The Future of Reputation: Gossip, Rumor, and Privacy on the

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PART 1 OF 2

Chapter 7: Privacy in an Overexposed World

In our overexposed world, is anything private anymore? Currently, the law recognizes as private only information that is completely secret. Information exposed to others is public. Privacy, however, is far more complicated, as it involves a cluster of nuanced expectations of accessibility, confidentiality, and control. If we are to protect privacy today, we need to rethink our understandings of privacy. This chapter is about how to do so.

PRIVACY IN PUBLIC

The Burning Man Festival is held each year in the barrens of the Nevada desert. Tens of thousands of people converge on a vast dusty area far away from the urban world to engage in a spiritual celebration of "radical self-expression." People dance, frolic, parade, act out skits, paint their bodies, sing, and create art. There is a lot of nudity. The festival is named for its concluding ritual, in which a forty-foot effigy of a man is set on fire. The Burning Man Festival has been an annual event since 1986. At first it drew fewer than two dozen people, but it has now grown to more than twenty-five thousand. [1]

In 2002 a website called Voyeur Video began to sell a dozen videos of nude participants at the festival. The videos, priced at $29.95, were peddled along with other classics such as Kinky Nude Beach Day and Springbreak Stripoffs. Voyeur Video fashioned itself not as a pornography company but as "a news company that reports on adult parties where people get naked and naughty." [2]

At the Burning Man festival, participants were allowed to make videos and take pictures, but only with the permission of festival organizers. Voyeur Video sought and was denied permission to videotape the event. [3] The company videotaped the festival anyway. The organizers sued. Among the many causes of actions were the Warren and Brandeis torts of appropriation and public disclosure. Video Voyeur backed down. It agreed to stop selling the videos and to turn them over to the Burning Man organizers.

The Burning Man case, although never fully litigated, raises several important questions about the nature of privacy. If a person is naked at a festival with twenty-five thousand others, how can that person claim privacy? Should the law recognize such claims?

The Law's Binary Understanding of Privacy

A husband and wife were engaged in a romantic embrace near an ice cream stand at a farmer's market. Their photo was snapped, and it appeared in the October 1947 issue of Harpers Bazaar in an article celebrating the splendor of love. The photo was also published in the May 1949 issue of Ladies' Home Journal. Although the photo depicted the couple in a moment of love, the couple wasn't in love with the fact that their intimacy was displayed in national magazines, and they felt humiliated and embarrassed. They sued the magazines for publicly disclosing private facts.

But the court threw out their case because the couple "had voluntarily exposed themselves to public gaze in a pose open to the view of any persons who might then be at or near their place of business." [4] According to the court, "There can be no privacy in that which is already public." The court reasoned that "the photograph did not disclose anything which until then had been private, but rather only extended knowledge of the particular incident to a somewhat larger public than had actually witnessed it at the time of occurrence."

One judge dissented in the case. He noted that "there is no news or educational value whatsoever in the photograph alone" and that a picture with models could readily have been used to illustrate the story. The judge went on to argue:

By plaintiffs doing what they did in view of a tiny fraction of the public, does not mean that they consented to observation by the millions of readers of the defendant's magazine. In effect, the majority holding means that anything anyone does outside of his own home is with consent to the publication thereof, because, under those circumstances he waives his right of privacy even though there is no news value in the event. If such were the case, the blameless exposure of a portion of the naked body of a man or woman in a public place as the result of inefficient buttons, hooks or other clothes-holding devices could be freely photographed and widely published with complete immunity.

The judge has a point. There is a difference between what is captured in the fading memories of only a few people and what is broadcast to a worldwide audience. The law, however, generally holds that once something is exposed to the public, it can no longer be private. Traditionally privacy is viewed in a binary way, dividing the world into two distinct realms, the public and the private. If a person is in a public place, she cannot expect privacy. If information is exposed to the public in any way, it isn't private. According to the Restatement of Torts, one of the most influential documents for courts applying the tort of public disclosure: "There is no liability when the defendant merely gives further publicity to information about the plaintiff which is already public. Thus there is no liability for giving publicity to facts about the plaintiff's life which are matters of public record." [5] As one court ruled, appearing in public "necessarily involves doffing the cloak of privacy which the law protects." [6]

In one case, a husband and wife were arrested in a bar and taken away in handcuffs. A television film crew filmed the arrest. It turned out that the arrest was based on mistaken identity. The couple called the television station and begged that the footage not be broadcast. No such luck. The footage was aired. The couple sued, but the court dismissed the case because the arrest was filmed in public and was "left open to the public eye." [7]

Thus, according to the prevailing view of the law, if you're in public, you're exposing what you're doing to others, and it can't be private. If you really want privacy, you must take refuge in your home.

The Challenge of New Technology


The EarthCam website, displaying a feed from its live Times Square camera. Image courtesy of EarthCam, Inc.

Modern technology poses a severe challenge to the traditional binary understanding of privacy. Today data is gathered about us at every turn. Surveillance cameras are sprouting up everywhere. There are twenty-four-hour surveillance cameras in public linked to websites for anybody to view. Go to EarthCam and click on one of many major cities, such as Washington, D.C.,
Chicago, New York, or Seattle, among others. [8] In New York, for example, you can watch a camera that captures people walking down the sidewalk at 47th Street in Times Square.

Armed with cell phone cameras, everyday people can snap up images, becoming amateur paparazzi. Websites like Flickr allow people to post their photos and share them with the world. [9] Some people are posting a daily stream of photos, obsessively documenting every aspect of their lives. Beyond pictures, people are posting videos on the Internet for the world to watch. On YouTube, the leading video website, people around the globe are viewing more than one hundred million videos per day. On a daily basis, people add more than sixty-five thousand videos to YouTube. [10] Other variations of blogs are emerging, ones devoted primarily to pictures and video. A "moblog" is short for "mobile weblog." [11] Moblogs consist of postings based on what people capture in their mobile devices, such as cell phone cameras. Video blogs, or "vlogs" for short, consist of video feeds. According to one vlogger, everyone can "create media and have a distribution outlet for it that bypasses television and mainstream media." [12]

Today, privacy goes far beyond whether something is exposed to others. What matters most is the nature of the exposure and what is done with the information. There is a difference between casual observation and the more indelible recording of information and images. As the law professor Andrew McClurg points out, captured images have permanence, something fleeting memories lack. People can scrutinize a photo and notice details that they might not otherwise see when observing the scene as it unfolds. [13]

A second difference involves the degree of anonymity we expect in our everyday activities. As one prescient judge wrote, privacy can be "invaded through extensive or exhaustive monitoring and cataloguing of acts normally disconnected and anonymous." [14] We often engage in our daily activities in public expecting to be just a face in the crowd, another ant in the colony. We run into hundreds of strangers every day and don't expect them to know who we are or to care about what we do. We don't expect the clerk at the store to take an interest in what we buy. In other words, we're relatively anonymous in a large part of our lives in public. Identification dramatically alters the equation.

Suppose somebody followed you around in a drug store. The person assiduously scribbled down an inventory of what you bought. Or the person snapped a photo of the products you had in your basket as you were waiting at the checkout counter. Perhaps you wouldn't want the world to know you had bought hemorrhoid cream. Or perhaps you wouldn't be thrilled that others would know about your diarrhea problem or the kind of birth control you used. You bought all these things in public, and you exposed them to other people. Does this mean that you don't expect privacy in what you bought?

A third component of our expectations involves our understanding of context. Although we do things in public, we do them in a particular context before a particular set of people. As the information technology scholar Helen Nissenbaum points out, "it is crucial to know the context -- who is gathering the information, who is analyzing it, who is disseminating it and to whom, the nature of the information, the relationships among the various parties, and even larger institutional and social circumstances." [15] McClurg aptly notes that "a photograph permits dissemination of an image not just to a larger audience, but to different audiences than the subject intended." Moreover, "conduct which would be appropriate for one environment may be inappropriate or embarrassing in another." [16] We tell jokes to our friends we wouldn't tell to our grandmother. We realize that there are different social norms for different situations, and broadcasting matters beyond their original context takes away our ability to judge the situation appropriately.

Fourth, much of our daily lives occurs in realms that are neither purely public nor purely private. Instead, our activities often take place in the twilight between public and private. We used to speak on the phone at home or in closed phone booths, but with cell phones, we now carry out our conversations in a variety of public places. Suppose you're on a train and you have a cell phone conversation with a friend. The person sitting next to you secretly records your conversation and makes the recording available online. Despite the fact you exposed your conversation to people nearby, you didn't expect your conversation to be recorded and made available to the world.

