhaps there could be variations in the model for children, such as no renewal after valid complaints on the content or the availability of content expiration more frequently or when the minor comes of age. This question, however, we believe is better resolved by individual walled gardens.

'''3. Should expired content be deleted forever? Are there ways to preserve one’s content?'''

'''Concern''': One of the primary reasons individuals post content online is to share and preserve it in digital form. The model favors the deletion of information and could cause content that would have otherwise remained available for storing or sharing to be removed. What if the individuals generating the content or featured in the content want to preserve it for themselves, friends, or future generations?

'''Response''': There are ways to preserve one’s content. Users under the model will be allowed to have a private archive. But other methods could be used as well. Expired content generated by individuals could be stored in another private mechanism: both online and offline. The most secure way to retain your personal data would be off a could and stored on a personal hard drive, but perhaps a user would like to have their content in a cloud. Either way, there are multiple devices currently where users can store data that is not publicly available.

'''4. What happens if people circumvent the process and simply repost the material?'''

'''Concern''': While in theory the model may work well, what is to stop users wanting to avoid the effort of the process from simply agreeing to delete their content and reposting it again or allowing everything to expire, only to repost it again in a few years, months, days, minutes, or seconds?

'''Response''': Like any law or system, there will always be those that look for loopholes and areas of the technological court that are poorly defended. The additional affirmative effort required by users to repost content is in itself a moderate discouragement. Furthermore, the establishment of a model and the social norms governing its usage also serve to discourage users from running a red light even when they think they will not get caught. However, it is undeniable that for at least a sector of online users, the additional effort required to repost content and norms alone are not enough.

Walled gardens could develop software that is able to detect when content is reposted or identify content that is posted as the same as other content that was previously posted. Other individuals featured in the reposted content could be allowed to file a complaint with the walled garden notifying them that the content posted had already expired or was somewhere in the process of expiration.

'''5. Will this have a chilling effect on speech?'''

'''Concern''': Individuals that do not want to be over-flooded with complaints or notifications might avoid posting content that is arguably beneficial to society, simply because they know some individuals might object and they do not want to deal with the burdensome process of responding to complaints.

'''Response''': While the model in its current state might prevent content from being renewed, it certainly should not prevent individuals from originally posting the content. Individuals could set their default settings to avoid receiving notification of marking. They would thus only encounter resistance when renewing the content.

'''6. Who has standing to mark themselves to content?'''

'''Concern''': If there are no minimum requirements for standing, then content generators could be flooded by complaints and notifications form individuals that have no direct reputational stake in the content. Content that is political or otherwise controversial could be deluged with marks in order to get the content generator to remove.

'''Response''': Standing should be limited to those individuals directly featured in the content. If it is a picture, then the individual must be in the picture. If it is text, then the individuals name should be mentioned in the text. Walled gardens should establish some mechanism for verifying that those marking themselves to content actually have the standing to do so. In walled gardens such as Facebook that might be easier to accomplish, but perhaps facial recognition software can be employed or some other mechanism that can verify who markers are and whether they have indeed have standing. Perhaps the process could be outsourced to mechanical turks?

'''7. What about pictures that have social or even historical value, but where the originator of the material either does not recognize such value or does not want to put forth the additional effort to preserve it.'''

'''Concern''': A model that favors the expiration and possible deletion of content online carries the risk of permanently deleting or creating greater access barriers to content that has social and historical value either currently or in the future.

'''Response''': A model favoring the expiration and public deletion of user generated content could certainly result in the loss of some content that has social and historic value. But this is not a new problem. Famous authors often leave manuscripts unpublished upon their death and often leave clear instructions that such material should not be published. Famous artwork is often kept in the hands of private owners and is not made available for the public at large to see.

It has always been the job news corporations and media to cover events of historical significance and obtain licensing or copyright release upon citizens who capture events of historical or social significance. It is arguably only in the last few years through the Internet that user generated content has been elevated to its current importance and presence in the public media.

Furthermore, this model should not be applied to certain institutions. Traditional news media and even current semi-news media sites should not be subject to expiration dates. Archives of newspapers and important events and news should remain available indefinitely.
Moreover, this model does not cause the deletion of material. It simply might discourage its prolonged existence online. So while the costs of acquiring content of social and historic value might have increased, they are not insurmountable.

Finally, it should be noted that this model is attempting only to address the medium-term issues. Problems of historical value are long-term issues that will likely need to be addressed and integrated into systems targeting those long-term issues. Ultimately the short-term, medium-term and long-term systems should be compatible and integrated, but we can only take one step at a time.

'''8. Are we creating an environment that discourages responsibility?'''

'''Concern''': If content we generated or that is generated about us is more easily purged from the public Internet, then people will be less accountable for their actions and perhaps even act more recklessly. Furthermore, they will continue to commit follies, because the consequences are not as permanent. People should take responsibility for their actions rather than rely on deletion.

'''Response''': The above is a matter of preference. It is true that in at least some cases bad actors will make poor choices because their misgivings are more forgiven under this model, but we would argue that a good majority of bad actors are not considering the consequences of their actions at all in the moment. Perhaps getting burned by the current system could influence their behavior in the future, but the reputational damage suffered by the individual might be steeper than the lesson learned. Furthermore, it is not as if the individual was being isolated from the worse immediate effects of his follies. It is only the more longer term effects that the model shields him partially from.

'''9. What is the something cool that could happen?'''

'''Concern''': If the content generated and the marked individual does not come to a mutual agreement or solution, then what happens? Are we left back at square one?

'''Response''': There are several things that could happen. First, nothing could happen. This could be a system based solely on the contact hypothesis and social psychology research that suggests that individuals are more likely to say yes to another’s individualized request for aid or help. In a large percentage of cases, the model resolves the problem without the need for some other mechanism than the mere facilitation of interaction between two human beings.

Second, there could be a final arbitration or mediation facilitated by a third party. This third party could be in house or could be outsourced. A good example of out sourcing to a third party would be SquareTrade. SquareTrade conducted dispute resolution for eBay a few years back and was quite successful in doing so. The benefits of using an outsourced third party would be that if something had to be taken down, walled gardens would potentially be able to continue asserting their Section 230 Communications Decency Act shield by not directly or editing content on their site.
Another option would be for the walled garden to generate its own dispute resolution process. The site could do so by hiring a panel specifically assigned to do just that. The site could elect particular members of the site to vote (however, this might cause more unwanted attention to the content an individual necessarily wants eradicated).

'''10. Should certain institutions be exempt from expiration dates?'''

'''Concern''': There is certain content on the net that society would be hurt if expired: like news media organizations and websites.

'''Response''': We only intend this model to be applied by walled gardens of social media and only on user generated content.

=Literature Review=

Solove notes that “disclosure can also be harmful because it makes a person a "prisoner of [her] recorded past." People grow and change, and disclosures of information from their past can inhibit their ability to reform their behavior, to have a second chance, or to alter their life's direction. 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. P. 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 with the flood of personal information and gossip in a way that mitigates their effects on everyday life. The ensuing categorizations represent the best fit, but many elements overlap.

==Tort==

[http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html 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.

[http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text/futureofreputation-ch7.pdf 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.

Solove 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.

==Norms==

James Grimmelmann in [http://works.bepress.com/cgi/viewcontent.cgi?article=1019&context=james_grimmelmann 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 align 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.

[http://futureoftheinternet.org/reputation-bankruptcy 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 could be compatible with all categories depending upon how he further defines it.

Lauren Gelman in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520111 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 that 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 users accessing the information.

==Technological==

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; expiration dates can only be extended by social mandate. <ref> ''Id''. at 184-192.</ref>

==Regulatory==

Frank Pasquale in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=888327 Rankings, Reductionism, and Responsibility] and in [http://www.law.umaryland.edu/academics/journals/jbtl/issues/3_1/3_1_061_Pasquale.pdf Asterisk Revisited: Debating a Right of Reply on Search Results] proposes 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.

The [http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html 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.”

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1462&format=HTML&aged=0&language=EN&guiLanguage=fr

http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html

http://redtape.msnbc.com/2010/11/eu-to-create-right-to-be-forgotten-online.html

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. <ref>Cass Sunstein, ''On Rumors'' 78-79 (2009).</ref> 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.

[http://volokh.com/posts/1176705254.shtml 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.

==Market==

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

Bonneau and Prebusch conclude that “the market for privacy in social networks is dysfunctional in that there is significant variation in sites’ privacy controls, data collection requirements, and legal privacy policies, but this is not effectively conveyed to users.” They also find that “privacy is rarely used as a selling point, even then only as auxiliary, nondecisive feature.” Bonneau and Prebusch advocate “a privacy communication game, where the economically rational choice for a site operator is to make privacy control available to evade criticism from privacy fundamentalists, while hiding the privacy control interface and privacy policy to maximize sign-up numbers and encourage data sharing from the pragmatic majority of users.” Their proposal is in tension with our model insofar as it would make privacy policies even more inaccessible to users; our proposal seeks to market privacy as a selling point based on user-preferences and principles of reputation-management, while protecting the ability of site operators to use member data.

==Property==

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.

==Other Research==
http://www.pewinternet.org/Reports/2010/Reputation-Management.aspx

A May 2010 Pew Internet and American Life study suggests that privacy is highly valued by the next generation of social networking users. The report found that “Young adults, far from being indifferent about their digital footprints, are the most active online reputation managers in several dimensions. For example, more than two-thirds (71%) of social networking users ages 18-29 have changed the privacy settings on their profile to limit what they share with others online.” In addition, “When compared with older users, young adults are more likely to restrict what they share and whom they share it with. Mary Madden, one of the coauthors, stated that “Contrary to the popular perception that younger users embrace a laissez-faire attitude about their online reputations, young adults are often more vigilant than older adults when it comes to managing their online identities.”

A study by scholars at the University of Berkeley Center for Law & Technology, Center for the Study of Law and Society, and the University of Pennsylvania - Annenberg School for Communication found privacy norms that are consistent with our model. For instance, “Large proportions of all age groups have refused to provide information to a business for privacy reasons. They agree or agree strongly with the norm that a person should get permission before posting a photo of someone who is clearly recognizable to the internet, even if that photo was taken in public. They agree that there should be a law that gives people the right to know
“everything that a website knows about them.” And they agree that there should be a law
that requires websites and advertising companies to delete “all stored information” about
an individual.” Page 11. Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864

[[Image: Right to Delete.jpg]]<ref>Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864.</ref>

Drive-Thru Arbitration in the Digital Age: Empowering Consumers through Binding ODR [article]
Baylor Law Review, Vol. 62, Issue 1 (2010), pp. 178-244 Schmitz, Amy J. 62 Baylor L. Rev. 178 (2010)

Many articles discuss privacy and data management in the context of online commercial transactions. See, e.g. Milne, G. R. and Culnan, M. J. (2004), Strategies for reducing online privacy risks: Why consumers read (or don't read) online privacy notices. Journal of Interactive Marketing, 18: 15–29. doi: 10.1002/dir.20009 (concluding that reading is related to concern for privacy, positive perceptions about notice comprehension, and higher levels of trust in the notice); Consumer Online Privacy: Legal and Ethical Issues, Eve M. Caudill and Patrick E. Murphy, Journal of Public Policy & Marketing Vol. 19, No. 1, Privacy and Ethical Issues in Database/Interactive Marketing and Public Policy (Spring, 2000), pp. 7-19 (article consists of 13 pages), Published by: American Marketing Association Stable URL: http://www.jstor.org/stable/30000483 (reviewing ethical theories that apply to consumer privacy and offering specific suggestions for corporate ethical policy and public policy).

=Notes=
<references />

GROUP ONE

2010-11-27T04:27:05Z

Davidrbrody: /* Concerns and Responses to the Model */

=Introduction=

Perhaps the seminal article of privacy is Samuel Warren and Louis Brandeis’ Harvard Law Review article [http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html''The Right to Privacy''] from 1890. The authors wrote this article in response to the invention of new camera technology that allowed for instantaneous photographs. Warren and Brandeis feared that such technology 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.” Their article argued that a tort remedy should be available for those whose privacy had been violated in such a way. Warren and Brandeis's thesis exemplified a trend in legal thought that would achieve more prominence in the Internet Age: the need for normative, 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.” <ref>Viktor Mayer-Schönberger, ''Delete: The Virtue of Forgetting in the Digital Age'' 49 (2009)</ref>. Four technological advances (digitization of information, cheap storage, easy retrieval, and the global reach of the Internet) have made all memories permanent. <ref>''Id''. at 52.</ref> 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028875 ''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 utilize online and real world reputation when making decisions in a way that was not feasible years ago. Strahilevitz discusses both the positive and negative ramifications of this information surplus, but other scholars have focused on its negative effect on offline lives. Professor Daniel Solove in [http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text.htm 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 whose refusal to pick up her dog’s waste led to her picture becoming famous online. A commenter on a blog which discussed this picture stated “[r]ight 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 each 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 his life.

=Proposed Mid-term Content Management System=

==Our Approach==

Many proposals regarding online reputation and information share several characteristics: significant government intervention and a focus on dramatic short-term reputation harm. Regarding intervention, many 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 [http://www.law.ucla.edu/volokh/privacy.htm#SpeechOnMattersOfPrivateConcern ''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. Many proposals that involve the government restricting speech would likely face significant First Amendment roadblocks.

Often 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 content, such as a drunk picture or an inappropriate Facebook group on which an individual once posted. Such activities likely do not rise to the level warranting litigation or complete erasure of one's online identity, but they could negatively affect one’s professional and personal relationships. They are the equivalent of putting one's foot in one's mouth.

Our project departs from these proposals both in its focus and implementation. We have divided online reputation into three different types: short-term, medium-term, and long-term. Short-term harms are exemplified by those involved with the [http://jezebel.com/5652114/college-girls-power-point-fuck-list-goes-viral-gallery Duke sex powerpoint scandal], in which an incendiary piece of information creates immediate and dramatic ramifications for one’s reputation. Long-term reputational content is something that has been built over many years, such as one’s [http://pages.ebay.com/services/forum/feedback.html eBay rating]. Medium-term reputational content is not necessarily immediately recognized as harmful, but its 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 issues. In an online world in which everything is recorded for eternity, how do you accommodate a person's ability to mature and change?

Our proposal relies on a combination of a market- and norms-based approaches. Jonathan Zittrain creates a classification system for such approaches to online issues in his article [http://law.fordham.edu/assets/LawReview/Zittrain_Vol_78_May.pdf ''The Fourth Quadrant'']. This system uses two measures: how “generative” the approach 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 options. 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 blog’ 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 several potential approaches 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.

==Assumptions==

As discussed above, there are three distinct phases of reputation: short term, mid-term and long term. Our model is targeted solely at mid-term reputational issues. Short and long term issues will require other mechanisms and should be considered independently.

When composing our model, we had four core assumptions:
*1) All user-generated content should expire and cease to be publically available after a set length of time, unless is it actively renewed. This theory follows from Viktor Mayer-Schönberger’s work.
*2) The path of least resistance should result in the socially optimal outcome. This means that whenever a user follows default settings or acts in a lazy or apathetic fashion, the end result should be desirable. The model should make doing the “right” thing as easy as possible.
*3) Direct, personal communications between real people lead to more cooperative outcomes. A user can empathize and be more receptive to an individualized appeal from another person than he would be to an automated message. Building these sorts of communications into the system fosters a social norm of cooperation and understanding.
*4) The system should be content neutral so as to increase efficiency and avoid arbitrary implementation. If the system discriminated in how it treated content based on what type of content it was, then the process would get bogged down in the minutiae of moralistic review.

Our model will present a process by which content expires or renews, depending on how implicated parties intervene or abdicate. In the model, P is a user who initially posts content, Q is a user who is represented in the content, and R is a third-party bystander.

The system would be applied by social media websites that choose to apply it. There is no feasible method of mandating its use, nor is there a reason to. These websites will want to implement this system or one similar to it of their own accord. Here’s why:
*1) The system will make a website more desirable to users who value their privacy and reputations.
*2) The system creates a stickiness that will keep users coming back to the social media website that uses it.
*3) The system does not substantially impede a website's ability to profit from data mining, thus allowing it to promise greater privacy protections to its users without hurting the company’s source of revenue.

Finally, it is important to note that the system is not designed to be 100% effective at addressing all potentially problematic content. The goal is solely to create a process that is easy to implement, easy to understand, and will achieve the socially optimal result in the vast majority of cases.

==Model==
[[Image:New Model.jpg]]

*1) A user, P, is presented with preferences when he first uses the system. He can either use the presets chosen by the website or adjust the preferences to his taste. These preferences would determine his default actions for expirations, renewals, notifications, protests, etc.
*2) P posts content on the website.
*3) P chooses an expiration date for his content or uses his default expiration settings.
*4) The content might contain a representation of Q. Q can then be “marked” on the content by P, Q or R. To be “marked” means that Q is alerted that he is implicated in this content and is given the option to be notified when the content comes up for renewal.
*5) If no one is marked on the content, then P will, in accordance with his preferences, receive a notification 30 days prior to the content’s expiration date. P can then choose to renew the content or do nothing. If P does nothing, the content expires.
*6) If Q is marked but never opts in for notification, then the content is treated as if no one is marked.
*7) If Q is marked and opts in for notification, and if P chooses to renew the content, then Q will receive a notification that P chose to renew the content.
*8) Q can ignore this notification and the content will renew as per P’s decision.
*9) Alternatively, Q can “protest” P’s decision to renew the content. This means that Q would send a message to P saying that he doesn’t want the content renewed and explaining why. This protest would contain standard options that Q could select for his reasoning, but Q would also be required to compose a personalized message to P.
*10) P, upon receiving Q’s protest, can choose to move forward with the renewal (with or without modifying the content), halt the public renewal, or do nothing.
*11) If P does nothing, the content will expire, as per Q’s wishes.
*12) If P halts the public renewal, the content will still be kept in P’s private archive but will not be viewable to any other users.
*13) If P chooses to move forward with the renewal (with or without modifying the content), P must then send a response to Q explaining why P chose to renew the content over Q’s protest. This would also be a personalized message.
*14) Upon receiving P’s response, Q might be satisfied with P’s reasons or modifications. If Q does nothing, the content will renew.
*15) If Q is partially dissatisfied with P’s response, Q could chose to add an “asterisk” to the content. This would be a discrete message that viewers of the content would see, consisting of Q’s protest to P. The content would renew with the asterisk.
*16) If Q is substantially dissatisfied with P’s response, Q could appeal the renewal to an adjudication process. This process would determine whether or not the content renews.

==Explanation of the Model==

'''Users will set preferences or use default preferences for expiration and notification to streamline decisions.''' These will help triage content to prevent users from being deluged with notifications.
*For example, presets could allow users to auto-ignore, auto-opt in to notify, or auto-protest based on the identity of the other party. Certain groups might get trusted automatically, while others would be automatically suspect.
**E.g. If your mother marks you in a photo, you know that most of the time you probably don’t need to worry about its content.
*However, because the purpose of the system is to expire valueless content, users would not be allowed to set their preferences to auto-renew their content.

'''When P chooses an expiration date, P can opt to receive or not receive notice prior to expiration.''' Presumably, most content, being transitory, will be allowed to expire w/o notice (e.g. status posts, comments, tweets, etc). Thus, only truly substantive content would ever even require subsequent action by P or Q.

'''Only an actual person depicted by the content would have “standing” to be marked.'''
*This rule’s efficient application will compensate for its under-inclusivity. Trying to get 100% inclusivity for all affected users or content would make the perfect the enemy of the good.
*The rule will also help prevent large groups from ganging up to harass one person.

'''Captchas would be used to ensure that only real people will be able to mark content.'''

'''Q should not have the ability to prevent expiration.''' The content belongs to P; if he wants to expire it, that’s his right.

'''R should not have the ability to prevent either expiration or renewal.''' Being neither the owner of the content (P) nor someone implicated in the content (Q), a third party should have no rights to dictate what happens or doesn’t happen with the content.

'''Users could maintain a private archive of their content that will not expire, subject to their preferences.''' Many users use online social media websites as multimedia diaries of their lives. Users should have the option of permanently retaining all of their own content for private viewing. But they should not be able to keep such information publicly viewable without going through the system.
*Our chief concern is controlling mid-term reputational effects. Thus, if something is private, it cannot substantively affect someone else’s reputation and does not need to be constrained.

'''No one will be able to search for asterisks.''' Asterisks serve to explain content that Q finds objectionable. By their very nature, asterisks will be associated with controversial content. If a user could search for an asterisk then these asterisks would serve as homing beacons for the very content that Q wants to disappear in the first place.

'''The adjudication process might be styled after either the Uniform Domain-Name Resolution Policy (“UDRP”) or eBay’s adjudication process.''' It is likely that this process would be contracted out to established 3rd parties. Allowing this service to be contracted out to the market will allow different methods to develop competitively to foster innovation and efficiency.
*It should be noted that the adjudication process is the only part of the model that will take a substantive look at the nature of the content.

==Concerns and Responses to the Model==

'''1. How do we prevent a deluge of expiration notifications and other notifications from the process?'''

'''Concern''': The model is likely to create a considerable amount of email notification both for P and for Q. Online social media users are generating content everyday so the flow will be constant. This flood of emails could discourage some walled gardens from implementing the model if they fear their users will abandon their network, because their mailbox is constantly flooded. Are users going to take concerns seriously when they receive so many of them over short periods of time?

'''Response''': Like in every architectural design (both physical and technological), there are tradeoffs. The benefit of the model is that it facilitates interactions and keeps users constantly apprised about content they generate and content generated about them. The con is reflected in the benefit: they are constantly kept apprised, which means they are constantly being notified. Asides from the benefit of being aware, there are some tools users could employ to avoid mailbox flooding.

Users could use their default settings to have content scheduled to expire, expire automatically, without notification. They could do this for all their content and select it as a default or they could manage pictures, status updates, posts, etc. individually. The more tailored their control over the system, the more easily users could manage their data and notifications. Content generators seeking to avoid notification from those marked to their content, could also benefit from the use of default settings. Perhaps they could set their default settings such if someone would like the content taken down, it would automatically defer to that user. The walled garden settings could also permit individuals to differentiate by user or group. For example, a default setting could look something like: I do not want to be notified if Family and Good Friends object to content being renewed and I will defer to their requests, but I would like to be notified if Pete Campbell or someone from the High School group objects.

'''2. Should there be a modified system for children? Should this system only exist for children? Should there only be one period of atonement for coming of age?'''

'''Concern''': Minors are arguably the most susceptible to generate content they later regret, is embarrassing, or could effect them in the future. They are also on the whole not as mature as the rest of the population and should be further protected from the permeability of content generated about them online. Similar to how the criminal records of minors are often expunged in the legal system, should the model guarantee minors greater protection or should the model only exist for minors?

'''Response''': Individual walled gardens are best situated to determine the individual needs of their users. While the authors of this model maintain that the model should apply universally, there is no doubt that minors are perhaps the most in need of the model. That said, individual sites that will adopt this model can best determine how they want to implement it and to what population of their users they would like to make it available to.
Perhaps there could be variations in the model for children, such as no renewal after valid complaints on the content or the availability of content expiration more frequently or when the minor comes of age. This question, however, we believe is better resolved by individual walled gardens.

'''3. Should expired content be deleted forever? Are there ways to preserve one’s content?'''

'''Concern''': One of the primary reasons individuals post content online is to share and preserve it in digital form. The model favors the deletion of information and could cause content that would have otherwise remained available for storing or sharing to be removed. What if the individuals generating the content or featured in the content want to preserve it for themselves, friends, or future generations?

'''Response''': There are ways to preserve one’s content. Users under the model will be allowed to have a private archive. But other methods could be used as well. Expired content generated by individuals could be stored in another private mechanism: both online and offline. The most secure way to retain your personal data would be off a could and stored on a personal hard drive, but perhaps a user would like to have their content in a cloud. Either way, there are multiple devices currently where users can store data that is not publicly available.

'''4. What happens if people circumvent the process and simply repost the material?'''

'''Concern''': While in theory the model may work well, what is to stop users wanting to avoid the effort of the process from simply agreeing to delete their content and reposting it again or allowing everything to expire, only to repost it again in a few years, months, days, minutes, or seconds?

'''Response''': Like any law or system, there will always be those that look for loopholes and areas of the technological court that are poorly defended. The additional affirmative effort required by users to repost content is in itself a moderate discouragement. Furthermore, the establishment of a model and the social norms governing its usage also serve to discourage users from running a red light even when they think they will not get caught. However, it is undeniable that for at least a sector of online users, the additional effort required to repost content and norms alone are not enough.

Walled gardens could develop software that is able to detect when content is reposted or identify content that is posted as the same as other content that was previously posted. Other individuals featured in the reposted content could be allowed to file a complaint with the walled garden notifying them that the content posted had already expired or was somewhere in the process of expiration.

'''5. Will this have a chilling effect on speech?'''

'''Concern''': Individuals that do not want to be over-flooded with complaints or notifications might avoid posting content that is arguably beneficial to society, simply because they know some individuals might object and they do not want to deal with the burdensome process of responding to complaints.

'''Response''': While the model in its current state might prevent content from being renewed, it certainly should not prevent individuals from originally posting the content. Individuals could set their default settings to avoid receiving notification of marking. They would thus only encounter resistance when renewing the content.

'''6. Who has standing to mark themselves to content?'''

'''Concern''': If there are no minimum requirements for standing, then content generators could be flooded by complaints and notifications form individuals that have no direct reputational stake in the content. Content that is political or otherwise controversial could be deluged with marks in order to get the content generator to remove.

'''Response''': Standing should be limited to those individuals directly featured in the content. If it is a picture, then the individual must be in the picture. If it is text, then the individuals name should be mentioned in the text. Walled gardens should establish some mechanism for verifying that those marking themselves to content actually have the standing to do so. In walled gardens such as Facebook that might be easier to accomplish, but perhaps facial recognition software can be employed or some other mechanism that can verify who markers are and whether they have indeed have standing. Perhaps the process could be outsourced to mechanical turks?

'''7. What about pictures that have social or even historical value, but where the originator of the material either does not recognize such value or does not want to put forth the additional effort to preserve it.'''

'''Concern''': A model that favors the expiration and possible deletion of content online carries the risk of permanently deleting or creating greater access barriers to content that has social and historical value either currently or in the future.

'''Response''': A model favoring the expiration and public deletion of user generated content could certainly result in the loss of some content that has social and historic value. But this is not a new problem. Famous authors often leave manuscripts unpublished upon their death and often leave clear instructions that such material should not be published. Famous artwork is often kept in the hands of private owners and is not made available for the public at large to see.

It has always been the job news corporations and media to cover events of historical significance and obtain licensing or copyright release upon citizens who capture events of historical or social significance. It is arguably only in the last few years through the Internet that user generated content has been elevated to its current importance and presence in the public media.

Furthermore, this model should not be applied to certain institutions. Traditional news media and even current semi-news media sites should not be subject to expiration dates. Archives of newspapers and important events and news should remain available indefinitely.
Moreover, this model does not cause the deletion of material. It simply might discourage its prolonged existence online. So while the costs of acquiring content of social and historic value might have increased, they are not insurmountable.

'''8. Are we creating an environment that discourages responsibility?'''

'''Concern''': If content we generated or that is generated about us is more easily purged from the public Internet, then people will be less accountable for their actions and perhaps even act more recklessly. Furthermore, they will continue to commit follies, because the consequences are not as permanent. People should take responsibility for their actions rather than rely on deletion.

'''Response''': The above is a matter of preference. It is true that in at least some cases bad actors will make poor choices because their misgivings are more forgiven under this model, but we would argue that a good majority of bad actors are not considering the consequences of their actions at all in the moment. Perhaps getting burned by the current system could influence their behavior in the future, but the reputational damage suffered by the individual might be steeper than the lesson learned. Furthermore, it is not as if the individual was being isolated from the worse immediate effects of his follies. It is only the more longer term effects that the model shields him partially from.

'''9. What is the something cool that could happen?'''

'''Concern''': If the content generated and the marked individual does not come to a mutual agreement or solution, then what happens? Are we left back at square one?

'''Response''': There are several things that could happen. First, nothing could happen. This could be a system based solely on the contact hypothesis and social psychology research that suggests that individuals are more likely to say yes to another’s individualized request for aid or help. In a large percentage of cases, the model resolves the problem without the need for some other mechanism than the mere facilitation of interaction between two human beings.

Second, there could be a final arbitration or mediation facilitated by a third party. This third party could be in house or could be outsourced. A good example of out sourcing to a third party would be SquareTrade. SquareTrade conducted dispute resolution for eBay a few years back and was quite successful in doing so. The benefits of using an outsourced third party would be that if something had to be taken down, walled gardens would potentially be able to continue asserting their Section 230 Communications Decency Act shield by not directly or editing content on their site.
Another option would be for the walled garden to generate its own dispute resolution process. The site could do so by hiring a panel specifically assigned to do just that. The site could elect particular members of the site to vote (however, this might cause more unwanted attention to the content an individual necessarily wants eradicated).

'''10. Should certain institutions be exempt from expiration dates?'''

'''Concern''': There is certain content on the net that society would be hurt if expired: like news media organizations and websites.

'''Response''': We only intend this model to be applied by walled gardens of social media and only on user generated content.

=Literature Review=

Solove notes that “disclosure can also be harmful because it makes a person a "prisoner of [her] recorded past." People grow and change, and disclosures of information from their past can inhibit their ability to reform their behavior, to have a second chance, or to alter their life's direction. 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. P. 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 with the flood of personal information and gossip in a way that mitigates their effects on everyday life. The ensuing categorizations represent the best fit, but many elements overlap.

==Tort==

[http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html 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.

[http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text/futureofreputation-ch7.pdf 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.

Solove 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.

==Norms==

James Grimmelmann in [http://works.bepress.com/cgi/viewcontent.cgi?article=1019&context=james_grimmelmann 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 align 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.

[http://futureoftheinternet.org/reputation-bankruptcy 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 could be compatible with all categories depending upon how he further defines it.

Lauren Gelman in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520111 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 that 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 users accessing the information.

==Technological==

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; expiration dates can only be extended by social mandate. <ref> ''Id''. at 184-192.</ref>

==Regulatory==

Frank Pasquale in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=888327 Rankings, Reductionism, and Responsibility] and in [http://www.law.umaryland.edu/academics/journals/jbtl/issues/3_1/3_1_061_Pasquale.pdf Asterisk Revisited: Debating a Right of Reply on Search Results] proposes 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.

The [http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html 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.”

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1462&format=HTML&aged=0&language=EN&guiLanguage=fr

http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html

http://redtape.msnbc.com/2010/11/eu-to-create-right-to-be-forgotten-online.html

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. <ref>Cass Sunstein, ''On Rumors'' 78-79 (2009).</ref> 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.

[http://volokh.com/posts/1176705254.shtml 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.

==Market==

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

Bonneau and Prebusch conclude that “the market for privacy in social networks is dysfunctional in that there is significant variation in sites’ privacy controls, data collection requirements, and legal privacy policies, but this is not effectively conveyed to users.” They also find that “privacy is rarely used as a selling point, even then only as auxiliary, nondecisive feature.” Bonneau and Prebusch advocate “a privacy communication game, where the economically rational choice for a site operator is to make privacy control available to evade criticism from privacy fundamentalists, while hiding the privacy control interface and privacy policy to maximize sign-up numbers and encourage data sharing from the pragmatic majority of users.” Their proposal is in tension with our model insofar as it would make privacy policies even more inaccessible to users; our proposal seeks to market privacy as a selling point based on user-preferences and principles of reputation-management, while protecting the ability of site operators to use member data.

==Property==

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.

==Other Research==
http://www.pewinternet.org/Reports/2010/Reputation-Management.aspx

A May 2010 Pew Internet and American Life study suggests that privacy is highly valued by the next generation of social networking users. The report found that “Young adults, far from being indifferent about their digital footprints, are the most active online reputation managers in several dimensions. For example, more than two-thirds (71%) of social networking users ages 18-29 have changed the privacy settings on their profile to limit what they share with others online.” In addition, “When compared with older users, young adults are more likely to restrict what they share and whom they share it with. Mary Madden, one of the coauthors, stated that “Contrary to the popular perception that younger users embrace a laissez-faire attitude about their online reputations, young adults are often more vigilant than older adults when it comes to managing their online identities.”

A study by scholars at the University of Berkeley Center for Law & Technology, Center for the Study of Law and Society, and the University of Pennsylvania - Annenberg School for Communication found privacy norms that are consistent with our model. For instance, “Large proportions of all age groups have refused to provide information to a business for privacy reasons. They agree or agree strongly with the norm that a person should get permission before posting a photo of someone who is clearly recognizable to the internet, even if that photo was taken in public. They agree that there should be a law that gives people the right to know
“everything that a website knows about them.” And they agree that there should be a law
that requires websites and advertising companies to delete “all stored information” about
an individual.” Page 11. Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864

[[Image: Right to Delete.jpg]]<ref>Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864.</ref>

Drive-Thru Arbitration in the Digital Age: Empowering Consumers through Binding ODR [article]
Baylor Law Review, Vol. 62, Issue 1 (2010), pp. 178-244 Schmitz, Amy J. 62 Baylor L. Rev. 178 (2010)

Many articles discuss privacy and data management in the context of online commercial transactions. See, e.g. Milne, G. R. and Culnan, M. J. (2004), Strategies for reducing online privacy risks: Why consumers read (or don't read) online privacy notices. Journal of Interactive Marketing, 18: 15–29. doi: 10.1002/dir.20009 (concluding that reading is related to concern for privacy, positive perceptions about notice comprehension, and higher levels of trust in the notice); Consumer Online Privacy: Legal and Ethical Issues, Eve M. Caudill and Patrick E. Murphy, Journal of Public Policy & Marketing Vol. 19, No. 1, Privacy and Ethical Issues in Database/Interactive Marketing and Public Policy (Spring, 2000), pp. 7-19 (article consists of 13 pages), Published by: American Marketing Association Stable URL: http://www.jstor.org/stable/30000483 (reviewing ethical theories that apply to consumer privacy and offering specific suggestions for corporate ethical policy and public policy).

=Notes=
<references />

GROUP ONE

2010-11-27T04:20:46Z

Davidrbrody: /* Concerns and Responses to the Model */

=Introduction=

Perhaps the seminal article of privacy is Samuel Warren and Louis Brandeis’ Harvard Law Review article [http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html''The Right to Privacy''] from 1890. The authors wrote this article in response to the invention of new camera technology that allowed for instantaneous photographs. Warren and Brandeis feared that such technology 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.” Their article argued that a tort remedy should be available for those whose privacy had been violated in such a way. Warren and Brandeis's thesis exemplified a trend in legal thought that would achieve more prominence in the Internet Age: the need for normative, 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.” <ref>Viktor Mayer-Schönberger, ''Delete: The Virtue of Forgetting in the Digital Age'' 49 (2009)</ref>. Four technological advances (digitization of information, cheap storage, easy retrieval, and the global reach of the Internet) have made all memories permanent. <ref>''Id''. at 52.</ref> 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028875 ''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 utilize online and real world reputation when making decisions in a way that was not feasible years ago. Strahilevitz discusses both the positive and negative ramifications of this information surplus, but other scholars have focused on its negative effect on offline lives. Professor Daniel Solove in [http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text.htm 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 whose refusal to pick up her dog’s waste led to her picture becoming famous online. A commenter on a blog which discussed this picture stated “[r]ight 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 each 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 his life.

=Proposed Mid-term Content Management System=

==Our Approach==

Many proposals regarding online reputation and information share several characteristics: significant government intervention and a focus on dramatic short-term reputation harm. Regarding intervention, many 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 [http://www.law.ucla.edu/volokh/privacy.htm#SpeechOnMattersOfPrivateConcern ''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. Many proposals that involve the government restricting speech would likely face significant First Amendment roadblocks.

Often 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 content, such as a drunk picture or an inappropriate Facebook group on which an individual once posted. Such activities likely do not rise to the level warranting litigation or complete erasure of one's online identity, but they could negatively affect one’s professional and personal relationships. They are the equivalent of putting one's foot in one's mouth.

