Saturday, January 12, 2008

Daniel J. Solove: The Future of Reputation: gossip, rumor, and privacy on the internet (Review)

Author: Daniel J. Solove.
Title: The Future of Reputation: Gossip, Rumor, and Privacy on the Internet.
Publication: New Haven and London: Yale University Press, 2007. ISBN 978-0-300-12498-9. Introduction and 8 Chapters, 248 pages, hardcover. Amazon link.

George Washington University associate law professor has written a well-balanced, succinct, and badly needed treatise on a new social and quasi-legal problem that has developed in the last decade or so with the Internet.

As the media has reported a lot since around 2005, people are learning that others can get information about them online. Some of this has to do with hacks, scams and outright illegal activity. A much more subtle problem is that information that people post about themselves and that others post about them (often augmented by images and video) can be discovered by other family members, by current or prospective lawyers, even landlords. And, unlike the way things were in the past, such information can stay out there essentially forever unless some energy is expended in getting various persons and companies to remove it, and, in a global context, is much more likely to be misinterpreted.

The word for all of this is “reputation.” Even though we have come to perceive freedom individually, freedom exists within a social context because one of the main points of our lives is the interactions we have with each other, both inside the family and with the rest of the world. To have freedom, we need the law, but we also need reputation. Some people think we also need faith, but that’s a more personal take.

People whose jobs involve manipulating others – sales people or agents, but also health care professionals, teachers, ministers, military officers, trial lawyers, corporate executives, politicians (especially!) and the like, understand the importance of reputation well. People in the arts – writers, musicians, to some extent performers – and people whose jobs consist largely of individual contribution (computer programmers, maybe even composers) perhaps are less aware of this – but ultimately their work is important because it is designed to reach others somehow, so reputation becomes important to them, too. Reputation is that nebulous asset that makes others who do not know you individually interested in or at least willing to work with you. Its definition implies a paradox: even as a property of an individual, almost permanent, it affects others around the person, and some of it, almost like the position and speed of particles in quantum theory, must remain unmeasurable by specific means (like credit scores).

The author has a lot of practical suggestions for how to bring the law in line with the realities of the modern Internet. Most of these have to do with interpreting established statutory and common law tort concepts properly with online media. The law has experienced this situation before, as with the invention of the printing press, broadcast media, and the VCR. So it is again.

One of this most important suggestions is that employers (and I suppose landlords and even other future creditors) should be expected to follow notification rules when they check people online with search engines, just as they do when pulling credit reports and FICO scores. Agreed. The human resources “industry” needs to develop best practices on Internet “background checks,” and these need to comprise common sense rules of conduct for both employers and associates, with the rules carefully tailored to the job to be done. There is a real risk otherwise that Internet BI’s could become a new tool for forcing social conformity. Some companies have already set themselves up to manage online profiles of clients or of key persons in client companies. (For example, look at Ziggs.)

But it’s important for me, as the reader, to impart some additional context as to how I can use this perspective. One is to understand that reputation is somewhat a group as well as individual “property.” One place where reputation is particularly sensitive is the family. A half century ago, as I was coming of age, one of the worst things one could say about a person’s “reputation” was to accuse him or being gay – particularly for men. Thankfully much of that has changed now – however begrudgingly – in the western world, but certainly not in Muslim countries or among religious fundamentalists. Why was this such an issue? It seems perplexing to a society based on individualism and personal autonomy. One reason is that for much of history society has been essentially tribal. Families have been concerned with survival in an essentially hostile and indirectly competitive “Darwinian” world. Many men don’t have much opportunity for modern self-expression or global attention, but they expect to have a biological lineage – that’s the one thing that “everybody can do” unless somebody spoils it. Family strength was dependent on maintaining heirs – especially male ones. Think back to Biblical times – when the firstborn became the target during the Exodus. Taking the discussion beyond this – into religious and philosophical areas – is interesting but gets beyond “reputation” as Solove is presenting it.

One place where it ("reputation collectivism") still lives is the United States military – that old chestnut that became the notorious “don’t ask don’t tell” policy. Unit cohesion (or even mission cohesion) as the military sees it is definitely a “reputation” issue. In a world where soldiers blog from Iraq, they have to be especially careful about what they say. The legal services organization that assists reserve and active duty soldiers, sailors, marines and airmen with this issue is Servicemembers Legal Defense Network (SLDN). A somewhat related issue affects teachers – with the item being fitness to work with minors. A person can be perceived as unfit without doing or saying anything “objectively” wrong in the established application of the law because of the context in which a person’s statements (or statements made by others) can be taken. Sometimes, the identity of the speaker does matter. Particularly with issues like this, there is a historical track record of public shame being manipulated as a tool to "protect children" and "protect families."