Most of us have moments when we're in public where we would not want a photo taken of us, much less placed on the Internet. Most of us have times when we expose personal information to others but do not expect it to be shared more widely. We frequently have conversations in public that we don't expect to be overheard. When we chat in a restaurant, we don't expect others to be straining to eavesdrop on our discussion above the din of other dinner conversations. At most, we might expect one or two people to hear fragments of what we're saying, but we certainly don't expect to see a transcript of our conversation appear on the Internet.

Thus merely assessing whether information is exposed in public or to others can no longer be adequate to determining whether we should protect it as private. Unless we rethink the binary notion of privacy, new technologies will increasingly invade the enclaves of privacy we enjoy in public. Privacy is a complicated set of norms, expectations, and desires that goes far beyond the simplistic notion that if you're in public, you have no privacy.

Video Voyeurism

In some instances, the law is beginning to advance beyond the simplistic binary view of privacy. The rise of video voyeurism has pushed the law toward a greater recognition of different degrees of privacy. New technology has made video voyeurism easy. Anybody armed with a cell phone camera can quickly snap photos of others in the buff and post them online. In one incident, nude photos of a men's wrestling team at the University of Pennsylvania appeared on a website. One athlete said: "I pulled up the home page and I am looking at myself naked on the Internet. ... It is terrible because I have no control over it." [17]

Another practice is the taking of "upskirt" photos -- pictures taken up women's skirts. More than one hundred websites are devoted to providing upskirt photos or pictures of people showering or undressing. [18] To take these photos, all a person needs is a cell phone camera.

Several states have responded by passing laws with criminal penalties for video voyeurism. [19] Some initial attempts at creating these laws, however, failed because of the binary view of privacy. In one case, two men took upskirt photos of unsuspecting women in a mall. Both were convicted under a Washington video voyeurism statute. The Washington law defined the crime as taking photos "for the purpose of arousing or gratifying the sexual desire of any person" when the photo was taken "in a place where [the victim] would have a reasonable expectation of privacy." [20] The Washington Supreme Court, however, overturned the conviction because "although the Legislature may have intended to cover intrusions of privacy in public places, the plain language of the statute does not accomplish this goal." The court reasoned that "casual surveillance frequently occurs in public. Therefore, public places could not logically constitute locations where a person could reasonably expect to be safe from casual or hostile intrusion or surveillance." [21] The law was later amended to include both public and private places.

In 2004 Congress enacted the Video Voyeurism Prevention Act. [22] Congress criminalized video voyeurism, and it heeded the lesson from the Washington law, explicitly providing that the act would apply "regardless of whether [the victim] is in a public or private area." Unfortunately, Congress's act applies only on federal property, so you're safe from upskirt photos if you're walking in the Capitol Building or on other federal property. But if you're in the local mall, then you better hope that your state has a video voyeurism law, and if it does, that it has made clear that you can expect some level of privacy in public. The example of video voyeurism demonstrates that privacy expectations do not turn solely on place.

Many places aren't purely private or purely public. Suppose you're in a gym locker room and somebody snaps a photo of you undressing and posts it online. Is the locker room a public or a private place? It isn't entirely private, since it is open to other people, and you're undressing in front of many others. But although you're not in seclusion, you can expect that others won't take photos of you. Restrooms, stores, bars, and other places are open to the public, but this doesn't eliminate your expectations of privacy in those places. Expectations of privacy turn on norms. You expect privacy in the gym locker room because the norms are clear that it is inappropriate for others to snap your photo in this context. And in the Nevada desert, the participants of Burning Man have established a set of norms about how others are to use photos.

So we're back to the Burning Man festival. The Burning Man case illustrates that a claim of privacy is not the same as a claim of absolute secrecy. The participants of Burning Man obviously didn't mind being seen nude by other participants. They didn't even mind having their photos taken by others. What they didn't want was their images being exploited by pornographers. All-or-nothing notions of privacy fail to grasp the central difference between fellow festival goers and commercial exploiters for porn. There's a mutual camaraderie among festival goers that isn't shared with the pornographers. The Burning Man participants thus had nuanced expectations of privacy -- about how their information would be used within a limited circle of people.

The Difficulties of Recognizing Privacy in Public

The law should begin to recognize some degree of privacy in public. But there are difficulties with doing so. Suppose you witness an interesting event on the subway and you want to capture it on your cell phone camera to post on your blog. If the people you were photographing on the subway had privacy rights in public, you might need their permission to post the photo. And if they are engaging in a social taboo, they might not be eager to give you permission. Should you be allowed to post the picture anyway?

The abstract hypothetical I suggest above can apply to a number of situations already discussed in this book -- the dog poop girl and the New York City subway flasher. One might ask incredulously: So the dog poop girl engages in a nasty transgression and the law will stop people from taking her picture and exposing her misbehavior? Should the law give the creep who flashes on the subway a right to sue a person who took a photo of him in the act? These are potential implications of a robust recognition of privacy in public. The law need not go this far, but is there a logical stopping point? I've discussed some of the problems with online shaming, so perhaps protecting the dog poop girl or the subway flasher has significant benefits in curtailing the abuse of shaming. One might argue that only people engaged in illegal activities or severe norm violations lack privacy, but who is to judge this? The average person with a cell phone camera? It is difficult to stop shaming unless we protect privacy in public. Doing so doesn't mean absolute protection, just a limit on certain kinds of uses and disclosures. People can still snap pictures and turn them over to the police. People should be deterred, however, from taking matters into their own hands by placing the photos online.

When the law begins to recognize privacy in public, the tricky question is: How much? Would streakers in Times Square still have the right to claim privacy if people posted their photos on the Internet? At some point, what is done in public is indeed public. There are no easy answers, and the resolution will depend upon the norms and expectations in each circumstance. The virtue of the binary view of privacy is clarity. It is an easy rule to apply. Yet the simplicity of this view is its downfall -- it seems far too outmoded given new technology. Therefore, although it will be difficult, it is better to develop and protect a more nuanced notion of privacy.

Accessibility of Information

In 2006 Facebook (a social network website consisting of millions of high school and college students) launched a feature called News Feed that instantly alerted users whenever their friends added information or photos to their profiles. Facebook users constantly update their profiles, adding new text and new images. They might update their roster of friends. The News Feed feature immediately notified all of a person's friends about each new change in that person's profile.

News Feed was met by an enormous outcry from users, who vociferously objected to the extensiveness of the exposure. According to one of the users, "Facebook is becoming the Big Brother of the Internet recording every single move." [23] "It's just so unnecessary," another user complained. "You don't have to know everything your friends do and the changes they make .... It's kind of creepy." [24] As one user expounded: "Before News Feed, yes, you could see the profile, and you could see the pictures, and you could see the comments, and you could see the relationship status, but the users felt that it was just for people who cared, and who wanted to know. But now, all of this information was thrown down the throats of everyone, and it was very strange." [25] Shortly after the change, a protest group called "Students Against Facebook News Feeds" emerged on Facebook. [26] People joined the group in droves. Within days, the number of protesters had swelled to more than seven hundred thousand. [27]

Facebook quickly responded. Mark Zuckerberg, the creator of Facebook, wrote an open letter to Facebook users: "We really messed this one up. When we launched News Feed and Mini-Feed we were trying to provide you with a stream of information about your social world. Instead, we did a bad job of explaining what the news features were and an even worse job of giving you control of them. I'd like to try to correct those errors now." [28]

The Facebook privacy debacle is especially interesting because it had nothing to do with the exposure of new information. No new secrets about Facebook users were being revealed. The information that the users complained about was already available on their profiles -- posted voluntarily by themselves. Instead, all the new system did was alert users to that new information. In other words, the Facebook system was merely making existing information more accessible. Perhaps this explains why Facebook officials were so surprised by the backlash. After all, Facebook users are not a bunch who seem very concerned about their privacy. Why, then, was there such a vehement reaction?