Our project departs from these proposals both in its focus and implementation. We have divided online reputation into three different types: short-term, medium-term, and long-term. Short-term harms are exemplified by those involved with the [http://jezebel.com/5652114/college-girls-power-point-fuck-list-goes-viral-gallery Duke sex powerpoint scandal], in which an incendiary piece of information creates immediate and dramatic ramifications for one’s reputation. Long-term reputational content is something that has been built over many years, such as one’s [http://pages.ebay.com/services/forum/feedback.html eBay rating]. Medium-term reputational content is not necessarily immediately recognized as harmful, but its 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 issues. In an online world in which everything is recorded for eternity, how do you accommodate a person's ability to mature and change?

Our proposal relies on a combination of a market- and norms-based approaches. Jonathan Zittrain creates a classification system for such approaches to online issues in his article [http://law.fordham.edu/assets/LawReview/Zittrain_Vol_78_May.pdf ''The Fourth Quadrant'']. This system uses two measures: how “generative” the approach 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 options. 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 blog’ 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 several potential approaches 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.

==Assumptions==

As discussed above, there are three distinct phases of reputation: short term, mid-term and long term. Our model is targeted solely at mid-term reputational issues. Short and long term issues will require other mechanisms and should be considered independently.

When composing our model, we had four core assumptions:
*1) All user-generated content should expire and cease to be publically available after a set length of time, unless is it actively renewed. This theory follows from Viktor Mayer-Schönberger’s work.
*2) The path of least resistance should result in the socially optimal outcome. This means that whenever a user follows default settings or acts in a lazy or apathetic fashion, the end result should be desirable. The model should make doing the “right” thing as easy as possible.
*3) Direct, personal communications between real people lead to more cooperative outcomes. A user can empathize and be more receptive to an individualized appeal from another person than he would be to an automated message. Building these sorts of communications into the system fosters a social norm of cooperation and understanding.
*4) The system should be content neutral so as to increase efficiency and avoid arbitrary implementation. If the system discriminated in how it treated content based on what type of content it was, then the process would get bogged down in the minutiae of moralistic review.

Our model will present a process by which content expires or renews, depending on how implicated parties intervene or abdicate. In the model, P is a user who initially posts content, Q is a user who is represented in the content, and R is a third-party bystander.

The system would be applied by social media websites that choose to apply it. There is no feasible method of mandating its use, nor is there a reason to. These websites will want to implement this system or one similar to it of their own accord. Here’s why:
*1) The system will make a website more desirable to users who value their privacy and reputations.
*2) The system creates a stickiness that will keep users coming back to the social media website that uses it.
*3) The system does not substantially impede a website's ability to profit from data mining, thus allowing it to promise greater privacy protections to its users without hurting the company’s source of revenue.

Finally, it is important to note that the system is not designed to be 100% effective at addressing all potentially problematic content. The goal is solely to create a process that is easy to implement, easy to understand, and will achieve the socially optimal result in the vast majority of cases.

==Model==
[[Image:New Model.jpg]]

*1) A user, P, is presented with preferences when he first uses the system. He can either use the presets chosen by the website or adjust the preferences to his taste. These preferences would determine his default actions for expirations, renewals, notifications, protests, etc.
*2) P posts content on the website.
*3) P chooses an expiration date for his content or uses his default expiration settings.
*4) The content might contain a representation of Q. Q can then be “marked” on the content by P, Q or R. To be “marked” means that Q is alerted that he is implicated in this content and is given the option to be notified when the content comes up for renewal.
*5) If no one is marked on the content, then P will, in accordance with his preferences, receive a notification 30 days prior to the content’s expiration date. P can then choose to renew the content or do nothing. If P does nothing, the content expires.
*6) If Q is marked but never opts in for notification, then the content is treated as if no one is marked.
*7) If Q is marked and opts in for notification, and if P chooses to renew the content, then Q will receive a notification that P chose to renew the content.
*8) Q can ignore this notification and the content will renew as per P’s decision.
*9) Alternatively, Q can “protest” P’s decision to renew the content. This means that Q would send a message to P saying that he doesn’t want the content renewed and explaining why. This protest would contain standard options that Q could select for his reasoning, but Q would also be required to compose a personalized message to P.
*10) P, upon receiving Q’s protest, can choose to move forward with the renewal (with or without modifying the content), halt the public renewal, or do nothing.
*11) If P does nothing, the content will expire, as per Q’s wishes.
*12) If P halts the public renewal, the content will still be kept in P’s private archive but will not be viewable to any other users.
*13) If P chooses to move forward with the renewal (with or without modifying the content), P must then send a response to Q explaining why P chose to renew the content over Q’s protest. This would also be a personalized message.
*14) Upon receiving P’s response, Q might be satisfied with P’s reasons or modifications. If Q does nothing, the content will renew.
*15) If Q is partially dissatisfied with P’s response, Q could chose to add an “asterisk” to the content. This would be a discrete message that viewers of the content would see, consisting of Q’s protest to P. The content would renew with the asterisk.
*16) If Q is substantially dissatisfied with P’s response, Q could appeal the renewal to an adjudication process. This process would determine whether or not the content renews.

==Explanation of the Model==

'''Users will set preferences or use default preferences for expiration and notification to streamline decisions.''' These will help triage content to prevent users from being deluged with notifications.
*For example, presets could allow users to auto-ignore, auto-opt in to notify, or auto-protest based on the identity of the other party. Certain groups might get trusted automatically, while others would be automatically suspect.
**E.g. If your mother marks you in a photo, you know that most of the time you probably don’t need to worry about its content.
*However, because the purpose of the system is to expire valueless content, users would not be allowed to set their preferences to auto-renew their content.

'''When P chooses an expiration date, P can opt to receive or not receive notice prior to expiration.''' Presumably, most content, being transitory, will be allowed to expire w/o notice (e.g. status posts, comments, tweets, etc). Thus, only truly substantive content would ever even require subsequent action by P or Q.

'''Only an actual person depicted by the content would have “standing” to be marked.'''
*This rule’s efficient application will compensate for its under-inclusivity. Trying to get 100% inclusivity for all affected users or content would make the perfect the enemy of the good.
*The rule will also help prevent large groups from ganging up to harass one person.

'''Captchas would be used to ensure that only real people will be able to mark content.'''

'''Q should not have the ability to prevent expiration.''' The content belongs to P; if he wants to expire it, that’s his right.

'''R should not have the ability to prevent either expiration or renewal.''' Being neither the owner of the content (P) nor someone implicated in the content (Q), a third party should have no rights to dictate what happens or doesn’t happen with the content.

'''Users could maintain a private archive of their content that will not expire, subject to their preferences.''' Many users use online social media websites as multimedia diaries of their lives. Users should have the option of permanently retaining all of their own content for private viewing. But they should not be able to keep such information publicly viewable without going through the system.
*Our chief concern is controlling mid-term reputational effects. Thus, if something is private, it cannot substantively affect someone else’s reputation and does not need to be constrained.

'''No one will be able to search for asterisks.''' Asterisks serve to explain content that Q finds objectionable. By their very nature, asterisks will be associated with controversial content. If a user could search for an asterisk then these asterisks would serve as homing beacons for the very content that Q wants to disappear in the first place.

'''The adjudication process might be styled after either the Uniform Domain-Name Resolution Policy (“UDRP”) or eBay’s adjudication process.''' It is likely that this process would be contracted out to established 3rd parties. Allowing this service to be contracted out to the market will allow different methods to develop competitively to foster innovation and efficiency.
*It should be noted that the adjudication process is the only part of the model that will take a substantive look at the nature of the content.

==Concerns and Responses to the Model==

'''1. How do we prevent a deluge of expiration notifications and other notifications from the process?'''

'''Concern''': The model is likely to create a considerable amount of email notification both for P and for Q. Online social media users are generating content everyday so the flow will be constant. This flood of emails could discourage some walled gardens from implementing the model if they fear their users will abandon their network, because their mailbox is constantly flooded. Are users going to take concerns seriously when they receive so many of them over short periods of time?

'''Response''': Like in every architectural design (both physical and technological), there are tradeoffs. The benefit of the model is that it facilitates interactions and keeps users constantly apprised about content they generate and content generated about them. The con is reflected in the benefit: they are constantly kept apprised, which means they are constantly being notified. Asides from the benefit of being aware, there are some tools users could employ to avoid mailbox flooding.

Users could use their default settings to have content scheduled to expire, expire automatically, without notification. They could do this for all their content and select it as a default or they could manage pictures, status updates, posts, etc. individually. The more tailored their control over the system, the more easily users could manage their data and notifications. Content generators seeking to avoid notification from those marked to their content, could also benefit from the use of default settings. Perhaps they could set their default settings such if someone would like the content taken down, it would automatically defer to that user. The walled garden settings could also permit individuals to differentiate by user or group. For example, a default setting could look something like: I do not want to be notified if Family and Good Friends object to content being renewed and I will defer to their requests, but I would like to be notified if Pete Campbell or someone from the High School group objects.

'''2. Should there be a modified system for children? Should this system only exist for children? Should there only be one period of atonement for coming of age?'''

'''Concern''': Minors are arguably the most susceptible to generate content they later regret, is embarrassing, or could effect them in the future. They are also on the whole not as mature as the rest of the population and should be further protected from the permeability of content generated about them online. Similar to how the criminal records of minors are often expunged in the legal system, should the model guarantee minors greater protection or should the model only exist for minors?

'''Response''': Individual walled gardens are best situated to determine the individual needs of their users. While the authors of this model maintain that the model should apply universally, there is no doubt that minors are perhaps the most in need of the model. That said, individual sites that will adopt this model can best determine how they want to implement it and to what population of their users they would like to make it available to.
Perhaps there could be variations in the model for children, such as no renewal after valid complaints on the content or the availability of content expiration more frequently or when the minor comes of age. This question, however, we believe is better resolved by individual walled gardens.

'''3. Should expired content be deleted forever? Are there ways to preserve one’s content?'''

'''Concern''': One of the primary reasons individuals post content online is to share and preserve it in digital form. The model favors the deletion of information and could cause content that would have otherwise remained available for storing or sharing to be removed. What if the individuals generating the content or featured in the content want to preserve it for themselves, friends, or future generations?

'''Response''': There are ways to preserve one’s content. Users under the model will be allowed to have a private archive. But other methods could be used as well. Expired content generated by individuals could be stored in another private mechanism: both online and offline. The most secure way to retain your personal data would be off a could and stored on a personal hard drive, but perhaps a user would like to have their content in a cloud. Either way, there are multiple devices currently where users can store data that is not publicly available.

'''4. What happens if people circumvent the process and simply repost the material?'''

'''Concern''': While in theory the model may work well, what is to stop users wanting to avoid the effort of the process from simply agreeing to delete their content and reposting it again or allowing everything to expire, only to repost it again in a few years, months, days, minutes, or seconds?

'''Response''': Like any law or system, there will always be those that look for loopholes and areas of the technological court that are poorly defended. The additional affirmative effort required by users to repost content is in itself a moderate discouragement. Furthermore, the establishment of a model and the social norms governing its usage also serve to discourage users from running a red light even when they think they will not get caught. However, it is undeniable that for at least a sector of online users, the additional effort required to repost content and norms alone are not enough.

Walled gardens could develop software that is able to detect when content is reposted or identify content that is posted as the same as other content that was previously posted. Other individuals featured in the reposted content could be allowed to file a complaint with the walled garden notifying them that the content posted had already expired or was somewhere in the process of expiration.

'''5. Will this have a chilling effect on speech?'''

'''Concern''': Individuals that do not want to be over-flooded with complaints or notifications might avoid posting content that is arguably beneficial to society, simply because they know some individuals might object and they do not want to deal with the burdensome process of responding to complaints.

'''Response''': While the model in its current state might prevent content from being renewed, it certainly should not prevent individuals from originally posting the content. Individuals could set their default settings to avoid receiving notification of marking. They would thus only encounter resistance when renewing the content.

'''6. Who has standing to mark themselves to content?'''

'''Concern''': If there are no minimum requirements for standing, then content generators could be flooded by complaints and notifications form individuals that have no direct reputational stake in the content. Content that is political or otherwise controversial could be deluged with marks in order to get the content generator to remove.

'''Response''': Standing should be limited to those individuals directly featured in the content. If it is a picture, then the individual must be in the picture. If it is text, then the individuals name should be mentioned in the text. Walled gardens should establish some mechanism for verifying that those marking themselves to content actually have the standing to do so. In walled gardens such as Facebook that might be easier to accomplish, but perhaps facial recognition software can be employed or some other mechanism that can verify who markers are and whether they have indeed have standing. Perhaps the process could be outsourced to mechanical turks?

'''7. What about pictures that have social or even historical value, but where the originator of the material either does not recognize such value or does not want to put forth the additional effort to preserve it.'''

'''Concerns''': a model that favors the expiration and possible deletion of content online carries the risk of permanently deleting or creating greater access barriers to content that has social and historical value either currently or in the future.

'''Response''': A model favoring the expiration and public deletion of user generated content could certainly result in the loss of some content that has social and historic value. But this is not a new problem. Famous authors often leave manuscripts unpublished upon their death and often leave clear instructions that such material should not be published. Famous artwork is often kept in the hands of private owners and is not made available for the public at large to see.

It has always been the job news corporations and media to cover events of historical significance and obtain licensing or copyright release upon citizens who capture events of historical or social significance. It is arguably only in the last few years through the Internet that user generated content has been elevated to its current importance and presence in the public media.

Furthermore, this model should not be applied to certain institutions. Traditional news media and even current semi-news media sites should not be subject to expiration dates. Archives of newspapers and important events and news should remain available indefinitely.
Moreover, this model does not cause the deletion of material. It simply might discourage its prolonged existence online. So while the costs of acquiring content of social and historic value might have increased, they are not insurmountable.

'''8. Are we creating an environment that discourages responsibility?'''

'''Concern''': If content we generated or that is generated about us is more easily purged from the public Internet, then people will be less accountable for their actions and perhaps even act more recklessly. Furthermore, they will continue to commit follies, because the consequences are not as permanent. People should take responsibility for their actions rather than rely on deletion.

'''Response''': The above is a matter of preference. It is true that in at least some cases bad actors will make poor choices because their misgivings are more forgiven under this model, but we would argue that a good majority of bad actors are not considering the consequences of their actions at all in the moment. Perhaps getting burned by the current system could influence their behavior in the future, but the reputational damage suffered by the individual might be steeper than the lesson learned. Furthermore, it is not as if the individual was being isolated from the worse immediate effects of his follies. It is only the more longer term effects that the model shields him partially from.

'''9. What is the something cool that could happen?'''

'''Concern''': If the content generated and the marked individual does not come to a mutual agreement or solution, then what happens? Are we left back at square one?

'''Response''': There are several things that could happen. First, nothing could happen. This could be a system based solely on the contact hypothesis and social psychology research that suggests that individuals are more likely to say yes to another’s individualized request for aid or help. In a large percentage of cases, the model resolves the problem without the need for some other mechanism than the mere facilitation of interaction between two human beings.

Second, there could be a final arbitration or mediation facilitated by a third party. This third party could be in house or could be outsourced. A good example of out sourcing to a third party would be SquareTrade. SquareTrade conducted dispute resolution for eBay a few years back and was quite successful in doing so. The benefits of using an outsourced third party would be that if something had to be taken down, walled gardens would potentially be able to continue asserting their Section 230 Communications Decency Act shield by not directly or editing content on their site.
Another option would be for the walled garden to generate its own dispute resolution process. The site could do so by hiring a panel specifically assigned to do just that. The site could elect particular members of the site to vote (however, this might cause more unwanted attention to the content an individual necessarily wants eradicated).

'''10. Should certain institutions be exempt from expiration dates?'''

'''Concern''': There is certain content on the net that society would be hurt if expired: like news media organizations and websites.

'''Response''': We only intend this model to be applied by walled gardens of social media and only on user generated content.

=Literature Review=

Solove notes that “disclosure can also be harmful because it makes a person a "prisoner of [her] recorded past." People grow and change, and disclosures of information from their past can inhibit their ability to reform their behavior, to have a second chance, or to alter their life's direction. 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. P. 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 with the flood of personal information and gossip in a way that mitigates their effects on everyday life. The ensuing categorizations represent the best fit, but many elements overlap.

==Tort==

[http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html 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.

[http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text/futureofreputation-ch7.pdf 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.

Solove 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.

==Norms==

James Grimmelmann in [http://works.bepress.com/cgi/viewcontent.cgi?article=1019&context=james_grimmelmann 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 align 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.

[http://futureoftheinternet.org/reputation-bankruptcy 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 could be compatible with all categories depending upon how he further defines it.

Lauren Gelman in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520111 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 that 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 users accessing the information.

==Technological==

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; expiration dates can only be extended by social mandate. <ref> ''Id''. at 184-192.</ref>

==Regulatory==

Frank Pasquale in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=888327 Rankings, Reductionism, and Responsibility] and in [http://www.law.umaryland.edu/academics/journals/jbtl/issues/3_1/3_1_061_Pasquale.pdf Asterisk Revisited: Debating a Right of Reply on Search Results] proposes 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.

The [http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html 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.”

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1462&format=HTML&aged=0&language=EN&guiLanguage=fr

http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html

http://redtape.msnbc.com/2010/11/eu-to-create-right-to-be-forgotten-online.html

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. <ref>Cass Sunstein, ''On Rumors'' 78-79 (2009).</ref> 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.

[http://volokh.com/posts/1176705254.shtml 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.

==Market==

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

Bonneau and Prebusch conclude that “the market for privacy in social networks is dysfunctional in that there is significant variation in sites’ privacy controls, data collection requirements, and legal privacy policies, but this is not effectively conveyed to users.” They also find that “privacy is rarely used as a selling point, even then only as auxiliary, nondecisive feature.” Bonneau and Prebusch advocate “a privacy communication game, where the economically rational choice for a site operator is to make privacy control available to evade criticism from privacy fundamentalists, while hiding the privacy control interface and privacy policy to maximize sign-up numbers and encourage data sharing from the pragmatic majority of users.” Their proposal is in tension with our model insofar as it would make privacy policies even more inaccessible to users; our proposal seeks to market privacy as a selling point based on user-preferences and principles of reputation-management, while protecting the ability of site operators to use member data.

==Property==

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.

==Other Research==
http://www.pewinternet.org/Reports/2010/Reputation-Management.aspx

A May 2010 Pew Internet and American Life study suggests that privacy is highly valued by the next generation of social networking users. The report found that “Young adults, far from being indifferent about their digital footprints, are the most active online reputation managers in several dimensions. For example, more than two-thirds (71%) of social networking users ages 18-29 have changed the privacy settings on their profile to limit what they share with others online.” In addition, “When compared with older users, young adults are more likely to restrict what they share and whom they share it with. Mary Madden, one of the coauthors, stated that “Contrary to the popular perception that younger users embrace a laissez-faire attitude about their online reputations, young adults are often more vigilant than older adults when it comes to managing their online identities.”

A study by scholars at the University of Berkeley Center for Law & Technology, Center for the Study of Law and Society, and the University of Pennsylvania - Annenberg School for Communication found privacy norms that are consistent with our model. For instance, “Large proportions of all age groups have refused to provide information to a business for privacy reasons. They agree or agree strongly with the norm that a person should get permission before posting a photo of someone who is clearly recognizable to the internet, even if that photo was taken in public. They agree that there should be a law that gives people the right to know
“everything that a website knows about them.” And they agree that there should be a law
that requires websites and advertising companies to delete “all stored information” about
an individual.” Page 11. Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864

[[Image: Right to Delete.jpg]]<ref>Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864.</ref>

Drive-Thru Arbitration in the Digital Age: Empowering Consumers through Binding ODR [article]
Baylor Law Review, Vol. 62, Issue 1 (2010), pp. 178-244 Schmitz, Amy J. 62 Baylor L. Rev. 178 (2010)

Many articles discuss privacy and data management in the context of online commercial transactions. See, e.g. Milne, G. R. and Culnan, M. J. (2004), Strategies for reducing online privacy risks: Why consumers read (or don't read) online privacy notices. Journal of Interactive Marketing, 18: 15–29. doi: 10.1002/dir.20009 (concluding that reading is related to concern for privacy, positive perceptions about notice comprehension, and higher levels of trust in the notice); Consumer Online Privacy: Legal and Ethical Issues, Eve M. Caudill and Patrick E. Murphy, Journal of Public Policy & Marketing Vol. 19, No. 1, Privacy and Ethical Issues in Database/Interactive Marketing and Public Policy (Spring, 2000), pp. 7-19 (article consists of 13 pages), Published by: American Marketing Association Stable URL: http://www.jstor.org/stable/30000483 (reviewing ethical theories that apply to consumer privacy and offering specific suggestions for corporate ethical policy and public policy).

=Notes=
<references />

GROUP ONE

2010-11-27T04:08:33Z

Davidrbrody: /* Assumptions */

=Introduction=

Perhaps the seminal article of privacy is Samuel Warren and Louis Brandeis’ Harvard Law Review article [http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html''The Right to Privacy''] from 1890. The authors wrote this article in response to the invention of new camera technology that allowed for instantaneous photographs. Warren and Brandeis feared that such technology 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.” Their article argued that a tort remedy should be available for those whose privacy had been violated in such a way. Warren and Brandeis's thesis exemplified a trend in legal thought that would achieve more prominence in the Internet Age: the need for normative, 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.” <ref>Viktor Mayer-Schönberger, ''Delete: The Virtue of Forgetting in the Digital Age'' 49 (2009)</ref>. Four technological advances (digitization of information, cheap storage, easy retrieval, and the global reach of the Internet) have made all memories permanent. <ref>''Id''. at 52.</ref> 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028875 ''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 utilize online and real world reputation when making decisions in a way that was not feasible years ago. Strahilevitz discusses both the positive and negative ramifications of this information surplus, but other scholars have focused on its negative effect on offline lives. Professor Daniel Solove in [http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text.htm 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 whose refusal to pick up her dog’s waste led to her picture becoming famous online. A commenter on a blog which discussed this picture stated “[r]ight 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 each 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 his life.

=Proposed Mid-term Content Management System=

==Our Approach==

Many proposals regarding online reputation and information share several characteristics: significant government intervention and a focus on dramatic short-term reputation harm. Regarding intervention, many 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 [http://www.law.ucla.edu/volokh/privacy.htm#SpeechOnMattersOfPrivateConcern ''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. Many proposals that involve the government restricting speech would likely face significant First Amendment roadblocks.

Often 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 content, such as a drunk picture or an inappropriate Facebook group on which an individual once posted. Such activities likely do not rise to the level warranting litigation or complete erasure of one's online identity, but they could negatively affect one’s professional and personal relationships. They are the equivalent of putting one's foot in one's mouth.

Our project departs from these proposals both in its focus and implementation. We have divided online reputation into three different types: short-term, medium-term, and long-term. Short-term harms are exemplified by those involved with the [http://jezebel.com/5652114/college-girls-power-point-fuck-list-goes-viral-gallery Duke sex powerpoint scandal], in which an incendiary piece of information creates immediate and dramatic ramifications for one’s reputation. Long-term reputational content is something that has been built over many years, such as one’s [http://pages.ebay.com/services/forum/feedback.html eBay rating]. Medium-term reputational content is not necessarily immediately recognized as harmful, but its 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 issues. In an online world in which everything is recorded for eternity, how do you accommodate a person's ability to mature and change?

Our proposal relies on a combination of a market- and norms-based approaches. Jonathan Zittrain creates a classification system for such approaches to online issues in his article [http://law.fordham.edu/assets/LawReview/Zittrain_Vol_78_May.pdf ''The Fourth Quadrant'']. This system uses two measures: how “generative” the approach 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 options. 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 blog’ 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 several potential approaches 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.

==Assumptions==

As discussed above, there are three distinct phases of reputation: short term, mid-term and long term. Our model is targeted solely at mid-term reputational issues. Short and long term issues will require other mechanisms and should be considered independently.

When composing our model, we had four core assumptions:
*1) All user-generated content should expire and cease to be publically available after a set length of time, unless is it actively renewed. This theory follows from Viktor Mayer-Schönberger’s work.
*2) The path of least resistance should result in the socially optimal outcome. This means that whenever a user follows default settings or acts in a lazy or apathetic fashion, the end result should be desirable. The model should make doing the “right” thing as easy as possible.
*3) Direct, personal communications between real people lead to more cooperative outcomes. A user can empathize and be more receptive to an individualized appeal from another person than he would be to an automated message. Building these sorts of communications into the system fosters a social norm of cooperation and understanding.
*4) The system should be content neutral so as to increase efficiency and avoid arbitrary implementation. If the system discriminated in how it treated content based on what type of content it was, then the process would get bogged down in the minutiae of moralistic review.

Our model will present a process by which content expires or renews, depending on how implicated parties intervene or abdicate. In the model, P is a user who initially posts content, Q is a user who is represented in the content, and R is a third-party bystander.

The system would be applied by social media websites that choose to apply it. There is no feasible method of mandating its use, nor is there a reason to. These websites will want to implement this system or one similar to it of their own accord. Here’s why:
*1) The system will make a website more desirable to users who value their privacy and reputations.
*2) The system creates a stickiness that will keep users coming back to the social media website that uses it.
*3) The system does not substantially impede a website's ability to profit from data mining, thus allowing it to promise greater privacy protections to its users without hurting the company’s source of revenue.

Finally, it is important to note that the system is not designed to be 100% effective at addressing all potentially problematic content. The goal is solely to create a process that is easy to implement, easy to understand, and will achieve the socially optimal result in the vast majority of cases.

==Model==
[[Image:New Model.jpg]]

*1) A user, P, is presented with preferences when he first uses the system. He can either use the presets chosen by the website or adjust the preferences to his taste. These preferences would determine his default actions for expirations, renewals, notifications, protests, etc.
*2) P posts content on the website.
*3) P chooses an expiration date for his content or uses his default expiration settings.
*4) The content might contain a representation of Q. Q can then be “marked” on the content by P, Q or R. To be “marked” means that Q is alerted that he is implicated in this content and is given the option to be notified when the content comes up for renewal.
*5) If no one is marked on the content, then P will, in accordance with his preferences, receive a notification 30 days prior to the content’s expiration date. P can then choose to renew the content or do nothing. If P does nothing, the content expires.
*6) If Q is marked but never opts in for notification, then the content is treated as if no one is marked.
*7) If Q is marked and opts in for notification, and if P chooses to renew the content, then Q will receive a notification that P chose to renew the content.
*8) Q can ignore this notification and the content will renew as per P’s decision.
*9) Alternatively, Q can “protest” P’s decision to renew the content. This means that Q would send a message to P saying that he doesn’t want the content renewed and explaining why. This protest would contain standard options that Q could select for his reasoning, but Q would also be required to compose a personalized message to P.
*10) P, upon receiving Q’s protest, can choose to move forward with the renewal (with or without modifying the content), halt the public renewal, or do nothing.
*11) If P does nothing, the content will expire, as per Q’s wishes.
*12) If P halts the public renewal, the content will still be kept in P’s private archive but will not be viewable to any other users.
*13) If P chooses to move forward with the renewal (with or without modifying the content), P must then send a response to Q explaining why P chose to renew the content over Q’s protest. This would also be a personalized message.
*14) Upon receiving P’s response, Q might be satisfied with P’s reasons or modifications. If Q does nothing, the content will renew.
*15) If Q is partially dissatisfied with P’s response, Q could chose to add an “asterisk” to the content. This would be a discrete message that viewers of the content would see, consisting of Q’s protest to P. The content would renew with the asterisk.
*16) If Q is substantially dissatisfied with P’s response, Q could appeal the renewal to an adjudication process. This process would determine whether or not the content renews.

==Explanation of the Model==

'''Users will set preferences or use default preferences for expiration and notification to streamline decisions.''' These will help triage content to prevent users from being deluged with notifications.
*For example, presets could allow users to auto-ignore, auto-opt in to notify, or auto-protest based on the identity of the other party. Certain groups might get trusted automatically, while others would be automatically suspect.
**E.g. If your mother marks you in a photo, you know that most of the time you probably don’t need to worry about its content.
*However, because the purpose of the system is to expire valueless content, users would not be allowed to set their preferences to auto-renew their content.

'''When P chooses an expiration date, P can opt to receive or not receive notice prior to expiration.''' Presumably, most content, being transitory, will be allowed to expire w/o notice (e.g. status posts, comments, tweets, etc). Thus, only truly substantive content would ever even require subsequent action by P or Q.

'''Only an actual person depicted by the content would have “standing” to be marked.'''
*This rule’s efficient application will compensate for its under-inclusivity. Trying to get 100% inclusivity for all affected users or content would make the perfect the enemy of the good.
*The rule will also help prevent large groups from ganging up to harass one person.

'''Captchas would be used to ensure that only real people will be able to mark content.'''

'''Q should not have the ability to prevent expiration.''' The content belongs to P; if he wants to expire it, that’s his right.

'''R should not have the ability to prevent either expiration or renewal.''' Being neither the owner of the content (P) nor someone implicated in the content (Q), a third party should have no rights to dictate what happens or doesn’t happen with the content.

'''Users could maintain a private archive of their content that will not expire, subject to their preferences.''' Many users use online social media websites as multimedia diaries of their lives. Users should have the option of permanently retaining all of their own content for private viewing. But they should not be able to keep such information publicly viewable without going through the system.
*Our chief concern is controlling mid-term reputational effects. Thus, if something is private, it cannot substantively affect someone else’s reputation and does not need to be constrained.

'''No one will be able to search for asterisks.''' Asterisks serve to explain content that Q finds objectionable. By their very nature, asterisks will be associated with controversial content. If a user could search for an asterisk then these asterisks would serve as homing beacons for the very content that Q wants to disappear in the first place.

'''The adjudication process might be styled after either the Uniform Domain-Name Resolution Policy (“UDRP”) or eBay’s adjudication process.''' It is likely that this process would be contracted out to established 3rd parties. Allowing this service to be contracted out to the market will allow different methods to develop competitively to foster innovation and efficiency.
*It should be noted that the adjudication process is the only part of the model that will take a substantive look at the nature of the content.

==Concerns and Responses to the Model==

'''1. How do we prevent a deluge of expiration notifications and other notifications from the process?'''

'''Concern''': The model is likely to create a considerable amount of email notification both for P and for Q. Online social media users are generating content everyday so the flow will be constant. This flood of emails could discourage some walled gardens from implementing the model if they fear their users will abandon their network, because their mailbox is constantly flooded. Are users going to take concerns seriously when they receive so many of them over short periods of time?

'''Response''': Like in every architectural design (both physical and technological), there are tradeoffs. The benefit of the model is that it facilitates interactions and keeps users constantly apprised about content they generate and content generated about them. The con is reflected in the benefit: they are constantly kept apprised, which means they are constantly being notified. Asides from the benefit of being aware, there are some tools users could employ to avoid mailbox flooding.

Users could use their default settings to have content scheduled to expire, expire automatically, without notification. They could do this for all their content and select it as a default or they could manage pictures, status updates, posts, etc. individually. The more tailored their control over the system, the more easily users could manage their data and notifications. Content generators seeking to avoid notification from those marked to their content, could also benefit from the use of default settings. Perhaps they could set their default settings such if someone would like the content taken down, it would automatically defer to that user. The walled garden settings could also permit individuals to differentiate by user or group. For example, a default setting could look something like: I do not want to be notified if Family and Good Friends object to content being renewed and I will defer to their requests, but I would like to be notified if Pete Campbell or someone from the High School group objects.

'''2. Should there be a modified system for children? Should this system only exist for children? Should there only be one period of atonement for coming of age?'''

'''Concern''': Minors are arguably the most susceptible to generate content they later regret, is embarrassing, or could effect them in the future. They are also on the whole not as mature as the rest of the population and should be further protected from the permeability of content generated about them online. Similar to how the criminal records of minors are often expunged in the legal system, should the model guarantee minors greater protection or should the model only exist for minors?

'''Response''': Individual walled gardens are best situated to determine the individual needs of their users. While the authors of this model maintain that the model should apply universally, there is no doubt that minors are perhaps the most in need of the model. That said, individual sites that will adopt this model can best determine how they want to implement it and to what population of their users they would like to make it available to.
Perhaps there could be variations in the model for children, such as no renewal after valid complaints on the content or the availability of content expiration more frequently or when the minor comes of age. This question, however, we believe is better resolved by individual walled gardens.

'''3. Should expired content be deleted forever? Are there ways to preserve one’s content?'''

'''Concern''': One of the primary reasons individuals post content online is to share and preserve it in digital form. The model favors the deletion of information and could cause content that would have otherwise remained available for storing or sharing to be removed. What if the individuals generating the content or featured in the content want to preserve it for themselves, friends, or future generations?

'''Response''': There are alternative ways to preserve one’s content. Users could be allowed to have a public and personal digital dossier. Expired content generated by individuals could be stored in a private mechanism: both online and offline. The most secure way to retain your personal data would be off a could and stored on a personal hard drive, but perhaps a user would like to have their content in a cloud. Either way, there are multiple devices currently where users can store data that is not publicly available.

'''4. What happens if people circumvent the process and simply repost the material?'''

'''Concern''': While in theory the model may work well, what is to stop users wanting to avoid the effort of the process from simply agreeing to delete their content and reposting it again or allowing everything to expire, only to repost it again in a few years, months, days, minutes, or seconds?

'''Response''': Like any law or system, there will always be those that look for loopholes and areas of the technological court that are poorly defended. The additional affirmative effort required by users to repost content is in itself a moderate discouragement. Furthermore, the establishment of a model and the social norms governing its usage also serve to discourage users from running a red light even when they think they will not get caught. However, it is undeniable that for at least a sector of online users, the additional effort required to repost content and norms alone are not enough.

Walled gardens could develop software that is able to detect when content is reposted or identify content that is posted as the same as other content that was previously posted. Other individuals featured in the reposted content could be allowed to file a complaint with the walled garden notifying them that the content posted had already expired or was somewhere in the process of expiration.

'''5. Will this have a chilling effect on speech?'''

'''Concern''': Individuals that do not want to be over-flooded with complaints or notifications might avoid posting content that is arguably beneficial to society, simply because they know some individuals might object and they do not want to deal with the burdensome process of responding to complaints.

'''Response''': While the model in its current state might prevent content from being renewed, it certainly should not prevent individuals from originally posting the content. Individuals could set their default settings to avoid receiving notification of marking. They would thus only encounter resistance when renewing the content.

'''6. Who has standing to mark themselves to content?'''

'''Concern''': If there are no minimum requirements for standing, then content generators could be flooded by complaints and notifications form individuals that have no direct reputational stake in the content. Content that is political or otherwise controversial could be deluged with marks in order to get the content generator to remove.

'''Response''': Standing should be limited to those individuals directly featured in the content. If it is a picture, then the individual must be in the picture. If it is text, then the individuals name should be mentioned in the text. Walled gardens should establish some mechanism for verifying that those marking themselves to content actually have the standing to do so. In walled gardens such as Facebook that might be easier to accomplish, but perhaps facial recognition software can be employed or some other mechanism that can verify who markers are and whether they have indeed have standing. Perhaps the process could be outsourced to mechanical turks?

'''7. What about pictures that have social or even historical value, but where the originator of the material either does not recognize such value or does not want to put forth the additional effort to preserve it.'''

'''Concerns''': a model that favors the expiration and possible deletion of content online carries the risk of permanently deleting or creating greater access barriers to content that has social and historical value either currently or in the future.

'''Response''': A model favoring the expiration and public deletion of user generated content could certainly result in the loss of some content that has social and historic value. But this is not a new problem. Famous authors often leave manuscripts unpublished upon their death and often leave clear instructions that such material should not be published. Famous artwork is often kept in the hands of private owners and is not made available for the public at large to see.

It has always been the job news corporations and media to cover events of historical significance and obtain licensing or copyright release upon citizens who capture events of historical or social significance. It is arguably only in the last few years through the Internet that user generated content has been elevated to its current importance and presence in the public media.

Furthermore, this model should not be applied to certain institutions. Traditional news media and even current semi-news media sites should not be subject to expiration dates. Archives of newspapers and important events and news should remain available indefinitely.
Moreover, this model does not cause the deletion of material. It simply might discourage its prolonged existence online. So while the costs of acquiring content of social and historic value might have increased, they are not insurmountable.

