Friday, April 03, 2009

Reputation and Property Meet the First Amendment

Boston College Law Review Symposium

Panel 1: Anonymity in Cyberspace

Lauren Gelman, Stanford Law School’s Center for Internet & Society

Privacy issue: if people can’t have better privacy guarantees, they may stop using the internet to do so many useful things. Proposal: a technical solution used to signal how information can be redisseminated, like Creative Commons but based on neighborliness rather than license.

Why do people post things on the public internet that aren’t meant for the public? Because of blurry-edged social networks. Like phone numbers in physical space: you have a listed phone number if you can’t ID in advance everyone you want to be able to contact you. There are social costs—telemarketers, etc.—but also benefits. On the internet, people share stories and build communities. But they end up with a binary choice: share information with everyone or privatize and decide on an individual basis. Problems: data mining is going to get more effective; and our stories/photos/etc. aren’t just about ourselves—they feature other people, meaning that other people control your privacy.

To avoid free speech issues, the proposed solution is built on signalling and neighborliness. Not like copyright—the people burdened by disintermediation in copyright are very different from the people burdened by disintermediation with privacy. They lack resources/economic incentive to protect themselves, they are less sophisticated, and the background privacy law is a lot less favorable to them than background copyright law.

Moderator, Jonathan Zittrain, Harvard Law: We are no longer worried about David v. Goliath (government, Amazon) but David v. David—how to deal with that, while being sensitive to First Amendment concerns? Lidsky addresses similar questions with respect to John Doe defendants in online anonymity cases.

Lyrissa Lidsky, University of Florida Levin College of Law

CDA 230 closed off access to the deep pocket, so it made sense to turn to John Doe lawsuits; anonymity on the internet made it necessary to find your detractor before suing him. Disinhibition: anonymity disinhibits negative expression, including defamatory expression; turns out that communication on the internet also disinhibits, even if you’re not anonymous, so that the effects of anonymity are worse on the internet.

Internet John Doe cases put very starkly on the table the value of anonymity. ISPs just used to turn over your name if sued; if you were lucky, the ISP would notify you of the suit, and you might be able to get counsel and file a motion to quash. Most judges would say: this is an allegation of libel, so the ISP needs to turn over the info. Judges didn’t care about anonymous speech, and they didn’t know the internet norms, so judges were taking statements that were opinion in context and reading them as assertions of facts.

What’s changed in the past ten years? A lot more sensitivity to the right to speak anonymously, and to the context of the internet. Courts are trying to develop a balancing test, allowing John Does to get notice before the identity is revealed and screening libel cases to make sure there’s a serious claim before anonymity is ripped away. There are more legal resources.

Lessons: (1) judicial understanding of tech shapes legal developments quite strongly. (I’ve often wondered: if judicial opinions a hundred years ago had been written like they are today, when would they have stopped defining a “railroad”?) (2) Prominent cases matter to set the paradigm against which people reason—when people think of anonymous speech, do they think of the KKK, Lori Drew, or Publius speaking truth to power? (3) Nonlegal fixes for the problem of online libel— and the like. Key adjunct to the law; what can we do to mitigate the problem outside the law? E.g., automatically link a reply to a defamatory statement, for example when the defamatory statement comes up in a search engine. (4) The importance of national approaches; there’s a state by state approach to John Doe now, but if you care about the First Amendment then each state shouldn’t get to make it up as it goes along. (5) Citizens have to be sophisticated interpreters of anonymous speech. The problems can have their own fix if people don’t give too much credence to anonymous speech; good info consumers know this. (Comment: I think this solution is undercut because people forget source more easily than they forget content, causing them to step-up the credibility of anonymous allegations over time.)

(6) Note the growth of cases against nonmedia defendants. SCt jurisprudence is developed with institutional media in mind; at first it seemed that the Court might not even apply the protections to nonmedia defendants. With more nonmedia defendants being sued, and the collapse of the divide between media and nonmedia, we need to rethink. Example: how the SCt defines actual malice. Reliance on one unverified source may be actual malice. But that’s not how individuals think about what they say; need adaptation. Another: do nonmedia defendants get the privilege of fair report, reporting what was said at a government meeting? Statutory protections against libel, such as retraction—does that apply? The statutes are written with the institutional media in mind and need revision. If the comments to a blog have defamatory statements, can the blogger claim reporters’ privilege to protect identity?

CDA immunity: these cases came up because of the CDA. The 9th Circuit’s Roommates case has opened up a wedge, which may limit John Doe suits.

Zittrain: What does Lidsky think of Gelman’s project?

Lidsky: Some of the norms on some sites, like, don’t have the neighborliness norms Gelman assumes. Could we make a presumption that ignoring the poster’s privacy preferences was wrongful?

Me: How would that help with dontdatehimgirl, where the poster is happy to have the info shared? It’s the guy who objects. This seems to be a place where one of Gelman’s key points—our stories aren’t just about us—makes her proposed solution less helpful. Gelman and Zittrain suggest: maybe we allow the subjects to tag content and assert their own preferences about whether this information ought to be shared, and then people can decide which preferences to honor; maybe sometimes knowing that one of the subjects is embarrassed will limit dissemination. I think that’s probably true, but other people will just gleefully disseminate further, and possibly harass the tagger—see, e.g., the Star Wars Kid.

