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The frenzy of the mediacracy knows no bounds. Reporters snoop on even the president’s private quarters with binoculars; portable imaging devices make candid snapshots of any act immediately available for publication; the press swarms over the lives of the rich and famous, making their personal peccadilloes the daily public affairs agenda of the nation; pundits despair that information technology is the “chief enemy of privacy in modern life.” Life in the era of the blogosphere and the cell phone camera? Not quite. The president is Grover Cleveland, newly married and beset by photographers on his honeymoon. The trial of the century is the adultery prosecution of the Rev. Henry Ward Beecher. The new media are the tabloid newspaper and the Kodak camera. The pundit is E.L. Godkin, who, writing in The Nation, despairs that “gossip about private individuals is now printed, and makes its victim, with all his imperfections on his head, known to … thousands, miles away from his place of abode.” And the year is 1890. Daniel Solove’s latest book, The Future of Reputation: Gossip, Rumor and Privacy on the Internet, recounts how the privacy and defamation laws in force today were born out of this cauldron of competing rights (the free flow of newly disseminable information versus the defense of “private” life) and legal ferment (new media versus old laws). Solove, a professor at George Washington University Law School, naturally wants to give the credit for midwifing this birth to legal scholars. Solove describes the impact of Samuel Warren and Louis Brandeis’ article “The Right to Privacy,” published in the Harvard Law Review in the fall of 1890. Supposedly prompted by Warren’s annoyance at press reports about his high-society dinner parties, it was one of the most influential law review articles in American history. To constrain and deter a sensationalist press, Warren and Brandeis recommended the enactment of state law tort remedies for invasion of privacy and injury to reputation. Their views prevailed. In the decades that followed, nearly every state adopted privacy legislation, despite obvious tensions with First Amendment doctrine. Solove, both a distinguished privacy law expert and a popular, prolific blogger, wants to be the Brandeis and Warren of the new millennium. Today’s pundits either exult that digital information needs to be free or despair that privacy is dead (“You already have zero privacy. Get over it,” as Scott McNealy, the former CEO of Sun Microsystems, famously put it). Solove wants to find a new middle ground, where the law can help foster new norms of personal and institutional behavior in the Internet era. The Future of Reputation is his version of Brandeis and Warren’s fashioning of a jurisprudence of last resort, remedies that can be invoked when decency fails. DIGITAL NEVER DIES Don’t be too discouraged by that hint of heavy lifting to come. Solove is an entertaining as well as a thoughtful writer. Much of the book is devoted to a detailed and often-amusing romp through the many disclosure debacles and privacy pratfalls of the digerati. Solove is a good storyteller, and he’s got doozies. Here are the perils of Poop Girl, whose dog’s defecation in a Seoul subway car — and her subsequent impolite refusal to clean up the mess — was captured by a cell phone cineaste and posted online, where it became one of the most widely viewed videos in history. (The ensuing harassment caused the girl to drop out of college.) We also encounter Todd, who sued the “Don’t Date Him Girl” Web site for defamation after bloggers accused him of spreading a sexually transmitted disease and even worse sins (“He’s an attorney but you would never think so, cause he complains about paying child support. … His crib is a dump. He wears dirty clothes all the time.”). And we meet the family who lived at the former address of a man whom Fox News mistakenly identified as a suspect in the London subway bombings. The suspect was long gone, but satellite photos of the house were posted on the Web. The house was spray-painted with anti-terrorist graffiti, and the actual tenants and their children were threatened for weeks afterward. There’s also the potential upside — depending on your politics — of Internet shaming. John Kerry was haunted during his 2004 presidential campaign by endless replays of his infamous waffling about his support for the 2003 Iraq War funding bill. And George Allen’s offhand racist insult (calling an opponent’s staffer a “macaca” at a 2006 campaign rally), captured on videotape, cost him both his Senate seat and a possible run at the presidency. What all of these stories have in common is the impact of digital technology on the nature of information itself. Once ephemeral in the prewired world, records of one’s behavior can now readily become permanent, searchable, discoverable — and then propagate like a virus. Poop Girl’s moment of sassing her elders on the subway once would have been a fleeting memory, temporarily amplified at worst by gossip from people who witnessed or heard about her misbehavior on the train. But now her conduct has become ineradicable and forever retrievable — something she can never outgrow or escape, a cometary tail of reputational debris. Paradoxically, the free flow of information threatens to curtail our freedom to be ourselves and to control our reputations and identities. A NEW BALANCE Solove’s key insight is that the original Warren-Brandeis notion of privacy — its binary distinction between the public sphere and private life — is too rigid. Privacy violations are fundamentally about changes in context. Yes, Poop Girl acted out “in public” — on a subway car. But making her fleeting conduct into an indelible record disseminated worldwide via the Web was an invasion of her privacy, Solove argues, because changing the context for witnessing her behavior fundamentally altered its meaning. The impact of this sort of Internet exposure is permanent, disproportionate, and without due process. It can turn into pure bullying, when people post embarrassing material about others they want to humiliate. Or it can be designed to deter speech and action, as in the case of Web sites that publish information about malpractice plaintiffs — resulting in many of them being unable to get any doctor to treat them — or the home addresses and phone numbers of abortion doctors — which has led to threats, assaults, and assassinations. Solove would like to expand the reach of tort remedies for these contextual transformations, but only after more informal dispute resolution mechanisms are exhausted. “The law works best when it can hover as a threat in the background but allow most problems to be worked out informally,” he says. So the law should mediate the tension between free speech and privacy by permitting individuals to have more fine-grained control over the accessibility, confidentiality, and control of information about themselves. We should be able to disclose information to others — whether credit-card companies or employers or friends — while legitimately expecting that access will be limited and confidentiality preserved. “The law should protect and reinforce those expectations” by making their defeat into torts. And anonymity should be permitted for plaintiffs in privacy cases and protected in the context of blogging and other publishing activities. On the other hand, Solove argues, Internet publishers should be obligated to take down posts that are defamatory or invasions of privacy — and victims should be able to sue for damages if informal notice and takedown procedures don’t solve the problem. That will help to crystallize and enforce norms about what sort of exposure for what sort of recordable behavior is appropriate, Solove believes. SLAYING THE HYDRA Solove’s description of the problem is much more powerful than his prescription for addressing it. His modest proposals seem too little, too late in a world where the careless Facebook or MySpace posting of one’s adolescence can be Googled by prospective employers and colleagues forever, and you’re never out of range of some device’s unsleeping digital eye. After all, once video of Poop Girl’s escapade was widely disseminated, could takedown rights or even damages remedies really solve the problem? Trying to remove information already spreading on the Web is like trying to slay a Hydra with almost infinite, not just many, heads. But who knows? In 1890, the estimable E.L. Godkin had given up. “In truth,” he wrote in his Nation article, “there is only one remedy for the violation of the right to privacy within the reach of the American public. … It is to be found in attaching social discredit to invasions of it on the part of conductors of the press. … At present, this check can hardly be said to exist.” And then along came Warren and Brandeis, and a century of legal fees and damage awards in libel, slander, and invasion-of-privacy cases, which helped forge that very balance between the freedom of the old press and the right to be left alone that the new media are now eroding. The Internet — let alone techniques for searching its contents — is still in its infancy. If we start the common-law equivalent of toilet training now, who knows how far a responsible yet vigorous blogosphere could evolve?
Michael Stern, a former newspaper reporter and English professor, is the head of Cooley Godward Kronish’s technology transactions group in Palo Alto, Calif. This article originally appeared in The American Lawyer , an ALM publication.

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