Friday, January 17, 2014

A world without privacy 2

Rebecca Tushnet, The Yes Men and the Women Men Don't See

I begin with a claim that is likely to be demoralizing, but also reveals some interesting features of privacy: In practice, Americans and many other Westerners care more about privacy as against their neighbors than they do about privacy as against their governments.  It’s in this context that I want to talk about pseudonymity, its abuses, and its promises.
Pseudonymity is connected to privacy because a pseudonym allows people to separate and manage their self-presentation to other people, which is something that “privacy” is often defined as doing as well.  First Amendment discourse around anonymity understandably treats identity as binary: a person is legally identified or they are anonymous.  Pseudonyms are just another form of anonymity, with the occasional mention in discussions of anonymity of the potential signalling effects of a persistent identity that allows the speaker to build credibility over time.  TM and right of publicity law have more clearly thought through the potential harms, and the potential benefits, of claiming an identity that you don’t have.
I talked about Violentacrez as the dark side:  The story shows how pseudonymity can support male privilege: the condition of being looked at can do great harm to women, while the ability to not be seen provides great benefits to men.  (It also highlights that pseudonymity is almost always relative—the government, and often anyone with a sufficient interest in investigating, can generally dig up enough information to connect an online identity with a legal identity.  But most people most of the time nonetheless act as if their pseudonyms are separate.) The story also illustrates that many times, anonymous/pseudonymous harassers can dish it out but they can’t take it—their harassment targets specific people, often women, and tries to deny their targets the privacy and dignity that the harassers claim exclusively for themselves.
But is there anything else to pseudonymity?
Talk about two legal cases along with the story I borrowed for my title to attempt to identify the potential benefits of pseudonymity.  First, the Yes Men: When a fake “Koch Industries” website and press release appeared in 2010, purporting to announce a decision by Koch to stop funding organizations that deny climate change, news organizations quickly recognized the hoax, but also reported on it.  A federal court rejected both Koch’s arguments for de-pseudonymizing the creators and Koch’s claims for their liability under trademark and related laws.  The court ruled that defendants’ use of the Koch trademark was therefore not a commercial use made “in connection with goods or services,” as required to trigger trademark liability.  
My second story: Recently, a court found that a rapper performing as Ricky Ross, who adopted a well-known criminal’s name and persona as a drug dealer, didn’t violate the criminal’s right of publicity because the new music the rapper created in that persona was creative and valuable in itself.   Using the persona as a cloak and creating new expression, like a kid playing dress-up and inventing new adventures (or even retelling old ones), led to First Amendment protection. 
My third story: The Women Men Don’t See is the title of an award-winning science fiction story by James Tiptree Jr., a pseudonym for Alice Sheldon.   It is an account, from a male perspective, of two ordinary women—denigrated as unattractive by the narrator—who decide to leave the planet with aliens.   In this context, not being seen, being invisible, and being misread as a man are all forms of defensive power—not power over others, but protection from the exercise of power by men.  Pseudonymity is a way of participating instead of opting out, but still remaining unseen. 
These three experiences of pseudonymity, legal and cultural, suggest ways in which pseudonymity can cushion against the exercise of social power. While Tiptree’s female characters opted out, Tiptree did not, and like the Yes Men was able to engage in a biting critique of existing arrangements.  Pseudonymity is a kind of control over discourse about one’s self, even if it’s vulnerable to a focused investigation; separating identities by contexts remains valuable even in a pervasively surveilled society.
I discussed Google+’s “real name” policy and its flaws, along with the reasons people gave to use pseudonyms, e.g., “I’ve been stalked. I’m a rape survivor. I am a government employee that is prohibited from using my IRL [name in real life].”  Not having to know or care about the good reasons that other people might present different identities in different situations is a privilege of power. 
There are many nonabusive forms of expression that a person might reasonably want to avoid exposing to a family member, friend, or potential employer.   Moreover, the empirical evidence on real name policies as deterrents of misbehavior is unpromising. 
So there’s a justification of pseudonymity as protective, especially for women.  Is there a story of pseudonymity as a positive good, liberating in some way?  Yes.