'''8. Are we creating an environment that discourages responsibility?'''

'''Concern''': If content we generated or that is generated about us is more easily purged from the public Internet, then people will be less accountable for their actions and perhaps even act more recklessly. Furthermore, they will continue to commit follies, because the consequences are not as permanent. People should take responsibility for their actions rather than rely on deletion.

'''Response''': The above is a matter of preference. It is true that in at least some cases bad actors will make poor choices because their misgivings are more forgiven under this model, but we would argue that a good majority of bad actors are not considering the consequences of their actions at all in the moment. Perhaps getting burned by the current system could influence their behavior in the future, but the reputational damage suffered by the individual might be steeper than the lesson learned. Furthermore, it is not as if the individual was being isolated from the worse immediate effects of his follies. It is only the more longer term effects that the model shields him partially from.

'''9. What is the something cool that could happen?'''

'''Concern''': If the content generated and the marked individual does not come to a mutual agreement or solution, then what happens? Are we left back at square one?

'''Response''': There are several things that could happen. First, nothing could happen. This could be a system based solely on the contact hypothesis and social psychology research that suggests that individuals are more likely to say yes to another’s individualized request for aid or help. In a large percentage of cases, the model resolves the problem without the need for some other mechanism than the mere facilitation of interaction between two human beings.

Second, there could be a final arbitration or mediation facilitated by a third party. This third party could be in house or could be outsourced. A good example of out sourcing to a third party would be SquareTrade. SquareTrade conducted dispute resolution for eBay a few years back and was quite successful in doing so. The benefits of using an outsourced third party would be that if something had to be taken down, walled gardens would potentially be able to continue asserting their Section 230 Communications Decency Act shield by not directly or editing content on their site.
Another option would be for the walled garden to generate its own dispute resolution process. The site could do so by hiring a panel specifically assigned to do just that. The site could elect particular members of the site to vote (however, this might cause more unwanted attention to the content an individual necessarily wants eradicated).

'''10. Should certain institutions be exempt from expiration dates?'''

'''Concern''': There is certain content on the net that society would be hurt if expired: like news media organizations and websites.

'''Response''': We only intend this model to be applied by walled gardens of social media and only on user generated content.

=Literature Review=

Solove notes that “disclosure can also be harmful because it makes a person a "prisoner of [her] recorded past." People grow and change, and disclosures of information from their past can inhibit their ability to reform their behavior, to have a second chance, or to alter their life's direction. 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. P. 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 with the flood of personal information and gossip in a way that mitigates their effects on everyday life. The ensuing categorizations represent the best fit, but many elements overlap.

==Tort==

[http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html 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.

[http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text/futureofreputation-ch7.pdf 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.

Solove 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.

==Norms==

James Grimmelmann in [http://works.bepress.com/cgi/viewcontent.cgi?article=1019&context=james_grimmelmann 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 align 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.

[http://futureoftheinternet.org/reputation-bankruptcy 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 could be compatible with all categories depending upon how he further defines it.

Lauren Gelman in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520111 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 that 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 users accessing the information.

==Technological==

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; expiration dates can only be extended by social mandate. <ref> ''Id''. at 184-192.</ref>

==Regulatory==

Frank Pasquale in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=888327 Rankings, Reductionism, and Responsibility] and in [http://www.law.umaryland.edu/academics/journals/jbtl/issues/3_1/3_1_061_Pasquale.pdf Asterisk Revisited: Debating a Right of Reply on Search Results] proposes 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.

The [http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html 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.”

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1462&format=HTML&aged=0&language=EN&guiLanguage=fr

http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html

http://redtape.msnbc.com/2010/11/eu-to-create-right-to-be-forgotten-online.html

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. <ref>Cass Sunstein, ''On Rumors'' 78-79 (2009).</ref> 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.

[http://volokh.com/posts/1176705254.shtml 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.

==Market==

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

Bonneau and Prebusch conclude that “the market for privacy in social networks is dysfunctional in that there is significant variation in sites’ privacy controls, data collection requirements, and legal privacy policies, but this is not effectively conveyed to users.” They also find that “privacy is rarely used as a selling point, even then only as auxiliary, nondecisive feature.” Bonneau and Prebusch advocate “a privacy communication game, where the economically rational choice for a site operator is to make privacy control available to evade criticism from privacy fundamentalists, while hiding the privacy control interface and privacy policy to maximize sign-up numbers and encourage data sharing from the pragmatic majority of users.” Their proposal is in tension with our model insofar as it would make privacy policies even more inaccessible to users; our proposal seeks to market privacy as a selling point based on user-preferences and principles of reputation-management, while protecting the ability of site operators to use member data.

==Property==

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.

==Other Research==
http://www.pewinternet.org/Reports/2010/Reputation-Management.aspx

A May 2010 Pew Internet and American Life study suggests that privacy is highly valued by the next generation of social networking users. The report found that “Young adults, far from being indifferent about their digital footprints, are the most active online reputation managers in several dimensions. For example, more than two-thirds (71%) of social networking users ages 18-29 have changed the privacy settings on their profile to limit what they share with others online.” In addition, “When compared with older users, young adults are more likely to restrict what they share and whom they share it with. Mary Madden, one of the coauthors, stated that “Contrary to the popular perception that younger users embrace a laissez-faire attitude about their online reputations, young adults are often more vigilant than older adults when it comes to managing their online identities.”

A study by scholars at the University of Berkeley Center for Law & Technology, Center for the Study of Law and Society, and the University of Pennsylvania - Annenberg School for Communication found privacy norms that are consistent with our model. For instance, “Large proportions of all age groups have refused to provide information to a business for privacy reasons. They agree or agree strongly with the norm that a person should get permission before posting a photo of someone who is clearly recognizable to the internet, even if that photo was taken in public. They agree that there should be a law that gives people the right to know
“everything that a website knows about them.” And they agree that there should be a law
that requires websites and advertising companies to delete “all stored information” about
an individual.” Page 11. Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864

[[Image: Right to Delete.jpg]]<ref>Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864.</ref>

Drive-Thru Arbitration in the Digital Age: Empowering Consumers through Binding ODR [article]
Baylor Law Review, Vol. 62, Issue 1 (2010), pp. 178-244 Schmitz, Amy J. 62 Baylor L. Rev. 178 (2010)

Many articles discuss privacy and data management in the context of online commercial transactions. See, e.g. Milne, G. R. and Culnan, M. J. (2004), Strategies for reducing online privacy risks: Why consumers read (or don't read) online privacy notices. Journal of Interactive Marketing, 18: 15–29. doi: 10.1002/dir.20009 (concluding that reading is related to concern for privacy, positive perceptions about notice comprehension, and higher levels of trust in the notice); Consumer Online Privacy: Legal and Ethical Issues, Eve M. Caudill and Patrick E. Murphy, Journal of Public Policy & Marketing Vol. 19, No. 1, Privacy and Ethical Issues in Database/Interactive Marketing and Public Policy (Spring, 2000), pp. 7-19 (article consists of 13 pages), Published by: American Marketing Association Stable URL: http://www.jstor.org/stable/30000483 (reviewing ethical theories that apply to consumer privacy and offering specific suggestions for corporate ethical policy and public policy).

=Notes=
<references />

GROUP ONE

2010-11-27T04:04:19Z

Davidrbrody: /* Our Approach */

=Introduction=

Perhaps the seminal article of privacy is Samuel Warren and Louis Brandeis’ Harvard Law Review article [http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html''The Right to Privacy''] from 1890. The authors wrote this article in response to the invention of new camera technology that allowed for instantaneous photographs. Warren and Brandeis feared that such technology 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.” Their article argued that a tort remedy should be available for those whose privacy had been violated in such a way. Warren and Brandeis's thesis exemplified a trend in legal thought that would achieve more prominence in the Internet Age: the need for normative, 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.” <ref>Viktor Mayer-Schönberger, ''Delete: The Virtue of Forgetting in the Digital Age'' 49 (2009)</ref>. Four technological advances (digitization of information, cheap storage, easy retrieval, and the global reach of the Internet) have made all memories permanent. <ref>''Id''. at 52.</ref> 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028875 ''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 utilize online and real world reputation when making decisions in a way that was not feasible years ago. Strahilevitz discusses both the positive and negative ramifications of this information surplus, but other scholars have focused on its negative effect on offline lives. Professor Daniel Solove in [http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text.htm 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 whose refusal to pick up her dog’s waste led to her picture becoming famous online. A commenter on a blog which discussed this picture stated “[r]ight 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 each 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 his life.

=Proposed Mid-term Content Management System=

==Our Approach==

Many proposals regarding online reputation and information share several characteristics: significant government intervention and a focus on dramatic short-term reputation harm. Regarding intervention, many 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 [http://www.law.ucla.edu/volokh/privacy.htm#SpeechOnMattersOfPrivateConcern ''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. Many proposals that involve the government restricting speech would likely face significant First Amendment roadblocks.

Often 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 content, such as a drunk picture or an inappropriate Facebook group on which an individual once posted. Such activities likely do not rise to the level warranting litigation or complete erasure of one's online identity, but they could negatively affect one’s professional and personal relationships. They are the equivalent of putting one's foot in one's mouth.

Our project departs from these proposals both in its focus and implementation. We have divided online reputation into three different types: short-term, medium-term, and long-term. Short-term harms are exemplified by those involved with the [http://jezebel.com/5652114/college-girls-power-point-fuck-list-goes-viral-gallery Duke sex powerpoint scandal], in which an incendiary piece of information creates immediate and dramatic ramifications for one’s reputation. Long-term reputational content is something that has been built over many years, such as one’s [http://pages.ebay.com/services/forum/feedback.html eBay rating]. Medium-term reputational content is not necessarily immediately recognized as harmful, but its 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 issues. In an online world in which everything is recorded for eternity, how do you accommodate a person's ability to mature and change?

Our proposal relies on a combination of a market- and norms-based approaches. Jonathan Zittrain creates a classification system for such approaches to online issues in his article [http://law.fordham.edu/assets/LawReview/Zittrain_Vol_78_May.pdf ''The Fourth Quadrant'']. This system uses two measures: how “generative” the approach 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 options. 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 blog’ 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 several potential approaches 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.

==Assumptions==

As discussed above, there are three distinct phases of reputation: short term, mid-term and long term. Our model is targeted solely at mid-term reputational issues. Short and long term issues will require other mechanisms and should be considered independently.

When composing our model, we had four core assumptions:
*1) All user-generated content should expire and cease to be publically available after a set length of time, unless is it actively renewed. This theory follows from Viktor Mayer-Schönberger’s work.
*2) The path of least resistance should result in the socially optimal outcome. This means that whenever a user follows default settings or acts in a lazy or apathetic fashion, the end result should be desirable. The model should make doing the “right” thing as easy as possible.
*3) Direct, personal communications between real people lead to more cooperative outcomes. A user can empathize and be more receptive to an individualized appeal from another person than he would be to an automated message. Building these sorts of communications into the system fosters a social norm of cooperation and understanding.
*4) The system should be content neutral so as to increase efficiency and avoid arbitrary implementation. If the system discriminated in how it treated content based on what type of content it was, then the process would get bogged down in the minutiae of moralistic review.

Our model will present a process by which content expires or renews, depending on how implicated parties intervene or abdicate. In the model, P is a user who initially posts content, Q is a user who is represented in the content, and R is a third-party bystander.

The system would be applied by social media websites that choose to apply it. There is no feasible method of mandating its use, nor is there a reason to. These websites will want to implement this system or one similar to it of their own accord. Here’s why:
*1) The system will make a website more desirable to users who value their privacy and reputations.
*2) The system creates a stickiness that will keep users coming back to the social media website that uses it.
*3) The system does not substantially impede websites ability to profit from data mining, thus allowing them to promise greater privacy protections to their users without hurting the company’s source of revenue.

Finally, it is important to note that the system is not designed to be 100% effective at addressing all potentially problematic content. The goal is solely to create a process that is easy to implement, easy to understand, and will achieve the socially optimal result in the vast majority of cases.

==Model==
[[Image:New Model.jpg]]

*1) A user, P, is presented with preferences when he first uses the system. He can either use the presets chosen by the website or adjust the preferences to his taste. These preferences would determine his default actions for expirations, renewals, notifications, protests, etc.
*2) P posts content on the website.
*3) P chooses an expiration date for his content or uses his default expiration settings.
*4) The content might contain a representation of Q. Q can then be “marked” on the content by P, Q or R. To be “marked” means that Q is alerted that he is implicated in this content and is given the option to be notified when the content comes up for renewal.
*5) If no one is marked on the content, then P will, in accordance with his preferences, receive a notification 30 days prior to the content’s expiration date. P can then choose to renew the content or do nothing. If P does nothing, the content expires.
*6) If Q is marked but never opts in for notification, then the content is treated as if no one is marked.
*7) If Q is marked and opts in for notification, and if P chooses to renew the content, then Q will receive a notification that P chose to renew the content.
*8) Q can ignore this notification and the content will renew as per P’s decision.
*9) Alternatively, Q can “protest” P’s decision to renew the content. This means that Q would send a message to P saying that he doesn’t want the content renewed and explaining why. This protest would contain standard options that Q could select for his reasoning, but Q would also be required to compose a personalized message to P.
*10) P, upon receiving Q’s protest, can choose to move forward with the renewal (with or without modifying the content), halt the public renewal, or do nothing.
*11) If P does nothing, the content will expire, as per Q’s wishes.
*12) If P halts the public renewal, the content will still be kept in P’s private archive but will not be viewable to any other users.
*13) If P chooses to move forward with the renewal (with or without modifying the content), P must then send a response to Q explaining why P chose to renew the content over Q’s protest. This would also be a personalized message.
*14) Upon receiving P’s response, Q might be satisfied with P’s reasons or modifications. If Q does nothing, the content will renew.
*15) If Q is partially dissatisfied with P’s response, Q could chose to add an “asterisk” to the content. This would be a discrete message that viewers of the content would see, consisting of Q’s protest to P. The content would renew with the asterisk.
*16) If Q is substantially dissatisfied with P’s response, Q could appeal the renewal to an adjudication process. This process would determine whether or not the content renews.

==Explanation of the Model==

'''Users will set preferences or use default preferences for expiration and notification to streamline decisions.''' These will help triage content to prevent users from being deluged with notifications.
*For example, presets could allow users to auto-ignore, auto-opt in to notify, or auto-protest based on the identity of the other party. Certain groups might get trusted automatically, while others would be automatically suspect.
**E.g. If your mother marks you in a photo, you know that most of the time you probably don’t need to worry about its content.
*However, because the purpose of the system is to expire valueless content, users would not be allowed to set their preferences to auto-renew their content.

'''When P chooses an expiration date, P can opt to receive or not receive notice prior to expiration.''' Presumably, most content, being transitory, will be allowed to expire w/o notice (e.g. status posts, comments, tweets, etc). Thus, only truly substantive content would ever even require subsequent action by P or Q.

'''Only an actual person depicted by the content would have “standing” to be marked.'''
*This rule’s efficient application will compensate for its under-inclusivity. Trying to get 100% inclusivity for all affected users or content would make the perfect the enemy of the good.
*The rule will also help prevent large groups from ganging up to harass one person.

'''Captchas would be used to ensure that only real people will be able to mark content.'''

'''Q should not have the ability to prevent expiration.''' The content belongs to P; if he wants to expire it, that’s his right.

'''R should not have the ability to prevent either expiration or renewal.''' Being neither the owner of the content (P) nor someone implicated in the content (Q), a third party should have no rights to dictate what happens or doesn’t happen with the content.

'''Users could maintain a private archive of their content that will not expire, subject to their preferences.''' Many users use online social media websites as multimedia diaries of their lives. Users should have the option of permanently retaining all of their own content for private viewing. But they should not be able to keep such information publicly viewable without going through the system.
*Our chief concern is controlling mid-term reputational effects. Thus, if something is private, it cannot substantively affect someone else’s reputation and does not need to be constrained.

'''No one will be able to search for asterisks.''' Asterisks serve to explain content that Q finds objectionable. By their very nature, asterisks will be associated with controversial content. If a user could search for an asterisk then these asterisks would serve as homing beacons for the very content that Q wants to disappear in the first place.

'''The adjudication process might be styled after either the Uniform Domain-Name Resolution Policy (“UDRP”) or eBay’s adjudication process.''' It is likely that this process would be contracted out to established 3rd parties. Allowing this service to be contracted out to the market will allow different methods to develop competitively to foster innovation and efficiency.
*It should be noted that the adjudication process is the only part of the model that will take a substantive look at the nature of the content.

==Concerns and Responses to the Model==

'''1. How do we prevent a deluge of expiration notifications and other notifications from the process?'''

'''Concern''': The model is likely to create a considerable amount of email notification both for P and for Q. Online social media users are generating content everyday so the flow will be constant. This flood of emails could discourage some walled gardens from implementing the model if they fear their users will abandon their network, because their mailbox is constantly flooded. Are users going to take concerns seriously when they receive so many of them over short periods of time?

'''Response''': Like in every architectural design (both physical and technological), there are tradeoffs. The benefit of the model is that it facilitates interactions and keeps users constantly apprised about content they generate and content generated about them. The con is reflected in the benefit: they are constantly kept apprised, which means they are constantly being notified. Asides from the benefit of being aware, there are some tools users could employ to avoid mailbox flooding.

Users could use their default settings to have content scheduled to expire, expire automatically, without notification. They could do this for all their content and select it as a default or they could manage pictures, status updates, posts, etc. individually. The more tailored their control over the system, the more easily users could manage their data and notifications. Content generators seeking to avoid notification from those marked to their content, could also benefit from the use of default settings. Perhaps they could set their default settings such if someone would like the content taken down, it would automatically defer to that user. The walled garden settings could also permit individuals to differentiate by user or group. For example, a default setting could look something like: I do not want to be notified if Family and Good Friends object to content being renewed and I will defer to their requests, but I would like to be notified if Pete Campbell or someone from the High School group objects.

'''2. Should there be a modified system for children? Should this system only exist for children? Should there only be one period of atonement for coming of age?'''

'''Concern''': Minors are arguably the most susceptible to generate content they later regret, is embarrassing, or could effect them in the future. They are also on the whole not as mature as the rest of the population and should be further protected from the permeability of content generated about them online. Similar to how the criminal records of minors are often expunged in the legal system, should the model guarantee minors greater protection or should the model only exist for minors?

'''Response''': Individual walled gardens are best situated to determine the individual needs of their users. While the authors of this model maintain that the model should apply universally, there is no doubt that minors are perhaps the most in need of the model. That said, individual sites that will adopt this model can best determine how they want to implement it and to what population of their users they would like to make it available to.
Perhaps there could be variations in the model for children, such as no renewal after valid complaints on the content or the availability of content expiration more frequently or when the minor comes of age. This question, however, we believe is better resolved by individual walled gardens.

'''3. Should expired content be deleted forever? Are there ways to preserve one’s content?'''

'''Concern''': One of the primary reasons individuals post content online is to share and preserve it in digital form. The model favors the deletion of information and could cause content that would have otherwise remained available for storing or sharing to be removed. What if the individuals generating the content or featured in the content want to preserve it for themselves, friends, or future generations?

'''Response''': There are alternative ways to preserve one’s content. Users could be allowed to have a public and personal digital dossier. Expired content generated by individuals could be stored in a private mechanism: both online and offline. The most secure way to retain your personal data would be off a could and stored on a personal hard drive, but perhaps a user would like to have their content in a cloud. Either way, there are multiple devices currently where users can store data that is not publicly available.

'''4. What happens if people circumvent the process and simply repost the material?'''

'''Concern''': While in theory the model may work well, what is to stop users wanting to avoid the effort of the process from simply agreeing to delete their content and reposting it again or allowing everything to expire, only to repost it again in a few years, months, days, minutes, or seconds?

'''Response''': Like any law or system, there will always be those that look for loopholes and areas of the technological court that are poorly defended. The additional affirmative effort required by users to repost content is in itself a moderate discouragement. Furthermore, the establishment of a model and the social norms governing its usage also serve to discourage users from running a red light even when they think they will not get caught. However, it is undeniable that for at least a sector of online users, the additional effort required to repost content and norms alone are not enough.

Walled gardens could develop software that is able to detect when content is reposted or identify content that is posted as the same as other content that was previously posted. Other individuals featured in the reposted content could be allowed to file a complaint with the walled garden notifying them that the content posted had already expired or was somewhere in the process of expiration.

'''5. Will this have a chilling effect on speech?'''

'''Concern''': Individuals that do not want to be over-flooded with complaints or notifications might avoid posting content that is arguably beneficial to society, simply because they know some individuals might object and they do not want to deal with the burdensome process of responding to complaints.

'''Response''': While the model in its current state might prevent content from being renewed, it certainly should not prevent individuals from originally posting the content. Individuals could set their default settings to avoid receiving notification of marking. They would thus only encounter resistance when renewing the content.

'''6. Who has standing to mark themselves to content?'''

'''Concern''': If there are no minimum requirements for standing, then content generators could be flooded by complaints and notifications form individuals that have no direct reputational stake in the content. Content that is political or otherwise controversial could be deluged with marks in order to get the content generator to remove.

'''Response''': Standing should be limited to those individuals directly featured in the content. If it is a picture, then the individual must be in the picture. If it is text, then the individuals name should be mentioned in the text. Walled gardens should establish some mechanism for verifying that those marking themselves to content actually have the standing to do so. In walled gardens such as Facebook that might be easier to accomplish, but perhaps facial recognition software can be employed or some other mechanism that can verify who markers are and whether they have indeed have standing. Perhaps the process could be outsourced to mechanical turks?

'''7. What about pictures that have social or even historical value, but where the originator of the material either does not recognize such value or does not want to put forth the additional effort to preserve it.'''

'''Concerns''': a model that favors the expiration and possible deletion of content online carries the risk of permanently deleting or creating greater access barriers to content that has social and historical value either currently or in the future.

'''Response''': A model favoring the expiration and public deletion of user generated content could certainly result in the loss of some content that has social and historic value. But this is not a new problem. Famous authors often leave manuscripts unpublished upon their death and often leave clear instructions that such material should not be published. Famous artwork is often kept in the hands of private owners and is not made available for the public at large to see.

It has always been the job news corporations and media to cover events of historical significance and obtain licensing or copyright release upon citizens who capture events of historical or social significance. It is arguably only in the last few years through the Internet that user generated content has been elevated to its current importance and presence in the public media.

Furthermore, this model should not be applied to certain institutions. Traditional news media and even current semi-news media sites should not be subject to expiration dates. Archives of newspapers and important events and news should remain available indefinitely.
Moreover, this model does not cause the deletion of material. It simply might discourage its prolonged existence online. So while the costs of acquiring content of social and historic value might have increased, they are not insurmountable.

'''8. Are we creating an environment that discourages responsibility?'''

'''Concern''': If content we generated or that is generated about us is more easily purged from the public Internet, then people will be less accountable for their actions and perhaps even act more recklessly. Furthermore, they will continue to commit follies, because the consequences are not as permanent. People should take responsibility for their actions rather than rely on deletion.

'''Response''': The above is a matter of preference. It is true that in at least some cases bad actors will make poor choices because their misgivings are more forgiven under this model, but we would argue that a good majority of bad actors are not considering the consequences of their actions at all in the moment. Perhaps getting burned by the current system could influence their behavior in the future, but the reputational damage suffered by the individual might be steeper than the lesson learned. Furthermore, it is not as if the individual was being isolated from the worse immediate effects of his follies. It is only the more longer term effects that the model shields him partially from.

'''9. What is the something cool that could happen?'''

'''Concern''': If the content generated and the marked individual does not come to a mutual agreement or solution, then what happens? Are we left back at square one?

'''Response''': There are several things that could happen. First, nothing could happen. This could be a system based solely on the contact hypothesis and social psychology research that suggests that individuals are more likely to say yes to another’s individualized request for aid or help. In a large percentage of cases, the model resolves the problem without the need for some other mechanism than the mere facilitation of interaction between two human beings.

Second, there could be a final arbitration or mediation facilitated by a third party. This third party could be in house or could be outsourced. A good example of out sourcing to a third party would be SquareTrade. SquareTrade conducted dispute resolution for eBay a few years back and was quite successful in doing so. The benefits of using an outsourced third party would be that if something had to be taken down, walled gardens would potentially be able to continue asserting their Section 230 Communications Decency Act shield by not directly or editing content on their site.
Another option would be for the walled garden to generate its own dispute resolution process. The site could do so by hiring a panel specifically assigned to do just that. The site could elect particular members of the site to vote (however, this might cause more unwanted attention to the content an individual necessarily wants eradicated).

'''10. Should certain institutions be exempt from expiration dates?'''

'''Concern''': There is certain content on the net that society would be hurt if expired: like news media organizations and websites.

'''Response''': We only intend this model to be applied by walled gardens of social media and only on user generated content.

=Literature Review=

Solove notes that “disclosure can also be harmful because it makes a person a "prisoner of [her] recorded past." People grow and change, and disclosures of information from their past can inhibit their ability to reform their behavior, to have a second chance, or to alter their life's direction. 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. P. 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 with the flood of personal information and gossip in a way that mitigates their effects on everyday life. The ensuing categorizations represent the best fit, but many elements overlap.

==Tort==

[http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html 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.

[http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text/futureofreputation-ch7.pdf 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.

Solove 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.

==Norms==

James Grimmelmann in [http://works.bepress.com/cgi/viewcontent.cgi?article=1019&context=james_grimmelmann 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 align 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.

[http://futureoftheinternet.org/reputation-bankruptcy 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 could be compatible with all categories depending upon how he further defines it.

Lauren Gelman in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520111 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 that 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 users accessing the information.

==Technological==

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; expiration dates can only be extended by social mandate. <ref> ''Id''. at 184-192.</ref>

==Regulatory==

Frank Pasquale in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=888327 Rankings, Reductionism, and Responsibility] and in [http://www.law.umaryland.edu/academics/journals/jbtl/issues/3_1/3_1_061_Pasquale.pdf Asterisk Revisited: Debating a Right of Reply on Search Results] proposes 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.

The [http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html 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.”

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1462&format=HTML&aged=0&language=EN&guiLanguage=fr

http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html

http://redtape.msnbc.com/2010/11/eu-to-create-right-to-be-forgotten-online.html

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. <ref>Cass Sunstein, ''On Rumors'' 78-79 (2009).</ref> 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.

[http://volokh.com/posts/1176705254.shtml 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.

==Market==

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

Bonneau and Prebusch conclude that “the market for privacy in social networks is dysfunctional in that there is significant variation in sites’ privacy controls, data collection requirements, and legal privacy policies, but this is not effectively conveyed to users.” They also find that “privacy is rarely used as a selling point, even then only as auxiliary, nondecisive feature.” Bonneau and Prebusch advocate “a privacy communication game, where the economically rational choice for a site operator is to make privacy control available to evade criticism from privacy fundamentalists, while hiding the privacy control interface and privacy policy to maximize sign-up numbers and encourage data sharing from the pragmatic majority of users.” Their proposal is in tension with our model insofar as it would make privacy policies even more inaccessible to users; our proposal seeks to market privacy as a selling point based on user-preferences and principles of reputation-management, while protecting the ability of site operators to use member data.

==Property==

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.

==Other Research==
http://www.pewinternet.org/Reports/2010/Reputation-Management.aspx

A May 2010 Pew Internet and American Life study suggests that privacy is highly valued by the next generation of social networking users. The report found that “Young adults, far from being indifferent about their digital footprints, are the most active online reputation managers in several dimensions. For example, more than two-thirds (71%) of social networking users ages 18-29 have changed the privacy settings on their profile to limit what they share with others online.” In addition, “When compared with older users, young adults are more likely to restrict what they share and whom they share it with. Mary Madden, one of the coauthors, stated that “Contrary to the popular perception that younger users embrace a laissez-faire attitude about their online reputations, young adults are often more vigilant than older adults when it comes to managing their online identities.”

A study by scholars at the University of Berkeley Center for Law & Technology, Center for the Study of Law and Society, and the University of Pennsylvania - Annenberg School for Communication found privacy norms that are consistent with our model. For instance, “Large proportions of all age groups have refused to provide information to a business for privacy reasons. They agree or agree strongly with the norm that a person should get permission before posting a photo of someone who is clearly recognizable to the internet, even if that photo was taken in public. They agree that there should be a law that gives people the right to know
“everything that a website knows about them.” And they agree that there should be a law
that requires websites and advertising companies to delete “all stored information” about
an individual.” Page 11. Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864

[[Image: Right to Delete.jpg]]<ref>Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864.</ref>

Drive-Thru Arbitration in the Digital Age: Empowering Consumers through Binding ODR [article]
Baylor Law Review, Vol. 62, Issue 1 (2010), pp. 178-244 Schmitz, Amy J. 62 Baylor L. Rev. 178 (2010)

Many articles discuss privacy and data management in the context of online commercial transactions. See, e.g. Milne, G. R. and Culnan, M. J. (2004), Strategies for reducing online privacy risks: Why consumers read (or don't read) online privacy notices. Journal of Interactive Marketing, 18: 15–29. doi: 10.1002/dir.20009 (concluding that reading is related to concern for privacy, positive perceptions about notice comprehension, and higher levels of trust in the notice); Consumer Online Privacy: Legal and Ethical Issues, Eve M. Caudill and Patrick E. Murphy, Journal of Public Policy & Marketing Vol. 19, No. 1, Privacy and Ethical Issues in Database/Interactive Marketing and Public Policy (Spring, 2000), pp. 7-19 (article consists of 13 pages), Published by: American Marketing Association Stable URL: http://www.jstor.org/stable/30000483 (reviewing ethical theories that apply to consumer privacy and offering specific suggestions for corporate ethical policy and public policy).

=Notes=
<references />

GROUP ONE

2010-11-27T04:02:10Z

Davidrbrody: /* Our Approach */

=Introduction=

Perhaps the seminal article of privacy is Samuel Warren and Louis Brandeis’ Harvard Law Review article [http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html''The Right to Privacy''] from 1890. The authors wrote this article in response to the invention of new camera technology that allowed for instantaneous photographs. Warren and Brandeis feared that such technology 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.” Their article argued that a tort remedy should be available for those whose privacy had been violated in such a way. Warren and Brandeis's thesis exemplified a trend in legal thought that would achieve more prominence in the Internet Age: the need for normative, 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.” <ref>Viktor Mayer-Schönberger, ''Delete: The Virtue of Forgetting in the Digital Age'' 49 (2009)</ref>. Four technological advances (digitization of information, cheap storage, easy retrieval, and the global reach of the Internet) have made all memories permanent. <ref>''Id''. at 52.</ref> 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028875 ''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 utilize online and real world reputation when making decisions in a way that was not feasible years ago. Strahilevitz discusses both the positive and negative ramifications of this information surplus, but other scholars have focused on its negative effect on offline lives. Professor Daniel Solove in [http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text.htm 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 whose refusal to pick up her dog’s waste led to her picture becoming famous online. A commenter on a blog which discussed this picture stated “[r]ight 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 each 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 his life.

=Proposed Mid-term Content Management System=

==Our Approach==

Many proposals regarding online reputation and information share several characteristics: significant government intervention and a focus on dramatic short-term reputation harm. Regarding intervention, many 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 [http://www.law.ucla.edu/volokh/privacy.htm#SpeechOnMattersOfPrivateConcern ''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. Many proposals that involve the government restricting speech would likely face significant First Amendment roadblocks.

Often 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 content, such as a drunk picture or an inappropriate Facebook group on which an individual once posted. Such activities likely do not rise to the level warranting litigation or complete erasure of one's online identity, but they could negatively affect one’s professional and personal relationships. They are the equivalent of putting one's foot in one's mouth.

Our project departs from these proposals both in its focus and implementation. We have divided online reputation into three different types: short-term, medium-term, and long-term. Short-term harms are exemplified by those involved with the [http://jezebel.com/5652114/college-girls-power-point-fuck-list-goes-viral-gallery Duke sex powerpoint scandal], in which an incendiary piece of information creates immediate and dramatic ramifications for one’s reputation. Long-term reputational content is something that has been built over many years, such as one’s [http://pages.ebay.com/services/forum/feedback.html eBay rating]. Medium-term reputational content is not necessarily immediately recognized as harmful, but its 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 issues. In an online world in which everything is recorded for eternity, how do you accommodate a person's ability to mature and change?

Our proposal relies on a combination of a market- and norms-based approaches. Jonathan Zittrain creates a classification system for such approaches to online issues in his article [http://law.fordham.edu/assets/LawReview/Zittrain_Vol_78_May.pdf ''The Fourth Quadrant'']. This system uses two measures: how “generative” the approach 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 options. 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 several potential approaches 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.

==Assumptions==

As discussed above, there are three distinct phases of reputation: short term, mid-term and long term. Our model is targeted solely at mid-term reputational issues. Short and long term issues will require other mechanisms and should be considered independently.

When composing our model, we had four core assumptions:
*1) All user-generated content should expire and cease to be publically available after a set length of time, unless is it actively renewed. This theory follows from Viktor Mayer-Schönberger’s work.
*2) The path of least resistance should result in the socially optimal outcome. This means that whenever a user follows default settings or acts in a lazy or apathetic fashion, the end result should be desirable. The model should make doing the “right” thing as easy as possible.
*3) Direct, personal communications between real people lead to more cooperative outcomes. A user can empathize and be more receptive to an individualized appeal from another person than he would be to an automated message. Building these sorts of communications into the system fosters a social norm of cooperation and understanding.
*4) The system should be content neutral so as to increase efficiency and avoid arbitrary implementation. If the system discriminated in how it treated content based on what type of content it was, then the process would get bogged down in the minutiae of moralistic review.

Our model will present a process by which content expires or renews, depending on how implicated parties intervene or abdicate. In the model, P is a user who initially posts content, Q is a user who is represented in the content, and R is a third-party bystander.

The system would be applied by social media websites that choose to apply it. There is no feasible method of mandating its use, nor is there a reason to. These websites will want to implement this system or one similar to it of their own accord. Here’s why:
*1) The system will make a website more desirable to users who value their privacy and reputations.
*2) The system creates a stickiness that will keep users coming back to the social media website that uses it.
*3) The system does not substantially impede websites ability to profit from data mining, thus allowing them to promise greater privacy protections to their users without hurting the company’s source of revenue.

Finally, it is important to note that the system is not designed to be 100% effective at addressing all potentially problematic content. The goal is solely to create a process that is easy to implement, easy to understand, and will achieve the socially optimal result in the vast majority of cases.

==Model==
[[Image:New Model.jpg]]

*1) A user, P, is presented with preferences when he first uses the system. He can either use the presets chosen by the website or adjust the preferences to his taste. These preferences would determine his default actions for expirations, renewals, notifications, protests, etc.
*2) P posts content on the website.
*3) P chooses an expiration date for his content or uses his default expiration settings.
*4) The content might contain a representation of Q. Q can then be “marked” on the content by P, Q or R. To be “marked” means that Q is alerted that he is implicated in this content and is given the option to be notified when the content comes up for renewal.
*5) If no one is marked on the content, then P will, in accordance with his preferences, receive a notification 30 days prior to the content’s expiration date. P can then choose to renew the content or do nothing. If P does nothing, the content expires.
*6) If Q is marked but never opts in for notification, then the content is treated as if no one is marked.
*7) If Q is marked and opts in for notification, and if P chooses to renew the content, then Q will receive a notification that P chose to renew the content.
*8) Q can ignore this notification and the content will renew as per P’s decision.
*9) Alternatively, Q can “protest” P’s decision to renew the content. This means that Q would send a message to P saying that he doesn’t want the content renewed and explaining why. This protest would contain standard options that Q could select for his reasoning, but Q would also be required to compose a personalized message to P.
*10) P, upon receiving Q’s protest, can choose to move forward with the renewal (with or without modifying the content), halt the public renewal, or do nothing.
*11) If P does nothing, the content will expire, as per Q’s wishes.
*12) If P halts the public renewal, the content will still be kept in P’s private archive but will not be viewable to any other users.
*13) If P chooses to move forward with the renewal (with or without modifying the content), P must then send a response to Q explaining why P chose to renew the content over Q’s protest. This would also be a personalized message.
*14) Upon receiving P’s response, Q might be satisfied with P’s reasons or modifications. If Q does nothing, the content will renew.
*15) If Q is partially dissatisfied with P’s response, Q could chose to add an “asterisk” to the content. This would be a discrete message that viewers of the content would see, consisting of Q’s protest to P. The content would renew with the asterisk.
*16) If Q is substantially dissatisfied with P’s response, Q could appeal the renewal to an adjudication process. This process would determine whether or not the content renews.