Diane Zimmerman, NYU: Suppose we disagree about what you say about me, and I get to tag the speech with my preferences? Classic problem of privacy/speech: my speech is about your life. You can’t say privacy promotes speech without defining what speech values you’re trying to protect. Troglodyte question: shouldn’t we suggest that people ought to be more cautious? Why should we encourage people to put private information online if they don’t want it disseminated? The best protection of privacy is shutting your mouth. Isn’t the fuzzy boundaries idea just one of convenience, and not to be weighed as heavily as the right of people to use what they learn?

Gelman: That last is the right question. She thinks that an open, integrated internet is a better solution than a series of locked communities, and it’s hard to see how you can get that while also maintaining privacy. Open communities have huge benefits (comment: but maybe that just means that people have to bear their costs as well, which include sudden unpredictable infamy?). If we don’t fix privacy, people will opt out of these very valuable communities. (I think behavioral psychology might help with this—people might well underestimate the risks of exposure and thus overdisclose, maintaining the communities despite the risks.)

Joe Liu: Privacy traditionally thinks about rights not to disclose, but the paper suggests that privacy actually produces more, though limited, disclosure. We protect trade secrets in IP in part in order to allow businesses to disclose info to others and not lose control over the trade secret. We don’t require absolute discretion, just some limiting moves. (Good analogy!)

How do you convince people of the value of these new communities? He used to think that keeping your mouth shut was the best practice, but then he got on Facebook and started posting lots of stuff he never would have posted before. The system is designed to get you to do that! Also, do we need law, or can people figure this problem out on their own?

Gelman: Privacy and free speech are often promoted by the same advocates. Is there a free-speech-friendly argument for privacy? That’s her aim. You can’t get any value out of Facebook if you don’t disclose information (e.g., have a Wall).

Lee Tien, EFF: We are contrasting the online environment with a romantic image of the physical world which is disappearing, where we could meet physically without surveillance. Once the security cameras are everywhere, the camera on the corner will log me as I enter the AA meeting. It’s only a matter of time. He supports the idea of intermediate community formation, but is puzzled by implementation.

Roberta Kwall, DePaul: The relation between norms and law is shown by how newly internet-savvy judges change their interpretation of the law—top-down norms! Gossip, though, is a powerful human impulse. That can only be controlled by norms and law through extreme effort!

Comment: These days, you can’t go anywhere without having a picture taken. “Close your mouth” isn’t good enough any more. Stay in your room and don’t interact, that’s your only hope of being sure to not show up on someone else’s blog. Gelman’s proposal is a way to manage those tensions and allow participation.

Lidsky: Students do understand the privacy implications, but they think it’ll sort itself out because everyone understands that all sorts of information is in circulation.

Zittrain: That suggests we should just wait, and then everyone in a decisionmaking position will have drunken pictures of themselves floating around. Presence of a camera either inhibits behavior or disinhibits; maybe it averages out.

Mary Rose Papandreau, BC: For Gelman—be clear on the problem you’re trying to solve—the person posting info about herself that she wants limited, or about a third party that the third party wants limited. Megan Meier/Lori Drew case: why shouldn’t we know who Lori Drew is? She’s been prosecuted. (Comment: Though a newspaper decided not to name her, and the decision to prosecute was made only after her identity was widely disclosed; I’m not sure that’s independent of the dissemination of her information on the internet, rather than being a consequence of the changes.) Why be optimistic about neighborliness on the web? People on the internet are generally more free in what they say and share, as Lidsky says. Norms exist in some forums, like forums for cancer sufferers/survivors, but there doesn’t seem to be a problem of cancer exploitation.

Gelman: She’s trying to fill in where there aren’t norms already; there may be norms on the cancer forums and at dontdatehimgirl, but in other places there are shapeable norms if you confront people with expectations directly.

Fred Yen, BC: Concerned over creating a new kind of IP—if people tag information/photos to claim them, that will turn tort claims into property claims. Courts may assume people are asserting property rights in their own privacy.

He’s also not sure it’s a good idea to take risk away. Risk is what makes us slow down when we see a yellow light. (This reminds me of Eric Goldman’s take on dontdatehimgirl.) The problem isn’t that we saw a picture in which Michael Phelps had a bong in his hands at a party; the problem is that we’re shocked by the idea that this would happen. Zittrain rephrases him: Creating an architecture that lets people respond to those sensitivities reinforces those sensitivities, which is maybe a mistake.

I made my points about behavioral psychology (w/r/t Lidsky: making anonymous sources more credible than they should be in the long term, as people forget the original source, and w/r/t Gelman: leading people to discount the risk of context collapse, thus preserving communities against precautionary exit), and Zittrain pointed out that even asking questions about preferences/displaying a warning changes (the expression of) those preferences by increasing the salience of various concerns. This might be smart, or might not be, but it’s hard to say that it’s a reflection of the “true” preferences of the user.

Zittrain is reminded by Gelman’s project of a feature in Google News: if you’re mentioned or quoted, you have a special right to annotate the story. How do you show you’re you? Google just does its best to confirm it.

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