Creative media fandom—communities in which people create fan fiction and other new, noncommercial works based on existing books, television shows, movies, and the like—offers many such spaces where people who identify as women (and, more broadly, people who don’t identify as straight men) are the default. In media fandom, participation is also pseudonymous by default.  Writing fan fiction under a pseudonym provides protection from the culturally devalued status of being a media fan, and specifically creates a distinct persona that can be sexually explicit.  Someone who writes sexually explicit fiction may not want that to be the first thing a next-door neighbor discovers about her.  At the same time, she is likely to want her erotica-writing identity to be persistent, so that it can accrue the benefits of reputation, and this will constrain her behavior within the community she’s using the identity in.  Reputation and legal names are not the same, and efforts directed at the latter attempting to influence the former won’t get the desired results. 
Like the rapper Rick Ross, fans use pseudonyms as part of a creative purpose.  Media fans choose names that announce their fannish interests and allegiances.  Indeed, fans sometimes use pseudonyms for explicit role-playing purposes: pretending to be a favorite character or celebrity (depending on whether the role-play involves fictional characters or “real” people ).   Within fandom communities, these representations appear as just another kind of pseudonym that supports creative play, not as impersonations designed to be believed.
And the pseudonymous norm is enforced against other community members: people who publicly connect a fan’s pseudonym with her legal or “wallet” name face social sanctions from other fans.  
But, one might ask, are these practices confined to fringe groups?  After all, most people don’t roleplay online.  The web commenting service Disqus, which allows websites to run comment sections, analyzed its database of hundreds of millions of comments, and concluded that “pseudonyms drive communities.”  Pseudonymous users contributed 61% of total comments, commenting 6.5 times more frequently than anonymous users and 4.7 times more frequently than Facebook users nominally using “real” names.  Moreover, pseudonymous comments were “liked” and replied to more often than comments from anonymous or Facebook commenters, which indicated that these comments supported engagement and interaction.   The numbers from the blogs Disqus tracked suggest that fannish communities are examples, not exceptions. 
t’s unsurprising that law finds pleasure rather embarrassing, and hard to value as against other objectives (truth, avoiding defamation, and so on), but it’s still important to discuss both the positive and the defensive sides of pseudonymity, so that we can move beyond the binary of ‘if you’ve got nothing to hide, you’ve got nothing to fear.’
Pseudonyms can strengthen communities, not just individuals. Like revolutionary cells—specifically, like the Founding Fathers taking on names derived from antiquity to signal a common commitment to classical ideals in the Federalist Papers—media fans adopt identities that define and distinguish them, though often only to those in the know.  It’s this communitarian, associative aspect that has been least acknowledged in much of the legal literature addressing pseudonymity.  While anonymity isolates people from each other, or at best dissolves them into an undifferentiated crowd, pseudonymity has the potential to do exactly the opposite.
In First Amendment discourse, the defensive role of anonymity and pseudonymity has had pride of place: most cases are about whether it’s legitimate to force someone to expose her legal name, given the risks she might run in doing so.  But the trademark and right of publicity cases also have something to tell us about the “freedom to” conferred by pseudonymity as well: the expressive and associative functions of a new name.  The rapper Rick Ross and James Tiptree, Jr. have hundreds of thousands of online counterparts.  Separated, persistent identities are a way for people to create themselves, and to create new works of art, taking advantage of the power that comes from being unseen or partially seen. 
A final lesson from online behaviors surrounding pseudonymity is that, in some sense, many people refuse to recognize the possibility of a world without privacy.  At the very least, it seems as if citizens online are engaging in a kind of reasoning familiar to students of fetishism: I know very well that I’m not truly anonymous (and not truly Justin Bieber’s vampire wife), but all the same …   Denial is not necessarily pathological; in a surveillance state it might be a tool for psychological survival, which doesn’t make it a positive but at least ought to be understandable.) So I don’t entirely agree with Professor Haggerty’s claims about the modern lived experience of privacy, though we may agree on some of the implications.  It’s in this play of fantasy and pretense that some important truths, and some powerful art, can emerge.