==Explanation of the Model==

'''Users will set preferences or use default preferences for expiration and notification to streamline decisions.''' These will help triage content to prevent users from being deluged with notifications.
*For example, presets could allow users to auto-ignore, auto-opt in to notify, or auto-protest based on the identity of the other party. Certain groups might get trusted automatically, while others would be automatically suspect.
**E.g. If your mother marks you in a photo, you know that most of the time you probably don’t need to worry about its content.
*However, because the purpose of the system is to expire valueless content, users would not be allowed to set their preferences to auto-renew their content.

'''When P chooses an expiration date, P can opt to receive or not receive notice prior to expiration.''' Presumably, most content, being transitory, will be allowed to expire w/o notice (e.g. status posts, comments, tweets, etc). Thus, only truly substantive content would ever even require subsequent action by P or Q.

'''Only an actual person depicted by the content would have “standing” to be marked.'''
*This rule’s efficient application will compensate for its under-inclusivity. Trying to get 100% inclusivity for all affected users or content would make the perfect the enemy of the good.
*The rule will also help prevent large groups from ganging up to harass one person.

'''Captchas would be used to ensure that only real people will be able to mark content.'''

'''Q should not have the ability to prevent expiration.''' The content belongs to P; if he wants to expire it, that’s his right.

'''R should not have the ability to prevent either expiration or renewal.''' Being neither the owner of the content (P) nor someone implicated in the content (Q), a third party should have no rights to dictate what happens or doesn’t happen with the content.

'''Users could maintain a private archive of their content that will not expire, subject to their preferences.''' Many users use online social media websites as multimedia diaries of their lives. Users should have the option of permanently retaining all of their own content for private viewing. But they should not be able to keep such information publicly viewable without going through the system.
*Our chief concern is controlling mid-term reputational effects. Thus, if something is private, it cannot substantively affect someone else’s reputation and does not need to be constrained.

'''No one will be able to search for asterisks.''' Asterisks serve to explain content that Q finds objectionable. By their very nature, asterisks will be associated with controversial content. If a user could search for an asterisk then these asterisks would serve as homing beacons for the very content that Q wants to disappear in the first place.

'''The adjudication process might be styled after either the Uniform Domain-Name Resolution Policy (“UDRP”) or eBay’s adjudication process.''' It is likely that this process would be contracted out to established 3rd parties. Allowing this service to be contracted out to the market will allow different methods to develop competitively to foster innovation and efficiency.
*It should be noted that the adjudication process is the only part of the model that will take a substantive look at the nature of the content.

==Concerns and Responses to the Model==

'''1. How do we prevent a deluge of expiration notifications and other notifications from the process?'''

'''Concern''': The model is likely to create a considerable amount of email notification both for P and for Q. Online social media users are generating content everyday so the flow will be constant. This flood of emails could discourage some walled gardens from implementing the model if they fear their users will abandon their network, because their mailbox is constantly flooded. Are users going to take concerns seriously when they receive so many of them over short periods of time?

'''Response''': Like in every architectural design (both physical and technological), there are tradeoffs. The benefit of the model is that it facilitates interactions and keeps users constantly apprised about content they generate and content generated about them. The con is reflected in the benefit: they are constantly kept apprised, which means they are constantly being notified. Asides from the benefit of being aware, there are some tools users could employ to avoid mailbox flooding.

Users could use their default settings to have content scheduled to expire, expire automatically, without notification. They could do this for all their content and select it as a default or they could manage pictures, status updates, posts, etc. individually. The more tailored their control over the system, the more easily users could manage their data and notifications. Content generators seeking to avoid notification from those marked to their content, could also benefit from the use of default settings. Perhaps they could set their default settings such if someone would like the content taken down, it would automatically defer to that user. The walled garden settings could also permit individuals to differentiate by user or group. For example, a default setting could look something like: I do not want to be notified if Family and Good Friends object to content being renewed and I will defer to their requests, but I would like to be notified if Pete Campbell or someone from the High School group objects.

'''2. Should there be a modified system for children? Should this system only exist for children? Should there only be one period of atonement for coming of age?'''

'''Concern''': Minors are arguably the most susceptible to generate content they later regret, is embarrassing, or could effect them in the future. They are also on the whole not as mature as the rest of the population and should be further protected from the permeability of content generated about them online. Similar to how the criminal records of minors are often expunged in the legal system, should the model guarantee minors greater protection or should the model only exist for minors?

'''Response''': Individual walled gardens are best situated to determine the individual needs of their users. While the authors of this model maintain that the model should apply universally, there is no doubt that minors are perhaps the most in need of the model. That said, individual sites that will adopt this model can best determine how they want to implement it and to what population of their users they would like to make it available to.
Perhaps there could be variations in the model for children, such as no renewal after valid complaints on the content or the availability of content expiration more frequently or when the minor comes of age. This question, however, we believe is better resolved by individual walled gardens.

'''3. Should expired content be deleted forever? Are there ways to preserve one’s content?'''

'''Concern''': One of the primary reasons individuals post content online is to share and preserve it in digital form. The model favors the deletion of information and could cause content that would have otherwise remained available for storing or sharing to be removed. What if the individuals generating the content or featured in the content want to preserve it for themselves, friends, or future generations?

'''Response''': There are alternative ways to preserve one’s content. Users could be allowed to have a public and personal digital dossier. Expired content generated by individuals could be stored in a private mechanism: both online and offline. The most secure way to retain your personal data would be off a could and stored on a personal hard drive, but perhaps a user would like to have their content in a cloud. Either way, there are multiple devices currently where users can store data that is not publicly available.

'''4. What happens if people circumvent the process and simply repost the material?'''

'''Concern''': While in theory the model may work well, what is to stop users wanting to avoid the effort of the process from simply agreeing to delete their content and reposting it again or allowing everything to expire, only to repost it again in a few years, months, days, minutes, or seconds?

'''Response''': Like any law or system, there will always be those that look for loopholes and areas of the technological court that are poorly defended. The additional affirmative effort required by users to repost content is in itself a moderate discouragement. Furthermore, the establishment of a model and the social norms governing its usage also serve to discourage users from running a red light even when they think they will not get caught. However, it is undeniable that for at least a sector of online users, the additional effort required to repost content and norms alone are not enough.

Walled gardens could develop software that is able to detect when content is reposted or identify content that is posted as the same as other content that was previously posted. Other individuals featured in the reposted content could be allowed to file a complaint with the walled garden notifying them that the content posted had already expired or was somewhere in the process of expiration.

'''5. Will this have a chilling effect on speech?'''

'''Concern''': Individuals that do not want to be over-flooded with complaints or notifications might avoid posting content that is arguably beneficial to society, simply because they know some individuals might object and they do not want to deal with the burdensome process of responding to complaints.

'''Response''': While the model in its current state might prevent content from being renewed, it certainly should not prevent individuals from originally posting the content. Individuals could set their default settings to avoid receiving notification of marking. They would thus only encounter resistance when renewing the content.

'''6. Who has standing to mark themselves to content?'''

'''Concern''': If there are no minimum requirements for standing, then content generators could be flooded by complaints and notifications form individuals that have no direct reputational stake in the content. Content that is political or otherwise controversial could be deluged with marks in order to get the content generator to remove.

'''Response''': Standing should be limited to those individuals directly featured in the content. If it is a picture, then the individual must be in the picture. If it is text, then the individuals name should be mentioned in the text. Walled gardens should establish some mechanism for verifying that those marking themselves to content actually have the standing to do so. In walled gardens such as Facebook that might be easier to accomplish, but perhaps facial recognition software can be employed or some other mechanism that can verify who markers are and whether they have indeed have standing. Perhaps the process could be outsourced to mechanical turks?

'''7. What about pictures that have social or even historical value, but where the originator of the material either does not recognize such value or does not want to put forth the additional effort to preserve it.'''

'''Concerns''': a model that favors the expiration and possible deletion of content online carries the risk of permanently deleting or creating greater access barriers to content that has social and historical value either currently or in the future.

'''Response''': A model favoring the expiration and public deletion of user generated content could certainly result in the loss of some content that has social and historic value. But this is not a new problem. Famous authors often leave manuscripts unpublished upon their death and often leave clear instructions that such material should not be published. Famous artwork is often kept in the hands of private owners and is not made available for the public at large to see.

It has always been the job news corporations and media to cover events of historical significance and obtain licensing or copyright release upon citizens who capture events of historical or social significance. It is arguably only in the last few years through the Internet that user generated content has been elevated to its current importance and presence in the public media.

Furthermore, this model should not be applied to certain institutions. Traditional news media and even current semi-news media sites should not be subject to expiration dates. Archives of newspapers and important events and news should remain available indefinitely.
Moreover, this model does not cause the deletion of material. It simply might discourage its prolonged existence online. So while the costs of acquiring content of social and historic value might have increased, they are not insurmountable.

'''8. Are we creating an environment that discourages responsibility?'''

'''Concern''': If content we generated or that is generated about us is more easily purged from the public Internet, then people will be less accountable for their actions and perhaps even act more recklessly. Furthermore, they will continue to commit follies, because the consequences are not as permanent. People should take responsibility for their actions rather than rely on deletion.

'''Response''': The above is a matter of preference. It is true that in at least some cases bad actors will make poor choices because their misgivings are more forgiven under this model, but we would argue that a good majority of bad actors are not considering the consequences of their actions at all in the moment. Perhaps getting burned by the current system could influence their behavior in the future, but the reputational damage suffered by the individual might be steeper than the lesson learned. Furthermore, it is not as if the individual was being isolated from the worse immediate effects of his follies. It is only the more longer term effects that the model shields him partially from.

'''9. What is the something cool that could happen?'''

'''Concern''': If the content generated and the marked individual does not come to a mutual agreement or solution, then what happens? Are we left back at square one?

'''Response''': There are several things that could happen. First, nothing could happen. This could be a system based solely on the contact hypothesis and social psychology research that suggests that individuals are more likely to say yes to another’s individualized request for aid or help. In a large percentage of cases, the model resolves the problem without the need for some other mechanism than the mere facilitation of interaction between two human beings.

Second, there could be a final arbitration or mediation facilitated by a third party. This third party could be in house or could be outsourced. A good example of out sourcing to a third party would be SquareTrade. SquareTrade conducted dispute resolution for eBay a few years back and was quite successful in doing so. The benefits of using an outsourced third party would be that if something had to be taken down, walled gardens would potentially be able to continue asserting their Section 230 Communications Decency Act shield by not directly or editing content on their site.
Another option would be for the walled garden to generate its own dispute resolution process. The site could do so by hiring a panel specifically assigned to do just that. The site could elect particular members of the site to vote (however, this might cause more unwanted attention to the content an individual necessarily wants eradicated).

'''10. Should certain institutions be exempt from expiration dates?'''

'''Concern''': There is certain content on the net that society would be hurt if expired: like news media organizations and websites.

'''Response''': We only intend this model to be applied by walled gardens of social media and only on user generated content.

=Literature Review=

Solove notes that “disclosure can also be harmful because it makes a person a "prisoner of [her] recorded past." People grow and change, and disclosures of information from their past can inhibit their ability to reform their behavior, to have a second chance, or to alter their life's direction. 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. P. 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 with the flood of personal information and gossip in a way that mitigates their effects on everyday life. The ensuing categorizations represent the best fit, but many elements overlap.

==Tort==

[http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html 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.

[http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text/futureofreputation-ch7.pdf 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.

Solove 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.

==Norms==

James Grimmelmann in [http://works.bepress.com/cgi/viewcontent.cgi?article=1019&context=james_grimmelmann 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 align 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.

[http://futureoftheinternet.org/reputation-bankruptcy 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 could be compatible with all categories depending upon how he further defines it.

Lauren Gelman in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520111 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 that 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 users accessing the information.

==Technological==

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; expiration dates can only be extended by social mandate. <ref> ''Id''. at 184-192.</ref>

==Regulatory==

Frank Pasquale in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=888327 Rankings, Reductionism, and Responsibility] and in [http://www.law.umaryland.edu/academics/journals/jbtl/issues/3_1/3_1_061_Pasquale.pdf Asterisk Revisited: Debating a Right of Reply on Search Results] proposes 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.

The [http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html 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.”

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1462&format=HTML&aged=0&language=EN&guiLanguage=fr

http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html

http://redtape.msnbc.com/2010/11/eu-to-create-right-to-be-forgotten-online.html

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. <ref>Cass Sunstein, ''On Rumors'' 78-79 (2009).</ref> 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.

[http://volokh.com/posts/1176705254.shtml 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.

==Market==

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

Bonneau and Prebusch conclude that “the market for privacy in social networks is dysfunctional in that there is significant variation in sites’ privacy controls, data collection requirements, and legal privacy policies, but this is not effectively conveyed to users.” They also find that “privacy is rarely used as a selling point, even then only as auxiliary, nondecisive feature.” Bonneau and Prebusch advocate “a privacy communication game, where the economically rational choice for a site operator is to make privacy control available to evade criticism from privacy fundamentalists, while hiding the privacy control interface and privacy policy to maximize sign-up numbers and encourage data sharing from the pragmatic majority of users.” Their proposal is in tension with our model insofar as it would make privacy policies even more inaccessible to users; our proposal seeks to market privacy as a selling point based on user-preferences and principles of reputation-management, while protecting the ability of site operators to use member data.

==Property==

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.

==Other Research==
http://www.pewinternet.org/Reports/2010/Reputation-Management.aspx

A May 2010 Pew Internet and American Life study suggests that privacy is highly valued by the next generation of social networking users. The report found that “Young adults, far from being indifferent about their digital footprints, are the most active online reputation managers in several dimensions. For example, more than two-thirds (71%) of social networking users ages 18-29 have changed the privacy settings on their profile to limit what they share with others online.” In addition, “When compared with older users, young adults are more likely to restrict what they share and whom they share it with. Mary Madden, one of the coauthors, stated that “Contrary to the popular perception that younger users embrace a laissez-faire attitude about their online reputations, young adults are often more vigilant than older adults when it comes to managing their online identities.”

A study by scholars at the University of Berkeley Center for Law & Technology, Center for the Study of Law and Society, and the University of Pennsylvania - Annenberg School for Communication found privacy norms that are consistent with our model. For instance, “Large proportions of all age groups have refused to provide information to a business for privacy reasons. They agree or agree strongly with the norm that a person should get permission before posting a photo of someone who is clearly recognizable to the internet, even if that photo was taken in public. They agree that there should be a law that gives people the right to know
“everything that a website knows about them.” And they agree that there should be a law
that requires websites and advertising companies to delete “all stored information” about
an individual.” Page 11. Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864

[[Image: Right to Delete.jpg]]<ref>Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864.</ref>

Drive-Thru Arbitration in the Digital Age: Empowering Consumers through Binding ODR [article]
Baylor Law Review, Vol. 62, Issue 1 (2010), pp. 178-244 Schmitz, Amy J. 62 Baylor L. Rev. 178 (2010)

Many articles discuss privacy and data management in the context of online commercial transactions. See, e.g. Milne, G. R. and Culnan, M. J. (2004), Strategies for reducing online privacy risks: Why consumers read (or don't read) online privacy notices. Journal of Interactive Marketing, 18: 15–29. doi: 10.1002/dir.20009 (concluding that reading is related to concern for privacy, positive perceptions about notice comprehension, and higher levels of trust in the notice); Consumer Online Privacy: Legal and Ethical Issues, Eve M. Caudill and Patrick E. Murphy, Journal of Public Policy & Marketing Vol. 19, No. 1, Privacy and Ethical Issues in Database/Interactive Marketing and Public Policy (Spring, 2000), pp. 7-19 (article consists of 13 pages), Published by: American Marketing Association Stable URL: http://www.jstor.org/stable/30000483 (reviewing ethical theories that apply to consumer privacy and offering specific suggestions for corporate ethical policy and public policy).

=Notes=
<references />

GROUP ONE

2010-11-27T03:51:20Z

Davidrbrody: /* Our Approach */

=Introduction=

Perhaps the seminal article of privacy is Samuel Warren and Louis Brandeis’ Harvard Law Review article [http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html''The Right to Privacy''] from 1890. The authors wrote this article in response to the invention of new camera technology that allowed for instantaneous photographs. Warren and Brandeis feared that such technology 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.” Their article argued that a tort remedy should be available for those whose privacy had been violated in such a way. Warren and Brandeis's thesis exemplified a trend in legal thought that would achieve more prominence in the Internet Age: the need for normative, 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.” <ref>Viktor Mayer-Schönberger, ''Delete: The Virtue of Forgetting in the Digital Age'' 49 (2009)</ref>. Four technological advances (digitization of information, cheap storage, easy retrieval, and the global reach of the Internet) have made all memories permanent. <ref>''Id''. at 52.</ref> 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028875 ''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 utilize online and real world reputation when making decisions in a way that was not feasible years ago. Strahilevitz discusses both the positive and negative ramifications of this information surplus, but other scholars have focused on its negative effect on offline lives. Professor Daniel Solove in [http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text.htm 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 whose refusal to pick up her dog’s waste led to her picture becoming famous online. A commenter on a blog which discussed this picture stated “[r]ight 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 each 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 his life.

=Proposed Mid-term Content Management System=

==Our Approach==

Many proposals regarding online reputation and information share several characteristics: significant government intervention and a focus on dramatic short-term reputation harm. Regarding intervention, many 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 [http://www.law.ucla.edu/volokh/privacy.htm#SpeechOnMattersOfPrivateConcern ''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. Many proposals that involve the government restricting speech would likely face significant First Amendment roadblocks.

Often, 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 one's 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 [http://jezebel.com/5652114/college-girls-power-point-fuck-list-goes-viral-gallery 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 [http://pages.ebay.com/services/forum/feedback.html 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 [http://law.fordham.edu/assets/LawReview/Zittrain_Vol_78_May.pdf ''The Fourth Quadrant'']. This system uses two measures: how “generative” the approach 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 options. 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 several potential approaches 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.

==Assumptions==

As discussed above, there are three distinct phases of reputation: short term, mid-term and long term. Our model is targeted solely at mid-term reputational issues. Short and long term issues will require other mechanisms and should be considered independently.

When composing our model, we had four core assumptions:
*1) All user-generated content should expire and cease to be publically available after a set length of time, unless is it actively renewed. This theory follows from Viktor Mayer-Schönberger’s work.
*2) The path of least resistance should result in the socially optimal outcome. This means that whenever a user follows default settings or acts in a lazy or apathetic fashion, the end result should be desirable. The model should make doing the “right” thing as easy as possible.
*3) Direct, personal communications between real people lead to more cooperative outcomes. A user can empathize and be more receptive to an individualized appeal from another person than he would be to an automated message. Building these sorts of communications into the system fosters a social norm of cooperation and understanding.
*4) The system should be content neutral so as to increase efficiency and avoid arbitrary implementation. If the system discriminated in how it treated content based on what type of content it was, then the process would get bogged down in the minutiae of moralistic review.

Our model will present a process by which content expires or renews, depending on how implicated parties intervene or abdicate. In the model, P is a user who initially posts content, Q is a user who is represented in the content, and R is a third-party bystander.

The system would be applied by social media websites that choose to apply it. There is no feasible method of mandating its use, nor is there a reason to. These websites will want to implement this system or one similar to it of their own accord. Here’s why:
*1) The system will make a website more desirable to users who value their privacy and reputations.
*2) The system creates a stickiness that will keep users coming back to the social media website that uses it.
*3) The system does not substantially impede websites ability to profit from data mining, thus allowing them to promise greater privacy protections to their users without hurting the company’s source of revenue.

Finally, it is important to note that the system is not designed to be 100% effective at addressing all potentially problematic content. The goal is solely to create a process that is easy to implement, easy to understand, and will achieve the socially optimal result in the vast majority of cases.

==Model==
[[Image:New Model.jpg]]

*1) A user, P, is presented with preferences when he first uses the system. He can either use the presets chosen by the website or adjust the preferences to his taste. These preferences would determine his default actions for expirations, renewals, notifications, protests, etc.
*2) P posts content on the website.
*3) P chooses an expiration date for his content or uses his default expiration settings.
*4) The content might contain a representation of Q. Q can then be “marked” on the content by P, Q or R. To be “marked” means that Q is alerted that he is implicated in this content and is given the option to be notified when the content comes up for renewal.
*5) If no one is marked on the content, then P will, in accordance with his preferences, receive a notification 30 days prior to the content’s expiration date. P can then choose to renew the content or do nothing. If P does nothing, the content expires.
*6) If Q is marked but never opts in for notification, then the content is treated as if no one is marked.
*7) If Q is marked and opts in for notification, and if P chooses to renew the content, then Q will receive a notification that P chose to renew the content.
*8) Q can ignore this notification and the content will renew as per P’s decision.
*9) Alternatively, Q can “protest” P’s decision to renew the content. This means that Q would send a message to P saying that he doesn’t want the content renewed and explaining why. This protest would contain standard options that Q could select for his reasoning, but Q would also be required to compose a personalized message to P.
*10) P, upon receiving Q’s protest, can choose to move forward with the renewal (with or without modifying the content), halt the public renewal, or do nothing.
*11) If P does nothing, the content will expire, as per Q’s wishes.
*12) If P halts the public renewal, the content will still be kept in P’s private archive but will not be viewable to any other users.
*13) If P chooses to move forward with the renewal (with or without modifying the content), P must then send a response to Q explaining why P chose to renew the content over Q’s protest. This would also be a personalized message.
*14) Upon receiving P’s response, Q might be satisfied with P’s reasons or modifications. If Q does nothing, the content will renew.
*15) If Q is partially dissatisfied with P’s response, Q could chose to add an “asterisk” to the content. This would be a discrete message that viewers of the content would see, consisting of Q’s protest to P. The content would renew with the asterisk.
*16) If Q is substantially dissatisfied with P’s response, Q could appeal the renewal to an adjudication process. This process would determine whether or not the content renews.

==Explanation of the Model==

'''Users will set preferences or use default preferences for expiration and notification to streamline decisions.''' These will help triage content to prevent users from being deluged with notifications.
*For example, presets could allow users to auto-ignore, auto-opt in to notify, or auto-protest based on the identity of the other party. Certain groups might get trusted automatically, while others would be automatically suspect.
**E.g. If your mother marks you in a photo, you know that most of the time you probably don’t need to worry about its content.
*However, because the purpose of the system is to expire valueless content, users would not be allowed to set their preferences to auto-renew their content.

'''When P chooses an expiration date, P can opt to receive or not receive notice prior to expiration.''' Presumably, most content, being transitory, will be allowed to expire w/o notice (e.g. status posts, comments, tweets, etc). Thus, only truly substantive content would ever even require subsequent action by P or Q.

'''Only an actual person depicted by the content would have “standing” to be marked.'''
*This rule’s efficient application will compensate for its under-inclusivity. Trying to get 100% inclusivity for all affected users or content would make the perfect the enemy of the good.
*The rule will also help prevent large groups from ganging up to harass one person.

'''Captchas would be used to ensure that only real people will be able to mark content.'''

'''Q should not have the ability to prevent expiration.''' The content belongs to P; if he wants to expire it, that’s his right.

'''R should not have the ability to prevent either expiration or renewal.''' Being neither the owner of the content (P) nor someone implicated in the content (Q), a third party should have no rights to dictate what happens or doesn’t happen with the content.

'''Users could maintain a private archive of their content that will not expire, subject to their preferences.''' Many users use online social media websites as multimedia diaries of their lives. Users should have the option of permanently retaining all of their own content for private viewing. But they should not be able to keep such information publicly viewable without going through the system.
*Our chief concern is controlling mid-term reputational effects. Thus, if something is private, it cannot substantively affect someone else’s reputation and does not need to be constrained.

'''No one will be able to search for asterisks.''' Asterisks serve to explain content that Q finds objectionable. By their very nature, asterisks will be associated with controversial content. If a user could search for an asterisk then these asterisks would serve as homing beacons for the very content that Q wants to disappear in the first place.

'''The adjudication process might be styled after either the Uniform Domain-Name Resolution Policy (“UDRP”) or eBay’s adjudication process.''' It is likely that this process would be contracted out to established 3rd parties. Allowing this service to be contracted out to the market will allow different methods to develop competitively to foster innovation and efficiency.
*It should be noted that the adjudication process is the only part of the model that will take a substantive look at the nature of the content.

==Concerns and Responses to the Model==

'''1. How do we prevent a deluge of expiration notifications and other notifications from the process?'''

'''Concern''': The model is likely to create a considerable amount of email notification both for P and for Q. Online social media users are generating content everyday so the flow will be constant. This flood of emails could discourage some walled gardens from implementing the model if they fear their users will abandon their network, because their mailbox is constantly flooded. Are users going to take concerns seriously when they receive so many of them over short periods of time?

'''Response''': Like in every architectural design (both physical and technological), there are tradeoffs. The benefit of the model is that it facilitates interactions and keeps users constantly apprised about content they generate and content generated about them. The con is reflected in the benefit: they are constantly kept apprised, which means they are constantly being notified. Asides from the benefit of being aware, there are some tools users could employ to avoid mailbox flooding.

Users could use their default settings to have content scheduled to expire, expire automatically, without notification. They could do this for all their content and select it as a default or they could manage pictures, status updates, posts, etc. individually. The more tailored their control over the system, the more easily users could manage their data and notifications. Content generators seeking to avoid notification from those marked to their content, could also benefit from the use of default settings. Perhaps they could set their default settings such if someone would like the content taken down, it would automatically defer to that user. The walled garden settings could also permit individuals to differentiate by user or group. For example, a default setting could look something like: I do not want to be notified if Family and Good Friends object to content being renewed and I will defer to their requests, but I would like to be notified if Pete Campbell or someone from the High School group objects.

'''2. Should there be a modified system for children? Should this system only exist for children? Should there only be one period of atonement for coming of age?'''

'''Concern''': Minors are arguably the most susceptible to generate content they later regret, is embarrassing, or could effect them in the future. They are also on the whole not as mature as the rest of the population and should be further protected from the permeability of content generated about them online. Similar to how the criminal records of minors are often expunged in the legal system, should the model guarantee minors greater protection or should the model only exist for minors?

'''Response''': Individual walled gardens are best situated to determine the individual needs of their users. While the authors of this model maintain that the model should apply universally, there is no doubt that minors are perhaps the most in need of the model. That said, individual sites that will adopt this model can best determine how they want to implement it and to what population of their users they would like to make it available to.
Perhaps there could be variations in the model for children, such as no renewal after valid complaints on the content or the availability of content expiration more frequently or when the minor comes of age. This question, however, we believe is better resolved by individual walled gardens.

'''3. Should expired content be deleted forever? Are there ways to preserve one’s content?'''

'''Concern''': One of the primary reasons individuals post content online is to share and preserve it in digital form. The model favors the deletion of information and could cause content that would have otherwise remained available for storing or sharing to be removed. What if the individuals generating the content or featured in the content want to preserve it for themselves, friends, or future generations?

'''Response''': There are alternative ways to preserve one’s content. Users could be allowed to have a public and personal digital dossier. Expired content generated by individuals could be stored in a private mechanism: both online and offline. The most secure way to retain your personal data would be off a could and stored on a personal hard drive, but perhaps a user would like to have their content in a cloud. Either way, there are multiple devices currently where users can store data that is not publicly available.

'''4. What happens if people circumvent the process and simply repost the material?'''

'''Concern''': While in theory the model may work well, what is to stop users wanting to avoid the effort of the process from simply agreeing to delete their content and reposting it again or allowing everything to expire, only to repost it again in a few years, months, days, minutes, or seconds?

'''Response''': Like any law or system, there will always be those that look for loopholes and areas of the technological court that are poorly defended. The additional affirmative effort required by users to repost content is in itself a moderate discouragement. Furthermore, the establishment of a model and the social norms governing its usage also serve to discourage users from running a red light even when they think they will not get caught. However, it is undeniable that for at least a sector of online users, the additional effort required to repost content and norms alone are not enough.

Walled gardens could develop software that is able to detect when content is reposted or identify content that is posted as the same as other content that was previously posted. Other individuals featured in the reposted content could be allowed to file a complaint with the walled garden notifying them that the content posted had already expired or was somewhere in the process of expiration.

'''5. Will this have a chilling effect on speech?'''

'''Concern''': Individuals that do not want to be over-flooded with complaints or notifications might avoid posting content that is arguably beneficial to society, simply because they know some individuals might object and they do not want to deal with the burdensome process of responding to complaints.

'''Response''': While the model in its current state might prevent content from being renewed, it certainly should not prevent individuals from originally posting the content. Individuals could set their default settings to avoid receiving notification of marking. They would thus only encounter resistance when renewing the content.

'''6. Who has standing to mark themselves to content?'''

'''Concern''': If there are no minimum requirements for standing, then content generators could be flooded by complaints and notifications form individuals that have no direct reputational stake in the content. Content that is political or otherwise controversial could be deluged with marks in order to get the content generator to remove.

'''Response''': Standing should be limited to those individuals directly featured in the content. If it is a picture, then the individual must be in the picture. If it is text, then the individuals name should be mentioned in the text. Walled gardens should establish some mechanism for verifying that those marking themselves to content actually have the standing to do so. In walled gardens such as Facebook that might be easier to accomplish, but perhaps facial recognition software can be employed or some other mechanism that can verify who markers are and whether they have indeed have standing. Perhaps the process could be outsourced to mechanical turks?

'''7. What about pictures that have social or even historical value, but where the originator of the material either does not recognize such value or does not want to put forth the additional effort to preserve it.'''

'''Concerns''': a model that favors the expiration and possible deletion of content online carries the risk of permanently deleting or creating greater access barriers to content that has social and historical value either currently or in the future.

'''Response''': A model favoring the expiration and public deletion of user generated content could certainly result in the loss of some content that has social and historic value. But this is not a new problem. Famous authors often leave manuscripts unpublished upon their death and often leave clear instructions that such material should not be published. Famous artwork is often kept in the hands of private owners and is not made available for the public at large to see.

It has always been the job news corporations and media to cover events of historical significance and obtain licensing or copyright release upon citizens who capture events of historical or social significance. It is arguably only in the last few years through the Internet that user generated content has been elevated to its current importance and presence in the public media.

Furthermore, this model should not be applied to certain institutions. Traditional news media and even current semi-news media sites should not be subject to expiration dates. Archives of newspapers and important events and news should remain available indefinitely.
Moreover, this model does not cause the deletion of material. It simply might discourage its prolonged existence online. So while the costs of acquiring content of social and historic value might have increased, they are not insurmountable.

'''8. Are we creating an environment that discourages responsibility?'''

'''Concern''': If content we generated or that is generated about us is more easily purged from the public Internet, then people will be less accountable for their actions and perhaps even act more recklessly. Furthermore, they will continue to commit follies, because the consequences are not as permanent. People should take responsibility for their actions rather than rely on deletion.

'''Response''': The above is a matter of preference. It is true that in at least some cases bad actors will make poor choices because their misgivings are more forgiven under this model, but we would argue that a good majority of bad actors are not considering the consequences of their actions at all in the moment. Perhaps getting burned by the current system could influence their behavior in the future, but the reputational damage suffered by the individual might be steeper than the lesson learned. Furthermore, it is not as if the individual was being isolated from the worse immediate effects of his follies. It is only the more longer term effects that the model shields him partially from.

'''9. What is the something cool that could happen?'''

'''Concern''': If the content generated and the marked individual does not come to a mutual agreement or solution, then what happens? Are we left back at square one?

'''Response''': There are several things that could happen. First, nothing could happen. This could be a system based solely on the contact hypothesis and social psychology research that suggests that individuals are more likely to say yes to another’s individualized request for aid or help. In a large percentage of cases, the model resolves the problem without the need for some other mechanism than the mere facilitation of interaction between two human beings.

Second, there could be a final arbitration or mediation facilitated by a third party. This third party could be in house or could be outsourced. A good example of out sourcing to a third party would be SquareTrade. SquareTrade conducted dispute resolution for eBay a few years back and was quite successful in doing so. The benefits of using an outsourced third party would be that if something had to be taken down, walled gardens would potentially be able to continue asserting their Section 230 Communications Decency Act shield by not directly or editing content on their site.
Another option would be for the walled garden to generate its own dispute resolution process. The site could do so by hiring a panel specifically assigned to do just that. The site could elect particular members of the site to vote (however, this might cause more unwanted attention to the content an individual necessarily wants eradicated).

'''10. Should certain institutions be exempt from expiration dates?'''

'''Concern''': There is certain content on the net that society would be hurt if expired: like news media organizations and websites.

'''Response''': We only intend this model to be applied by walled gardens of social media and only on user generated content.

=Literature Review=

Solove notes that “disclosure can also be harmful because it makes a person a "prisoner of [her] recorded past." People grow and change, and disclosures of information from their past can inhibit their ability to reform their behavior, to have a second chance, or to alter their life's direction. 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. P. 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 with the flood of personal information and gossip in a way that mitigates their effects on everyday life. The ensuing categorizations represent the best fit, but many elements overlap.

==Tort==

[http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html 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.

[http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text/futureofreputation-ch7.pdf 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.

Solove 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.

==Norms==

James Grimmelmann in [http://works.bepress.com/cgi/viewcontent.cgi?article=1019&context=james_grimmelmann 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 align 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.

[http://futureoftheinternet.org/reputation-bankruptcy 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 could be compatible with all categories depending upon how he further defines it.

Lauren Gelman in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520111 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 that 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 users accessing the information.

==Technological==

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; expiration dates can only be extended by social mandate. <ref> ''Id''. at 184-192.</ref>

==Regulatory==

Frank Pasquale in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=888327 Rankings, Reductionism, and Responsibility] and in [http://www.law.umaryland.edu/academics/journals/jbtl/issues/3_1/3_1_061_Pasquale.pdf Asterisk Revisited: Debating a Right of Reply on Search Results] proposes 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.

The [http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html 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.”

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1462&format=HTML&aged=0&language=EN&guiLanguage=fr

http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html

http://redtape.msnbc.com/2010/11/eu-to-create-right-to-be-forgotten-online.html

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. <ref>Cass Sunstein, ''On Rumors'' 78-79 (2009).</ref> 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.

[http://volokh.com/posts/1176705254.shtml 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.

==Market==

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

Bonneau and Prebusch conclude that “the market for privacy in social networks is dysfunctional in that there is significant variation in sites’ privacy controls, data collection requirements, and legal privacy policies, but this is not effectively conveyed to users.” They also find that “privacy is rarely used as a selling point, even then only as auxiliary, nondecisive feature.” Bonneau and Prebusch advocate “a privacy communication game, where the economically rational choice for a site operator is to make privacy control available to evade criticism from privacy fundamentalists, while hiding the privacy control interface and privacy policy to maximize sign-up numbers and encourage data sharing from the pragmatic majority of users.” Their proposal is in tension with our model insofar as it would make privacy policies even more inaccessible to users; our proposal seeks to market privacy as a selling point based on user-preferences and principles of reputation-management, while protecting the ability of site operators to use member data.

==Property==

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.

==Other Research==
http://www.pewinternet.org/Reports/2010/Reputation-Management.aspx

A May 2010 Pew Internet and American Life study suggests that privacy is highly valued by the next generation of social networking users. The report found that “Young adults, far from being indifferent about their digital footprints, are the most active online reputation managers in several dimensions. For example, more than two-thirds (71%) of social networking users ages 18-29 have changed the privacy settings on their profile to limit what they share with others online.” In addition, “When compared with older users, young adults are more likely to restrict what they share and whom they share it with. Mary Madden, one of the coauthors, stated that “Contrary to the popular perception that younger users embrace a laissez-faire attitude about their online reputations, young adults are often more vigilant than older adults when it comes to managing their online identities.”

