I'm in the middle of reviewing Dan Solove's book The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. As I said in the first half of this post, the book isn't just about the Internet. It's of and for the Internet, born of and part of a new and welcome conversation between law professors and practicing lawyers.
In fact, the book focuses on the most productive question those two groups can ask each other: What is the appropriate role of law? Faced with a problem, any problem, what should our legal response look like? Can we develop legal rules that are pure and sound and that also actually work?
"Car crash after car crash"
The first task is to describe the problem, and Solove does that compellingly. Out here in law firms, we teach trial lawyers to persuade with examples, not arguments, and Solove has learned that lesson; he tells tale after tale of Internet privacy gone wrong in every direction. First-year blogger Scott Greenfield says this part of the book is "like watching car crash after car crash that happened on the corner where I've just moved in." (Scott's blog is four days younger than mine, and I too was glad I hadn't heard most of these stories before I started.)
The stories illustrate not only the danger, but also the complexity of this issue. Once you recover from fright enough to really absorb each story, you find yourself asking the same questions Solove does -- and realizing that they're not new questions, but instead old questions of journalism and expression that are more urgent in this new context. The "dog poop girl" of Solove's opening story was in a public train when she let her dog go. When bloggers and others picked up her story, was there really any privacy to invade? (Even a proper legal blog like this one is going to have trouble resisting a good dog poop story.) Doesn't a blogger have the right to tell her personal story on the Internet, even though our stories are always tangled up with those of other people? If an Internet "shaming" campaign helps arrest a guy who's harassing women in the subway by masturbating in a way they can't avoid seeing, is shaming so bad? Reading through these, you find yourself taking the stories case by case: that's okay, that's wrong, that's troubling but we probably have to allow it.
"Very clunky boots"
Solove cuts through it all with this thesis: privacy and free expression are not opposites. They are in tension, yes, when speech invades privacy or when protections of privacy restrict speech. But in a larger sense, they're symbiotic values, each creating the conditions that allow the other to thrive. Anonymity, for example, can be dangerous when used maliciously; but there are important things said on the Internet that would never be said if we all had to use our real names. "Privacy allows people to be free from worrying about everybody else will think, and this is liberating and important for free choice," Solove explains. "Protecting privacy can promote people's autonomy as much as free speech can."
How, then, can we develop law that is gentle and balanced enough to protect each of these values without mauling the other? The task is like "trying to dance on a wire with very clunky boots, as the law is often not a very delicate tool," Solove explained to a critic. In the end he rejects broad statutory schemes in favor of the oldest, clunkiest tool of all, the civil lawsuit:
A libertarian approach would leave the law out of it, but such an approach would do little to address the problem. And the threat to privacy by the increasing spread of personal information online is too significant to ignore. An authoritarian approach which involves direct restrictions on Internet expression, would be too oppressive and stifling of free speech. Lawsuits are a middle-ground solution, one that is far from flawless, yet the best among a set of imperfect choices.
"Frightful monsters"
"Lawsuits are frightful monsters," Solove admits. But they're a middle ground, by his measure. They aren't libertarian because they impose and enforce standards, and "[t]hey aren't authoritarian because they are initiated by individuals and are not systematic in their reach." They're the only tool that handles problems the way the reader is forced to in the first half of Solove's book: case by case, comparing and distinguishing the probably okay from the we-can't-have-that.
We don't even need new torts to sue on, Solove contends. The old ones -- defamation, invasion of privacy, breach of confidentiality, and misappropriation of property -- will work if we strengthen them and polish them up. Among the improvements he suggests:
- Recognize a role for "privacy in public," and expand our idea of confidentiality. Existing privacy torts don't help you if you were acting in public in the first place, like the student in one Solove story who submitted a self-promoting video to a potential employer and ended up a laughing stock on YouTube. Solove suggests we "develop and protect a more nuanced notion of privacy."
- Prevent further "invasion" by the lawsuit itself, by allowing plaintiffs to keep their own names confidential.
- End blanket immunity for bloggers and other web site operators. In what happens to be a perfect example of how throwing statutes at a problem can backfire, Congress in 1996 passed section 230 of the Communications Decency Act, announcing: "No provider or user of an internet computer service shall be treated as the publisher or speaker of any information provided by another information content provider." It's been interpreted, Solove explains in many examples, to protect web site operators like Yahoo! even when they know that information someone posted on their site is false and harmful, and even when they easily have the power to take the information down.
- Encourage mediation and alternative dispute resolution.
- Encourage cases to end early by allowing defendants a chance to retract or correct what they said.
- Impose limits on damages.
- Allow plaintiffs to pursue anonymous speakers through "John Doe" lawsuits where discovery could reveal the speaker's identity.
No rabbits
As other reviewers have said, it's hard to read this part of the book without asking a lot of questions out loud. With all the stories of Internet outrages still fresh in your mind, you're full of what-ifs, and Solove's suggestions don't offer the strength and certainty you suddenly crave. Unlike some, though, I'm delighted with Solove's answer to that critique:
I really wanted to be able to pull a rabbit out of a hat -- to find a nifty and elegant solution. But, alas, I couldn't. Thus, I came up with a number of small tweaks and fixes to the law, to help make it better. It isn't meant to be a cure -- in the book I wrote that I don't think that there is a cure -- but my suggestions for legal reform are meant to be improvements.
At times, when writing the book, I just wanted to throw up my hands and say that these problems are unsolvable. And without a cure, the best I could offer were some ways to better cope.
On behalf of practicing lawyers everywhere, let me say: Welcome to our world.
Conversation in real life
This is how it is, and we'll talk about it with any legal scholar who's willing to grapple with just how messy it is. Lawsuits are awful, on all sides and from every direction. When parties have to bear their own fees, they can't fund valid claims; and in cases where the loser has to pay, opportunistic plaintiffs come running and never go away. Sometimes it seems that the discovery rules don't work regardless of which side I'm on: either my client is killing itself responding to silly and onerous demands, or we're unable to learn the basic things we need to defend a claim. The substantive law we have to work with is rarely better; either we have to address Internet-age problems with ponderous court opinions from 1910, or we're stuck trying to interpret some recent ham-handed fix-it statute. A lawsuit can inspire, even change the world, and some have. As to many more lawsuits, though, all you can say is (and Solove does, in a nice historical section) it beats dueling.
What practicing lawyers have to say to professors is that the law in practice is messy. But just as important: what they have to say to us is that in spite of the mess, there's still a place for vision, for improvement, for ideas. And so Dan Solove and this book, working to describe the problem and offer ideas to address it in the real world, start a welcome conversation between scholars and practitioners.
The conversation continues
And now he's starting a new one. Last week at Concurring Opinions, Solove announced "The Law Review Table Of Contents Project." He says:
Finding out about the latest law review publications can be difficult. If you’re like me, you rarely read the physical issues of law reviews anymore; and you don’t have time to constantly keep checking each law review’s website to see if a new issue has been published. Now you don’t have to. Just keep reading Concurring Opinions, and information about the latest law review scholarship will be brought to you – all in one place!
Sure enough, just in the last few days, Concurring Opinions has posted law review contents and links from the University of Chicago, Michigan, Boston University, Fordham, Boston College, Southern California, Northwestern, and George Washington. Practicing lawyers, that's dozens of scholars offering their new work for you to read, right now. Start talking.