The family issue reminds me, however, that in a practical world, one’s own reputation can affect other family members, and sometimes coworkers and neighbors, even, in the post 9/11 world, possibly their safety. This is potentially a very sensitive and hard to manage issue. Solove writes about the right of people to disclose facts about their own lives in stimulating public debate about a legitimate issue (and that could be gay rights). It’s controversial because facts about oneself will impute or imply facts about others associated with the person (often family members). He believes that the law does need to protect free speech in these cases, but the actual workout of an issue can be quite problematic sometimes. Likewise, he supports the idea that ISP’s and other facilitators need to be shielded from downstream liability for what their subscribers do or say (as they are now, by and large).

Another subtle problem stems from the way the Internet can make anyone a “celebrity” and confer what the speaker may believe is a right of appropriation (or “right of publicity,” which has normally applied only to established celebrities.) Wikipedia (which Solove discusses with respect to another issue – anonymity) has a good word for this – “notability.” Many people who grew up in less individualistic cultures feel that it is morally “wrong” for people to draw attention to themselves from the whole planet until they prove that they can take responsibility for others (have and raise a family). Yet that notion probably has very little legal importance any more.

There are some situations one can imagine that are indeed tricky, and would meet widely varying reactions from the public. Some people may not like the idea that another person mentions them on a that person's blog or website because of the "reputation" of that speaker, and they may fear it will "rub off." (We've seen this issue already with "unauthorized" hyperlinks, which judges have pretty much laughed out of court because of the normal "fair use" doctrine.) Others may fear their name coming up in combination with undesirable keywords in a search, even though the keywords are (when the file is read) actually about someone else, not them. This actually happened to me and created a significant problem when I was substitute teaching.

Solove does talk about the proper use of litigation to resolve potential reputation-threatening disputes. He thinks that the binary notion of privacy (which negates it in public places in current law) should change, and he thinks that sometimes anonymous lawsuits could be allowed (although one wonders about class action today). But, particularly with questions where the harm to reputation is nebulous and “in the eye of the beholder” (because of the target’s job, religion, or social or family situation, or maybe because a reference to a person is to activity that is long in the past and that should have aged out of the public eye) he believes that disputes should go through some sort of inexpensive mediation first. This sort of process already exists with domain name disputes (as specified by ICANN). It ought to be extended to “reputation infringement.”

To me, that suggests a new kind of job or career. People who are Internet-literate and who have a variety of other work experiences could (especially when “retiring”) be trained to help mediate these disputes as a “paralegal negotiators” – perhaps following the way experienced debt collectors negotiate down debt. Companies could be set up to do this. Michael Fertik 's Reputation Defender is certainly a start, but it seems to me that the real social need is for negotiation and mediation procedures, not just singing people up to watch online reputations (which for some people can admittedly take a lot of work). That also means that a new category of job could be created. I could certainly do that kind of job, but then the way I manage my own websites and blogs would become a real “conflict of interest” issue.

This book could be compared with Nancy Flynn’s “Blog Rules” (published in 2006 by the American Management Association and sold through the Society for Human Resource Management (SHRM) with particularly attention to the growing effect of personal blogs on the workplace (even outside of social networking sites, which, it seems, are what called media attention to the problem around 2005 – leading employers to see personal blogs as like conversation or “gossip” [as in the CW TV series “Gossip Girl”] rather than “literature”). Tom Drugan, who has started a company called Naymz, has a PDF book “Not Just Your Space -- A College Student's Guide to Managing Online Reputation" (2006). Andrew Keen has a book “The Cult of the Amateur” reviewed in June on this blog.

I had written about this problem as far back as March 2000 with the white paper “White Paper: Employment Agreements regarding Employee-owned Intellectual Property: Conflicts of Interest, Trade Secrets, Non-Disclosure, Non-competition” here. In February 2005 I had proposed a blogging policy “Suggested Employee Blogging (Personal Weblog) and Personal Website Policy for Employers” myself (after researching what I could find about it going back to about 2001) here.

I have a separate blog entry on my TV reviews from December 26, 2007 about the coverage of "Reputation Defender" by network television, here.

This book was issued in paperback in late October 2008 by Yale University Press.

Dr. Solove has an earlier book from 2006 from NYU Press, "The Digital Person: Technology and Privacy in the Information Age."

Solove lecture from "AtGoogleTalks" on YouTube (54 min)

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