A study by scholars at the University of Berkeley Center for Law & Technology, Center for the Study of Law and Society, and the University of Pennsylvania - Annenberg School for Communication found privacy norms that are consistent with our model. For instance, “Large proportions of all age groups have refused to provide information to a business for privacy reasons. They agree or agree strongly with the norm that a person should get permission before posting a photo of someone who is clearly recognizable to the internet, even if that photo was taken in public. They agree that there should be a law that gives people the right to know
“everything that a website knows about them.” And they agree that there should be a law
that requires websites and advertising companies to delete “all stored information” about
an individual.” Page 11. Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864

[[Image: Right to Delete.jpg]]<ref>Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864.</ref>

Drive-Thru Arbitration in the Digital Age: Empowering Consumers through Binding ODR [article]
Baylor Law Review, Vol. 62, Issue 1 (2010), pp. 178-244 Schmitz, Amy J. 62 Baylor L. Rev. 178 (2010)

Many articles discuss privacy and data management in the context of online commercial transactions. See, e.g. Milne, G. R. and Culnan, M. J. (2004), Strategies for reducing online privacy risks: Why consumers read (or don't read) online privacy notices. Journal of Interactive Marketing, 18: 15–29. doi: 10.1002/dir.20009 (concluding that reading is related to concern for privacy, positive perceptions about notice comprehension, and higher levels of trust in the notice); Consumer Online Privacy: Legal and Ethical Issues, Eve M. Caudill and Patrick E. Murphy, Journal of Public Policy & Marketing Vol. 19, No. 1, Privacy and Ethical Issues in Database/Interactive Marketing and Public Policy (Spring, 2000), pp. 7-19 (article consists of 13 pages), Published by: American Marketing Association Stable URL: http://www.jstor.org/stable/30000483 (reviewing ethical theories that apply to consumer privacy and offering specific suggestions for corporate ethical policy and public policy).

=Notes=
<references />

GROUP ONE

2010-11-24T01:17:46Z

Davidrbrody: /* Concerns and Responses to the Model */

=Introduction=

=Literature Review and Background=

==The Current Situation==
Perhaps the most seminal article of privacy is Samuel Warren and Louis Brandeis’ Harvard Law Review article [http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html''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. 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.” <ref>Viktor Mayer-Schönberger, ''Delete: The Virtue of Forgetting in the Digital Age'' 49 (2009)</ref>. Four technological advances (digitization of information, cheap storage, easy retrieval, and the global reach of the Internet) have made all memories permanent. <ref>''Id''. at 52.</ref> 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028875 ''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. 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 [http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text.htm 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).

==Solutions==

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.

===Tort===

[http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html 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.

[http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text/futureofreputation-ch7.pdf 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.

===Norms===

James Grimmelmann in [http://works.bepress.com/cgi/viewcontent.cgi?article=1019&context=james_grimmelmann 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.

[http://futureoftheinternet.org/reputation-bankruptcy 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=888327 Rankings, Reductionism, and Responsibility] and in [http://www.law.umaryland.edu/academics/journals/jbtl/issues/3_1/3_1_061_Pasquale.pdf 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520111 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.

===Technological===

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. <ref> ''Id''. at 184-192.</ref>

===Regulatory===

The [http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html 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.”

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1462&format=HTML&aged=0&language=EN&guiLanguage=fr

http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html

http://redtape.msnbc.com/2010/11/eu-to-create-right-to-be-forgotten-online.html

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. <ref>Cass Sunstein, ''On Rumors'' 78-79 (2009).</ref> 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.

[http://volokh.com/posts/1176705254.shtml 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.

===Market===

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

Bonneau and Prebusch conclude that “the market for privacy in social networks is dysfunctional in that there is significant variation in sites’ privacy controls, data collection requirements, and legal privacy policies, but this is not effectively conveyed to users.” They also find that “privacy is rarely used as a selling point, even then only as auxiliary, nondecisive feature.” Bonneau and Prebusch advocate “a privacy communication game, where the economically rational choice for a site operator is to make privacy control available to evade criticism from privacy fundamentalists, while hiding the privacy control interface and privacy policy to maximize sign-up numbers and encourage data sharing from the pragmatic majority of users.” Their proposal is in tension with our model insofar as it would make privacy policies even more inaccessible to users; our proposal seeks to market privacy as a selling point based on user-preferences and principles of reputation-management, while protecting the ability of site operators to use member data.

===Property===

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 [http://www.law.ucla.edu/volokh/privacy.htm#SpeechOnMattersOfPrivateConcern ''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 [http://jezebel.com/5652114/college-girls-power-point-fuck-list-goes-viral-gallery 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 [http://pages.ebay.com/services/forum/feedback.html 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 [http://law.fordham.edu/assets/LawReview/Zittrain_Vol_78_May.pdf ''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.

==Other Research==
http://www.pewinternet.org/Reports/2010/Reputation-Management.aspx

A May 2010 Pew Internet and American Life study suggests that privacy is highly valued by the next generation of social networking users. The report found that “Young adults, far from being indifferent about their digital footprints, are the most active online reputation managers in several dimensions. For example, more than two-thirds (71%) of social networking users ages 18-29 have changed the privacy settings on their profile to limit what they share with others online.” In addition, “When compared with older users, young adults are more likely to restrict what they share and whom they share it with. Mary Madden, one of the coauthors, stated that “Contrary to the popular perception that younger users embrace a laissez-faire attitude about their online reputations, young adults are often more vigilant than older adults when it comes to managing their online identities.”

A study by scholars at the University of Berkeley Center for Law & Technology, Center for the Study of Law and Society, and the University of Pennsylvania - Annenberg School for Communication found privacy norms that are consistent with our model. For instance, “Large proportions of all age groups have refused to provide information to a business for privacy reasons. They agree or agree strongly with the norm that a person should get permission before posting a photo of someone who is clearly recognizable to the internet, even if that photo was taken in public. They agree that there should be a law that gives people the right to know
“everything that a website knows about them.” And they agree that there should be a law
that requires websites and advertising companies to delete “all stored information” about
an individual.” Page 11. Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864

[[Image: Right to Delete.jpg]]<ref>Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864.</ref>

Drive-Thru Arbitration in the Digital Age: Empowering Consumers through Binding ODR [article]
Baylor Law Review, Vol. 62, Issue 1 (2010), pp. 178-244 Schmitz, Amy J. 62 Baylor L. Rev. 178 (2010)

Many articles discuss privacy and data management in the context of online commercial transactions. See, e.g. Milne, G. R. and Culnan, M. J. (2004), Strategies for reducing online privacy risks: Why consumers read (or don't read) online privacy notices. Journal of Interactive Marketing, 18: 15–29. doi: 10.1002/dir.20009 (concluding that reading is related to concern for privacy, positive perceptions about notice comprehension, and higher levels of trust in the notice); Consumer Online Privacy: Legal and Ethical Issues, Eve M. Caudill and Patrick E. Murphy, Journal of Public Policy & Marketing Vol. 19, No. 1, Privacy and Ethical Issues in Database/Interactive Marketing and Public Policy (Spring, 2000), pp. 7-19 (article consists of 13 pages), Published by: American Marketing Association Stable URL: http://www.jstor.org/stable/30000483 (reviewing ethical theories that apply to consumer privacy and offering specific suggestions for corporate ethical policy and public policy).

=Proposed Mid-term Content Management System=
==Assumptions==

As discussed above, there are three distinct phases of reputation: short term, mid-term and long term. Our model is targeted solely at mid-term reputational issues. Short and long term issues will require other mechanisms and should be considered independently.

When composing our model, we had four core assumptions:
*1) All user-generated content should expire and cease to be publically available after a set length of time, unless is it actively renewed. This theory follows from Viktor Mayer-Schönberger’s work.
*2) The path of least resistance should result in the socially optimal outcome. This means that whenever a user follows default settings or acts in a lazy or apathetic fashion, the end result should be desirable. The model should make doing the “right” thing as easy as possible.
*3) Direct, personal communications between real people lead to more cooperative outcomes. A user can empathize and be more receptive to an individualized appeal from another person than he would be to an automated message. Building these sorts of communications into the system fosters a social norm of cooperation and understanding.
*4) The system should be content neutral so as to increase efficiency and avoid arbitrary implementation. If the system discriminated in how it treated content based on what type of content it was, then the process would get bogged down in the minutiae of moralistic review.

Our model will present a process by which content expires or renews, depending on how implicated parties intervene or abdicate. In the model, P is a user who initially posts content, Q is a user who is represented in the content, and R is a third-party bystander.

The system would be applied by social media websites that choose to apply it. There is no feasible method of mandating its use, nor is there a reason to. These websites will want to implement this system or one similar to it of their own accord. Here’s why:
*1) The system will make a website more desirable to users who value their privacy and reputations.
*2) The system creates a stickiness that will keep users coming back to the social media website that uses it.
*3) The system does not substantially impede websites ability to profit from data mining, thus allowing them to promise greater privacy protections to their users without hurting the company’s source of revenue.

Finally, it is important to note that the system is not designed to be 100% effective at addressing all potentially problematic content. The goal is solely to create a process that is easy to implement, easy to understand, and will achieve the socially optimal result in the vast majority of cases.

==Model==
[[Image:New Model.jpg]]

*1) A user, P, is presented with preferences when he first uses the system. He can either use the presets chosen by the website or adjust the preferences to his taste. These preferences would determine his default actions for expirations, renewals, notifications, protests, etc.
*2) P posts content on the website.
*3) P chooses an expiration date for his content or uses his default expiration settings.
*4) The content might contain a representation of Q. Q can then be “marked” on the content by P, Q or R. To be “marked” means that Q is alerted that he is implicated in this content and is given the option to be notified when the content comes up for renewal.
*5) If no one is marked on the content, then P will, in accordance with his preferences, receive a notification 30 days prior to the content’s expiration date. P can then choose to renew the content or do nothing. If P does nothing, the content expires.
*6) If Q is marked but never opts in for notification, then the content is treated as if no one is marked.
*7) If Q is marked and opts in for notification, and if P chooses to renew the content, then Q will receive a notification that P chose to renew the content.
*8) Q can ignore this notification and the content will renew as per P’s decision.
*9) Alternatively, Q can “protest” P’s decision to renew the content. This means that Q would send a message to P saying that he doesn’t want the content renewed and explaining why. This protest would contain standard options that Q could select for his reasoning, but Q would also be required to compose a personalized message to P.
*10) P, upon receiving Q’s protest, can choose to move forward with the renewal (with or without modifying the content), halt the public renewal, or do nothing.
*11) If P does nothing, the content will expire, as per Q’s wishes.
*12) If P halts the public renewal, the content will still be kept in P’s private archive but will not be viewable to any other users.
*13) If P chooses to move forward with the renewal (with or without modifying the content), P must then send a response to Q explaining why P chose to renew the content over Q’s protest. This would also be a personalized message.
*14) Upon receiving P’s response, Q might be satisfied with P’s reasons or modifications. If Q does nothing, the content will renew.
*15) If Q is partially dissatisfied with P’s response, Q could chose to add an “asterisk” to the content. This would be a discrete message that viewers of the content would see, consisting of Q’s protest to P. The content would renew with the asterisk.
*16) If Q is substantially dissatisfied with P’s response, Q could appeal the renewal to an adjudication process. This process would determine whether or not the content renews.

==Explanation of the Model==

'''Users will set preferences or use default preferences for expiration and notification to streamline decisions.''' These will help triage content to prevent users from being deluged with notifications.
*For example, presets could allow users to auto-ignore, auto-opt in to notify, or auto-protest based on the identity of the other party. Certain groups might get trusted automatically, while others would be automatically suspect.
**E.g. If your mother marks you in a photo, you know that most of the time you probably don’t need to worry about its content.
*However, because the purpose of the system is to expire valueless content, users would not be allowed to set their preferences to auto-renew their content.

'''When P chooses an expiration date, P can opt to receive or not receive notice prior to expiration.''' Presumably, most content, being transitory, will be allowed to expire w/o notice (e.g. status posts, comments, tweets, etc). Thus, only truly substantive content would ever even require subsequent action by P or Q.

'''Only an actual person depicted by the content would have “standing” to be marked.'''
*This rule’s efficient application will compensate for its under-inclusivity. Trying to get 100% inclusivity for all affected users or content would make the perfect the enemy of the good.
*The rule will also help prevent large groups from ganging up to harass one person.

'''Captchas would be used to ensure that only real people will be able to mark content.'''

'''Q should not have the ability to prevent expiration.''' The content belongs to P; if he wants to expire it, that’s his right.

'''R should not have the ability to prevent either expiration or renewal.''' Being neither the owner of the content (P) nor someone implicated in the content (Q), a third party should have no rights to dictate what happens or doesn’t happen with the content.

'''Users could maintain a private archive of their content that will not expire, subject to their preferences.''' Many users use online social media websites as multimedia diaries of their lives. Users should have the option of permanently retaining all of their own content for private viewing. But they should not be able to keep such information publicly viewable without going through the system.
*Our chief concern is controlling mid-term reputational effects. Thus, if something is private, it cannot substantively affect someone else’s reputation and does not need to be constrained.

'''No one will be able to search for asterisks.''' Asterisks serve to explain content that Q finds objectionable. By their very nature, asterisks will be associated with controversial content. If a user could search for an asterisk then these asterisks would serve as homing beacons for the very content that Q wants to disappear in the first place.

'''The adjudication process might be styled after either the Uniform Domain-Name Resolution Policy (“UDRP”) or eBay’s adjudication process.''' It is likely that this process would be contracted out to established 3rd parties. Allowing this service to be contracted out to the market will allow different methods to develop competitively to foster innovation and efficiency.
*It should be noted that the adjudication process is the only part of the model that will take a substantive look at the nature of the content.

==Concerns and Responses to the Model==

'''1. How do we prevent a deluge of expiration notifications and other notifications from the process?'''

'''Concern''': The model is likely to create a considerable amount of email notification both for P and for Q. Online social media users are generating content everyday so the flow will be constant. This flood of emails could discourage some walled gardens from implementing the model if they fear their users will abandon their network, because their mailbox is constantly flooded. Are users going to take concerns seriously when they receive so many of them over short periods of time?

'''Response''': Like in every architectural design (both physical and technological), there are tradeoffs. The benefit of the model is that it facilitates interactions and keeps users constantly apprised about content they generate and content generated about them. The con is reflected in the benefit: they are constantly kept apprised, which means they are constantly being notified. Asides from the benefit of being aware, there are some tools users could employ to avoid mailbox flooding.

Users could use their default settings to have content scheduled to expire, expire automatically, without notification. They could do this for all their content and select it as a default or they could manage pictures, status updates, posts, etc. individually. The more tailored their control over the system, the more easily users could manage their data and notifications. Content generators seeking to avoid notification from those marked to their content, could also benefit from the use of default settings. Perhaps they could set their default settings such if someone would like the content taken down, it would automatically defer to that user. The walled garden settings could also permit individuals to differentiate by user or group. For example, a default setting could look something like: I do not want to be notified if Family and Good Friends object to content being renewed and I will defer to their requests, but I would like to be notified if Pete Campbell or someone from the High School group objects.

'''2. Should there be a modified system for children? Should this system only exist for children? Should there only be one period of atonement for coming of age?'''

'''Concern''': Minors are arguably the most susceptible to generate content they later regret, is embarrassing, or could effect them in the future. They are also on the whole not as mature as the rest of the population and should be further protected from the permeability of content generated about them online. Similar to how the criminal records of minors are often expunged in the legal system, should the model guarantee minors greater protection or should the model only exist for minors?

'''Response''': Individual walled gardens are best situated to determine the individual needs of their users. While the authors of this model maintain that the model should apply universally, there is no doubt that minors are perhaps the most in need of the model. That said, individual sites that will adopt this model can best determine how they want to implement it and to what population of their users they would like to make it available to.
Perhaps there could be variations in the model for children, such as no renewal after valid complaints on the content or the availability of content expiration more frequently or when the minor comes of age. This question, however, we believe is better resolved by individual walled gardens.

'''3. Should expired content be deleted forever? Are there ways to preserve one’s content?'''

'''Concern''': One of the primary reasons individuals post content online is to share and preserve it in digital form. The model favors the deletion of information and could cause content that would have otherwise remained available for storing or sharing to be removed. What if the individuals generating the content or featured in the content want to preserve it for themselves, friends, or future generations?

'''Response''': There are alternative ways to preserve one’s content. Users could be allowed to have a public and personal digital dossier. Expired content generated by individuals could be stored in a private mechanism: both online and offline. The most secure way to retain your personal data would be off a could and stored on a personal hard drive, but perhaps a user would like to have their content in a cloud. Either way, there are multiple devices currently where users can store data that is not publicly available.

'''4. What happens if people circumvent the process and simply repost the material?'''

'''Concern''': While in theory the model may work well, what is to stop users wanting to avoid the effort of the process from simply agreeing to delete their content and reposting it again or allowing everything to expire, only to repost it again in a few years, months, days, minutes, or seconds?

'''Response''': Like any law or system, there will always be those that look for loopholes and areas of the technological court that are poorly defended. The additional affirmative effort required by users to repost content is in itself a moderate discouragement. Furthermore, the establishment of a model and the social norms governing its usage also serve to discourage users from running a red light even when they think they will not get caught. However, it is undeniable that for at least a sector of online users, the additional effort required to repost content and norms alone are not enough.

Walled gardens could develop software that is able to detect when content is reposted or identify content that is posted as the same as other content that was previously posted. Other individuals featured in the reposted content could be allowed to file a complaint with the walled garden notifying them that the content posted had already expired or was somewhere in the process of expiration.

'''5. Will this have a chilling effect on speech?'''

'''Concern''': Individuals that do not want to be over-flooded with complaints or notifications might avoid posting content that is arguably beneficial to society, simply because they know some individuals might object and they do not want to deal with the burdensome process of responding to complaints.

'''Response''': While the model in its current state might prevent content from being renewed, it certainly should not prevent individuals from originally posting the content. Individuals could set their default settings to avoid receiving notification of marking. They would thus only encounter resistance when renewing the content.

'''6. Who has standing to mark themselves to content?'''

'''Concern''': If there are no minimum requirements for standing, then content generators could be flooded by complaints and notifications form individuals that have no direct reputational stake in the content. Content that is political or otherwise controversial could be deluged with marks in order to get the content generator to remove.

'''Response''': Standing should be limited to those individuals directly featured in the content. If it is a picture, then the individual must be in the picture. If it is text, then the individuals name should be mentioned in the text. Walled gardens should establish some mechanism for verifying that those marking themselves to content actually have the standing to do so. In walled gardens such as Facebook that might be easier to accomplish, but perhaps facial recognition software can be employed or some other mechanism that can verify who markers are and whether they have indeed have standing. Perhaps the process could be outsourced to mechanical turks?

'''7. What about pictures that have social or even historical value, but where the originator of the material either does not recognize such value or does not want to put forth the additional effort to preserve it.'''

'''Concerns''': a model that favors the expiration and possible deletion of content online carries the risk of permanently deleting or creating greater access barriers to content that has social and historical value either currently or in the future.

'''Response''': A model favoring the expiration and public deletion of user generated content could certainly result in the loss of some content that has social and historic value. But this is not a new problem. Famous authors often leave manuscripts unpublished upon their death and often leave clear instructions that such material should not be published. Famous artwork is often kept in the hands of private owners and is not made available for the public at large to see.

It has always been the job news corporations and media to cover events of historical significance and obtain licensing or copyright release upon citizens who capture events of historical or social significance. It is arguably only in the last few years through the Internet that user generated content has been elevated to its current importance and presence in the public media.

Furthermore, this model should not be applied to certain institutions. Traditional news media and even current semi-news media sites should not be subject to expiration dates. Archives of newspapers and important events and news should remain available indefinitely.
Moreover, this model does not cause the deletion of material. It simply might discourage its prolonged existence online. So while the costs of acquiring content of social and historic value might have increased, they are not insurmountable.

'''8. Are we creating an environment that discourages responsibility?'''

'''Concern''': If content we generated or that is generated about us is more easily purged from the public Internet, then people will be less accountable for their actions and perhaps even act more recklessly. Furthermore, they will continue to commit follies, because the consequences are not as permanent. People should take responsibility for their actions rather than rely on deletion.

'''Response''': The above is a matter of preference. It is true that in at least some cases bad actors will make poor choices because their misgivings are more forgiven under this model, but we would argue that a good majority of bad actors are not considering the consequences of their actions at all in the moment. Perhaps getting burned by the current system could influence their behavior in the future, but the reputational damage suffered by the individual might be steeper than the lesson learned. Furthermore, it is not as if the individual was being isolated from the worse immediate effects of his follies. It is only the more longer term effects that the model shields him partially from.

'''9. What is the something cool that could happen?'''

'''Concern''': If the content generated and the marked individual does not come to a mutual agreement or solution, then what happens? Are we left back at square one?

'''Response''': There are several things that could happen. First, nothing could happen. This could be a system based solely on the contact hypothesis and social psychology research that suggests that individuals are more likely to say yes to another’s individualized request for aid or help. In a large percentage of cases, the model resolves the problem without the need for some other mechanism than the mere facilitation of interaction between two human beings.

Second, there could be a final arbitration or mediation facilitated by a third party. This third party could be in house or could be outsourced. A good example of out sourcing to a third party would be SquareTrade. SquareTrade conducted dispute resolution for eBay a few years back and was quite successful in doing so. The benefits of using an outsourced third party would be that if something had to be taken down, walled gardens would potentially be able to continue asserting their Section 230 Communications Decency Act shield by not directly or editing content on their site.
Another option would be for the walled garden to generate its own dispute resolution process. The site could do so by hiring a panel specifically assigned to do just that. The site could elect particular members of the site to vote (however, this might cause more unwanted attention to the content an individual necessarily wants eradicated).

'''10. Should certain institutions be exempt from expiration dates?'''

'''Concern''': There is certain content on the net that society would be hurt if expired: like news media organizations and websites.

'''Response''': We only intend this model to be applied by walled gardens of social media and only on user generated content.

=Notes=
<references />

GROUP ONE

2010-11-24T01:02:02Z

Davidrbrody: /* Explanation of the Model */

=Introduction=

=Literature Review and Background=

==The Current Situation==
Perhaps the most seminal article of privacy is Samuel Warren and Louis Brandeis’ Harvard Law Review article [http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html''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. 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.” <ref>Viktor Mayer-Schönberger, ''Delete: The Virtue of Forgetting in the Digital Age'' 49 (2009)</ref>. Four technological advances (digitization of information, cheap storage, easy retrieval, and the global reach of the Internet) have made all memories permanent. <ref>''Id''. at 52.</ref> 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028875 ''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. 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 [http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text.htm 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).

==Solutions==

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.

===Tort===

[http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html 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.

[http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text/futureofreputation-ch7.pdf 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.

===Norms===

James Grimmelmann in [http://works.bepress.com/cgi/viewcontent.cgi?article=1019&context=james_grimmelmann 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.

[http://futureoftheinternet.org/reputation-bankruptcy 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=888327 Rankings, Reductionism, and Responsibility] and in [http://www.law.umaryland.edu/academics/journals/jbtl/issues/3_1/3_1_061_Pasquale.pdf 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520111 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.

===Technological===

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. <ref> ''Id''. at 184-192.</ref>

===Regulatory===

The [http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html 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.”

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1462&format=HTML&aged=0&language=EN&guiLanguage=fr

http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html

http://redtape.msnbc.com/2010/11/eu-to-create-right-to-be-forgotten-online.html

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. <ref>Cass Sunstein, ''On Rumors'' 78-79 (2009).</ref> 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.

[http://volokh.com/posts/1176705254.shtml 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.

===Market===

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

Bonneau and Prebusch conclude that “the market for privacy in social networks is dysfunctional in that there is significant variation in sites’ privacy controls, data collection requirements, and legal privacy policies, but this is not effectively conveyed to users.” They also find that “privacy is rarely used as a selling point, even then only as auxiliary, nondecisive feature.” Bonneau and Prebusch advocate “a privacy communication game, where the economically rational choice for a site operator is to make privacy control available to evade criticism from privacy fundamentalists, while hiding the privacy control interface and privacy policy to maximize sign-up numbers and encourage data sharing from the pragmatic majority of users.” Their proposal is in tension with our model insofar as it would make privacy policies even more inaccessible to users; our proposal seeks to market privacy as a selling point based on user-preferences and principles of reputation-management, while protecting the ability of site operators to use member data.

===Property===

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 [http://www.law.ucla.edu/volokh/privacy.htm#SpeechOnMattersOfPrivateConcern ''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 [http://jezebel.com/5652114/college-girls-power-point-fuck-list-goes-viral-gallery 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 [http://pages.ebay.com/services/forum/feedback.html 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 [http://law.fordham.edu/assets/LawReview/Zittrain_Vol_78_May.pdf ''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.

==Other Research==
http://www.pewinternet.org/Reports/2010/Reputation-Management.aspx

A May 2010 Pew Internet and American Life study suggests that privacy is highly valued by the next generation of social networking users. The report found that “Young adults, far from being indifferent about their digital footprints, are the most active online reputation managers in several dimensions. For example, more than two-thirds (71%) of social networking users ages 18-29 have changed the privacy settings on their profile to limit what they share with others online.” In addition, “When compared with older users, young adults are more likely to restrict what they share and whom they share it with. Mary Madden, one of the coauthors, stated that “Contrary to the popular perception that younger users embrace a laissez-faire attitude about their online reputations, young adults are often more vigilant than older adults when it comes to managing their online identities.”

A study by scholars at the University of Berkeley Center for Law & Technology, Center for the Study of Law and Society, and the University of Pennsylvania - Annenberg School for Communication found privacy norms that are consistent with our model. For instance, “Large proportions of all age groups have refused to provide information to a business for privacy reasons. They agree or agree strongly with the norm that a person should get permission before posting a photo of someone who is clearly recognizable to the internet, even if that photo was taken in public. They agree that there should be a law that gives people the right to know
“everything that a website knows about them.” And they agree that there should be a law
that requires websites and advertising companies to delete “all stored information” about
an individual.” Page 11. Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864

[[Image: Right to Delete.jpg]]<ref>Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864.</ref>

Drive-Thru Arbitration in the Digital Age: Empowering Consumers through Binding ODR [article]
Baylor Law Review, Vol. 62, Issue 1 (2010), pp. 178-244 Schmitz, Amy J. 62 Baylor L. Rev. 178 (2010)

Many articles discuss privacy and data management in the context of online commercial transactions. See, e.g. Milne, G. R. and Culnan, M. J. (2004), Strategies for reducing online privacy risks: Why consumers read (or don't read) online privacy notices. Journal of Interactive Marketing, 18: 15–29. doi: 10.1002/dir.20009 (concluding that reading is related to concern for privacy, positive perceptions about notice comprehension, and higher levels of trust in the notice); Consumer Online Privacy: Legal and Ethical Issues, Eve M. Caudill and Patrick E. Murphy, Journal of Public Policy & Marketing Vol. 19, No. 1, Privacy and Ethical Issues in Database/Interactive Marketing and Public Policy (Spring, 2000), pp. 7-19 (article consists of 13 pages), Published by: American Marketing Association Stable URL: http://www.jstor.org/stable/30000483 (reviewing ethical theories that apply to consumer privacy and offering specific suggestions for corporate ethical policy and public policy).

=Proposed Mid-term Content Management System=
==Assumptions==

As discussed above, there are three distinct phases of reputation: short term, mid-term and long term. Our model is targeted solely at mid-term reputational issues. Short and long term issues will require other mechanisms and should be considered independently.

When composing our model, we had four core assumptions:
*1) All user-generated content should expire and cease to be publically available after a set length of time, unless is it actively renewed. This theory follows from Viktor Mayer-Schönberger’s work.
*2) The path of least resistance should result in the socially optimal outcome. This means that whenever a user follows default settings or acts in a lazy or apathetic fashion, the end result should be desirable. The model should make doing the “right” thing as easy as possible.
*3) Direct, personal communications between real people lead to more cooperative outcomes. A user can empathize and be more receptive to an individualized appeal from another person than he would be to an automated message. Building these sorts of communications into the system fosters a social norm of cooperation and understanding.
*4) The system should be content neutral so as to increase efficiency and avoid arbitrary implementation. If the system discriminated in how it treated content based on what type of content it was, then the process would get bogged down in the minutiae of moralistic review.

Our model will present a process by which content expires or renews, depending on how implicated parties intervene or abdicate. In the model, P is a user who initially posts content, Q is a user who is represented in the content, and R is a third-party bystander.

The system would be applied by social media websites that choose to apply it. There is no feasible method of mandating its use, nor is there a reason to. These websites will want to implement this system or one similar to it of their own accord. Here’s why:
*1) The system will make a website more desirable to users who value their privacy and reputations.
*2) The system creates a stickiness that will keep users coming back to the social media website that uses it.
*3) The system does not substantially impede websites ability to profit from data mining, thus allowing them to promise greater privacy protections to their users without hurting the company’s source of revenue.

Finally, it is important to note that the system is not designed to be 100% effective at addressing all potentially problematic content. The goal is solely to create a process that is easy to implement, easy to understand, and will achieve the socially optimal result in the vast majority of cases.

==Model==
[[Image:New Model.jpg]]

*1) A user, P, is presented with preferences when he first uses the system. He can either use the presets chosen by the website or adjust the preferences to his taste. These preferences would determine his default actions for expirations, renewals, notifications, protests, etc.
*2) P posts content on the website.
*3) P chooses an expiration date for his content or uses his default expiration settings.
*4) The content might contain a representation of Q. Q can then be “marked” on the content by P, Q or R. To be “marked” means that Q is alerted that he is implicated in this content and is given the option to be notified when the content comes up for renewal.
*5) If no one is marked on the content, then P will, in accordance with his preferences, receive a notification 30 days prior to the content’s expiration date. P can then choose to renew the content or do nothing. If P does nothing, the content expires.
*6) If Q is marked but never opts in for notification, then the content is treated as if no one is marked.
*7) If Q is marked and opts in for notification, and if P chooses to renew the content, then Q will receive a notification that P chose to renew the content.
*8) Q can ignore this notification and the content will renew as per P’s decision.
*9) Alternatively, Q can “protest” P’s decision to renew the content. This means that Q would send a message to P saying that he doesn’t want the content renewed and explaining why. This protest would contain standard options that Q could select for his reasoning, but Q would also be required to compose a personalized message to P.
*10) P, upon receiving Q’s protest, can choose to move forward with the renewal (with or without modifying the content), halt the public renewal, or do nothing.
*11) If P does nothing, the content will expire, as per Q’s wishes.
*12) If P halts the public renewal, the content will still be kept in P’s private archive but will not be viewable to any other users.
*13) If P chooses to move forward with the renewal (with or without modifying the content), P must then send a response to Q explaining why P chose to renew the content over Q’s protest. This would also be a personalized message.
*14) Upon receiving P’s response, Q might be satisfied with P’s reasons or modifications. If Q does nothing, the content will renew.
*15) If Q is partially dissatisfied with P’s response, Q could chose to add an “asterisk” to the content. This would be a discrete message that viewers of the content would see, consisting of Q’s protest to P. The content would renew with the asterisk.
*16) If Q is substantially dissatisfied with P’s response, Q could appeal the renewal to an adjudication process. This process would determine whether or not the content renews.

==Explanation of the Model==

'''Users will set preferences or use default preferences for expiration and notification to streamline decisions.''' These will help triage content to prevent users from being deluged with notifications.
*For example, presets could allow users to auto-ignore, auto-opt in to notify, or auto-protest based on the identity of the other party. Certain groups might get trusted automatically, while others would be automatically suspect.
**E.g. If your mother marks you in a photo, you know that most of the time you probably don’t need to worry about its content.
*However, because the purpose of the system is to expire valueless content, users would not be allowed to set their preferences to auto-renew their content.

'''When P chooses an expiration date, P can opt to receive or not receive notice prior to expiration.''' Presumably, most content, being transitory, will be allowed to expire w/o notice (e.g. status posts, comments, tweets, etc). Thus, only truly substantive content would ever even require subsequent action by P or Q.

'''Only an actual person depicted by the content would have “standing” to be marked.'''
*This rule’s efficient application will compensate for its under-inclusivity. Trying to get 100% inclusivity for all affected users or content would make the perfect the enemy of the good.
*The rule will also help prevent large groups from ganging up to harass one person.

'''Captchas would be used to ensure that only real people will be able to mark content.'''

'''Q should not have the ability to prevent expiration.''' The content belongs to P; if he wants to expire it, that’s his right.

'''R should not have the ability to prevent either expiration or renewal.''' Being neither the owner of the content (P) nor someone implicated in the content (Q), a third party should have no rights to dictate what happens or doesn’t happen with the content.

'''Users could maintain a private archive of their content that will not expire, subject to their preferences.''' Many users use online social media websites as multimedia diaries of their lives. Users should have the option of permanently retaining all of their own content for private viewing. But they should not be able to keep such information publicly viewable without going through the system.
*Our chief concern is controlling mid-term reputational effects. Thus, if something is private, it cannot substantively affect someone else’s reputation and does not need to be constrained.

'''No one will be able to search for asterisks.''' Asterisks serve to explain content that Q finds objectionable. By their very nature, asterisks will be associated with controversial content. If a user could search for an asterisk then these asterisks would serve as homing beacons for the very content that Q wants to disappear in the first place.

'''The adjudication process might be styled after either the Uniform Domain-Name Resolution Policy (“UDRP”) or eBay’s adjudication process.''' It is likely that this process would be contracted out to established 3rd parties. Allowing this service to be contracted out to the market will allow different methods to develop competitively to foster innovation and efficiency.
*It should be noted that the adjudication process is the only part of the model that will take a substantive look at the nature of the content.

==Concerns and Responses to the Model==

'''1. How do we prevent a deluge of expiration notifications and other notifications from the process?'''

'''Concern''': The model is likely to create a considerable amount of email notification both for the originator of the gater. Online social media users are generating content everyday so the flow will be constant. This flood of emails could discourage some walled gardens from implementing the model if they fear their users will abandon their network, because their mailbox is constantly flooded. Are users going to take concerns seriously when they receive so many of them over short periods of time?

'''Response''': Like in every architectural design (both physical and technological), there are tradeoffs. The benefit of the model is that it facilitates interactions and keeps users constantly apprised about content they generate and content generated about them. The con is reflected in the benefit: they are constantly kept apprised, which means they are constantly being notified. Asides from the benefit of being aware, there are some tools users could employ to avoid mailbox flooding.

Users could use their default settings to have content scheduled to expire, expire automatically, without notification. They could do this for all their content and select it as a default or they could manage pictures, status updates, posts, etc. individually. The more tailored their control over the system, the more easily users could manage their data and notifications. Content generators seeking to avoid notification from those gated to their content, could also benefit from the use of default settings. Perhaps they could set their default settings such if someone would like the content taken down, it would automatically defer to that user. The walled garden settings could also permit individuals to differentiate by user or group. For example, a default setting could look something like: I do not want to be notified if Family and Good Friends object to content being renewed and I will defer to their requests, but I would like to be notified if Pete Campbell or someone from the High School group objects.

'''2. Should there be a modified system for children? Should this system only exist for children? Should there only be one period of atonement for coming of age?'''

'''Concern''': Minors are arguably the most susceptible to generate content they later regret, is embarrassing, or could effect them in the future. They are also on the whole not as mature as the rest of the population and should be further protected from the permeability of content generated about them online. Similar to how the criminal records of minors are often expunged in the legal system, should the model guarantee minors greater protection or should the model only exist for minors?

'''Response''': Individual walled gardens are best situated to determine the individual needs of their users. While the authors of this model maintain that the model should apply universally, there is no doubt that minors are perhaps the most in need of the model. That said, individual sites that will adopt this model can best determine how they want to implement it and to what population of their users they would like to make it available to.
Perhaps there could be variations in the model for children, such as no renewal after valid complaints on the content or the availability of content expiration more frequently or when the minor comes of age. This question, however, we believe is better resolved by individual walled gardens.

'''3. Should expired content be deleted forever? Are there ways to preserve one’s content?'''

'''Concern''': One of the primary reasons individuals post content online is to share and preserve it in digital form. The model favors the deletion of information and could cause content that would have otherwise remained available for storing or sharing to be removed. What if the individuals generating the content or featured in the content want to preserve it for themselves, friends, or future generations?

