This coming weekend I’m planning on attending the Reputation Economies conference at Yale, so I bought, and read, Daniel Solove’s The Future of Reputation.
The book was a delight to read, intensely footnoted and calmly presented. While there is no shortage of rhetoric extolling the virtues of new media, Solove takes that as obvious enough, and presents instead the dark side of cyberspace.
The book deeply resonated with the research I do here at civilities. I have summarized four main reflections from the book:
1. Reputation and Privacy
What’s the relation between the two? It seems that there is an order of magnitude more concerns about privacy than reputation (there’s an Electronic Privacy Information Center, but no ERIC). Call it the “privacy-reputation gap.”
I can suggest a couple of reasons. One, we can all picture what it is like to see private details slip out, whether it is an inadertant letter fowarded or in Facebook news feeds. Our private details we hold dear because they are true; our reputation is often tainted by things which aren’t (and thus we have trouble imagining them). Two, most well-read journalists and bloggers are able to maintain a reputation through the force of regular speech. And as semi-famous figures, they have more to worry about privacy. And this may resonate with us all. Reputation may adversely affect our social relationships, but privacy breaches could jeopardize our physical security.
That said, the fact that reputation is traditionally much overshadowed as a concern is a reason to consider it on its own. I’ll address that in #4 below.
2. Balancing Speech and Privacy
Solove rightly calls for a balance between speech and privacy interests. But what we need is a simple equation to guide us forward. I suggest this:
“Speech denied is speech deferred; privacy breached is privacy broken.”
That is, speech is rarely censored forever. Lowell Bergman couldn’t make a 60 Minutes segment the way he wanted; he made it into a movie, The Insider. What can’t be published in one journal gets published in another – or online. I have on my desk a gift from my sister, the 2008 edition of Project Censored’s Top 25 Censorsed Stories of 2006-07. Etc.
But breach privacy (or taint someone’s reputation), and you can’t go back.
3. Section 230 Immunity
Section 230(c)(1) of the Communications Decency Act states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” And thus the courts have generally held this as a blanket immunity for privacy/defamation cases where the original author can’t be ascertained.
But free speech absolutism is warped to such a degree online that Eric Goldman, Assistant Professor of the Santa Clara University School of Law has written on his blog: “I really wish that judges would reconsider indulging themselves through 230-bashing dicta.” (A motion to end further debate on free speech.) I’m no lawyer, and never had to suffer through reading book upon book of case law, but as a citizen I’m grateful that judges are interpreting the law in judicial decisions, and not in, say, blog posts. One of the “230-bashers” Goldman cites is Frank Easterbrook of the 7th Circuit (now Chief Judge of that court), who from what I can tell online, is highly regarded for his judicial opinions. He issued an opinion on John Doe v. GTE (by coincidence, I had worked at GTE Internetworking at the time, though I had no idea about this suit), where he explained his opinion on Section 230 as such,
Yet §230(c)—which is, recall, part of the “Communications Decency Act”—bears the title “Protection for ‘Good Samaritan’ blocking and screening of offensive material”, hardly an apt description if its principal effect is to induce ISPs to do nothing about the distribution of indecent and offensive materials via their services. Why should a law designed to eliminate ISPs’ liability to the creators of offensive material end up defeating claims by the victims of tortious or criminal conduct?
Solove neglected to cite this opinion, but echoes the same theme in his book (p.159):
Although existing law lacks nimble ways to resolve disputes about speech and privacy on the Internet, completely immunizing operators of websites. It create the wrong incentive, providing a broad immunity that can foster irresponsibility. Bloggers should have some responsibility to others, and Section 230 is telling them that they do not.
Further, he adds:
The way courts are using Section 230 exalts free speech to the detriment of privacy and reputation. As a result, a host of websites have arisen that encourage others to post gossip and rumors as as well as engaged in online shaming. These websites thrive under Section 230’s broad immunity.
Missing is what a balancing formula for Section 230 would look like. Clearly it is intended to shield disinterested operators. But some websites clearly play a shaping role in the activities that take part on it. After all, if the Supreme Court ruled that Grokster “infringes contributorily by intentionally inducing or encouraging direct infringement,” why is a website innocent if it induces defamation? (as such DontDateHimGirl, sued again, could be construed as inducing.)
It’s possible, too, that a website or blog could be seen as inducing defamation if it supports untraceable anonymity.
I’ll add the observation that a blogger can now be seen as a publisher to the FEC (and thus does not need to report “in kind” support for a political campaign), while not be a publisher where defamation is concerned. It could well be legal for a campaign to dump funds (and borderline defamatory comments) into an opposition blog.
4. Autonomous Reputation Framework
Since I’m a software architect, it is easier for to build community software code than it is to effect changes in the creation or interpretation of legal code. It’s not for every community, but it could work for many.
Let us propose an Autonomous Reputation Framework (ARF! No one knows you’re a dog).
- A person should have the right to join a community.
- A person should be able to establish their reputation in a community through their words and actions.
- A person should have the right to remedy damages to their reputation.
This was the framework of the pioneering online bulletin board the WELL, with its You Own Your Own Words philosophy (pseudonyms were not allowed). It also is basically employed by the major e-commerce sites like eBay and Amazon. It’s good for business to empower users to control their own reputations.
Yet many neighborhood/town sites, by virtue of setting up blogs software with the minimum of configuration (and minimum cost), end up enabling untraceable anonymity, which threatens the autonomous reputation framework. Instead of becoming an equitable, open community, these blogs end up enabling the tyranny of the anonymous.
Thus I devised CommResp (Comment Management Responsibility) in the spring, and PONAR (Protocol for Online Abuse Reporting) in the summer.