The Facebook change brought users an increased awareness of the privacy dangers of the Internet. Although Facebook users might think it is too quaint to expect all of their secrets to remain in the bag, this doesn't mean that they don't care about privacy. They just see privacy differently. What many of the Facebook users objected to was the increased accessibility of their personal data -- the fact that others would be alerted to every new update to their profiles immediately. Privacy can be violated not just by revealing previously concealed secrets, but by increasing the accessibility to information already available. The desire for privacy is thus much more granular than the current binary model recognizes. Privacy involves degrees, not absolutes. It involves establishing control over personal information, not merely keeping it completely secret. As the computer security expert Bruce Schneier argues: "People are willing to share all sorts of information as long as they are in control. When Facebook unilaterally changed the rules about how personal information was revealed, it reminded people that they weren't in control." [29]

For example, suppose you had a spat with a friend and wanted to eliminate that person from your circle of friends on Facebook. You might not want this change to be announced prominently to all your other friends. You might want the change to be made quietly, where it might be noticed by a few friends, or by no one besides you and the former friend. In other words, you might want some changes to fly under the radar. The binary view of privacy doesn't recognize the wide swath of middle ground between the realms of absolutely public and absolutely private. Increasingly, however, our lives occupy this middle ground. That's why I believe we must abandon the binary view of privacy and develop a more nuanced view.

CONFIDENTIALITY

Aleksey was an ambitious twenty-three-year-old student at Yale University. Desiring to be an investment banker, he applied to UBS, a global financial company. His application, however, was rather unusual. First of all, his resume was rather long -- eleven pages in all. Even more peculiarly, he sent along a seven-minute video of himself entitled "Impossible Is Nothing."

The video begins with Aleksey being interviewed as if he were a famous individual. The interviewer calls Aleksey a "model of personal development and inspiration to many around you," then asks, "How do some people like yourself become very proficient in their fields faster than most?" "Well, thank you," Aleksey replies. "I guess the first thing people need to understand is that success is a mental transformation; it is not an external event."

Throughout the video, with an aloof and serious tone, Aleksey pontificates about his philosophy of success. "Ignore the losers," Aleksey says, "bring your A-game, your determination and your drive to the field, and success will follow you." In other pearls of advice, Aleksey declares that "failure cannot be considered an option," and that "luck doesn't jump into anyone's lap."

The video frequently cuts to scenes demonstrating Aleksey's athletic prowess. He performs a series of rather unusual skills for an investment banker position. Aleksey lifts massive dumbbells, bench presses 495 pounds, serves a 140-mph tennis ball, does an acrobatic ski jump, and concludes by breaking a stack of bricks with a karate chop.

"If you're going to work, work," Aleksey declares. "If you're going to train, train. If you're going to dance, then dance, but do it with passion." The video then cuts to Aleksey dancing with a scantily clad woman to Chayanne's "Solamente Tu Amor." The video concludes with Hans Zimmer's "The Way of the Sword" playing over end credits.

Needless to say, Aleksey wasn't hired by UBS. But his video was forwarded around Wall Street, and it soon wound up on YouTube. In a short time, hundreds of thousands of people had downloaded it. Aleksey sent requests to websites to take the video down, but in vain. [30] Aleksey had become an Internet sensation. One media website in the United Kingdom declared Aleksey's video the "greatest CV ever filmed." [31] The mainstream media pounced on the story. The New York Post called his video a "six-minute ego-mercial." [32] An article in the New York Times declared that Aleksey "may be the most famous investment-banking job applicant in recent memory." [33] Throughout the blogosphere, people accused Aleksey of being a pathological liar, of faking the feats in the video, and of plagiarizing in a book he had self-published. At DealBook, a blog sponsored by the New York Times, [34] commentators to a post by journalist Andrew Sorkin declared:

That kid should be snipped of his degree. It seems reasonably clear that he has lived a life of lies.

Another victim of a self-absorbed, dishonest and Idol-worshipping American culture.

What an insufferable, self-absorbed, arrogant and self-aggrandizing jerk. In other words, a perfect fit for Wall Street.
Aleksey appeared on television media shows to respond to his worldwide mockery. On MSNBC, Aleksey stated in an interview that he was shocked to see his video and resume spread across the Internet. His resume contained his phone number and email address, and he was receiving harassing cell phone calls and thousands of nasty emails. [35] At Harvard students threw an Aleksey theme party, with people dressing up in karate uniforms and dancing attire. [36] The blog Gawker anointed Aleksey with the tide of "pioneer Douchebag." [37] In an interview on ABC's 20/20, Aleksey stated that he thought he had no chance now for a career on Wall Street. "So far," he said, "it's been like going through hell." [38]

Did Aleksey get what he deserved? Perhaps such a pompous person should be put in his place. But at what cost? On Sorkin's DealBook post, other commentators questioned whether it was appropriate for Aleksey's resume and video to be leaked on the Internet:

I am deeply disturbed [that] a resume sent in confidence to a highly respected firm had been made public and that confidence [was] broken. Should we all worry about where [our resumes] end up once sent to the firm of our choice?

Although the kid is obviously a ridiculous egomaniac and not a particularly good liar, the real guilty party here is UBS.

This fellow is being subjected (in Clarence Thomas' immortal words) to a "hightech lynching." Whether or not he embellished or misrepresented anything in his job app or his resume or anything else in his life, it's beyond the pale to have the entire snarky Internet ... pile on him in public.

In all fairness to UBS, the precise story of how the video and resume got leaked is unclear. UBS issued a statement about the matter: "As a firm, UBS obviously respects the privacy of applicants' correspondence and does not circulate job applications and resumes to the public. To the extent that any policy was breached, it will be dealt with appropriately." [39]

Assuming Aleksey's application was leaked by somebody at UBS, is the application really private? One could argue that Aleksey's application was no longer private after he sent it to UBS. However, there is a significant difference between a few employees at UBS having a chuckle over Aleksey's application and the entire world making Aleksey the butt of their jokes. Although the video wasn't completely secret since Aleksey exposed it to some people at UBS, the general public wasn't Aleksey's intended audience. Should the law respect Aleksey's desire to expose his personal information selectively? Or since he revealed his information to others, can he continue to claim that it is private?

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PART 2 OF 2 (CH. 7 CONT'D.)

Should We Assume the Risk of Betrayal?

Suppose your spurned ex-lover decides to post the intimate details of your relationship online. Or imagine that a trusted friend reveals your deepest secrets on her blog. This is increasingly happening online. Jessica Cutler's Washingtonienne blog is a prime example. The private information about people on the Internet often doesn't come from strangers but from friends, family members, coworkers, and others.

If you tell something to your doctor, you expect her to keep it confidential. It's an unwritten expectation, something that is rarely explicitly said but that is generally understood. Indeed, doctors are under ethical obligations to keep patient information confidential. People don't expect their doctor to be blogging about them on the sly.

Confidentiality differs substantially from secrecy. Secrecy involves hiding information, concealing it from others. Secrecy entails expectations that the skeletons in one's closet will remain shut away in the darkness. In contrast, confidentiality involves sharing one's secrets with select others. Confidentiality is an expectation within a relationship. When we tell others intimate information, we expect them to keep it confidential. Sharing personal data with others makes us vulnerable. We must trust others not to betray us by leaking our information.

The importance of confidentiality has been recognized since antiquity. Ethical rules have long existed for physicians to maintain the confidentiality of their patients' information. The Hippocratic Oath, circa 400 B.C., provides that doctors "will keep silence" about what their patients tell them. [40] Confidentiality is essential for certain communications to take place. Mark Twain explained most vividly why confidentiality is so important: "The frankest and freest and privatest product of the human mind and heart is a love letter; the writer gets his limitless freedom of statement and expression from his sense that no stranger is going to see what he is writing. Sometimes there is a breach-of-promise case by and by; and when he sees his letter in print it makes him cruelly uncomfortable and he perceives that he never would have unbosomed himself to that large and honest degree if he had known that he was writing for the public." [41]American law currently plays Jekyll and Hyde with regard to protecting confidentiality. Sometimes, the law strongly protects confidentiality. For example, the law provides potent protections for patient-physician confidentiality. As one court put it: "There can be no reticence, no reservation, no reluctance when patients discuss their problems with their doctors." [42] The law protects the confidentiality of people's discussions with their attorneys to "encourage full and frank communication." [43] The law also protects marital communications between spouses, a protection that dates as far back as ancient Jewish and Roman law. [44]

But in many cases, the law turns a blind eye to breaches of confidentiality, holding that we must assume the risk that we'll be betrayed. Most courts have not protected communications between parents and children. [45] As a result, parents and children can be forced to testify against each other in court. [46] In criticizing this doctrine, one court declared: "Forcing a mother and father to reveal their child's alleged misdeeds ... is shocking to our sense of decency, fairness, or propriety." [47]

The law often holds that if you share a secret with others, you assume the risk that they will betray you. [48] In one case from 1970, for example, General Motors began a campaign to dig up dirt on Ralph Nader, who had been criticizing the safety of GM's cars. Among other things, GM sent people to find out Nader's secrets by talking with his friends and acquaintances. GM also made harassing phone calls, wiretapped his telephone, and kept him under extensive surveillance when in public. Although the court held that some of GM's tactics were improper, it concluded that there was nothing wrong with trying to get Nader's friends to betray his secrets. If a person shares information with another, the court declared, "he would necessarily assume the risk that a friend or acquaintance in whom he had confided might breach the confidence." [49] Although the law protects spouses from having to testify against each other, it often does not provide a remedy when one spouse (or ex-spouse) writes a tell-all book about the other.