'''Response''': There are alternative ways to preserve one’s content. Users could be allowed to have a public and personal digital dossier. Expired content generated by individuals could be stored in a private mechanism: both online and offline. The most secure way to retain your personal data would be off a could and stored on a personal hard drive, but perhaps a user would like to have their content in a clould. Either way, there are multiple devices currently where users can store data that is not publicly available.

'''4. What happens if people circumvent the process and simply repost the material?'''

'''Concern''': While in theory the model may work well, what is to stop users wanting to avoid the effort of the process from simply agreeing to delete their content and reposting it again or allowing everything to expire, only to repost it again in a few years, months, days, minutes, or seconds?

'''Response''': Like any law or system, there will always be those that look for loopholes and areas of the technological court that are poorly defended. The additional affirmative effort required by users to repost content is in itself a moderate discouragement. Furthermore, the establishment of a model and the social norms governing its usage also serve to discourage users from running a red light even when they think they will not get caught. However, it is undeniable that for at least a sector of online users, the additional effort required to repost content and norms alone are not enough.

Walled gardens could develop software that is able to detect when content is reposted or identify content that is posted as the same as other content that was previously posted. Other individuals featured in the reposted content could be allowed to file a complaint with the walled garden notifying them that the content posted had already expired or was somewhere in the process of expiration.

'''5. Will this have a chilling effect on speech?'''

'''Concern''': Individuals that do not want to be over-flooded with complaints or notifications might avoid posting content that is arguably beneficial to society, simply because they know some individuals might object and they do not want to deal with the burdensome process of responding to complaints.

'''Response''': While the model in its current state might prevent content from being renewed, it certainly should not prevent individuals from originally posting the content. Individuals could set their default settings to avoid receiving notification of gating. They would thus only encounter resistance when renewing the content.

'''6. Who has standing to gat themselves to content?'''

'''Concern''': If there are no minimum requirements for standing, then content generators could be flooded by complaints and notifications form individuals that have no direct reputational stake in the content. Content that is political or otherwise controversial could be deluged with gats in order to get the content generator to remove.

'''Response''': Standing should be limited to those individuals directly featured in the content. If it is a picture, then the individual must be in the picture. If it is text, then the individuals name should be mentioned in the text. Walled gardens should establish some mechanism for verifying that those gating themselves to content actually have the standing to do so. In walled gardens such as Facebook that might be easier to accomplish, but perhaps facial recognition software can be employed or some other mechanism that can verify who gaters are and whether they have indeed have standing. Perhaps the process could be outsourced to mechanical turks?

'''7. What about pictures that have social or even historical value, but where the originator of the material either does not recognize such value or does not want to put forth the additional effort to preserve it.'''

'''Concerns''': a model that favors the expiration and possible deletion of content online carries the risk of permanently deleting or creating greater access barriers to content that has social and historical value either currently or in the future.

'''Response''': A model favoring the expiration and public deletion of user generated content could certainly result in the loss of some content that has social and historic value. But this is not a new problem. Famous authors often leave manuscripts unpublished upon their death and often leave clear instructions that such material should not be published. Famous artwork is often kept in the hands of private owners and is not made available for the public at large to see.

It has always been the job news corporations and media to cover events of historical significance and obtain licensing or copyright release upon citizens who capture events of historical or social significance. It is arguably only in the last few years through the Internet that user generated content has been elevated to its current importance and presence in the public media.

Furthermore, this model should not be applied to certain institutions. Traditional news media and even current semi-news media sites should not be subject to expiration dates. Archives of newspapers and important events and news should remain available indefinitely.
Moreover, this model does not cause the deletion of material. It simply might discourage its prolonged existence online. So while the costs of acquiring content of social and historic value might have increased, they are not insurmountable.

'''8. Are we creating an environment that discourages responsibility?'''

'''Concern''': If content we generated or that is generated about us is more easily purged from the public Internet, then people will be less accountable for their actions and perhaps even act more recklessly. Furthermore, they will continue to commit follies, because the consequences are not as permanent. People should take responsibility for their actions rather than rely on deletion.

'''Response''': The above is a matter of preference. It is true that in at least some cases bad actors will make poor choices because their misgivings are more forgiven under this model, but we would argue that a good majority of bad actors are not considering the consequences of their actions at all in the moment. Perhaps getting burned by the current system could influence their behavior in the future, but the reputational damage suffered by the individual might be steeper than the lesson learned. Furthermore, it is not as if the individual was being isolated from the worse immediate effects of his follies. It is only the more longer term effects that the model shields him partially from.

'''9. What is the something cool that could happen?'''

'''Concern''': If the content generated and the gated individual does not come to a mutual agreement or solution, then what happens? Are we left back at square one?

'''Response''': There are several things that could happen. First, nothing could happen. This could be a system based solely on the contact hypothesis and social psychology research that suggests that individuals are more likely to say yes to another’s individualized request for aid or help. In a large percentage of cases, the model resolves the problem without the need for some other mechanism than the mere facilitation of interaction between two human beings.

Second, there could be a final arbitration or mediation facilitated by a third party. This third party could be in house or could be outsourced. A good example of out sourcing to a third party would be SquareTrade. SquareTrade conducted dispute resolution for eBay a few years back and was quite successful in doing so. The benefits of using an outsourced third party would be that if something had to be taken down, walled gardens would potentially be able to continue asserting their Section 230 Communications Decency Act shield by not directly or editing content on their site.
Another option would be for the walled garden to generate its own dispute resolution process. The site could do so by hiring a panel specifically assigned to do just that. The site could elect particular members of the site to vote (however, this might cause more unwanted attention to the content an individual necessarily wants eradicated).

'''10. Should certain institutions be exempt from expiration dates?'''

'''Concern''': There is certain content on the net that society would be hurt if expired: like news media organizations and websites.

'''Response''': We only intend this model to be applied by walled gardens of social media and only on user generated content.

=Notes=
<references />

GROUP ONE

2010-11-24T00:59:54Z

Davidrbrody: /* Model */

=Introduction=

=Literature Review and Background=

==The Current Situation==
Perhaps the most seminal article of privacy is Samuel Warren and Louis Brandeis’ Harvard Law Review article [http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html''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. 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.” <ref>Viktor Mayer-Schönberger, ''Delete: The Virtue of Forgetting in the Digital Age'' 49 (2009)</ref>. Four technological advances (digitization of information, cheap storage, easy retrieval, and the global reach of the Internet) have made all memories permanent. <ref>''Id''. at 52.</ref> 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028875 ''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. 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 [http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text.htm 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).

==Solutions==

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.

===Tort===

[http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html 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.

[http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text/futureofreputation-ch7.pdf 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.

===Norms===

James Grimmelmann in [http://works.bepress.com/cgi/viewcontent.cgi?article=1019&context=james_grimmelmann 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.

[http://futureoftheinternet.org/reputation-bankruptcy 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=888327 Rankings, Reductionism, and Responsibility] and in [http://www.law.umaryland.edu/academics/journals/jbtl/issues/3_1/3_1_061_Pasquale.pdf 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520111 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.

===Technological===

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. <ref> ''Id''. at 184-192.</ref>

===Regulatory===

The [http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html 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.”

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1462&format=HTML&aged=0&language=EN&guiLanguage=fr

http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html

http://redtape.msnbc.com/2010/11/eu-to-create-right-to-be-forgotten-online.html

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. <ref>Cass Sunstein, ''On Rumors'' 78-79 (2009).</ref> 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.

[http://volokh.com/posts/1176705254.shtml 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.

===Market===

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

Bonneau and Prebusch conclude that “the market for privacy in social networks is dysfunctional in that there is significant variation in sites’ privacy controls, data collection requirements, and legal privacy policies, but this is not effectively conveyed to users.” They also find that “privacy is rarely used as a selling point, even then only as auxiliary, nondecisive feature.” Bonneau and Prebusch advocate “a privacy communication game, where the economically rational choice for a site operator is to make privacy control available to evade criticism from privacy fundamentalists, while hiding the privacy control interface and privacy policy to maximize sign-up numbers and encourage data sharing from the pragmatic majority of users.” Their proposal is in tension with our model insofar as it would make privacy policies even more inaccessible to users; our proposal seeks to market privacy as a selling point based on user-preferences and principles of reputation-management, while protecting the ability of site operators to use member data.

===Property===

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 [http://www.law.ucla.edu/volokh/privacy.htm#SpeechOnMattersOfPrivateConcern ''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 [http://jezebel.com/5652114/college-girls-power-point-fuck-list-goes-viral-gallery 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 [http://pages.ebay.com/services/forum/feedback.html 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 [http://law.fordham.edu/assets/LawReview/Zittrain_Vol_78_May.pdf ''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.

==Other Research==
http://www.pewinternet.org/Reports/2010/Reputation-Management.aspx

A May 2010 Pew Internet and American Life study suggests that privacy is highly valued by the next generation of social networking users. The report found that “Young adults, far from being indifferent about their digital footprints, are the most active online reputation managers in several dimensions. For example, more than two-thirds (71%) of social networking users ages 18-29 have changed the privacy settings on their profile to limit what they share with others online.” In addition, “When compared with older users, young adults are more likely to restrict what they share and whom they share it with. Mary Madden, one of the coauthors, stated that “Contrary to the popular perception that younger users embrace a laissez-faire attitude about their online reputations, young adults are often more vigilant than older adults when it comes to managing their online identities.”

A study by scholars at the University of Berkeley Center for Law & Technology, Center for the Study of Law and Society, and the University of Pennsylvania - Annenberg School for Communication found privacy norms that are consistent with our model. For instance, “Large proportions of all age groups have refused to provide information to a business for privacy reasons. They agree or agree strongly with the norm that a person should get permission before posting a photo of someone who is clearly recognizable to the internet, even if that photo was taken in public. They agree that there should be a law that gives people the right to know
“everything that a website knows about them.” And they agree that there should be a law
that requires websites and advertising companies to delete “all stored information” about
an individual.” Page 11. Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864

[[Image: Right to Delete.jpg]]<ref>Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864.</ref>

Drive-Thru Arbitration in the Digital Age: Empowering Consumers through Binding ODR [article]
Baylor Law Review, Vol. 62, Issue 1 (2010), pp. 178-244 Schmitz, Amy J. 62 Baylor L. Rev. 178 (2010)

Many articles discuss privacy and data management in the context of online commercial transactions. See, e.g. Milne, G. R. and Culnan, M. J. (2004), Strategies for reducing online privacy risks: Why consumers read (or don't read) online privacy notices. Journal of Interactive Marketing, 18: 15–29. doi: 10.1002/dir.20009 (concluding that reading is related to concern for privacy, positive perceptions about notice comprehension, and higher levels of trust in the notice); Consumer Online Privacy: Legal and Ethical Issues, Eve M. Caudill and Patrick E. Murphy, Journal of Public Policy & Marketing Vol. 19, No. 1, Privacy and Ethical Issues in Database/Interactive Marketing and Public Policy (Spring, 2000), pp. 7-19 (article consists of 13 pages), Published by: American Marketing Association Stable URL: http://www.jstor.org/stable/30000483 (reviewing ethical theories that apply to consumer privacy and offering specific suggestions for corporate ethical policy and public policy).

=Proposed Mid-term Content Management System=
==Assumptions==

As discussed above, there are three distinct phases of reputation: short term, mid-term and long term. Our model is targeted solely at mid-term reputational issues. Short and long term issues will require other mechanisms and should be considered independently.

When composing our model, we had four core assumptions:
*1) All user-generated content should expire and cease to be publically available after a set length of time, unless is it actively renewed. This theory follows from Viktor Mayer-Schönberger’s work.
*2) The path of least resistance should result in the socially optimal outcome. This means that whenever a user follows default settings or acts in a lazy or apathetic fashion, the end result should be desirable. The model should make doing the “right” thing as easy as possible.
*3) Direct, personal communications between real people lead to more cooperative outcomes. A user can empathize and be more receptive to an individualized appeal from another person than he would be to an automated message. Building these sorts of communications into the system fosters a social norm of cooperation and understanding.
*4) The system should be content neutral so as to increase efficiency and avoid arbitrary implementation. If the system discriminated in how it treated content based on what type of content it was, then the process would get bogged down in the minutiae of moralistic review.

Our model will present a process by which content expires or renews, depending on how implicated parties intervene or abdicate. In the model, P is a user who initially posts content, Q is a user who is represented in the content, and R is a third-party bystander.

The system would be applied by social media websites that choose to apply it. There is no feasible method of mandating its use, nor is there a reason to. These websites will want to implement this system or one similar to it of their own accord. Here’s why:
*1) The system will make a website more desirable to users who value their privacy and reputations.
*2) The system creates a stickiness that will keep users coming back to the social media website that uses it.
*3) The system does not substantially impede websites ability to profit from data mining, thus allowing them to promise greater privacy protections to their users without hurting the company’s source of revenue.

Finally, it is important to note that the system is not designed to be 100% effective at addressing all potentially problematic content. The goal is solely to create a process that is easy to implement, easy to understand, and will achieve the socially optimal result in the vast majority of cases.

==Model==
[[Image:New Model.jpg]]

*1) A user, P, is presented with preferences when he first uses the system. He can either use the presets chosen by the website or adjust the preferences to his taste. These preferences would determine his default actions for expirations, renewals, notifications, protests, etc.
*2) P posts content on the website.
*3) P chooses an expiration date for his content or uses his default expiration settings.
*4) The content might contain a representation of Q. Q can then be “marked” on the content by P, Q or R. To be “marked” means that Q is alerted that he is implicated in this content and is given the option to be notified when the content comes up for renewal.
*5) If no one is marked on the content, then P will, in accordance with his preferences, receive a notification 30 days prior to the content’s expiration date. P can then choose to renew the content or do nothing. If P does nothing, the content expires.
*6) If Q is marked but never opts in for notification, then the content is treated as if no one is marked.
*7) If Q is marked and opts in for notification, and if P chooses to renew the content, then Q will receive a notification that P chose to renew the content.
*8) Q can ignore this notification and the content will renew as per P’s decision.
*9) Alternatively, Q can “protest” P’s decision to renew the content. This means that Q would send a message to P saying that he doesn’t want the content renewed and explaining why. This protest would contain standard options that Q could select for his reasoning, but Q would also be required to compose a personalized message to P.
*10) P, upon receiving Q’s protest, can choose to move forward with the renewal (with or without modifying the content), halt the public renewal, or do nothing.
*11) If P does nothing, the content will expire, as per Q’s wishes.
*12) If P halts the public renewal, the content will still be kept in P’s private archive but will not be viewable to any other users.
*13) If P chooses to move forward with the renewal (with or without modifying the content), P must then send a response to Q explaining why P chose to renew the content over Q’s protest. This would also be a personalized message.
*14) Upon receiving P’s response, Q might be satisfied with P’s reasons or modifications. If Q does nothing, the content will renew.
*15) If Q is partially dissatisfied with P’s response, Q could chose to add an “asterisk” to the content. This would be a discrete message that viewers of the content would see, consisting of Q’s protest to P. The content would renew with the asterisk.
*16) If Q is substantially dissatisfied with P’s response, Q could appeal the renewal to an adjudication process. This process would determine whether or not the content renews.

==Explanation of the Model==

==Concerns and Responses to the Model==

'''1. How do we prevent a deluge of expiration notifications and other notifications from the process?'''

'''Concern''': The model is likely to create a considerable amount of email notification both for the originator of the gater. Online social media users are generating content everyday so the flow will be constant. This flood of emails could discourage some walled gardens from implementing the model if they fear their users will abandon their network, because their mailbox is constantly flooded. Are users going to take concerns seriously when they receive so many of them over short periods of time?

'''Response''': Like in every architectural design (both physical and technological), there are tradeoffs. The benefit of the model is that it facilitates interactions and keeps users constantly apprised about content they generate and content generated about them. The con is reflected in the benefit: they are constantly kept apprised, which means they are constantly being notified. Asides from the benefit of being aware, there are some tools users could employ to avoid mailbox flooding.

Users could use their default settings to have content scheduled to expire, expire automatically, without notification. They could do this for all their content and select it as a default or they could manage pictures, status updates, posts, etc. individually. The more tailored their control over the system, the more easily users could manage their data and notifications. Content generators seeking to avoid notification from those gated to their content, could also benefit from the use of default settings. Perhaps they could set their default settings such if someone would like the content taken down, it would automatically defer to that user. The walled garden settings could also permit individuals to differentiate by user or group. For example, a default setting could look something like: I do not want to be notified if Family and Good Friends object to content being renewed and I will defer to their requests, but I would like to be notified if Pete Campbell or someone from the High School group objects.

'''2. Should there be a modified system for children? Should this system only exist for children? Should there only be one period of atonement for coming of age?'''

'''Concern''': Minors are arguably the most susceptible to generate content they later regret, is embarrassing, or could effect them in the future. They are also on the whole not as mature as the rest of the population and should be further protected from the permeability of content generated about them online. Similar to how the criminal records of minors are often expunged in the legal system, should the model guarantee minors greater protection or should the model only exist for minors?

'''Response''': Individual walled gardens are best situated to determine the individual needs of their users. While the authors of this model maintain that the model should apply universally, there is no doubt that minors are perhaps the most in need of the model. That said, individual sites that will adopt this model can best determine how they want to implement it and to what population of their users they would like to make it available to.
Perhaps there could be variations in the model for children, such as no renewal after valid complaints on the content or the availability of content expiration more frequently or when the minor comes of age. This question, however, we believe is better resolved by individual walled gardens.

'''3. Should expired content be deleted forever? Are there ways to preserve one’s content?'''

'''Concern''': One of the primary reasons individuals post content online is to share and preserve it in digital form. The model favors the deletion of information and could cause content that would have otherwise remained available for storing or sharing to be removed. What if the individuals generating the content or featured in the content want to preserve it for themselves, friends, or future generations?

'''Response''': There are alternative ways to preserve one’s content. Users could be allowed to have a public and personal digital dossier. Expired content generated by individuals could be stored in a private mechanism: both online and offline. The most secure way to retain your personal data would be off a could and stored on a personal hard drive, but perhaps a user would like to have their content in a clould. Either way, there are multiple devices currently where users can store data that is not publicly available.

'''4. What happens if people circumvent the process and simply repost the material?'''

'''Concern''': While in theory the model may work well, what is to stop users wanting to avoid the effort of the process from simply agreeing to delete their content and reposting it again or allowing everything to expire, only to repost it again in a few years, months, days, minutes, or seconds?

'''Response''': Like any law or system, there will always be those that look for loopholes and areas of the technological court that are poorly defended. The additional affirmative effort required by users to repost content is in itself a moderate discouragement. Furthermore, the establishment of a model and the social norms governing its usage also serve to discourage users from running a red light even when they think they will not get caught. However, it is undeniable that for at least a sector of online users, the additional effort required to repost content and norms alone are not enough.

Walled gardens could develop software that is able to detect when content is reposted or identify content that is posted as the same as other content that was previously posted. Other individuals featured in the reposted content could be allowed to file a complaint with the walled garden notifying them that the content posted had already expired or was somewhere in the process of expiration.

'''5. Will this have a chilling effect on speech?'''

'''Concern''': Individuals that do not want to be over-flooded with complaints or notifications might avoid posting content that is arguably beneficial to society, simply because they know some individuals might object and they do not want to deal with the burdensome process of responding to complaints.

'''Response''': While the model in its current state might prevent content from being renewed, it certainly should not prevent individuals from originally posting the content. Individuals could set their default settings to avoid receiving notification of gating. They would thus only encounter resistance when renewing the content.

'''6. Who has standing to gat themselves to content?'''

'''Concern''': If there are no minimum requirements for standing, then content generators could be flooded by complaints and notifications form individuals that have no direct reputational stake in the content. Content that is political or otherwise controversial could be deluged with gats in order to get the content generator to remove.

'''Response''': Standing should be limited to those individuals directly featured in the content. If it is a picture, then the individual must be in the picture. If it is text, then the individuals name should be mentioned in the text. Walled gardens should establish some mechanism for verifying that those gating themselves to content actually have the standing to do so. In walled gardens such as Facebook that might be easier to accomplish, but perhaps facial recognition software can be employed or some other mechanism that can verify who gaters are and whether they have indeed have standing. Perhaps the process could be outsourced to mechanical turks?

'''7. What about pictures that have social or even historical value, but where the originator of the material either does not recognize such value or does not want to put forth the additional effort to preserve it.'''

'''Concerns''': a model that favors the expiration and possible deletion of content online carries the risk of permanently deleting or creating greater access barriers to content that has social and historical value either currently or in the future.

'''Response''': A model favoring the expiration and public deletion of user generated content could certainly result in the loss of some content that has social and historic value. But this is not a new problem. Famous authors often leave manuscripts unpublished upon their death and often leave clear instructions that such material should not be published. Famous artwork is often kept in the hands of private owners and is not made available for the public at large to see.

It has always been the job news corporations and media to cover events of historical significance and obtain licensing or copyright release upon citizens who capture events of historical or social significance. It is arguably only in the last few years through the Internet that user generated content has been elevated to its current importance and presence in the public media.

Furthermore, this model should not be applied to certain institutions. Traditional news media and even current semi-news media sites should not be subject to expiration dates. Archives of newspapers and important events and news should remain available indefinitely.
Moreover, this model does not cause the deletion of material. It simply might discourage its prolonged existence online. So while the costs of acquiring content of social and historic value might have increased, they are not insurmountable.

'''8. Are we creating an environment that discourages responsibility?'''

'''Concern''': If content we generated or that is generated about us is more easily purged from the public Internet, then people will be less accountable for their actions and perhaps even act more recklessly. Furthermore, they will continue to commit follies, because the consequences are not as permanent. People should take responsibility for their actions rather than rely on deletion.

'''Response''': The above is a matter of preference. It is true that in at least some cases bad actors will make poor choices because their misgivings are more forgiven under this model, but we would argue that a good majority of bad actors are not considering the consequences of their actions at all in the moment. Perhaps getting burned by the current system could influence their behavior in the future, but the reputational damage suffered by the individual might be steeper than the lesson learned. Furthermore, it is not as if the individual was being isolated from the worse immediate effects of his follies. It is only the more longer term effects that the model shields him partially from.

'''9. What is the something cool that could happen?'''

'''Concern''': If the content generated and the gated individual does not come to a mutual agreement or solution, then what happens? Are we left back at square one?

'''Response''': There are several things that could happen. First, nothing could happen. This could be a system based solely on the contact hypothesis and social psychology research that suggests that individuals are more likely to say yes to another’s individualized request for aid or help. In a large percentage of cases, the model resolves the problem without the need for some other mechanism than the mere facilitation of interaction between two human beings.

Second, there could be a final arbitration or mediation facilitated by a third party. This third party could be in house or could be outsourced. A good example of out sourcing to a third party would be SquareTrade. SquareTrade conducted dispute resolution for eBay a few years back and was quite successful in doing so. The benefits of using an outsourced third party would be that if something had to be taken down, walled gardens would potentially be able to continue asserting their Section 230 Communications Decency Act shield by not directly or editing content on their site.
Another option would be for the walled garden to generate its own dispute resolution process. The site could do so by hiring a panel specifically assigned to do just that. The site could elect particular members of the site to vote (however, this might cause more unwanted attention to the content an individual necessarily wants eradicated).

'''10. Should certain institutions be exempt from expiration dates?'''

'''Concern''': There is certain content on the net that society would be hurt if expired: like news media organizations and websites.

'''Response''': We only intend this model to be applied by walled gardens of social media and only on user generated content.

=Notes=
<references />

GROUP ONE

2010-11-24T00:56:40Z

Davidrbrody: /* Assumptions */

=Introduction=

=Literature Review and Background=

==The Current Situation==
Perhaps the most seminal article of privacy is Samuel Warren and Louis Brandeis’ Harvard Law Review article [http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html''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. 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.” <ref>Viktor Mayer-Schönberger, ''Delete: The Virtue of Forgetting in the Digital Age'' 49 (2009)</ref>. Four technological advances (digitization of information, cheap storage, easy retrieval, and the global reach of the Internet) have made all memories permanent. <ref>''Id''. at 52.</ref> 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028875 ''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. 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 [http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text.htm 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).

==Solutions==

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.

===Tort===

[http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html 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.

[http://docs.law.gwu.edu/facweb/dsolove/Future-of-Reputation/text/futureofreputation-ch7.pdf 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.

===Norms===

James Grimmelmann in [http://works.bepress.com/cgi/viewcontent.cgi?article=1019&context=james_grimmelmann 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.

[http://futureoftheinternet.org/reputation-bankruptcy 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=888327 Rankings, Reductionism, and Responsibility] and in [http://www.law.umaryland.edu/academics/journals/jbtl/issues/3_1/3_1_061_Pasquale.pdf 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 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520111 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.

===Technological===

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. <ref> ''Id''. at 184-192.</ref>

===Regulatory===

The [http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html 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.”

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1462&format=HTML&aged=0&language=EN&guiLanguage=fr

http://www.telegraph.co.uk/technology/internet/8112702/EU-proposes-online-right-to-be-forgotten.html

http://redtape.msnbc.com/2010/11/eu-to-create-right-to-be-forgotten-online.html

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. <ref>Cass Sunstein, ''On Rumors'' 78-79 (2009).</ref> 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.

[http://volokh.com/posts/1176705254.shtml 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.

===Market===

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

Bonneau and Prebusch conclude that “the market for privacy in social networks is dysfunctional in that there is significant variation in sites’ privacy controls, data collection requirements, and legal privacy policies, but this is not effectively conveyed to users.” They also find that “privacy is rarely used as a selling point, even then only as auxiliary, nondecisive feature.” Bonneau and Prebusch advocate “a privacy communication game, where the economically rational choice for a site operator is to make privacy control available to evade criticism from privacy fundamentalists, while hiding the privacy control interface and privacy policy to maximize sign-up numbers and encourage data sharing from the pragmatic majority of users.” Their proposal is in tension with our model insofar as it would make privacy policies even more inaccessible to users; our proposal seeks to market privacy as a selling point based on user-preferences and principles of reputation-management, while protecting the ability of site operators to use member data.

===Property===

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 [http://www.law.ucla.edu/volokh/privacy.htm#SpeechOnMattersOfPrivateConcern ''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 [http://jezebel.com/5652114/college-girls-power-point-fuck-list-goes-viral-gallery 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 [http://pages.ebay.com/services/forum/feedback.html 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 [http://law.fordham.edu/assets/LawReview/Zittrain_Vol_78_May.pdf ''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.

==Other Research==
http://www.pewinternet.org/Reports/2010/Reputation-Management.aspx

A May 2010 Pew Internet and American Life study suggests that privacy is highly valued by the next generation of social networking users. The report found that “Young adults, far from being indifferent about their digital footprints, are the most active online reputation managers in several dimensions. For example, more than two-thirds (71%) of social networking users ages 18-29 have changed the privacy settings on their profile to limit what they share with others online.” In addition, “When compared with older users, young adults are more likely to restrict what they share and whom they share it with. Mary Madden, one of the coauthors, stated that “Contrary to the popular perception that younger users embrace a laissez-faire attitude about their online reputations, young adults are often more vigilant than older adults when it comes to managing their online identities.”

A study by scholars at the University of Berkeley Center for Law & Technology, Center for the Study of Law and Society, and the University of Pennsylvania - Annenberg School for Communication found privacy norms that are consistent with our model. For instance, “Large proportions of all age groups have refused to provide information to a business for privacy reasons. They agree or agree strongly with the norm that a person should get permission before posting a photo of someone who is clearly recognizable to the internet, even if that photo was taken in public. They agree that there should be a law that gives people the right to know
“everything that a website knows about them.” And they agree that there should be a law
that requires websites and advertising companies to delete “all stored information” about
an individual.” Page 11. Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864

[[Image: Right to Delete.jpg]]<ref>Hoofnagle, Chris Jay, King, Jennifer, Li, Su and Turow, Joseph, How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies? (April 14, 2010). Available at SSRN: http://ssrn.com/abstract=1589864.</ref>

Drive-Thru Arbitration in the Digital Age: Empowering Consumers through Binding ODR [article]
Baylor Law Review, Vol. 62, Issue 1 (2010), pp. 178-244 Schmitz, Amy J. 62 Baylor L. Rev. 178 (2010)

Many articles discuss privacy and data management in the context of online commercial transactions. See, e.g. Milne, G. R. and Culnan, M. J. (2004), Strategies for reducing online privacy risks: Why consumers read (or don't read) online privacy notices. Journal of Interactive Marketing, 18: 15–29. doi: 10.1002/dir.20009 (concluding that reading is related to concern for privacy, positive perceptions about notice comprehension, and higher levels of trust in the notice); Consumer Online Privacy: Legal and Ethical Issues, Eve M. Caudill and Patrick E. Murphy, Journal of Public Policy & Marketing Vol. 19, No. 1, Privacy and Ethical Issues in Database/Interactive Marketing and Public Policy (Spring, 2000), pp. 7-19 (article consists of 13 pages), Published by: American Marketing Association Stable URL: http://www.jstor.org/stable/30000483 (reviewing ethical theories that apply to consumer privacy and offering specific suggestions for corporate ethical policy and public policy).

=Proposed Mid-term Content Management System=
==Assumptions==

As discussed above, there are three distinct phases of reputation: short term, mid-term and long term. Our model is targeted solely at mid-term reputational issues. Short and long term issues will require other mechanisms and should be considered independently.

When composing our model, we had four core assumptions:
*1) All user-generated content should expire and cease to be publically available after a set length of time, unless is it actively renewed. This theory follows from Viktor Mayer-Schönberger’s work.
*2) The path of least resistance should result in the socially optimal outcome. This means that whenever a user follows default settings or acts in a lazy or apathetic fashion, the end result should be desirable. The model should make doing the “right” thing as easy as possible.
*3) Direct, personal communications between real people lead to more cooperative outcomes. A user can empathize and be more receptive to an individualized appeal from another person than he would be to an automated message. Building these sorts of communications into the system fosters a social norm of cooperation and understanding.
*4) The system should be content neutral so as to increase efficiency and avoid arbitrary implementation. If the system discriminated in how it treated content based on what type of content it was, then the process would get bogged down in the minutiae of moralistic review.

Our model will present a process by which content expires or renews, depending on how implicated parties intervene or abdicate. In the model, P is a user who initially posts content, Q is a user who is represented in the content, and R is a third-party bystander.

The system would be applied by social media websites that choose to apply it. There is no feasible method of mandating its use, nor is there a reason to. These websites will want to implement this system or one similar to it of their own accord. Here’s why:
*1) The system will make a website more desirable to users who value their privacy and reputations.
*2) The system creates a stickiness that will keep users coming back to the social media website that uses it.
*3) The system does not substantially impede websites ability to profit from data mining, thus allowing them to promise greater privacy protections to their users without hurting the company’s source of revenue.

Finally, it is important to note that the system is not designed to be 100% effective at addressing all potentially problematic content. The goal is solely to create a process that is easy to implement, easy to understand, and will achieve the socially optimal result in the vast majority of cases.

==Model==
[[Image:New Model.jpg]]

==Explanation of the Model==

==Concerns and Responses to the Model==

'''1. How do we prevent a deluge of expiration notifications and other notifications from the process?'''

'''Concern''': The model is likely to create a considerable amount of email notification both for the originator of the gater. Online social media users are generating content everyday so the flow will be constant. This flood of emails could discourage some walled gardens from implementing the model if they fear their users will abandon their network, because their mailbox is constantly flooded. Are users going to take concerns seriously when they receive so many of them over short periods of time?

'''Response''': Like in every architectural design (both physical and technological), there are tradeoffs. The benefit of the model is that it facilitates interactions and keeps users constantly apprised about content they generate and content generated about them. The con is reflected in the benefit: they are constantly kept apprised, which means they are constantly being notified. Asides from the benefit of being aware, there are some tools users could employ to avoid mailbox flooding.

Users could use their default settings to have content scheduled to expire, expire automatically, without notification. They could do this for all their content and select it as a default or they could manage pictures, status updates, posts, etc. individually. The more tailored their control over the system, the more easily users could manage their data and notifications. Content generators seeking to avoid notification from those gated to their content, could also benefit from the use of default settings. Perhaps they could set their default settings such if someone would like the content taken down, it would automatically defer to that user. The walled garden settings could also permit individuals to differentiate by user or group. For example, a default setting could look something like: I do not want to be notified if Family and Good Friends object to content being renewed and I will defer to their requests, but I would like to be notified if Pete Campbell or someone from the High School group objects.

'''2. Should there be a modified system for children? Should this system only exist for children? Should there only be one period of atonement for coming of age?'''

'''Concern''': Minors are arguably the most susceptible to generate content they later regret, is embarrassing, or could effect them in the future. They are also on the whole not as mature as the rest of the population and should be further protected from the permeability of content generated about them online. Similar to how the criminal records of minors are often expunged in the legal system, should the model guarantee minors greater protection or should the model only exist for minors?

'''Response''': Individual walled gardens are best situated to determine the individual needs of their users. While the authors of this model maintain that the model should apply universally, there is no doubt that minors are perhaps the most in need of the model. That said, individual sites that will adopt this model can best determine how they want to implement it and to what population of their users they would like to make it available to.
Perhaps there could be variations in the model for children, such as no renewal after valid complaints on the content or the availability of content expiration more frequently or when the minor comes of age. This question, however, we believe is better resolved by individual walled gardens.

'''3. Should expired content be deleted forever? Are there ways to preserve one’s content?'''

'''Concern''': One of the primary reasons individuals post content online is to share and preserve it in digital form. The model favors the deletion of information and could cause content that would have otherwise remained available for storing or sharing to be removed. What if the individuals generating the content or featured in the content want to preserve it for themselves, friends, or future generations?

'''Response''': There are alternative ways to preserve one’s content. Users could be allowed to have a public and personal digital dossier. Expired content generated by individuals could be stored in a private mechanism: both online and offline. The most secure way to retain your personal data would be off a could and stored on a personal hard drive, but perhaps a user would like to have their content in a clould. Either way, there are multiple devices currently where users can store data that is not publicly available.

'''4. What happens if people circumvent the process and simply repost the material?'''

'''Concern''': While in theory the model may work well, what is to stop users wanting to avoid the effort of the process from simply agreeing to delete their content and reposting it again or allowing everything to expire, only to repost it again in a few years, months, days, minutes, or seconds?

'''Response''': Like any law or system, there will always be those that look for loopholes and areas of the technological court that are poorly defended. The additional affirmative effort required by users to repost content is in itself a moderate discouragement. Furthermore, the establishment of a model and the social norms governing its usage also serve to discourage users from running a red light even when they think they will not get caught. However, it is undeniable that for at least a sector of online users, the additional effort required to repost content and norms alone are not enough.

Walled gardens could develop software that is able to detect when content is reposted or identify content that is posted as the same as other content that was previously posted. Other individuals featured in the reposted content could be allowed to file a complaint with the walled garden notifying them that the content posted had already expired or was somewhere in the process of expiration.

'''5. Will this have a chilling effect on speech?'''

'''Concern''': Individuals that do not want to be over-flooded with complaints or notifications might avoid posting content that is arguably beneficial to society, simply because they know some individuals might object and they do not want to deal with the burdensome process of responding to complaints.

'''Response''': While the model in its current state might prevent content from being renewed, it certainly should not prevent individuals from originally posting the content. Individuals could set their default settings to avoid receiving notification of gating. They would thus only encounter resistance when renewing the content.

'''6. Who has standing to gat themselves to content?'''

'''Concern''': If there are no minimum requirements for standing, then content generators could be flooded by complaints and notifications form individuals that have no direct reputational stake in the content. Content that is political or otherwise controversial could be deluged with gats in order to get the content generator to remove.

'''Response''': Standing should be limited to those individuals directly featured in the content. If it is a picture, then the individual must be in the picture. If it is text, then the individuals name should be mentioned in the text. Walled gardens should establish some mechanism for verifying that those gating themselves to content actually have the standing to do so. In walled gardens such as Facebook that might be easier to accomplish, but perhaps facial recognition software can be employed or some other mechanism that can verify who gaters are and whether they have indeed have standing. Perhaps the process could be outsourced to mechanical turks?

