Luke Ford

I read this book on Shabbos. The prof feels bad for people who did bad things and got caught and publicized on the internet, such as South Korea’s dog poop girl, who refused to pick up her dog’s poop on a train. Her photo was snapped and her case became famous around the world. She ended up dropping out of university.

Solove feels the pain of his fellow professors who get blogged about without their permission.

His solution? Make it easier to sue for libel and violation of privacy and to remove protection for site owners who allow wide-open speech.

I say nuts.

Solove portrays the dog poop girl and others like her as victims. I see them as wimps who refused to fight back to reclaim their reputations. If I got caught in her situation, I’d make a full and complete apology, I’d thank the person who photographed me and publicized my bad deed, and then I’d go around for days picking up dog poop off the streets. I’d videotape my actions. I’d go public with the ways I was rectifying my bad deed and state how I was committed to being a responsible citizen and a good person.

Solove and his fellow profs and public speakers hate it that the power balance has shifted. We’re no longer victims of their bad teaching. We can have a voice too. We can report on their shoddy work. We can report on the painful way they subject us to their nonsense.

Because I have a blog, I’m much less exercised by the bad behavior of other people. I no longer feel powerless in dealing with humanity’s grossness. I can blog about it and even the score.

There’s a rabbi sodomizing some vulnerable employee? I can blog him (yeah, that’s you Kenny the Shark Menken).

Ted Frank writes: "Daniel Solove’s solution to the potential problem of damning information on the Internet is to open up the libel laws and to remove the Communications Decency Act safe-harbor for site owners. As Amber Taylor points out in a provocative review, one could take this chain more seriously if Solove more directly considered the real-world consequences of such a rule, and the amount of true speech it would shut down because of the potential legal expense of defending speech in the absence of bright-line rules."

Amber Taylor writes:

There is a simple rule of thumb for predicting Solove’s positions and proposals. Ask yourself: Would this rule allow Anthony Ciolli and the pseudonymous defendants in the AutoAdmit.com litigation to be nailed to the wall? If the answer is yes, then Solove is for it. Traceable anonymity? Yes. Stricter limits on disclosures of facts about private persons? Yes. Anonymity for plaintiffs? Yes. This is a handy metric, but it doesn’t really do justice to the book.

Solove’s fundamental contention is that the law can and should intervene to protect privacy in the face of challenges posed by the internet. The libertarian approach, he says, “does little to protect privacy.” If you are not concerned by this failure (and I am not), the entire project lacks a certain urgency. But, setting this aside for the moment, let’s explore some of what Solove finds threatening about the anarchic aspects of internet speech.

One of the most serious problems with “internet shaming” is that it creates a permanent record of transgression, compiled by vigilantes instead of professionals, and without input or rebuttal from the subject. Although Solove acknowledges that in some cases the web can shore up collapsing social norms, he give far more weight to the idea that the internet may contribute to the decline of certain social norms: namely, norms about privacy.

Very well, what should we do about this? Being a law professor, Solove recommends using tort law. (Solove’s embrace of privacy torts is based in part on the idea that “tort law remedies . . . aren’t authoritarian”—this despite their enforcement at the barrel of a gun.) He further proposes that the law be structured to avoid immediate recourse to the courts. In particular, this entails requiring that parties exhaust informal resolution mechanisms; “if the defendant agrees to remove the harmful information from the website, then this should be the end . . . unless the victim can demonstrate that [this] won’t sufficiently patch up the harm.”

Given the abuses of the DMCA takedown notice process, I would think that instantiating a similar set of procedures for any speech about an individual that could arguable violate his or her privacy would be extremely unappealing. While Solove is extremely concerned about over-enforcement in the context of private parties punishing norm violations, he does not recognize that his own proposal would result in over-enforcement of privacy norms, since the threat of litigation is often enough for webmasters to take down protected speech. Solove’s concern about protecting the identities of plaintiffs would also seem to be in tension with the need for a webmaster to be able to investigate and verify whether a takedown request is valid. Solove also argues for abolition of Section 230’s blanket immunity provision, but this too would result in over-enforcement; given the massive exposure and lower standards for liability imposed by a regime that punishes website operators aware of “problematic material,” the rational response to any given request would probably be to take down the material. And penalties for takedown-notice abusers are only useful if these same operators (who cannot afford even minor legal battles) or the likely-anonymous speakers (most of whom are similarly impoverished) would be willing to take the would-be censor to court, which would occur only rarely.

Perhaps the most troubling part of Solove’s argument is his discussion of how free speech rights conflict with the preservation of online privacy. “Disclosures made for spite,” he says, “or to shame others, or simply to entertain, should not be treated the same as disclosures made to educate or inform.” In fact, Solove takes the Supreme Court’s statements placing political speech at the core of the First Amendment to mean that non-political speech can be restricted with greater ease. This rank-ordering is not Solove’s invention, but although it is comparatively simple to divide speech into commercial and non-commercial, how do we decide what is informative and what is entertaining? What classification would the Drudge Report get? The National Enquirer? The New York Review of Books? How does the test for “entertaining” versus “informative” compare to the test we currently apply to pornography (which looks for social, literary, scientific, artistic value)? Likewise, Solove’s argument for the privacy of non-newsworthy information, such as the identity of subjects in a book or article, involves courts in normative and editorial judgments about the “proper interest” of the public and how to present a story. Courts are not equipped to make these determinations: they are not equipped to bowdlerize, censor, or recut media. And in an era of media fragmentation and non-credentialed citizen journalism, verifiability is even more vital; attempts to reduce the amount of information in stories are now more likely to make it difficult for the true picture to be discerned.

Solove asserts that the fall of privacy subjects us to judgment from many other people, which “can lead to an oppressive amount of social control.” But only pages before he argues that it might be difficult for us to judge others at all if we knew everything about them. In a society with much less privacy than our own, is it likely that oppressive social norms could be upheld once the popularity of deviance became evident? Wouldn’t we be likely to judge people using our new baselines for expected behavior, which would include much of what we currently choose to deny?