In contrast, the law in England strongly protects against betrayal of confidence. People can be liable for disclosing secrets that are entrusted to them in confidence. [50] In one English case, a man who had a homosexual affair with the actor Michael Barrymore told the details to a reporter for the paper The Sun. The court protected Barrymore: "When people enter into a personal relationship of this nature, they do not do so for the purpose of it subsequently being published in The Sun, or any other newspaper. The information about the relationship is for the relationship and not for a wider purpose." [51] According to the court: "The fact is that when people kiss and later one of them tells, that second person is almost certainly breaking a confidential arrangement." [52]

In another English case, the actors Michael Douglas and Catherine Zeta-Jones made an exclusive deal with OK! magazine to publish the photos of their wedding. Guests were told that they weren't allowed to take photos. But not to be outdone, Hello! magazine had a photographer masquerade as a guest and secretly snap pictures. The court ruled that Hello! had engaged in a breach of confidence. [53]

The United States has a breach-of-confidentiality tort, although it is much weaker than the tort in England. [54] In the United States, the number of relationships understood to be confidential is small. Beyond doctors, lawyers, clergy, and a few others, the information you tell others is often not legally protected. You might trust a best friend with your secrets, but your friend can betray you without breaking the law. Boyfriends, girlfriends, family members, colleagues, and others are under little obligation to keep your information private.

Beyond those you trust the most with your information, you also routinely put your trust in people you barely know. For example, you expect the store clerk not to broadcast your purchases to the world. Day in, day out, we depend upon people keeping our information confidential. And yet these people are generally not understood to have a legal duty to do so.

The companies you share information with are also frequently not understood to owe you a legal duty of confidentiality. Unless you live in a shack in the woods, a significant amount of your most intimate information is shared in some way with others. Your ISP knows what websites you are visiting. Your phone company knows whom you're calling. Your credit card company knows how you're spending your money. Although we trust these companies with our personal information, the law only sometimes imposes upon them an obligation to keep it confidential.

Why is the American breach-of-confidentiality tort so much weaker than the English version? One reason is that the breach-of-confidentiality tort became overshadowed by the other privacy torts. In their 1890 article that inspired the privacy torts, Warren and Brandeis were skeptical of the ability of confidentiality law to protect privacy. At the time, there was a rather robust law protecting confidential relationships. But Warren and Brandeis steered the law in a new direction. As we have seen, Warren and Brandeis had in mind the taking of candid photographs by strangers. In this situation, they noted, there was no confidential relationship. The law thus had to recognize a new protection of privacy, one that would provide remedies against strangers. Although Warren and Brandeis never explicitly rejected confidentiality, it was often overlooked by lawyers and judges who focused only on the other privacy torts instead.

The law should more expansively recognize duties of confidentiality. A large amount of the information about us that finds its way online isn't put there by strangers. It is spread by people's spurned lovers, their ex-spouses, their enemies, and in some cases, their friends. Perhaps we should recognize implicit promises of confidentiality when we share intimate information with others. You don't sign a confidentiality agreement with your doctor or lawyer before you start talking about your symptoms or your legal case. It's implied. We frequently expect confidentiality when we share intimate information. We place our trust in others to keep our secrets. So why not establish that when you tell somebody a secret, there's an implied promise that it's confidential? Although the tort of breach of confidentiality is not nearly as well developed as the tort in England, there is no reason why it can't evolve to provide stronger privacy protection.

Of course, there must be limits to how broadly the law should reach. People gossip all the time. As Benjamin Franklin once quipped, "Three may keep a secret if two are dead." [55] If the law became involved every time people gossiped, it would become far too entangled in our lives. Gossip is so frequent that we'd be constantly litigating. But the law should provide a remedy for gossip when it is spread widely or made permanent. As discussed earlier, Internet gossip is especially damaging. So the law can try to keep gossip off the Internet and confined to whispering tongues.

Social Network Theory

Not all information is confidential. Often the cat is already out of the bag. At that point, there are no obligations of confidentiality. But how do we know when the cat has escaped?

Rarely do we keep complete secrets. Indeed, when we tell someone a secret, we still call it a "secret" even though another person now knows it. Courts have a difficult time determining when a secret is no longer a secret. Suppose I tell it to one thousand people. Can I really claim it is a secret anymore? At some point, it's too late -- my secret becomes public information.

In one case, Jane Doe came back to her apartment and saw the corpse of her murdered roommate lying on the floor. She also caught a glimpse of her roommate's killer as he fled. [56] Since the killer was still at large -- and since Jane was an eyewitness, the police withheld her identity from the public. But somehow it got leaked to a journalist, who named her in a newspaper article about the murder. Jane sued under the public-disclosure tort. The newspaper argued that Jane's identity wasn't private because she told some of her neighbors, friends, and family members about witnessing the murder. Thus the secret was known to a few people. But the court wisely disagreed with the newspaper, concluding that Jane had not "rendered otherwise private information public by cooperating in the criminal investigation and seeking solace from friends and relatives."

In another case, a couple conceived using in vitro fertilization. Artificial means of conception were against the teachings of their religion, so the couple kept the information confidential from members of their congregation and local community. But employees at the hospital knew about their in vitro fertilization and so did other couples at the hospital undergoing similar procedures. On one occasion, a party was thrown for the in vitro couples. A television crew filmed the event, and despite the couple's best efforts to avoid being filmed, their images were nevertheless broadcast on television. The couple sued under the public-disclosure tort. The court held that the couple retained an expectation of privacy because "attending this limited gathering ... did not waive their right to keep their condition and the process of in vitro private, in respect to the general public." [57]

In another incident, an HIV-positive individual told nearly sixty other people about his condition. They included family, friends, doctors, and members of an HIV support group. At one point, the person agreed to appear on a television show, but only with his face obscured. Unfortunately, the obscuring process was botched, and the individual was identifiable. He sued. The television company argued that he lost any expectation of privacy by telling so many people. But the court concluded that the individual still expected privacy because the people he told weren't likely to spread the information since they "cared about him ... or because they also had AIDS." [58]

In all these cases, courts concluded that although people exposed their secrets to several others, they still could claim that the information was private. But many other courts have concluded otherwise. In one case a Colombian judge indicted Pablo Escobar, the infamous drug lord of Colombia. Escobar put a million dollar bounty on the judge's head. After receiving numerous death threats, she fled to Detroit. She told a few people there about her identity, but otherwise, she kept it quiet. The media, however, reported her story and revealed her address. She sued for public disclosure. The court threw out her case because she had exposed her identity "to the public eye." [59]

In another case, a woman told four coworkers about encounters with her child that had "sexual overtones." The court concluded that she no longer expected privacy in the information because she had shared it with four others in the office. [60]

How many people must know before the cat's out of the bag? Simply doing a head count of how many people know the information is the wrong approach. If something can remain private despite being known by four other people, why not five? Or ten? Or fifty? When is the exposure so great that we should say that the information is public and no longer private?

There is no magic number. Instead, as the law professor Lior Strahilevitz suggests, we should look to social networks. [61] As we have seen, people relate to each other in various groups or cliques. It is generally likely that our information will stay within the groups we associate with and not leave these boundaries. Instead of counting how many other people know certain information, we should focus on the social circles in which information travels. We all associate in various social circles. We have our groups of friends, the people where we work, our families. We share information within these groups. Rarely does gossip leap from one group to another. People in one social circle will often not know or care about a person in a completely different circle.

We're all separated by only a few links, but a degree of separation can be a chasm when it comes to the flow of gossip. As Strahilevitz notes, a "rural farmer in Omaha and a banker in Boston may be separated by only a few links, and yet they will live their entire lives oblivious to each other's existence." Suppose the farmer has a friend (Bob) who has a friend (Jane) who knows the banker. The farmer tells Bob about their mutual friend Jack's adulterous affair. Bob may tell Jane about it, but probably only if Jane knows Jack. Otherwise, why would Jane care? Strahilevitz observes that the information won't spread beyond the farmer's immediate social circle. Indeed, it probably won't even spread to the farmer's friends who don't know Jack, let alone friends of friends. Only if the information is "particularly sordid, humorous, or memorable" will it spread further. If it does spread, those who don't know Jack will care only about the salacious details, not about his identity. Thus as the story radiates beyond those who know Jack, his name is likely to be dropped.