'''7. What about pictures that have social or even historical value, but where the originator of the material either does not recognize such value or does not want to put forth the additional effort to preserve it.'''

'''Concerns''': a model that favors the expiration and possible deletion of content online carries the risk of permanently deleting or creating greater access barriers to content that has social and historical value either currently or in the future.

'''Response''': A model favoring the expiration and public deletion of user generated content could certainly result in the loss of some content that has social and historic value. But this is not a new problem. Famous authors often leave manuscripts unpublished upon their death and often leave clear instructions that such material should not be published. Famous artwork is often kept in the hands of private owners and is not made available for the public at large to see.

It has always been the job news corporations and media to cover events of historical significance and obtain licensing or copyright release upon citizens who capture events of historical or social significance. It is arguably only in the last few years through the Internet that user generated content has been elevated to its current importance and presence in the public media.

Furthermore, this model should not be applied to certain institutions. Traditional news media and even current semi-news media sites should not be subject to expiration dates. Archives of newspapers and important events and news should remain available indefinitely.
Moreover, this model does not cause the deletion of material. It simply might discourage its prolonged existence online. So while the costs of acquiring content of social and historic value might have increased, they are not insurmountable.

'''8. Are we creating an environment that discourages responsibility?'''

'''Concern''': If content we generated or that is generated about us is more easily purged from the public Internet, then people will be less accountable for their actions and perhaps even act more recklessly. Furthermore, they will continue to commit follies, because the consequences are not as permanent. People should take responsibility for their actions rather than rely on deletion.

'''Response''': The above is a matter of preference. It is true that in at least some cases bad actors will make poor choices because their misgivings are more forgiven under this model, but we would argue that a good majority of bad actors are not considering the consequences of their actions at all in the moment. Perhaps getting burned by the current system could influence their behavior in the future, but the reputational damage suffered by the individual might be steeper than the lesson learned. Furthermore, it is not as if the individual was being isolated from the worse immediate effects of his follies. It is only the more longer term effects that the model shields him partially from.

'''9. What is the something cool that could happen?'''

'''Concern''': If the content generated and the gated individual does not come to a mutual agreement or solution, then what happens? Are we left back at square one?

'''Response''': There are several things that could happen. First, nothing could happen. This could be a system based solely on the contact hypothesis and social psychology research that suggests that individuals are more likely to say yes to another’s individualized request for aid or help. In a large percentage of cases, the model resolves the problem without the need for some other mechanism than the mere facilitation of interaction between two human beings.

Second, there could be a final arbitration or mediation facilitated by a third party. This third party could be in house or could be outsourced. A good example of out sourcing to a third party would be SquareTrade. SquareTrade conducted dispute resolution for eBay a few years back and was quite successful in doing so. The benefits of using an outsourced third party would be that if something had to be taken down, walled gardens would potentially be able to continue asserting their Section 230 Communications Decency Act shield by not directly or editing content on their site.
Another option would be for the walled garden to generate its own dispute resolution process. The site could do so by hiring a panel specifically assigned to do just that. The site could elect particular members of the site to vote (however, this might cause more unwanted attention to the content an individual necessarily wants eradicated).

'''10. Should certain institutions be exempt from expiration dates?'''

'''Concern''': There is certain content on the net that society would be hurt if expired: like news media organizations and websites.

'''Response''': We only intend this model to be applied by walled gardens of social media and only on user generated content.

=Notes=
<references />

New Difficult Topics

2010-10-05T15:35:00Z

Davidrbrody:

Anonymity
*Rachel

Online Identity and Reputation (Bankruptcy)
*Andrew
*David

Right of Publicity in Digital Identities/ Moral Rights to one's created digital identity

Death and Digital Property

Speech and Censorship (from an intermediary liability pov)

Liability for Security Breaches

Net Neutrality

De-humanization of Online Transactions (with implications to UI design)

Cyber-security (and international law/aspects)

*Davis
*Julia

Crowdsourcing: Problems thereof
*Dave

Cyberbullying

"Decentralized" digital newsmedia/Wikileaks
*Austin
*Jenny
*Stephanie

CrowdConf Brainstorm page

2010-10-04T15:04:26Z

Davidrbrody:

Use this page to discuss the best practices reading we did not have time for in class, and brainstorm questions and topics that we might present as a class at the CrowdConf Future of Work Conference next week.

Crowdsourcing (Human Computing) is one of the most promising technologies, which has already been successfully in many different areas (Examples: X-Prize, 99designs, Amazon Mechanical Turk) and we believe has a huge potential for the future. It has the potential to significantly shape and change the way the labor market works. That said, it also creates challenges which need to be addressed. We would love to hear your thoughts on how technology could be leveraged to solve some of these challenges:

*''(1) Preserving Confidentiality in Complex Tasks''. As the best practices document notes, some tasks require worker exposure to proprietary information. The Best Practices mention contracts as a way of dealing with this issues. Do we think that contractual relationships can assuage companies' fears of workers disclosing propriety information? Does the sheer volume (and potential geographical spread) of workers on a given task make enforcing such an agreement impossible?
**Is there a way the technology can account for this problem?
**Could the problem be solved potentially by drafting specific tasks to specific information, the disclosure of which would make the individual who divulged the info identifiable?
**What are the costs of drafting such complex contracts?

*''(2) Feedback Mechanisms and Dispute Resolution''. When there is little or no direct contact between employers and employees and when tasks are completed on a one-off basis, it can be tough to encourage fair feedback or to verify a potential worker's competence in advance. Workers themselves face portability problems; a good rating on Mechanical Turk doesn't necessarily carry over to other crowdsourcing sites or offline careers.
**Could the technology facilitate a cyber dispute-resolution forum? (What if the dispute-resolution process was, in turn, crowd-sourced?!).
**Could the platform have a rating system that suggested a fair rate based on the type of tasks requested? There could be a "survey" that each employer fills out before submitting the task, which would calculate a suggested rate. Perhaps it could be based off of past rates, as tracked by the platform operator? (Does Amazon's "recommended" technology do this in a different form already?)
**Is there any way to use technology to prevent abuse of feedback systems, or at least encourage people to use the feedback system in good faith?
**Have platforms set up features to facilitate the creation of online worker unions? (See SECTION BELOW for more questions on Online Worker Unions)

*''(3) Disclosure''. The anonymity of cyber-space and the possibility to divide a large project into a a large number of small tasks so that the ultimate product is unidentifiable raises a number of ethical concerns. Have companies, clients and platforms alike, explored setting up or mandating an ethical commission investigating these concerns? What about a voluntary code of conduct created and agreed on by the industry as a quality management system to prevent black sheep from ruining the reputation of the entire industry in case of misconduct and as a preemptive action towards governmental regulation? --> How do you prevent a private-run "Manhattan Project" implemented through crowdsourcing and sold to the highest bidder?
** (Zara) If project identification is important to the worker, would it help if cloudwork websites rated projects by their degree of macro-transparency and distinguished accordingly in their user interface? The ethical disclosure problem has at least three dimensions: 1) a worker's subjective discomfort with not knowing the purpose of their HIT; 2) the decision a worker might have made had they been able to make an informed choice; and 3) objective, ethical standards that should prevail in the industry. Although users can already select a HIT based on their assessment of the project, including the degree of information disclosed, organizing HITs by level of transparency could facilitate user choice that selects specifically for this criterion. By creating two portals, or databases of HITS, classified according to levels of transparency, disclosure would be highlighted as a desirable HIT characteristic as to which workers can and should exercise choice. If the database of high-disclosure HITs consistently generated higher quality workers and a reputation for legitimacy, normative pressures could encourage companies to offer more information about a task’s role in a larger project and the corresponding ability to compete in the high-disclosure market.

----

Follow-Up Questions / Further discussion points

*''Online Worker Unions''. Crowdsourcing's success is dependent on finding ways to engage its labor pool, whether it be through offering money or gamesque points. However, as mentioned in class and in the best practices document, there are many ways for these laborers to become dissatisfied with their work, whether it be through a lack of transparency, stress, low wages, etc. Is there a potential for a crowdsourcing labor movement in response to these dissatisfactions? As an inherently digital workforce, these individuals' attempts to share discontents and act upon them are facilitated by their familiarity with and access to online communities. However, how far will this unity go? Do you feel that workers will only offer critiques of certain employers to others or could there be the formation of unions and similar entities in the crowdsourcing world?
**A labor movement forming around crowdsourcing would likely find itself with a least two major problems. The first is one of organization. How does one organize a very loose collective of online workers? This is difficult enough to do with workers in meatspace who have social relationships with others in the workplace. In an environment where the workers do not directly interact each other and whose only shared experience is performing the same group of $0.03 HITs, can any meaningful organization occur? A second issue relates how such a group of workers expect to avoid replacement if they do organize. These distributed computing tasks require a very low level of skill to complete and therefore nearly anyone can complete them. The workforce is designed to be made up of "whoever shows up", which makes it very easy for unsatisfied and vocal workers to be replaced. While a strike would be the typical response to a breakdown in negotiations over conditions in meatspace, can we say that an equivalent exists in virtual space? In light of these difficulties, do tradition models of worker unionization map onto digital workforces at all? If they do, will completely new organizing models and strategies be needed to improve working conditions?

*''Worker alienation'''. Crowdsourcing is particularly worrying in how it separates a worker from the work that she performs. In today's workplaces, whether one looks at a blue-collar assembly line or a white-collar office where discrete office tasks are divided among a staff, one still has a sense of "ownership" over a piece of a work by way of her contributions. In the virtual workplace, the worker is completely separated from the end product. The lack of transparency prevents a worker from understanding what she is creating. Quality control systems that use redundancy to ensure accuracy can make it very unclear whether a worker's contribution was ever used and therefore whether the final document reflects her work. See discussions about transparency and quality control in this document for related ideas.
**Would it be good social policy to ensure that workers have the ability to make some sort of psychological ownership claim (which I want to separate out from legal ownership claim) to a project to which they contributed? What would such a claim look like? How can technology assist with facilitating such ownership claims? Alternatively, does the incredible granularity of the HIT make the difference in scale between the worker's contribution and the final product so dramatic that a sense of ownership would be impossible?

*''Overlap of legal frameworks''. Some countries have a state pension fund that is financed by a tax deducted from a worker's salary. How are these legal requirements adhered to in the realm of crowd-sourcing? How is the location/jurisdiction of the worker determined? If the company's location is chosen, how measures are taken for the worker to have access to that respective legal system?

*''Compensation''. Crowdsourcing appears to rely on monetary compensation, a gamelike points system, or personal gratification to motivate people to participate in these tasks. Which of these compensation forms is the most effective in ensuring a large labor pool and the best results for employers? Which (if any) of these forms will be the most prominent system of compensation in the future and which do you think would be the most ideal compensation structure for crowdsourcing in the future?
**''Virtual Currency Concerns''
***A growing trend is for companies to pay "cloudworkers" in virtual goods, rather than real money, and this raises some interesting concerns. For example, CrowdFlower (in parternship with game maker Zynga) pays around 100,000 workers in virtual goods rather than real money -- which the gamers can then use to buy things such as virtual seeds for Farmville. CrowdFlower CEO Lukas Biewald told BusinessWeek [http://www.businessweek.com/magazine/content/10_26/b4184041335224.htm] that demand for virtual rather than real wages skews young: "There will be a whole new generation of kids growing up who won't really see the difference." Yet what is the difference?
***Does payment in virtual goods attract more children to cloudwork? Does payment in virtual goods circumvent any regulations governing work for "real" currency? Do game makers who offer cloudwork risk harming players? For example, if Zynga offered a weapon in Mafia Wars for performing 10 hours of cloudwork, yet made this same weapon difficult to otherwise obtain, one can imagine that players might feel pressured (or exploited) into performing cloudwork. Have there been any such instances?

*''Employment relationship". Are all cloudworkers to be considered independent contractors? Does this qualification pass the test of current labour laws and tax laws?
** (Zara) The IRS definition of an employee versus an independent contractor, which tries to codify the common law, seems inapplicable to the cloudworker-employer relationship. ''See'' [http://www.irs.gov/businesses/small/article/0,,id=99921,00.html Independent Contractor (Self-Employed) or Employee?] The page on independent contractors states: "The general rule is that an individual is an independent contractor if you, the person for whom the services are performed, have the right to control or direct only the result of the work and not the means and methods of accomplishing the result." [http://www.irs.gov/businesses/small/article/0,,id=179115,00.html] As Davis observes in his discussion of scientific research, cloudsourcing problems tend to be idea-based. Applying the common law definition to idea-oriented micro-tasks, which don't require specialized instrumentalities or complex services, is difficult. It could be argued that requestors control the means and methods of accomplishing the results by virtue of the nature of the task; the task can only be accomplished in readily identifiable ways. But if the "means and method" of accomplishing a result is the process of thinking, then an employer will have a hard time establishing this level of control!
**In searching the internet I found this interesting blog post (http://behind-the-enemy-lines.blogspot.com/2009/07/is-amazon-mechanical-turk-black-market.html). I do not know if the information provided is accurate, but it raises some interesting questions: how do crowdsourcing platforms respond to the accusation of fostering a black market?
**Is it appropriate for crowdsourcing platforms to construe a relationship between the worker and the requester? Or should any responsibility be allocated to such platforms?
** Should the role of the platforms be more active in ensuring fairness of the working conditions and salary?
** Crowdsourcing platforms have sometimes been depicted as virtual sweatshops. Do platforms feel any pressure from this criticism? Will increasing awareness of this perception in the general public prompt crowdsourcing platforms to adopt more stringent policies for the monitoring of working conditions?
** Should minimum wages be granted to full-time cloudworkers? Should the maximum working hours be monitored and controlled by the platform? It has been argued that the Fair Labor Standards Act should apply to crowdsourcing platforms (Working For (Virtually) Minimum Wage: Applying the Fair Labor Standards Act In Cyberspace; 60 Ala. L. Rev. 1077). What is the platforms' response to this?
** How crowdsourcing platforms address the issue of labour conditions in developing countries? Is the age of the cloudworker actually checked in order to avoid children labour exploitation? Should it be? And how?
** (Anna) As a consequence of Zara's question on whether the worker will be considered an employee or independent contractor - can the worker claim some sort of intellectual authorship on the final outcome? Will that authorship suffice for copyright or patent claims?
** Another thing is that crowdsourcing attracts different types of workers right now - the hobbyists who work for fun, but as it gets bigger, it may attract, as the posts here hint at, full-time workers. Is there a way for the current technology to make distinctions like this and farm out tasks accordingly?

*''Mobile Online Devices''. Mobile and closed platforms with constant connection to the Internet have been supplanting sedentary workplaces in popularity.. How has crowdsourcing taken advantage of this change or has it struggled to do so? What advantages/challenges do these mobile devices offer workers, employees, and crowdsourcing agencies?

*''Recommendation System / Performance Tracking''. It seems like sharing information about workers as suggested in the Best Practices document is a bit invasive for my taste, and perhaps something would have to be written into workers' contracts to explicitly allow this type of information sharing? (I'm not exactly what sure this law would implicate, but I seem to remember that when a potential employer calls a jobseeker's former employers, the employers can only share information that the person worked there, but can't reveal performance evaluations, etc.) Perhaps it's just me, but I'd feel more comfortable if companies enabled performance-tracking software, but didn't go so far as to share it with all other similar companies. (Question from Jenny)

*''Encryption?'' In some cases, the employer might want to protect the large picture of the project from workers while still makes each piece of task workable. For example, a writer might want his article to be shortened or proofread, but not necessarily want the workers to get the idea of the article before it gets published. How to make sure that they would not be able to do so (by e.g. divide the project into extremely small pieces, or, cut off possible communications among co-workers)?
** Secrecy in projects, however, also implicates the downsides with making discrete jobs that cover up the underlining project purpose. The Best Practices discussed some of these with micro-tasks (e.g. moral qualms with the project and lower quality of performance). Also, the employees will be isolated by such secret tasks since they will both lack a physical place to work with other employees and be cut off from discussing it in crowdsourcing chat rooms. One thing then to think about then is how do you balance those two objectives to get the best overall outcome for a specific project (thinking about desired secrecy and worker performance/satisfaction almost as two axes on a graph)? Again, as mentioned above, would developing contractual relationships to deal with this suffice?

*''Quality control.'' As the demonstration showed last week, the author still needs to use his own judgment to eliminate many inappropriate revisions suggested by the crowd. Is it possible to develop certain methods to have different pools of people to whom different projects can be assigned? Without collecting too much private information, we can use demographic standards to differentiate the crowd (age, sex, education, etc). Then the quality of collaborative product can be raised and author’s final intervention can also be reduced.
** In thinking about pulling from different pools of crowdsourcing employees, I’d be curious to ask about employee information verification. Basically, when recruiting crowdsourcing employees, especially when seeking out a certain educational background, how difficult is it to verify that they in fact have that background? Is misrepresentation of that kind of information more prevalent in the crowdsourcing context since it is largely faceless without personal interaction to help catch people in a lie? If so, would it be (or has it been shown to be) helped by the improved work environment ideas discussed in the Best Practices, such as chat rooms for employees that simulate a virtual water cooler?
**A related issue is how crowd sourcing plaforms and their clients will be able to take enforcement action against workers who have engaged in some sort of misconduct (e.g. a breach of confidentiality), given the worker may well not be in the United States. Even if the contract specifies that US law(or the law of some other jurisdiction) applies, there could be real practical issues with taking any sort of enforcement action beyond termination of the worker's employment in the particular crowd sourcing platform. Are there likely to be situations where either the platform or the end client would want to take further action? What sort of further action could be taken - traditional legal mechanisms, which may be difficult in a cross-border context or are there other mechanism thst may invovle use of technology?

*''Capability of Crowdsourcing to facilitate intellectual discussion/speculation.'' So I thought it would be interesting to take our questions about crowdsourcing (What is its future? Potential problems/dilemmas? Unforeseen benefits? etc) and crowdsource them. I put together a prompt on Mechanical Turk and solicited people to give me 1-2 paragraph responses. The results have been interesting, but disappointing. Despite being explicitly prompted to focus on unforeseen or novel consequences/views of crowdsourcing, very few responses said anything beyond a boilerplate of initial ideas. Lots of very similar responses that basically covered only what we discussed in about the first 5 minutes of class last week. What this implies to me is that the crowdsourcing mechanism I used (and perhaps crowdsourcing generally) is not necessarily well suited to thoughtfully brainstorming new intellectual issues. I suppose this may be intuitive given that I'm paying someone $0.20 for a paragraph of their thoughts. It should be noted that the average time spent on this task was 4-5 minutes. But I expected that this community of crowdsourcers would come up with at least a few unforeseen issues that us, a room full of mostly crowdsourcing novices, had missed. Here are the only real highlights, out of 12 responses, and two of them came from the same person:
**"As you will probably find with this micro-experiment, you only get what you pay for. Which means you will not get two paragraphs of extremely well thought out ideas from anyone, simply because it is not worth their time."
**"One problem that is already being run into is by article writers who write on mturk and then have their articles reviewed by another user. Because the proofreading only pay a tiny fraction of the actual article writing, there are a lot of blanket statement and unhelpful critiques which then get forwarded on to the writer, who feels frustrated."
**"Crowd-source workers are increasingly being hit by scams. This includes "website testing" that is actually signing up for a legally binding service contract or services that require a credit card number, putting them at risk of phishing. Getting rid of the scams will increase the confidence of crowd-sourcing workers to take on more complex tasks."

(Sorry, forgot to log in, this is Erin) OK so to keep in mind what our goal is — we're supposed to put together some sort of agenda to talk about with the people who think about this day-in and day-out, and we have about half an hour? So it seems like we should try to focus in on a particularly compelling angle. The list above is good but can we prioritize? I really liked the point made in class last week that pointed out that if we can identify some sort of way for interesting technology to "fix" the "problems" that we see arising out of crowdsourcing, we'll have a much more receptive audience. Nothing jumps out at me from any particular section of the Best Practices document, but if we combine some of it maybe we can come up with something interesting?
* Maybe combining some of the aspects of portability and reviews with the identity movement more generally would be interesting?
* Frankly a lot of the best practices aren't super interesting in terms of the required technology — is there some other way to get them excited about a particular angle on something?
* Is there a way to frame a problem that we're particularly concerned about that will speak to them? Don't mean to make this an "us-against-them" thing — but the way that technologists think about technology is a little different from the way that lawyers do, so we want to be able to frame the issue in a way that will resonate with the audience...
**What about praising the technology (maybe have a few specific examples), but then asking them if they've met any resistance from, or thought about, any of the potential actors who may block or alter the technology's use? Have you (the technologist) talked with local/state/federal government? Have you discussed potential roadblocks with companies that will implement the technology?
**Maybe framing some of the 'legal' issues we've identified above in a way that demonstrates why they are important not jsut for the workers but for crowd sourcing platforms and their clients - e.g. while the welfare of the workers is clearly very important from a ethical perspective, it is also beneficial from a public relations perspective and may of the potential 'worker' protections go both ways - in some cases they are protective of the 'employer' as well.
----

'''Crowdsourcing Science'''

Jenny here: I've been reading some blog posts on crowdsourcing, and one comment from a scientist (found in the comments section here: http://money.usnews.com/money/blogs/outside-voices-small-business/2009/01/27/using-social-media-and-crowd-sourcing-for-quick-and-simple-market-research ) got me thinking that scientific research and development could suffer if companies move from hiring a dedicated team of scientists to farming all of their scientific problems out to a crowdsourcing lottery payment system (ie, first one to do this gets all of this money; the others get nothing). Honestly, worst case scenario, we'd have even fewer people going into sophisticated scientific fields than we do now, because there wouldn't be any guarantee of a stable living, and I wonder if this could really hinder the development of solutions to scientific problems or if it would limit the scientific fields to scientists who are business-savvy enough to be connected to venture capitalists, etc. Either way, the outcome could be scary.

I'd be interested to hear from crowdsourcing experts about how they think crowdsourcing scientific problems affects the quality of scientific research, and if there could be any safeguards implemented to prevent the aforementioned problems from occurring (ie -- could the crowdsourcing community fund a dedicated pool of scientists, with extra prizes going to those who successfully complete R&D tasks, or would this go against the very core of the crowdsourcing movement?)

*(Heather): I'm not sure this is a novel problem in the crowdsourcing context. I've never worked in a lab or been involved in research, but this concern about stable living and a consistent funding source seems to be pretty common (at least in the academic context, where it seems like a lot of time and energy is spent chasing down grants and competing for funding). Obviously the decentralization of oDesk and similar websites exacerbates the problem by breaking down competition into individual tasks and individual workers instead of across entire projects or teams, but it doesn't seem to me to create an entirely new economic incentive structure. Then again, I'm not an expert on this and we'll be talking to people who are.

*(Davis): I question whether crowdsourcing has the potential to displace much scientific research. Most commercially viable research projects (such as pharmaceuticals) require significant capital investments in sophisticated experimental equipment, or access to tightly regulated materials (such as dangerous chemicals or radioactive sources). There is simply no way to crowdsource around the need for a spectrometer or a chromatograph. '''The types of scientific problems that are readily solved through crowdsourcing will tend to be idea-based''' (rather than experiment-based), and correct solutions must be easily verifiable. These criteria alone suffice to tightly restrict the class of problems that are amenable to solution through, say, Innocentive. Moreover, companies will need to employ scientific experts simply to know what questions to ask (and how to divide larger problems into smaller ones), and so a significant amount of centralization will still be necessary even with distributable projects.

**And of course much scientific research is basic research, and therefore not (immediately) commercially viable. Thus we're unlikely to see a large category of research go the way of Innocentive. Something like the Large Hadron Collider is the very antithesis of crowdsourcing; such large collaborative projects seem to be the direction physics research will be headed for some time to come. The same will probably become true for other scientific fields as they mature.

**(As a side note, I also feel the need to add that the concern we often hear about having an insufficient number of people pursuing the hard sciences is overblown. In most fields, there simply aren't enough jobs out there to absorb the quantity of science PhDs we produce.)

*(Rachel): As an offshoot of what Davis said, I'm curious as to whether we can discern general principles of when crowdsourcing is or is not viable -- not so much in terms of Rene's question about public acceptance of crowdsourcing, but rather in terms of when it can actually be done or not, as in Davis' Large Hadron Collider example. Or what about litigation? Doc review is being outsourced more and more to contract lawyers working as independent contractors, both within the U.S. and abroad, so that seems like fair game for crowdsourcing (assuming we can get 'specialized' crowds), but it does not seem like the same could be said for actual trial or appellate practice in court. Is it merely a question of skill and experience? Given projects like Innocentive, where scientific issues requiring a lot of skill and experience are crowdsourced, that does not seem to be the case, and yet what is it about things like Large Hadron Colliders and trials that appear to be resistant to crowdsourcing?
**(Alissa) While doc review certainly does lend itself more to getting outsourced and potentially crowdsourced, there is no reason why other more technical tasks even in the legal field cannot. The more you thinly slice a complex task, the easier it can become for a larger group of people to do. Say you are assigned to research a particular issue in the law for a memo. While the task undoubtedly requires a unique set of skills, a crowd of workers with some knowledge can identify the key words or phrases that need to be searched on Lexis or Westlaw. Then other workers can go through a list of cases that turn up and eliminate all those cases that are completely unrelated. There will come a point wherein crowdsourcing will no longer be vialbe to complete the entire task, but it could further it along quite a bit.
*** Furthermore, a downward economy lends itself to crowdsourcing tasks that may only be appropriate for people with specific skills. With the mass amount of attorneys that law schools graduate every year, it is likely many attorneys will graduate unemployed with a unique set of skills that could be implemented in specific crowdsourcing platforms. Is that the future of crowdsourcing? Where instead of hiring a firm and paying hundreds on the hour for one attorney to do work, clients can go to a crowdsource firm, where there are hundreds of attorneys looking up one issue of a case for a client and the cases that they most turn up as relevant to the issue are then the cases that the next group of turkers decide or favorable or unfavorable to the case at hand, and the next group determine why and so on and so on. It could be a similar cycle that globalization followed that began with the manufacture of basic goods and led to the the outsourcing of detailed service industries.

----

'''Case Study: oDesk''' (Rene)

* I have used oDesk a lot of times over the summer to outsource smaller programming projects for my startup to developers, mainly in India and Southeast Asia. For those who haven't used oDesk, you post a job with a budget, oDesk workers apply for the job, you can interview them and then hire one; a small portion of the overall payment might be upfront, the rest is paid at completion of the project at discretion of the employer. oDesk has standard terms (NDA, etc.) to facilitate the transactions, but I have asked the developers I hired to sign additional documentation. The biggest issue is quality control; despite the fact that there is a rating system, it is quite difficult to evaluate whether someone is able to get a certain job done or not. I really like Jenny's question around recommendation systems / quality control as and extension of point (2) above and would like to hear what technologist have in mind to address this important challenge.

I would like to hear a '''discussion about the general public's acceptance of crowdsourcing'''. As mentioned in class, our knowledge and opinions of crowdsourcing is very much a minority viewpoint. Although to us it presents a really novel and theoretically interesting development, I imagine different entities (investors, crowdsourcing employees, workers outside of the field) would view this new practice through the lens of their own interests. I would like to hear these crowdsourcing leaders discuss their interactions with these groups, either through an open question or a directed one.
* Can a parallel be made to outsourcing? When jobs are outsourced, domestic workers feel outrage and a sense that they are being cheated or dealt with unfairly. One can imagine a similar response on a micro-level to crowdsourcing, where formerly dedicated employees are let go in favor of crowdsourcing, but employers are happy because it is more economically efficient.
*If people have made parallels to outsourcing, is that even a fair parallel to make? One can certainly make an argument that the small tasks being accomplished by 100s of people are not necessarily displacing jobs on a 1 to 1 level. Also, these jobs are not disappearing from the United States entirely. If your job has been replaced by crowdsourcing, you could just become one of the crowd at that point and do tasks for a wider array of companies. Are claims of outsourcing just knee jerk reactions to something that actually has the potential to offer the same amount or more opportunities for workers?
*(Jason here): Good points Rene. Building on the question of outsourcing: is there data about the number of "displaced" jobs vs. creating of entirely new types of jobs? Projects like Soylent could introduce a new paradigm for "micro freelancing" where workers could put in just a few hours or fractions of hours per week. Yet indeed a crowd or swarm of workers could chip away and eventually replace what could be a full-time job.

----

'''Lessig Framework'''

What if we approach the best practices document with a view to Lessig's four modes of regulation, and frame our discussion of crowdsourcing in terms of which combination of modes could best achieve the desired outcomes? For example, assume a crowdsourcing application that has an architecture in place forcing disclosure pursuant to the best practices model. With such a system in place, norms may then provide the best solution to the fairness problem: workers would share information about employers who are known to violate users' sense of fairness in worker forums, and discourage others from doing the work. Or workers could "strike" by making a concerted effort to accept all that employer's tasks and intentionally perform poorly, thereby obstructing completion of the disfavored company's assignments (sort of like 4Chan meets Mechanical Turk).
*(Alissa) Norms would probably be the single best regulatory mode. In addition to having crowdworkers review and give feedback on the quality of submissions provided by other crowdworkers, they could also give feedback on the assignor on categories, such as amount of information they are given about the project they are completing, the quality of the directions, and their sense of how their work factors into the larger project. A rating system could develop wherein employers receive an x amount points for their ability to communicate to the worker what the “whole” of the project is and how his part factors into that whole. Depending on the architecture of the platform. Previous turkers that worked on the project could leave feedback of the kind of work they have already done to give new turkers an idea of what has happened thus far in the project.
*Law could also be a powerful regulator. Platforms with a best practices document in their terms & conditions that list crowdsourcers rights could be enforced as contracts and when certain provisions are violated, such as nonpayment, crowdsourcers could sue for breach of contract. Other regulatory laws could form ensuring fair wages, disclosure of commissioning party, etc.

On a related question, could a crowdsourcing approach solve any of the crowdsourcing best practices problems? For example, is there a way to implement a feedback and monitoring system whereby the quality of a submission is judged by crowd workers?

----

'''Mobile Online Devices'''

This probably won't appeal to the tech crowd as much, but I'm interested in how we will deal with the mobile devices problem mentioned above. If you're working from your phone, which jurisdiction's labor laws apply? Is it the state where your phone was issued, the state where you live, or the state where you're using the device?
*How can companies protect themselves when they want crowdsourcing work done, but want to avoid certain states?
**i.e. if I want to avoid CA labor laws, I can block CA IP addresses, but that wouldn't necessarily prevent me from taking my TX iPhone and working for a crowdsourcing company when I'm in CA.
*What about international workers?
*Should we use architecture by forcing workers to log in through a mobile application that requires assent to certain terms (i.e. I'm not working in CA)?

----

'''International Issues'''

This may ultimately be moved to the employment and labor section, but I wonder if it would be worthwhile to think about how our views change depending on the country. Also we can apply all the issues under mobile online devices to the international context.
*Could/should companies take it upon themselves to pay higher wages to workers in poorer countries? If they're not legally responsible, are they morally obligated to do so?
**Is there a way to structure the technology to encourage or incentive fair labor practices? This may play into feedback mechanism we choose?
*What about international labor standards? ie rights of the child
**Could companies require workers in other countries to certify that they are acting freely and are not underage?
***Now were are moving to a place that seems to fit squarely in Lessig's framework. How do we identify individuals on the computer?
****I know crowd-sourcing is powerful and fascinating because of the ability to draw on power from all over the globe, but might we face legal restrictions that would require sourced material to be done in specific locations? You might imagine a "crowd-sourcing lounge" where people could come and have coffee, surf the web, chat, and work (on all different projects or not at all). This place would allow a reliable verification system while possibly retaining many of the benefits of crowd-sourcing and possibly providing benefits of a work environment. (Think: "crowd-sourcing cafes.")
*If other countries' governments start developing tasks, should the US government take an interest in their activities? How does this fit into normal US government involvement in cybersecurity? (considering current issues, this seems like it would be low on the list of priorities)
**This raises questions of how the technology is used? Are there norms in place among technologists about how this stuff should be used? Are there code-based restrictions that could reduce the possibility of "nefarious" uses?
*Are there any lessons that we can learn from the controversy over outsourcing to countries like India? Is this different than traditional outsourcing?
(Julia)

Class 2

2010-09-27T03:35:53Z

Davidrbrody: /* Group Two: */

== '''Group One:''' ==

-Identity revealed beyond your comfort zone (ex. WOW message boards: forced real identity).
-Can online identity be protected as a possession? Who owns profile pages?
-Data portability as a privacy policy (who owns shared data?)(single sign-in)(facebook
Connect)(OpenID)(persistent identity online).
-Cyberbullies, multiple identities online.
-How/can IRL ethics/morality be imposed in online spaces? Should they be?