Moderator:      Paul Horwitz, Gordon Rosen Professor of Law, University of Alabama

Pseudonymity produces important constraints, especially in thick communities.  Legal community often not very good with play, pleasure, experimentation.

Blogging experience offers some uneasiness, however.

Thick ties and thin ties. Starting with play, experimentation—is it as easy to distinguish between pseudonymity and anonymity.  Some people want to play at a different stable identity online, with continuity and community. To the extent that you’re at the risk of being bound online by thick ties, may be benefits to regularly changing a pseudonym or speaking anonymously—a form of role play too.  A life without baggage.  Debate on law blogs: a number of people claming to be law profs wanted to be able to comment without getting things right or wrong—anonymity can be theorized in positive terms too.

Experimentation and role identity.  Emphasis in paper on communities that involve thick ties, social norms, enforcement—subject to constraints, pseudonym cultures. Some online spaces are more public enclaves.  More room for norms in those spaces?  Maybe not norms in favor of real names.  In public spaces there are a substantial number of useful constraining norms—protest, but don’t set the garbage can on fire.  Online, we might see some of the bad behavior produced without that.

In defense of constraint by one’s real world identity/role: law school encourages production of role identity—pervasive acculturation.  Can shape one’s life broadly, not just work life.  Can constrain wrongly in some cases—if people assume you can’t be professional and also gay or interested in sexual variety. But there’s also value to forming a role identity and treating it as a genuine constraint and attempting to live that with integrity. Play or alternative self-creation may be inconsistent with that. Especially relevant in thin-tie places about nature of rhetoric. Can a law professor use a pseudonym to play with the truth, or play with not getting things right? Can a member of the bar use a pseudonym to play with incivility, directed at vulnerable groups or elsewhere, that might otherwise produce disciplining?

Vonnegut quote: We are what we pretend to be, so we must be careful about what we pretend to be: we can play at bad identities.  Public space v. private space.

RT: excellent points. Re sock puppets: good and bad.  Tumblr v. livejournal v. FB—though Disqus results are promising.  Which will be seen as normative/default/unmarked v. which is unusual?  Power as the important variable.

Haggerty: long tradition of pen names for political or commercial purposes.  Isn’t there continuity?

RT: Yes! Though TM’s expansion has made a difference.

Sarat: pseudonymity in which there is normal deception: everyone knows I’m not Spock, because community is defined by play, and I’ll be judged by how I play my role.  Dangers are less great because there’s acknowledgement up front.  But what if I play Paul Horwitz?  I could derive great pleasure from that.  This might be an easy case of reputational harm.  But is harm the most important dimension?

RT: need to know the positive benefits as well as the defensive ones, and respect ability to sort from context.

Austin: pseudonymity as driving connection.  Say more about making strong distinction between anonymity and pseudonymity as connecting people.  Allen Westin’s book Privacy and Freedom: phenomenon of the stranger—you can have a conversation with someone who doesn’t know anything about you and be confident you won’t see them again—people feel free to say the most intimate things.  Can be a “freedom to” moment too.

RT: agree!

Neil Richards: we hear a lot about revenge porn, need some bulk to the other side, especially for the persistent identity.  Analogies from trademark to public debate need fleshing out—should we ask more about why do we protect falsehoods in other areas/political speech?  What should be the limits?

RT: yes, what is default/background v. what is foreground is really important—could learn a lot from starting with lack of protection for false commercial speech and asking why politics is different.

Q: dark sides of lack of responsibility?

RT:  The link between pseudonymity and bad behavior is not that strong on either side.  Be clear that consequences are differential: some people don’t get consequences for being linked with what they said, others do.  Again, people are willing to say amazing stuff on FB.  When we presume people are terrible without constraints of identifiabilty, we give a particular account of personhood that isn’t true for everyone.

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