Social network theory often focuses primarily on connections, but networks involve more than nodes and links. There are norms about information sharing that are held within certain groups, such as norms of confidentiality. My colleagues at the law school where I teach constitute a social circle. Gossip travels quickly throughout the faculty, in part because we all work in the same building and encounter each other throughout the year. But while we might not be very careful about keeping secrets about our colleagues from our fellow colleagues, we're less likely to share gossip with students. Our relationships with students are more formal than our relationships with other colleagues, so gossip is not to be a likely topic of conversation. Many faculty might be wary of embarrassing a colleague by spreading rumors among the students. So despite close proximity between professors and students, despite many links between nodes, information might not spread evenly throughout a network because of norms.

In other words, certain groups guard secrets more tightly. Other times, secrets will not leave the group simply because outsiders won't be interested. The adage "What happens in Vegas stays in Vegas" aptly describes the phenomenon. What is gossiped about in certain groups often stays within those groups.

As Strahilevitz argues, we should examine how information is likely to travel. Information should be considered private if it remains within a confined group -- even if that group is rather large. Once it has traversed too many social circles, then it is no longer private. But if the information is confined in a particular social circle, and a person takes it beyond these boundaries, that's when the law should assign liability -- to the person who crossed the boundary.

According to Strahilevitz, the case in which the person's HIV status was still private despite being known to sixty others was correctly decided because the circles in which the person spread the information would readily respect the privacy of HIV-positive individuals. This isn't the kind of information that people typically spread about others, especially those who also suffer from the disease. Given these facts, Strahilevitz contends that the information was not likely to spread beyond the particular circle.


This diagram depicts three social groups in a network. The circle around the group in the center represents a boundary of information flow. Information circulating in the center group will rarely jump beyond that group even though some people in the group are linked to others in different groups.

Strahilevitz argues that the court was wrong, however, in the case involving the judge whose life was threatened by Pablo Escobar: "According to the court, [the woman] used her real name when shopping in stores or eating in restaurants, which waived an expectation of privacy in her identity. Under a network theory approach, these acts, combined with her notoriety in Colombia, would not have eliminated her reasonable expectation of privacy in her identity." The people she used her real name with were a few individuals she had "fleeting contact" with, such as people she encountered when shopping and at restaurants. These individuals were unlikely to care enough about who she was to spread news of her identity. Nor were they likely to "put two and two together" and realize that she was the woman with the bounty on her head. Her "general obscurity in Detroit properly engendered a reasonable expectation of privacy with respect to her shopping and visiting restaurants." [62]

Applying social network theory to the law of privacy doesn't require special expertise in sociology. We all have pretty good intuitions about how gossip travels. We readily understand that information can traverse quickly within certain groups but not spread beyond. It is this key intuition, one we know from experience and that is confirmed by social network theory, that privacy law needs to better understand and incorporate. When information is contained within a particular group and a person causes it to leap the boundary, then this is a privacy violation even if the original group is large. So a big group of people can know a secret, and it can still be deemed private because it is not expected to circulate beyond that group.

From Realspace to the Internet

Even if information is already circulating orally as gossip among a few people, putting it online should still be understood as a violation of privacy -- even if it is read only by people within one's social circle. In other words, a person might expose your secrets in her blog but defend herself by saying: "But only a few of my friends read my blog." The difficulty is that putting the information online increases dramatically the risk of exposure beyond one's social circle. Placing information on the Internet is not just an extension of water cooler gossip; it is a profoundly different kind of exposure, one that transforms gossip into a widespread and permanent stain on people's reputations.

There has been a long-standing recognition that written gossip can be more pernicious than oral gossip. In the late eighteenth century, for example, politicians frequently circulated gossip about each other. President Thomas Jefferson was a master at spreading gossip about his foes. Despite the crudeness of the practice, there was an "etiquette of gossip." [63] One of the primary rules was that gossip should never be put to pen, since letters and papers often found their way into the wrong hands, and even worse, could become exposed to the public. As the historian Joanne Freeman observes, written gossip was particularly dangerous because it could transform "one man's gossip into fodder for someone else's gossip." [64] Elites were careful about gossip; they understood its power and they tried to keep it in check as much as possible.

Today the line in the sand is the Internet. When gossip spreads to the Internet, it can spiral out of control. Even if it is posted on an obscure blog, information can still appear in a Google search under a person's name. Therefore the law should view the placing of information online as a violation of privacy -- even gossip that had previously been circulating orally in one particular social circle.

How Far Should Liability Be Extended?

Social network theory explains why placing gossip on the Internet changes it so dramatically. The Internet allows information to traverse boundaries more rapidly and spread much farther. But when should liability end? Suppose that Jack posts private details about Jill's love life on his blog. Jack's blog has a small readership. Marty, a blogger from a popular blog, with hundreds of thousands of readers, thinks that the story is interesting and posts excerpts of Jack's post. Who should be liable -- Jack, Marty, or both?

Only Jack should be liable for damages. He's the one who breached the gossip boundary and spread the information to the Internet. Once the information is on the Internet, however, it would be impractical and problematic to hold liable others beyond the person who initially placed it there. A line must be drawn at cyberspace; once information is out on the Internet, those subsequently discussing and disseminating it should not be liable. To conclude otherwise would seriously chill the freewheeling and lively discussion that rapidly erupts across the blogosphere.

While this rule has its difficulties, it is the most practical approach. How is Marty to know how many others have read Jack's blog? At some point, liability must stop. When information is on the Internet, many people may readily link to it, talk about it, copy it, repost it, and so on. Putting gossip on the Internet is like throwing meat to alligators. People snap it up in a frenzy. Without protection from liability, people would be severely chilled in their blogging. They would never know when the information they have found on the Internet is really safe to blog about. Therefore only the person who first posts the gossip should be liable for damages. Those repeating the information should not be liable for damages -- but they should be required to remove at least the last names of the harmed individuals if asked. If a reasonable request for suppression of personal information is denied, a victim should be able to seek legal recourse against bloggers and others who continue to broadcast identifiable information they find elsewhere on the Net.

The Danger of Too Much Confidentiality

One of the problems with confidentiality -- and with privacy more generally -- is that it impedes the spread of true information. If we protect confidentiality, we take away information that might be helpful in assessing people's reputations. In one example, a nurse was fired by a hospital for making serious errors. The nurse negotiated for the hospital to agree not to disclose any information about his performance on the job. The nurse then applied for a job at another hospital. That hospital sought a reference from the nurse's former place of employment. Despite promising confidentiality, the former hospital told the other one the reasons for firing the nurse. After a legal challenge, the court upheld the agreement as valid. [65] Was the former hospital in the wrong? Should it be liable for giving out an honest evaluation of the nurse's performance? After all, it served the public interest by accurately providing information about a bad nurse whose errors could harm or kill future patients. It provided correct information that was helpful in assessing the nurse's qualifications. Confidentiality would have allowed the nurse to escape from his past. Should the law permit the withholding of such important information?

This case reveals the cost of confidentiality -- sometimes the restriction of truth can cause harm to others. Hard cases exist, but most information on the Internet does not rise to this level. The law protects confidentiality even in some difficult cases because of the larger value of ensuring trust between people and encouraging candid conversations.

CONTROL

Dr. Laura Schlessinger hosted a popular national radio call-in show. She had conservative views, sternly espousing her moral judgments about sex, marriage, parenting, and abortion. She once declared that the best mothers are ones who stay at home, that being gay is a "biological error," and that women having sex outside marriage are "presenting themselves virtually as unpaid whores." [66] Dr. Laura, as she often has been called, published many books, including Ten Stupid Things Women Do to Mess Up Their Lives, The Proper Care and Feeding of Husbands, and How Could You Do That?! The Abdication of Character, Courage, and Conscience, among others.

In 1998 a website called Club Love posted about twelve photos of Schlessinger in the nude, taken about twenty-five years earlier when she was in her twenties. The website was run by Internet Entertainment Group, the same porn company that attempted to distribute a video of Pamela Anderson and Brett Michaels having sex. [67] The photos had been taken by Bill Ballance, who had introduced Schlessinger to radio back in 1974. Ballance had begun a brief affair with Schlessinger after she separated from her first husband, whom she later divorced. He kept the photos tucked away for years, then suddenly decided to sell them to Internet Entertainment Group.