'''1. The Right to Speak Anonymously'''
* It would seem that the easiest way to impose IRL ethics/morality in online spaces is to make our online identities tied more closely to our 'real' identities. But at the extreme, with everyone having a single, unique online identity tied to something like Social Security numbers, we would be sacrificing our right to speak and act anonymously online. Is there a happy medium?
** Perhaps a happy medium could exist if there were a way to impose social norms on pseudononymous users without revealing their real space identity or requiring a unique portable identity. If users are required to use the same pseudonym on a particular site their reputation on that site is tied to their pseudonym. If the website compiled a list of all that users activities and reviews the user receives from other users, his reputation is tangible. Think eBay. Users on eBay do not often use their real identities, but they develop a palpable reputation through their interactions with other users. They are reviewed after each transaction. Though some have argued that eBay is unique because it is a commercial site, the reputation building mechanism is no longer a product of just eBay. As someone posted below, Xbox Live now has its own mechanism for reputation building through user provided feedback. Other users can access this information and decide whether they want to play with a random user name they cannot identify. If other websites/ online social networks required users to have a single pseudonym and put an emphasis on reputation building on the space, the same norms could develop. ---[[User:Alissa.d.R.|Alissa.d.R.]] 00:38, 27 September 2010 (UTC)
*** A way of enforcing those norms is by putting those individuals that violate community standards on a digital scaffold. Virtual worlds in the past have attempted to curtail undesirable behavior in their communities by punishing users in a visible fashion. For example, one virtual world put users that violated its terms and conditions in a virtual jail. Other worlds, such as Second Life, have created a quasi-board of users that review violations and make a determination. Complaints are publicly displayed on a related site, and the way in which they were addressed is also listed. The mere appearance that someone on the space cares about violations and the fact that they do not go unnoticed enhances compliance to norms. --[[User:Alissa.d.R.|Alissa.d.R.]] 00:39, 27 September 2010 (UTC)
* Then again, it's likely that with cyberbullying, for example, that the kids being bullied know exactly who their antagonists are, meaning that anonymity is not at the heart of the problem. So what is? Is it a lack of consequences? Or consequences that, because they are in 'real' life, are insufficiently tied to their online behavior?
** Although in some cases, such as the highly publicized [http://en.wikipedia.org/wiki/Megan_Meier Megan Meier case], it was not known who the cyberbully was. In fact, in that case, the "real world" bully was unknown in large part because the profile was of a fictitious person to mask the real identity of the bullies.
** Perhaps we should split it into two categories -- "real name" bullying and "masked" bullying. "Real name" bullying usually takes place on sites like Facebook and MySpace (the Meier case notwithstanding) and over IM, and may be a group of middle school or high schoolers who have taken to picking on one kid online. The total lack of adult or authoritative supervision (ie, no threat of a teacher walking around the hallway corner to see the taunting) could be what fuels this. Thus, some mode of authoritative supervision could calm this type of bullying. On the other hand, "masked" bullying takes place in larger arenas, such as JuicyCampus, CollegeACB (see http://www.collegeacb.com/ and a corresponding article: http://ksusentinel.com/arts-living/students-become-source-of-anonymous-bullying/ ), or perhaps even message boards like World of Warcraft, where the the bullies are anonymous posters or use pseudonyms not connected to their legal names. Here, it may be harder to have any notion of supervision, because the sites themselves facilitate and promote anonymity and likely will invoke free speech claims to avoid working with regulators. -- JPaul (Jenny)
*** Can we distinguish sites that encourage anonymous posting because they want a wide variety of opinions and want to promote general speech from sites like Juicy Campus that used and assured anonymity to its users to elicit defamatory speech. The Communications Decency Act protects ISPs from suits for the content posted by third parties on their sites, but if they are eliciting a certain type of speech, shouldn't they lose their immunity? --[[User:Alissa.d.R.|Alissa.d.R.]] 01:38, 27 September 2010 (UTC)
*World of Warcraft Real Names Controversy
**[http://blogs.cisco.com/security/comments/blizzard_real_id_privacy_concerns/ Cisco article] describing Blizzard's proposed changes to its message board identification system.
**[http://forums.worldofwarcraft.com/thread.html?topicId=25968987278&sid=1 Blizzard's response] to the controversy the proposal created. In this message board post, Blizzard gives up its plan.
**Blizzard's proposal was tied to its [http://us.battle.net/en/realid/faq Real ID] plan, which is an interesting way to bring real world identity to the online realm in an unobtrusive manner.
* Is the Right to Speak Anonymously (or even the Right to Freedom of Expression?) harmed by forcing online users to sign in with "real identities" (achieved by requiring either verified credit-card billing names, or in less strict cases Facebook Connect) to leave comments on newspaper websites rather than leaving them anonymously as common practice in the early days of the internet
** The analogy to traditional 'letters to the editor' in print editions does not hold as it was much more difficult - if not impossible - to conduct a search of all the comments a given person had submitted to newspapers - in today's world, such as search would allow anyone to quickly pull together a portfolio of comments left by a given person across multiple publications.
*** Humorous example of this: [http://www.mcsweeneys.net/links/commenter/ "Get to Know an Internet Commentator" by Kevin Collier.]
** Another case to consider with anonymity and the internet is the situation where people seek to keep their real-world actions (part of their real-world identity) off the internet. We have discussed that online identities have been increasingly merging with real-world identities through the use of real names, photographs, etc. on Facebook and similar sites. We have also mentioned, in the context of WoW/XBOX among others, some people seeking to maintain fictitious or anonymous online identities. A recent Supreme Court decision in [http://www.supremecourt.gov/opinions/09pdf/09-559.pdf ''Doe v. Reed''], however, considered when real-world acts are publicized, and importantly for our purposes publicized on the internet. In that case, petition signers hoping to repeal a Washington state law which granted same-sex couples rights akin to marriage sought to prohibit others from gaining access to the petitions under the First Amendment. Opponents of the petitions intended to put the names and addresses on the petitions online in a searchable format. The Supreme Court held that public disclosures of referendum petition signers and their addresses, on its face, did not present a First Amendment violation.
* If there is a right to speak anonymously, what are its limits? Are third parties required to reveal real identities when necessary to name a party to a lawsuit? What showing of harm to another person might be required? Under what circumstances are subpoenas of internet service providers legal? It seems to me that the First Amendment justifications for anonymity are lacking in cases that cause harm to others, like cyberbullying, such that any right is extinguished. How absolute is this right?
*What is the effectiveness though of a single, unique online identity?
*'''''Possible case study: Microsoft's XBOX Live online service'''''
**Microsoft's XBOX Live services assign users a unique online username that identifies the user across all the games and services offered by XBOX Live. This unified identity allows a user to easily maintain relationships with other users, compare past accomplishments and activities, and effectively establish an online community.
**From a Lessig framework, Microsoft has used 3 of the 4 regulators to motivate people to become attached to one identity and work hard to preserve its reputation.
***''Norms'': Microsoft allows users to rate other users and assign positive and negative feedback. Other users can easily access this information and determine if this is someone they want to associate with. A user's accomplishments and stats from playing games are tied to his unique identity, making it a valuable indicator of skill and status in the online community.
***''Market'': In order to acquire an XBOX Live account, a user must pay $60 for a year-long subscription. A subscription only gives a user access to one username and, therefore, one identity. If someone wanted to create another identity or if Microsoft banned a user from XBOX Live, that user would have to pay for another account.
***''Architecture'': Microsoft has built in the rating system listed above. As a closed platform, Microsoft also has the ability to ban a user from online activities. This would force the user to purchase another account and would prevent that user from associating himself or herself with past accomplishments and reputation. Given this ominous power, one should be extra careful not to do anything to warrant banning.
***''Laws'': nothing outside of normal tort laws
**Result: this requires more research and testing. However, common wisdom (note: this is from my own personal experience has someone who has played online and has read many opinions about the service) is that communication on XBOX Live is a morass of racist, sexist, and violent comments. Many individuals refuse to communicate online anymore. Despite all of Microsoft's safeguards, there is not an effective deterrant to this type of behavior.
*Are entities like Microsoft hampered by the fact that these online identities, in a sense, don't matter? If I have a unique XBOX Live identity, how am I harmed outside of the XBOX Live community if I act poorly online and am banned? This won't harm my relationships outside of this online realm or ability to get jobs.
*Do we need to make more "real world" ramifications? For example, if law firms required me to list my XBOX Live account name, my Facebook account URL, and my Twitter name (and required me to make all of them public), that would greatly change how I act online. Is the notion of an online identity affected by OCS telling all students seeking law firm positions to make their Facebook profiles as secret as possible?
** Along the same lines, is it going to be possible for future generations to truly maintain their private and professional lives separate or has their use of the Internet from an early age necessarily made that nearly impossible. Can employers justify hiring or promotion decisions based on observations made outside of the work place that have been gathered online. --[[User:Alissa.d.R.|Alissa.d.R.]] 01:38, 27 September 2010 (UTC)
*How does requiring a persistent identity mesh with policies behind law? Minors may have opportunity to expunge or seal criminal records under the concept of learning and youthful mistakes. However, this is a system completely controlled by the government. Given the nature of the Internet, it may be impossible to offer a similar service, as website could continue to cite the damages caused by an online user, who is easily traceable to a real world individual. If we could expunge a minor's record, do we want to? For security reasons, we may not want minors to be identified as such online. Therefore, people will treat an online identity that belongs to a minor as if it belonged to an adult. Similar to minor being held to adult standards when participating in adult activities under tort law, should we hold minors to adult standards if they are perceived as adults in the online realm (which would include not allowing their record to be erased)?
**Google CEO Eric Schmidt predicts, according to an August 4, 2010 interview in the WSJ, that "every young person one day will be entitled automatically to change his or her name on reaching adulthood in order to disown youthful hijinks stored on their friends' social media sites."
**However, allowing someone upon turning 18 to disown "youthful hijinks" promotes a culture that separates consequences from actions. Instead of eliminating the past, why don't we provide it with more context? As a proposal, why don't we use the architecture/law prongs of the Lessig test to create a structure in which the online activities of an individual, from his first entry into the online world to the last, are stored on a server (this is extremely big brother-ish but let's just play this out). The user can establish as many identities online to represent themselves to other uses, but all of these identities are connected to the user's real world identity. All of the actions a user takes as a minor are branded as the actions of a minor. The way we would then use this information would be similar to a background or credit check. Employers looking to hire the user can request a report on his Internet activity. They would then receive a report that details his actions. This could either be exhaustive, a general overview, or just if others have complained about his actions. This report will indicate what the user did and when in his lifetime he did it. Therefore, if the user did something embarassing or bad, this report will provide more context than a mere Google search.
*** Should the notion of an online identity include search results? If so, how should this information be controlled? Wikis indicate when an entry is in dispute. Could search engines provide a similar service for websites attacking individuals? Is it technically possible to screen for negative publicity and separate out these websites in a search?
*In an [http://futureoftheinternet.org/reputation-bankruptcy article] on his blog, Professor Zittrain discusses the concept of reputation bankruptcy.
**I find the tie between the solution to identity issues and bankruptcy to be troubling. First off, one of the major problems with online reputation is not a completely toxic reputation, but a singular occasion of poor discretion or the malicious agendas of a few individuals. In the [http://www.washingtonpost.com/wp-dyn/content/article/2007/03/06/AR2007030602705.html AutoAdmit] case, users of a law school message board maliciously attacked a Yale Law student. These negative posts were among the first page of hits in a Google search of the student's name. The student received no offers from law firms and although no causal connection was proved, these negative posts could have been a reason why she did not receive offers. In cases like these, individuals need selective erasing of third party attacks or a past mistake that are unfair restrictions on a promising future. However, Professor Zittrain suggests that reputation bankruptcy could involve wiping everything cleaing, "throwing out the good along with the bad." The new start of bankruptcy is a dramatic change and should be used for dire situations. For many cases, it may be a case of using a sledgehammer to kill a fly.
**Another concern is similar to the one I proposed to the idea of "disown[ing] youthful hijinks." If someone can declare reputation bankruptcy, that individual is saved but the communities he or she was a part of are still scarred by that individual's actions. If, in the aforementioned XBOX Live case study, a user could declare reputational bankruptcy, that would do nothing to help XBOX Live's negative reputation and people's unwillingness to engage in that community. Under bankruptcy, creditors are able to receive some amount of compensation for the debts owed to them. What kind of compensation can online communities receive in reputation bankruptcy?
*How do we teach youths just entering the online world how to interact with it and maintain a praiseworthy identity? [WSJ
'''2(a). Facebook Profile Portability'''
Let's do more research into data portability as a privacy policy, which relates to above. Facebook could be a good case study. What options and protections are there to port an online identity / profile i.e. Facebook messages, friend listings, and wall-postings? What can and can not be permanently deleted?
* It has been argued that Facebook has created a "semipublic" shared space for exchange of information. [http://www.nytimes.com/2009/02/19/technology/internet/19facebook.html?_r=1 NYT] If I send a private message or make a post on my wall, such information would be owned by me. But what about posts made by other people on my wall, or pictures and video I have been tagged in?
** What happens to these shared data if I close my account?
** Should information uploaded by other people become part of my online identity? If I look at my facebook wall I can see that only a minor part of it is made of my own contribution. Would my online identity be the same without other people's contributions?
** And what about my posts on other people's wall? Are those part of my online identity? If we own our personal information, should we own also our posts on other people's walls?
** Let's assume we have complete online portability of our online identity, including material submitted by third parties: what are the privacy implication of this from a third party's perspective? Are we ok with the third party's posts and tagged pictures being transferred? Should the third party be notified? Should the third party give express consent?
'''2(b). General Online Identity Portability'''
While 2(a) focuses on Facebook, how about tackling the more general question about our online identities:
* How should online identity be regulated?
** Lessig's framework, incl. benefit analysis of potential laws, norms, market mechanisms?
*** re laws: 3 privacy laws passed at state level, federal privacy law potentially coming in next Congress - what will (should?) it include regarding online identity?
*** re norms: self-regulation: could talk about OAuth, OpenID here and what role they could play
*** re market place: thinking about Google's leaked internal communication from 2008 about creating a market place for privacy/personal data)? See: [[http://bit.ly/crHT3J]]
* What frameworks / initiatives do currently exist? Who has, should have control - Government vs private sector (Could Facebook be ''the'' personal online ID provider)?
** NSTIC (National Strategy for Trusted Identities in Cyberspace) [[http://www.nstic.ideascale.com/]], first draft strategy document published in June 2010, available for download on homepage
*** Goal of initiative: Identify solutions ensuring (1) Privacy, (2) Security, (3) Interoperability, (4) Ease-of-Use
*** Key roles and perspectives to analyze: Individuals, Identity Providers, Attribute Providers, Relying Party
***(Source: NSTIC Presentation, Trusted Identities Panel, OTA Online Security and Cybersecurity Forum, Washington D.C., September 24, 2010) --[[User:Reinsberg|Reinsberg]] 19:33, 26 September 2010 (UTC)
'''3. Applying Privacy Policies Worldwide'''
What are the challenges social networks face at the international level and in countries other than the US?
* Are privacy policies adopted by social networks enforceable everywhere?
** Consider Facebook approach: Facebook adheres to the Safe Harbor framework developed between US and EU as regards the processing of users' personal information. [http://www.export.gov/safeharbor/eu/eg_main_018476.asp Safe Harbor] Is this enough to shield Facebook from privacy claims coming from outside the US? What about countries outside the UE?
** Should Facebook be concerned at all about its international responsibility? Consider the case of the Google executives convicted in Italy for a breach of privacy legislation. Assuming the conviction is upheld in appeal, can it ever be enforced? Where are the offices of the company? Where are the servers? Where are the data actually stored and processed?
* More generally, what types of information created by users is 'personal data' about which they have/should have a reasonable expectation of privacy and should be subject to regulation?
**The line between personal information about which people have a reasonable expectation of privacy and information that is not personal and that need not have restrictions relating to privacy can be a difficult one to define. For example, is information about how a driver drives a car that gets recorded on an in-car computer and potentially transmitted to a car rental or the car manufacturer 'personal' information that is/should be covered by data protection laws? What about information that is picked up by google when taking images for google street view (e.g. IP addresses of neighbouring properties)? (See discussion in Information Commissioner’s Office (UK), Statement on Google Street View, August 2010). The problem is that in many cases this information on its own does not identify a particular individual but that it could be used in combination with other information to identify people. Yet when we use the internet so much information is created and it may not all be information that should be subject to privacy regulation. See discussion about this problem in a New Zealand context in Review of the Privacy Act 1993, NZLC 17, Wellington, 2010 (Australia and the UK are considering similar issues).
*Who/what are the main sources of privacy invasion that people anticipate? Is it the same privacy invasion if it comes from a company (Google), a government looking for potential terrorist activity, or just an acquaintance who likes to facebook-stalk others?
**Do we hold private companies to a higher standard if we know that they have the means to protect our privacy more? Should such companies be held to the same standard in every country? If not, aren't there problems with information that is accessible in some countries but not in others?
'''4. Cyber-security'''
* Cyber-space was first used by script-kiddies as a playground for web defacement, etc, then discovered by criminals as a new means to expand their activity followed by transnational crime syndicates, followed by hackers with a political - "hacktivists" - until eventually also government discovered cyber-space. Since the DDoS attacks on Estonian websites in 2007 pushed the issue in NATO circles, cyber-security has been increasingly in the headlines. A number of questions emerge from this:
* Real threat vs. threat inflation. How much of the what is written in newspaper articles and books is much ado about nothing and what can be considered a real risk? If there is a risk, is there also a threat? What determines what constitutes a threat? Richard Clarke's book "Cyber-war" paints a gloomy picture. Self-interest by an author working as a cyber-security consultant or is there more to it?
* Cyber-crime <-> cyber-espionage <-> cyber-hacktivism <-> cyber-terrorism <-> cyber-war (cyber-intrastate war/cyber-interstate war). Costs today? Costs tomorrow? Technical solutions? Policy/legal solutions? National/international level? State vs non-state actors? Public/private?
* Cyber-war vs. cyber-peace. Why is much of the literature using language such as "cyber-war", "cyber-attack", etc and not language such as "cyber-peace", "cyber-cooperation"
* Terminology. What is the difference between a cyber-hacktivist and a cyber-terrorist? What constitutes a "cyber-attack"? Given cyber-space's virtual borderlessness is it appropriate to speak of defense/offense or active/passive (e.g. the Outer Space convention)? Is cyber-space a territorium like the High Seas, Antarctica or Outer Space? Or a new field after land (army), sea (navy), air (air force), cyber? Is cyberspace a "cultural heritage of mankind"? Relationship between virtual and kinetic.
* Civilian vs military. How is cyber-security changing the relationship between civilian and military? DoD is responsible to defend .mil, DHS responsible to defend .gov. What about the other domains? The German DoD is responsible to defend the German military network, the Ministry of Interior responsible for the government websites. How do civilian Ministries of Interior with police forces relate to a cyber-attack outside the country usually an international attack being the responsibility of the military branch of a democratic government? What are the lines of authority, e.g. for the planting of logic bombs or trapdoors?
**What would the authority of the military be in addressing attacks on civilian networks, if any? Does the government have a role or responsibility to address non-government networks? Structurally and legally, how would implementing this role be done? Would there be any problems of privacy protection and government over-interference?
*If the government is going to take a role in strengthening private network security, which networks should it protect first? Who should be involved in the oversight of this protection--military, civilian gov. actors, private actors?
**Would these actions fall under the Cyber Command?
** The New York Times reports that "the new commander of the military’s cyberwarfare operations is advocating the creation of a separate, secure computer network to protect civilian government agencies and critical industries like the nation’s power grid against attacks mounted over the Internet." [http://http://www.nytimes.com/2010/09/24/us/24cyber.html?scp=4&sq=department%20of%20defense&st=cse]
*** Are "secure zones" a viable solution to protecting critical infrastructure? Is this an oversimplified vision of secure systems that assumes cybersecurity is analogous to real space? What are the drawbacks to this approach? The article notes that the cyberwarfare commander did not demarcate the line between public and restricted government access.
* Role of private actors. How are ISPs, hardware and software companies integrated into the discussions/policy-/law-making process? How much power do they have? Allegiance to profit? Allegiance to country? Allegiance to open cyber-space? Are there public private partnerships? Do they work? What are their strengths/weaknesses?
* Role of hackers. In the early days, the battle was government vs. hacker or state vs. hacker guided by a hacker ethics. This was before the internet expanded around the globe and in the Western tradition of state vs individual. After the expansion, how has this relationship changed? Is there a transnational hacker-culture or are hackers of country X more closely aligned with government of country X vs hackers of country Y more closely aligned with government of country Y rather than hackers of X and Y aligned vs governments of X and Y?
* With the attribution problem and the transition problem (virtual-physical world) how much security is necessary and how much generativity possible? What can be done to reduce the risk? What can be done to reduce the threat? International convention? Code of conduct among major companies? International confidence-building measures?
* Enforcement. How could an international regime/agency look like solving the security dilemma? A cyber-IAEA? Or could a regime that exists now (such as NATO) be more effective?
**What responsibility would countries have for hackers / attacks originating from their own countries? How could one separate attacks from a private individual (that a country could disaffirm responsibility from) and from a government-sponsored initiative?
**What are the main sources of the threats that the US and other countries are anticipating? Are they state-based? How, if at all, would this affect our relationships and foreign relations with those states?
**What kind of retaliation would be appropriate, once an attack has been discovered? If necessary, would a country engage in counter-cyber attacks, or more traditional retaliation such as economic sanctions or even military action?
**Does the US have special responsibilities for a global safe and free internet? Should it take the lead in preventing attacks in other countries that are less equipped to protect themselves?

== '''Group Two:''' ==

-property
-online things acquiring IRL value
-what happens to digital possessions after death?
-who has access to your accounts (fb, twit, gmail, etc) after death
-(TOS after death)
-first sale doctrine in software
-first amendment rights with online comms (going through someone’s infrastructure)

'''1. Death and digital property'''
* What happens to your virtual possessions when you die? Who owns your various accounts (Facebook, Google, WoW, etc)? Do the terms of service, unread by everyone, dictate post-mortem property rights? Would the ToS be enforceable if an heir brings an action to recover a deceased's virtual possessions? Should companies be required to maintain a user's data (and for how long?) after they die until an heir comes forward to claim or discard it?
* At the moment most virtual possessions are purely sentimental in value. But we can imagine a time in the not-to-distant future in which a virtual possession has significant real world value. For example, someone with a large and devoted twitter following could monetize their account by licensing its usage to an advertiser. Suppose someone, let's call her Martha S., decides to use her twitter feed as a source of revenue in this manner and develops it into a brand. Upon Martha's death, what rights do her heirs have relative to twitter as to the use of her brand? Furthermore, if Martha had entered into long-term licensing deals regarding her twitter brand and dies suddenly, where does that leave her licensees? Certainly these issues will only get more complicated as the Internet becomes more complex and the value of virtual possessions increases.
* The fundamental question is who owns a property that is created by a user in a private party's virtual sandbox? The user? The company? Or should there be some sort of co-ownership/co-authorship?
*[http://arstechnica.com/tech-policy/news/2010/03/death-and-social-media-what-happens-to-your-life-online.ars Ars Technica] article on how Facebook, MySpace, Twitter, and Google subsidiaries treat death.
* Whole set of websites attempting to address this issue, and allow some users autonomy to make decisions about what happens to their accounts after they are unable to manage them anymore:
** [http://legacylocker.com/ Legacy Locker] "is a safe, secure repository for your vital digital property that lets you grant access to online assets for friends and loved ones in the event of loss, death, or disability."
** [http://www.mywebwill.com My Webwill] "allows you to make decisions about your online life after death. You can choose to deactivate, change or transfer your accounts, like Twitter, Facebook or your blog. At the time of your death we perform your wishes."
** But given the transience and uncertain future of so many of these companies, can someone really interested in this trust that the sites will still be around? Do you need to keep updating it for every new service that you sign up for which, over the course of several years, will presumably include several different sites? Should it either be a more centralized solution (say, a service provided by the government that has a feeling of more permanence) or more decentralized (say, a last will and testament that you can basically draft on your own).

'''2. Other disconnected thoughts on digital property and avatars'''
* Related to the above discussion of Martha S., can a user license the use/image of their account/avatar to third parties? Does the website own the avatar? Do users have a right to publicity for the use of their account or avatar? I.e. can Second Life take John Doe's avatar and use it to sell virtual Sham-Wows without Doe's consent? Do or should users have some sort of recourse for avatar defamation?
* Can you have a copyright in your avatar? In many instances they could count as pictorial, graphic or sculptural works. Is/should the copyright be shared with the owner of the software that creates the virtual world? How should these rights be balanced?
** But could they be seen as fundamentally useful articles and thus not protected? This would obviously require a case by case analysis ("No, Bob's character is not protectable simply because he carries an ornate giant broadsword; that sword is necessary for killing orcs").
** One objection to copyrighting an avatar might be that the user is simply recombining various elements which are each already part of a copyrighted work (the software) created by the company. However, at best this merely makes the avatar a derivative work. Think of a mobile made from random junk, or a scrapbook/collage created from photos and magazine clippings. Just because a user's medium and materials are limited by the confines of the software does not mean that the user's avatar has insufficient originality of expression.
* When affording property rights, intellectual or otherwise, to users, we must not forget to account for the economic incentives this will create for the companies that create the software that enables the users in the first place. If every user has copyrights and other rights relating to their accounts and avatars, there could potentially be a negative impact on the innovation and creativity of the software companies. Is it worth it to Blizzard to deal with all the legal headaches associated with such rights? Maybe. Is it worth it to some capital-poor start-up company with the Next Big Thing? Maybe not.
** Could this all be side-stepped with ToS and EULAs that assign rights to the company? Could this assignment be later revoked by the user? Is any of it enforceable?

'''3. Speech and Censorship'''
* ''Speech, Censorship, Statistics.'' Should we be concerned with an ISPs' and website owners' ability to aggregate and control information and speech. It seems that at least Google thinks that Internet users may be concerned with this topic. Google recently announced the "Transparency Report," which (incompletely) tracks usage statistics by country, as well as Google's removal of online material at the Government's request.[http://www.google.com/transparencyreport/ Google] How should corporations manage such governmental requests. What rules should it apply? How should it decide on a set of rules and whether they are catholic or case specific? What benefits are realized by providing publicly this information--particularly the tracking information? How can users or other entities use this information?
* When using a digital soapbox created and hosted by a private party, what First Amendment speech rights does a user have? There may be a necessity to publicize a message using privately owned infrastructure. Does the owner of this infrastructure have a right to regulate the content of the messages being sent or discriminate between users on the basis of their messages' content? If the Internet is the new town square, then shouldn't everyone have the right to yell whatever nonsense they want?

== '''Group Three:''' ==

-liability for security breaches (negligent design/management)
-wikileaks! (jurisdictional problems, prosecution) (how does filtering affect wikileaks?)
-transparency on internet services (google: how does it work?)

'''1. Liability for Security Breaches and Flaws'''
*Software insecurity:
** Security guru Bruce Schneier has argued that imposing tort liability is desirable as a method of forcing vendors to internalize the costs of insecure software. See [http://www.schneier.com/essay-025.html Liability Changes Everything] and [http://www.schneier.com/blog/archives/2004/11/computer_securi.html Computer Security and Liability].
***How convincing is his suggestion? What sorts of costs would this impose on software companies? Would such a rule drive small players out of the security market? Would individual contributors to open source projects potentially face liability?
** Law professor Michael D. Scott makes a similar argument, and notes that Sarbanes-Oxley requires publicly traded companies to certify that their systems are secure, while imposing no obligations on the vendors who actually provide the software. See [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1010069 Tort Liability for Vendors of Insecure Software: Has the Time Finally Come?]
*** There was a case in torts Kline v. 1500 Mass. Ave. that found that landlords are responsible to take reasonable security measures to protect tenants from attacks in common areas that are primarily under their control, such as lobbies or hallways by providing, for example, working locks. Could this case be applied to require ISPs and companies hosting websites wherein users store their personal information to protect that information from hackers and other security breaches? --[[User:Alissa.d.R.|Alissa.d.R.]] 01:38, 27 September 2010 (UTC)

*Database insecurity:
** Summaries of a few recent cases that address database breaches: [http://www.sidley.com/files/News/97324419-8e7b-4c3b-93fa-166d4b2bafb3/Presentation/NewsAttachment/17f372d1-e3f6-4170-b914-37bb3d2d695b/PrivacyUpdate062609%25282%2529.pdf&sa=D&sntz=1&usg=AFQjCNGVbZLeoS0joQgDT7_gE5jF8w6ivg Developments in Data Breach Liability].
**Law professor Vincent R. Johnson argues that tort liability is an appropriate mechanism for creating incentives and managing risks associated with cybersecurity: [http://www.stmarytx.edu/law/pdf/Johnsoncyber.pdf Cybersecurity, Identity Theft, and the Limits of Tort Liability]. Some issues he raises:
***''Duty to protect information'': California's Security Breach Information Act imposes such a duty. The obligations that Graham-Leach-Blilely imposes on financial institutions arguably support liability on a theory of negligence per se.
****Can market forces adequately address insufficient database security?
***"Duty to inform of security breaches": This could be analogous to a failure to warn theory of negligence liability.
***The economic harms rule seems to impose a significant bar to recovery. What about requiring the database-owner to pay for security monitoring? A risk-creation theory might support this approach.

--[[Special:Contributions/98.210.154.54|98.210.154.54]] 23:13, 21 September 2010 (UTC)Davis

'''2. WikiLeaks'''

Note: It seems to me, after reading the cybersecurity entry, that the "WikiLeaks" problem could be moved under that category and used as an example of how the Internet can magnify the consequences of a data breach in the physical world. Does anyone else agree? (I'd say no. There are other issues I've added that make it distinct. See below. -- Austin)

*Real-world data breach: Soldier suspected of leaking classified military reporters to whistleblower website WikiLeaks [http://abcnews.go.com/WN/wikileaks-case-pvt-bradley-manningss-alleged-role-leaking/story?id=11254454]
**This kind of leak is made much more likely by the growth of digital information. Spending two minutes to copy thousands of records to a CD labeled "Lady Gaga" v. making copies of the Pentagon Papers and smuggling them out under your shirt. Do we live in a more "leaky" age? If Wikileaks proves capable of protecting the anonymity of its contributors, should we come to expect that any information that is sufficiently important to public discourse will eventually find its way into the wild?
***If these sorts of leaks become increasingly common, will there be a significant effect on the public's expectations as to government(s) transparency? Will Wikileaks-like organizations become an accepted "unofficial" path to the release of information? Or will an increased public expectation of transparency force less government secrecy (fewer documents classified, documents declassified sooner)?
***What effect will Wikileaks have on transparency in private entities with significant public impact? Will the public or traditional press treat a leak from Monsanto the same way as a leak from the Department of Defense?
*WikiLeaks posts documents without redacting the names of Afghans who provided intelligence to the United States. [http://www.cbsnews.com/stories/2010/07/29/eveningnews/main6725935.shtml?tag=contentMain;contentBody] The Taliban said it was using the WikiLeaks site to comb for names of Afghan informants, while the traditional press/gatekeepers said they had redacted the documents they posted to avoid "jeopardizing the lives of informants." [http://thelede.blogs.nytimes.com/2010/07/30/taliban-study-wikileaks-to-hunt-informants/] It seems as if the Internet has allowed people to bypass the traditional gatekeepers -- be they the government or the press -- and that this magnified the effects of the real-world data breach.
**Wikileaks _did_ provide the Pentagon the opportunity to redact sensitive information from documents. [http://www.newsweek.com/blogs/declassified/2010/08/20/wikileaks-lawyer-says-pentagon-has-been-given-codes-granting-access-to-unpublished-secret-documents.html] The Pentagon refused. To what degree should the Pentagon and other groups targeted by Wikileaks and similar organizations be willing to work with those organizations? From the perspective of the targeted group, cooperation with such a group legitimizes it and increases its public statute. From the perspective of the media organization, a working relationship with a targeted group may cause supporters to question the organization's independence. Is there a balance to be struck here? Do the formation of these relationships make "new media" organizations like Wikileaks look too similar to the "old media" organizations that depend greatly on relationships with government officials for content?
*Jurisdictional problems and prosecution: The U.S. government is able to prosecute the real-world leaker, but likely won't be able to prosecute WikiLeaks -- the organization that used the Internet to magnify the effects of the leak, etc. -- because of jurisdictional problems and because of a lack of on-point law. [http://blogs.wsj.com/law/2010/07/26/pentagon-papers-ii-on-wikileaks-and-the-first-amendment/]
--JPaul (Jenny)
*What is the role of the primary source in our media landscape? The Wikileaks hasn't quite figured this out yet. In the Collateral Murder video release, for example, Wikileaks was criticized for releasing an edited video alongside the raw footage from a helicopter attack on journalists and civilians in Afghanistan. In the War Diaries release, however, Wikileaks received sharp criticism as described above. What is the role of the "gatekeeper" in today's media? Can primary source documents contribute effectively to discourse or do they provide so much information that a reader cannot process it all? Would the War Diaries release had greater focus if the vast number of reports had been reviewed by crowdsourcing?
*How will Wikileaks shift public opinion with regard to the use of anonymous sources? As some media critics have pointed out, traditional media sources, even while criticizing anonymous or pseudonymous bloggers, rely heavily on the statements of anonymous officials in their reporting. [http://www.salon.com/news/opinion/glenn_greenwald/2010/07/24/anonymity] Will there be a backlash against anonymity or will it become more widely accepted? Is there a distinction to be made between anonymous sources and anonymous reporters? How do trust and reputation fit into all this? (this issue fits pretty well into Group 1's anonymity issue above)
*Can the Wikileaks model of funding (releasing a big story and then relying upon donations) be a more widely applied to other forms of independent journalism?

== '''Group Four:''' ==
- '''The legal or regulatory meaning of Net Neutrality Principle'''
* According to Lessig, there is no fixed architecture for the Internet - they are all "code" written by human. The Net Neutrality principle and Prof Zittrain's concept of a "generative Internet" are attempts to lay down some fundamental values of what Internet architecture, given all possibilities, is the most desirable model that we should pursue.
* Suppose the concept of Net Neutrality is clear (which is actually not), what are the practical regulatory implications of this principle should bring? There are seemingly contradictory practices in the name of Net Neutrality. For example, ISPs prohibit P2P file-sharing, alleging it takes up too much band width and other users are able to use the networks equally. These practical issues remind us of rethinking some fundamental problems on what neutrality means to the Internet.
* Layers in regulations that protects Net Neutrality: Are there certain applications that should be given high priorities to run on the Internet, or should all applications be given the same weight? (For instance, should our policy equates the band width used for emails and web browsing to high-resolution video or gaming?)

-“to what extent is our judgment about tech related to the “coolness” of the tech itself?”
* '''User Satisfaction versus Company Profitability.''' Closed platforms like the iPhone present significant benefits at a cost. It may be helpful to frame benefits and costs in terms of user satisfaction and company profitability, rather than any particular feature of the device using the platform. We can, of course, ask about particular features that create or diminish user satisfaction or company profitability, but we won't talk about the features as if they confer some independent benefit. This is just a way of conceptualizing when society will tolerate certain technological constraints.
** ''The iPhone.'' Steve Jobs has a vision for the iPhone, and that includes regulating a large portion of what goes on and can go on the phone. Let's take a look at how the user satisfaction/company profitability model applies.
*** ''Profitability.'' The iPhone's closed platform provides at least two valuable and related benefits. First, it allows Apple to keep its operating environment "safe." Without unauthorized third-party applications--i.e., with all apps being Apple-approved--there is less risk for the introduction and dissemination of malware. This reduces costs for Apple, which doesn't have to respond to consumers whose phones have been destroyed by viruses. A second related benefit is branding. Because Apple can keep its system closed, it can design the environment in which it operates and market that environment as a product. This design means Apple can extract profits form third-party apps by conditioning access upon, among other things, payment. It also makes the company more profitable because Apple can advertise and promote itself as a "safe" place that operates seamlessly. Nevertheless, this raises issues about how far Apple will regulate its platform. Will it simply condition access by third-party applications, or will it go further and monitor its users. If Jobs is concerned that users will upload pornographic pictures on his phone, will the future iPhone be programmed to identify automatically and remove or block such photos? Does Jobs' vision relate to profitability, or simply personal preference? (This last question will be relevant to considering user satisfaction).
*** ''User Satisfaction.'' For most users, the iPhone's closed platform doesn't seem to cause any immediate problems. There are plenty of cool apps that individuals can download and use. The iPhone certainly scores high on aesthetics, even if some of its features are low on performance. Users tend to love aesthetics, and have overlooked the fact that, for instance, the iPhone can run only one program at a time. The closed platform's safety also provides a benefit to users, who don't have to worry about protecting their phones from malware. So far, user satisfaction is high. The balance between user satisfaction and profitability seems to be in equipoise--for now. The question for the future is whether Apple will close off more territory, and whether its current sectioning will stifle the actions of users in the future. As to the former, Apple might meet substantial resistance from the public if it begins regulating their private behavior more explicitly. As to the latter, the future is hard to predict. If users become more adept with their phones or demand new features that the closed system stifles, Apple may have to modify just 'how' closed its system should be. Of course, it may respond by making even "cooler" design, thereby satisfying users sufficiently to distract attention from the new (or old) restrictions that remain in place. If consumers detect that Jobs' personal preferences are dictating the ways they can use their phones, their dissatisfaction may win the day.
**"Pandora Hour Limits." Pandora's 40-hour (not sure if that is the exact number, but the important part is that there is a limit) limit for free users has had an impact for avid-users, taking away from their satisfaction.
*** "Profitability." The only way to take advantage of a freemium model of revenue is to provide users with more incentive to go premium rather than the non display of ads. Users seem to be satisfied with this because of the loophole of just creating new accounts, however, this is also a process not liked by consumers.
*** "User Satisfaction." Often times unnoticed, not causing immediate problems. There are plenty ways users have gotten around this restriction, especially by just creating a new account that requires only an email address.

'''Lack of Humans in Online Transactions'''

The process of purchasing something online has almost become too easy for users and is a process that is generally irreversible especially for a website like Ebay. Amazon introduced one-click purchasing where, with the input of a single word, your credit card is charge and the item is shipped. There is no human contact on the receiving end of a transaction, leading to a significant amount of error and non-intended expenditure. More human contact is needed and the process needs to be slowed down to ensure privacy and accuracy.

-online transaction speed: feature or bug?
-lack of humans in online transactions: feature or bug?
- Computers and people gone wild! (please don’t google this)

- Should everything be open-source?
* A closed platform means that things can be innovative only within a predetermined limit; that is, we can only work within the realm of the expected (e.g., apps for the iPhone). But some of the greatest innovations have changed the paradigm for innovation completely, the obvious example being the Internet. The cost of closed platforms is that we do not even know what we're missing -- are security and cool apps worth it?
** Alternatively, if everything ''were'' open-source, would we face some variant of the tragedy of the commons? (''Tragedy of the commons'' -- In ye olde England, there was a public commons where everyone could let their cattle graze. But because it was a public space, no one took responsibility for it, so all the grass ran out and the place was a mess. Then the commons was privatized, and lo and behold, private ownership meant that the owner now had an investment and interest in the land, so the land became nice and green again. Even if the owner now charged people to let their cattle graze there. [http://en.wikipedia.org/wiki/Tragedy_of_the_commons]) Or is there something different about the ethos of the Internet, or about cyberspace as a ''space'', that makes the tragedy of the commons a non-issue?