One of the photos included a shot with Schlessinger in a spreadeagle pose. The website enabled people to click on any part of Schlessinger's anatomy and enlarge it for closer viewing. Internet Entertainment Group called the photos "The Dirty Dozen." [68] Soon after the photos were publicized, more than seventy other websites posted copies. [69]

Dr. Laura was distraught. She had strong words for Ballance: "I am mystified as to why, 23 years later, this 80-year-old man would do such a morally reprehensible thing." [70] She immediately sued and obtained a temporary restraining order against Internet Entertainment Group from posting the photos. But shortly afterward, the judge lifted the order on free-speech grounds. Before the case went any further, Dr. Laura dropped it.

Dr. Laura wasn't the only one upset. Internet Entertainment Group was also up in arms -- against the other websites that it claimed were copying its photos. Copyright in a photo is owned initially by the person who takes the photo, not by the person whose photo is taken. When Ballance sold the photos, Internet Entertainment Group acquired the copyright. Seth Warshavsky, the head of Internet Entertainment Group, said: "We shut those sites down. We own the copyright to those photos and we intend to protect that copyright. If anyone, including Dr. Laura herself, tries to print those pix, we will shut them down." [71] That's right -- Internet Entertainment Group's copyright even gives it the ability to control how Dr. Laura herself uses the photos.

While some might cheer this comeuppance of the harsh champion of family values, Internet Entertainment Group obtained the photos through Ballance's breach of confidentiality. It seems fairly clear that Schlessinger believed that the photos were to be kept by Ballance in confidence and not sold for profit. Copyright law gives Internet Entertainment Group a vigorous set of legal protections to control the use of the photos. The law gives Schlessinger much less control. Should the law be this way?

A System of Controlling Information

A problem with the binary view of privacy is that it is an all-or-nothing proposition. We often don't want absolute secrecy. Instead, we want to control how our information is used, to whom it is revealed, and how it is spread. We want to limit the flow of information, not stop it completely. Moreover, different people have different entitlements to know information about others. We might want to keep a person's HIV-positive status from her employer, but what about that person's spouse? Or people with whom the person had unprotected sex? In some cases, the law could say that some people should be entitled to know information but others shouldn't be.

But is control over information really feasible? If we expose information to others, isn't it too difficult for the law to allow us still to control it? Perhaps the law is reticent about granting control because of the practical difficulties. Information spreads rapidly, sometimes like a virus, and it is not easily contained. But in other contexts, the law has developed a robust system of controlling information. For example, copyright law recognizes strong rights of control even though information is public. The Copyright Act protects "original works of authorship fixed in any tangible medium of expression." [72] Copyright law protects a wide range of works: movies, books, music, software, art, and photographs, among other things. To obtain copyright protection, one need not lock one's work behind closed doors. I expose copyrighted material to the public all the time. You're reading this book, which is copyrighted. My exposing the book to you doesn't eliminate my protection. You can't do whatever you want to with my book, such as photocopy it cover to cover and start selling bootleg copies in the streets of New York. But you can do some things with it. You can copy it for your own use. You can lend the book to others. You can quote from it. The copyright system focuses on the use of information -- it allows certain uses and prohibits others. And it does so regardless of whether the information has been publicly exposed.

Moreover, copyright law provides protection even when a work can be readily copied. I don't have to take any steps to protect my work. Even if you can easily make copies and sell it, the law doesn't allow you to. In fact, the law even creates liability when others facilitate your violating my copyright protection. If you infringe upon my copyright, the law provides me with a powerful set of remedies. I can obtain a court order to forbid you from continuing to use my material improperly. I can sue for damages. Under certain circumstances you might also be subject to criminal penalties.

Copyright and privacy are both ways of controlling information. As the law professor Jonathan Zittrain notes, "there is a profound relationship between those who wish to protect intellectual property and those who wish to protect privacy." [73] The legal scholar Lawrence Lessig observes, "Just as the individual concerned about privacy wants to control who gets access to what and when, the copyright holder wants to control who gets access to what and when." [74] In privacy discussions, however, there seems to be a much lesser recognition of control. Control in the privacy context is seen as outlandish or impossible. Copyright law demonstrates otherwise. It reveals that the law is willing and able to control information.

Of course, copyright law isn't always effective at keeping information under control. People routinely violate copyright law, and as Zittrain notes, it is hard to control intellectual property when it can be so readily copied and transferred. [75] Despite these limitations, however, copyright law still has significant effects on the way information is disseminated and used.

I invoke copyright law not as a means to regulate privacy but merely to demonstrate that the law can and does afford a vigorous system of control over information. With regard to privacy, the law needs better ways to allow people to exercise control over their personal data. I have discussed a few dimensions of such control already -- a greater recognition of privacy in public and of duties to keep people's information confidential. The key question, of course, is how much control. Too much control over personal information can be just as bad as too little.

Copyright law's balance of freedom and control has been the subject of considerable debate and controversy. Several scholars, including Lessig, have criticized copyright law for providing too much control. [76] Copyright protections, for example, can impede me from creating works that use parts of others' works. For example, I might want to create my own Star Wars books and movies, using the characters George Lucas created, such as Darth Vader and Luke Skywalker. Copyright law bars me from doing this without Lucas's permission. Copyright's protections are so strong that even the First Amendment right to freedom of expression yields before them. [77] Copyright law's zealous protection of control over information can stifle creativity and free speech. In the context of privacy protection, the law need not foster the same level of control that copyright law affords. The key point is that the law is capable of providing a system for controlling information -- even when information is not concealed from public view.

Refurbishing the Appropriation Tort

The closest privacy law comes to copyright is the appropriation tort. This tort, as described earlier, prevents the use of someone else's name or likeness for financial benefit. [78] Unfortunately, the tort has developed in a way that is often ineffective in protecting against the privacy threats we are facing today. Although the original rationale of the tort was to protect a person's privacy, the tort has in many cases been transformed into a kind of property right. Many of the successful cases involve celebrities whose identities have been used to endorse particular products without their consent. According to Jonathan Kahn, the "early association of appropriation claims with such intangible, non-commensurable attributes of the self as dignity and the integrity of one's persona seems to have been lost, or at least misplaced, as property-based conceptions of the legal status of identity have come to the fore." [79] An early 1905 case -- the first state court to recognize the tort -- explained the tort as protecting a person's freedom: "The body of a person cannot be put on exhibition at any time or at any place without his consent. The right of one to exhibit himself to the public at all proper times, in all proper places, and in a proper manner is embraced within the right of personal liberty. The right to withdraw from the public gaze at such times as a person may see fit, when his presence in public is not demanded by any rule of law, is also embraced within the right of personal liberty." [80] The court declared that the use of a person's identity against his will was akin to seizing his liberty, making him temporarily "under the control of another," with the effect "that he is no longer free, and that he is in reality a slave." [81]

But this meaning of the tort gradually became lost over the years. By 1960 the renowned torts scholar William Prosser explained that the injury redressed by the appropriation tort was "not so much a mental one as a proprietary one." [82] Thus appropriation used to focus primarily on protecting people's dignity, but now it centers around the profit-value of one's identity. We want to control information, however, not just to profit from it.

The appropriation tort is often limited to instances in which a person's identity is exploited for commercial gain. The tort doesn't apply when people's names or likenesses are used in news, art, literature, and so on. As one court noted, the tort doesn't apply to "factual, educational and historical data, or even entertainment and amusement concerning interesting phases of human activity." [83] The appropriation tort thus protects against my using your name or picture to advertise my products, but it allows me to use your name and picture when writing about you. I can write your unauthorized biography, for example, and you will not be able to sue me for appropriation. [84] I can use your picture in a news story about you. This limitation is a fairly big one. The appropriation tort would rarely apply to the discussion on the Internet of people's private lives or the posting of their photos.

The appropriation tort might be expanded to encompass a broader set of problematic uses of information about a person, but such an expansion would have to address some difficult issues. How much control do we want to give people over their images? An approach consistent with the newsworthiness test of the public disclosure tort would counsel that the appropriation tort apply when people's photos are used in ways that are not of public concern.

IS PRIVACY LAW UP TO THE TASK?

In this chapter, I've proposed that American privacy law adopt more nuanced understandings of privacy. Privacy law should recognize privacy in public, and it should better protect confidentiality. More generally, the law should allow individuals to exercise greater control over their personal information, even after it has been exposed to the public or to other people.

But are my recommendations too radical for our law? After all, law develops rather conservatively. It wears a bow tie, and it doesn't like change. Nevertheless, little by little, the law does evolve. The concepts discussed in this chapter -- privacy in public, confidentiality, and control -- are already present in American law, as well as in the law of many other countries. The law is beginning to recognize privacy in public places. A tort for breach of confidentiality exists in many countries -- England, Australia, New Zealand, Canada, and others. [85] The tort exists in America, too, but it has not yet blossomed to its fullest potential. And the law recognizes the concept of control over information rather robustly in other contexts -- perhaps too much in the copyright context. Thus there is plenty of legal precedent for privacy law to recognize more nuanced understandings of privacy. The seed certainly exists; the question is whether we'll let privacy law grow to respond to the new challenges we face.

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Chapter 8: Conclusion: The Future of Reputation

What will the future hold for our reputation? I have explored in this book the ways our reputations are shaped by the exposure of personal information. We love to talk about each other, and the information we circulate has profound consequences for how people are judged. In many instances, revealing another's personal information can be beneficial to society. It enables communities to enforce norms. It educates us about the lives of others. It allows us to better assess others' reputations. But it also can be problematic. Gossip can unfairly stain a person's reputation; it often exists as a bundle of half-truths and incomplete tales. False rumors can wreak havoc on reputations. And shaming can spin out of control. We cling to only a limited degree of control over our reputation, but this control can make a world of difference. By concealing information about our private lives and our violations of social taboos, and by preventing damaging falsehoods about us from circulating, we can make ourselves less vulnerable to misunderstanding, misjudgment, or unfair condemnation.

The problems escalate when anybody can spread information far and wide over the Internet. Whispering voices and babbling tongues become permanent records readily found in an online search. Increasingly, people are gossiping and shaming others online, as well as exposing their own tawdry secrets. And increasingly, people are googling one another, including employers who are using the information they find online for hiring decisions.

We are witnessing a clash between privacy and free speech, a conflict between two important values that are essential for our autonomy, self-development, freedom, and democracy. We must do something to address the problem, but if we err too much in one direction or the other, the situation could become much worse. In this book, I have attempted to provide a framework for how we can rework the law to make it a useful instrument in balancing privacy and free speech. I have suggested delicate compromises that involve making some modest sacrifices on both sides.

WHAT THE LAW CAN DO, AND WHAT IT CAN'T

Throughout history, most societies have devised ways for people to protect their reputations from gossip and rumor. We have progressed from brawls to duels to law. In the nineteenth century, in response to new technologies posing new threats to privacy, Samuel Warren and Louis Brandeis proposed a way that the law could help provide protection. Their approach, which allowed people to sue others for invading privacy, was a modest middle-ground approach, one that I argued we should continue to use today.

The alternatives are unworkable or unpalatable. 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.

But improvements are needed in the existing law for this approach to work effectively. In the framework I have sketched in the previous few chapters, the law should encourage informal attempts at resolving privacy disputes. To do so, law must function as a credible threat yet lawsuits must be a last resort, a measure that provides redress only in egregious cases or when informal ways to resolve disputes don't exist or have failed.

We should expand the law's recognition of privacy so that it covers more situations. We must abandon the binary view of privacy, which is based on the archaic notion that if you're in public, you have no claim to privacy. Instead, we must recognize that privacy involves accessibility, confidentiality, and control. We often expose information to many others, but we nevertheless expect that it has only a certain level of accessibility. The law should also increase its recognition of duties of confidentiality. When we share information with friends, family, and even with strangers, an implicit expectation often exists that they will keep it to themselves. The law should protect and reinforce these expectations. More broadly, the law should afford people greater control over their personal information. Too often, the law clings to restrictive notions of privacy that render it impotent to address contemporary problems. For example, victims of privacy invasions must suffer further injury when pursuing legal redress when their names enter the public record; this undermines their right to pursue a remedy. People should be permitted to keep their names confidential in privacy cases. Updating and expanding the legal understandings of privacy will assuage the law's current handicaps in grappling with privacy issues.

Another part of the equation is reconciliation of the rights of free speech and of privacy. Free speech isn't absolute, and privacy can further the same goals as free speech. In many instances, we can protect both privacy and speech by allowing people to tell their stories anonymously. And a blogger who knows about a statement on his site that is defamatory or invasive of privacy should be obliged to take it down. Unfortunately, the law currently immunizes people for comments on their blogs, even when they know about the harmfulness of the information and ignore pleas to do anything about it.

Thus the law must expand in its recognition of privacy interests and reach a more careful balance between privacy and free speech, one that doesn't give free speech an undue advantage. With these changes, the law can serve to encourage people to be more aware of the consequences of their speech, and it can force people to work out disputes over defamation and invasion of privacy informally. Redefining the limits on the law's reach -- expanding the understanding of privacy, for example, and cutting back on overly broad immunities in the name of free speech -- is necessary for the law to achieve this goal.

Taking these steps, however, must be accompanied by limitations on some of the troubling costs that the law produces. Law involves many interlocking parts, and tinkering with one part can throw another part out of line. Since lawsuits can be costly and chilling of speech, we must counterbalance any expansion in the law's reach. Plaintiffs should first be required to pursue informal solutions with the spreaders of the information. A case should proceed to lawsuit only if the speaker doesn't take reasonable steps to address the harm or if the damage is irreparable. Perhaps parties should even be required to seek alternative dispute resolution before going to court. Mediation and arbitration might serve as cheaper ways to determine the merits of a person's complaint and what measures, if any, a speaker should take to rectify the situation.

My proposals for addressing the problem rectify it primarily through informal nonmonetary means. In many instances, people sue primarily for vindication and to stop the dissemination of the harmful information. Money damages are often not the primary goal. The virtue of the Internet, unlike print media, is that online content can readily be edited and names can be removed. As discussed before, in some cases, all it will take is for a person's name to be edited out of the story. [1] In other cases, the information will have spread too far for there to be a plausible way to clear it from the Internet. Where possible, the law can encourage people to work out their problems among themselves, which will often provide quick and inexpensive results. In some cases money damages might still be appropriate, but for quite a large number of situations, the pursuit of financial redress will be neither practical nor effective.

Other steps can be taken to improve the protection of privacy online. The creators of websites should be encouraged to build in mechanisms for dispute resolution and to establish meaningful ways for people to protect their privacy. For example, social network websites could require people to promise confidentiality as one of the terms of membership. The websites could have users agree to a basic set of rules for respecting others' information. In other words, people should be given choices over how to control the dissemination of their personal information, and those reading people's profiles should be aware of (and bound to) those preferences. When people take efforts to keep information limited in one domain or network, the law should strive to protect those efforts.

Another promising development is the rise of services like ReputationDefender, a company that helps people find and remove harmful information about themselves online. According to the company's website:

We will find the unwelcome online content about you or your loved ones, even if it is buried in websites that are not easily examined with standard online search engines. And if you tell us to do so, we will work around the clock to get that unwelcome content removed or corrected. [2]

Such services can help make informal ways of resolving the problem more effective and efficient.

On social network websites, people share information with a network of friends. Users can make their profiles available within certain networks (their school, their friends, and so on) but not generally available to all users. The law can protect a user's ability to keep information within her social network and prevent others from betraying confidence and revealing that information to others outside the network. For example, the law could bar a prospective employer from trying to gain access to an applicant's profile uninvited.

With the appropriate improvements, the law can help us make significant headway by encouraging the development of ways to resolve disputes over privacy, rumor mongering, and shaming online. We can reach a reasonable balance between privacy and free speech. The task is complicated, as it requires a combination of legal reforms and considerable fine-tuning of the law. But with the framework I'm proposing in this book, the law can play an effective role.

The Limits of Law

There is, of course, a limit to how much the law can do. The law is an instrument capable of subtle notes, but it is not quite a violin. Part of the solution depends upon how social norms develop with regard to privacy. The law's function is to lurk in the background, to ensure that people know that they must respect confidentiality or the privacy even of people in public. In the foreground, however, norms will largely determine how privacy shall be protected in the brave new online world. In a fascinating study, the law professor Robert Ellickson went to Shasta County, a rural area in California, to study the behavior of ranchers. He discovered that many disputes arose because of stray cattle, and that although there were laws to address the issue, the ranchers had adopted their own set of norms to deal with it. For example, Ellickson noted, "Ranchers who suffer trespasses [by wayward cattle] virtually never file claims against others' insurance companies. An adjuster for the company that insures most Shasta County ranchers stated that he could not recall, in his twenty years of adjusting, a single claim by a rancher for compensation for trespass damage." A rancher would often take care of another rancher's cows that strayed onto his land until his neighbor picked them up. During that time the rancher would feed and house the cow. Although the law permitted ranchers to recover the costs for taking care of the stray cow, the ranchers never did. The norm was that you should take care of your neighbor's cow if it strayed onto your land. According to Ellickson: "People may supplement, and indeed preempt, the state's rules with rules of their own." [3] The ranchers had a well-developed system of norms, and they didn't need to resort to the law.

What do ranchers and cattle disputes have to do with the Internet? Ellickson's study illustrates a more general insight about the law and norms. The law is a puny instrument compared with norms. As the law professor Tracey Meares observes, "Social norms are better and more effective constraints on behavior than law could ever be." [4] Although the law can't supplant norms, it can sometimes help to shape them. With the ranchers, the law was something they could have resorted to if they were unhappy with the norms. But the norms worked, and the law was rarely needed.

Blogosphere Norms vs. Mainstream Media Norms

Currently, bloggers are much less restrained than the mainstream media in what they write about. The mainstream media have established ethical guidelines (albeit loose ones) to protect people's privacy, but the norms of the blogosphere are still in their infancy. In the nineteenth century, the media routinely focused on the sex scandals of politicians, but reporters and editors became much more restrained during the first half of the twentieth century. [5] As the historian John Summers observes: "Partisan rivals and 'paul pry' journalists continued to gossip uncharitably about [President Grover] Cleveland, yet both averted their gaze from his successor, Benjamin Harrison, whose moral worthiness suffered no significant assaults. The aloof William McKinley also enjoyed a gossip-free administration. So, too, did William Howard Taft and Woodrow Wilson escape from the discomfort of entering public debate about their sexual peccadilloes." [6]

Ethical codes for journalists sprang up in the early twentieth century. These codes urged that gossip about the private lives of public figures should not get front page attention, that reputations should not "be torn down lightly," that attacks on a person's reputation should not be published before the person had the opportunity to be heard, and that "a newspaper should not invade private rights or feelings without sure warrant of public right as distinguished from public curiosity." [7] President John F. Kennedy benefited greatly from the media's reluctance to report on people's private lives, as the media avoided reporting on his many sexual infidelities. [8]

Today this norm has changed, as was emphatically demonstrated by the extensive reporting on President Clinton's affairs. Although the media readily plunder the private lives of politicians, they continue to exercise great restraint with politicians' children. President Clinton actively worked to keep his daughter, Chelsea, away from the media, and the media generally cooperated. [9] When Chelsea attended Stanford University, the editors of the Stanford Daily even resolved to fire any member of its staff who disclosed information about Chelsea to the public. [10] The press has also exercised restraint for President Bush's daughters, and when one daughter was arrested for underage drinking, the media was deeply divided about the extent of coverage to give to the story. [11] These norms exist in spite of great public interest in the children's lives.

Another long-standing media norm is extending anonymity to rape victims. For example, in August 2002, two teenage girls were kidnapped and raped. While they were captive, their names and photographs were widely broadcast to assist in the search. Once they were found alive, most of the media ceased displaying their names and photographs. [12] Although this norm is widely followed, there are occasional violators, a recent example being the radio commentator who disclosed the identity of National Basketball Association star Kobe Bryant's alleged sexual assault victim. [13]

Media self-restraint is difficult to achieve because the media are far from a monolithic entity. There are many different styles of journalism, and a vast number of media entities cater to different tastes. If the New York Times will not report it, the National Enquirer will. As a result, certain segments of the media -- such as tabloids -- may routinely run stories that a majority of the media does not consider newsworthy. The media also have a tendency to follow the crowd. If one media entity begins reporting on a story, others often quickly follow suit. [14]

But the mainstream media have developed at least some norms of restraint in order to protect privacy. While the norms need shaping and strengthening, they are at least partially developed. The blogosphere has less-well-developed norms, and it needs to establish a code of ethics. People should delete offensive comments quickly if asked. People should ask permission before speaking about others' private lives. Someone who speaks about another person's private life without her consent should take steps to conceal her identity. People should avoid posting pictures of other people without getting their consent. People should avoid Internet shaming.

These rules are easier stated in theory than developed or enforced in practice. The blogosphere is growing rapidly, with people entering the online media community daily. With so many different bloggers, and with so many new ones joining the ranks each day, the norms of the blogosphere are not stable. The law can help shape norms in the blogosphere, however, by threatening to become involved if such norms don't evolve.

One of the key contributions the law can make is to foster greater awareness of the difference between the offline and online spread of information. People are viewing the Internet as a mere extension of their offline world. Many people who enter the blogosphere are using it to gossip just as they do in realspace. The boundary between online and offline is blurring, but it is an important line to keep clear. Online, information is permanent and more easily spread. The law must make the boundary between online and offline more salient in people's minds.

Establishing norms, of course, is a difficult task, and the law can do only so much. The norms of those speaking online are quite varied, and the law is unlikely to create unanimity in attitudes and behavior. We must be realistic in our expectations about what the law can do. At best, the law will be able to provide modest guidance and direction. It can nudge norms in the right direction. But the law is far from a magic elixir.

THE SELF-EXPOSURE PROBLEM

Although gossip and rumors are spread without the targets' knowledge or consent, an increasingly large number of people are putting their own personal information online. I have argued that it is justified for the law to try to stop people from gossiping about others, but how ought the law to respond to people's gossip about themselves?

The great nineteenth-century philosopher John Stuart Mill articulated a key principle that still resonates today: "The only part of the conduct of any one for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute." [15] In other words, if your conduct hurts others, the law should regulate it to rectify or prevent the harm. But if your conduct affects only yourself, then the law should leave you alone.

Applied to the issues discussed in this book, the law should be most involved when people are violating the privacy of other people. But it should be less involved when people are merely self-disclosing personal information. The law becomes too authoritarian if it prevents people from voluntarily revealing their own personal information.

Mill's principle, of course, isn't perfect, as our actions are rarely entirely self-contained. When teenagers expose too much of their own personal information online, it can affect their friends and families. Children's public indiscretions can embarrass their parents and siblings, and parental public indiscretions can cause humiliation to children. But by and large, although no person is an island, the law should respect people's wishes to expose themselves online if they desire.

Should anything be done about the children and teenagers who are discussing their private lives on blogs and social network sites? Children and teens are not fully mature; they might not understand the long-term consequences of what they are doing. If the law can't stop them from exposing their lives online, then is there any way to address the problem?

Do People Want Privacy Anymore?

Perhaps there isn't a problem. What if a teen's decision to expose her intimate secrets on the Web isn't the product of lack of maturity but instead is a manifestation of generational differences?

In today's world of reality television, the law professor Anita Allen wonders whether people expect privacy anymore: "Our parents may appear on the television shows of Oprah Winfrey or Jerry Springer to discuss incest, homosexuality, miscegenation, adultery, transvestitism, and cruelty in the family. Our adopted children may go on television to be reunited with their birth parents. Our law students may compete with their peers for a spot on the MTV program The Real World, and a chance to live with television cameras for months on end and be viewed by mass audiences." [16]

Beyond television, people, especially high school and college students, are rushing to post a treasure trove of data about themselves online. Perhaps the emerging generation is just not that concerned about privacy. In a survey of the users of the social network site Facebook, almost 90 percent said that they had never read Facebook's privacy policy. [17] Nearly 60 percent of Facebook users said that they weren't very concerned about privacy, with a little more than 30 percent saying that they were somewhat concerned, and only 9.7 percent saying that they were very concerned. [18] One researcher even created an automatic script that asked hundreds of thousands of Facebook users to be added as a friend, thus allowing full access to their profile information. About 30 percent said yes. As the professors Ralph Gross and Alessandro Acquisti note, these 30 percent "are willing to make all of their profile information available to a random stranger and his network of friends." [19] Studies like these suggest that although people express some concern over privacy, it is not always reflected in their behavior.

A Nuanced View of Privacy

People's views about privacy, however, are much more complicated than the rather simplistic notions of privacy in existing law and policy. If we see people exhibiting themselves before the public without inhibition, our natural reaction is to think that they obviously don't want privacy. But the reality is more nuanced. Recall the Facebook incident discussed in the previous chapter. Facebook added the News Feed feature alerting people's friends about the up-to-the-minute changes made in their profiles. And users got quite upset over this change, viewing it as invasive of privacy.

I think that two lessons can be gleaned from the Facebook incident. First, Facebook users didn't want absolute secrecy for their information; they were concerned about the extensiveness of the exposure. They wanted a certain level of exposure and were angry when the News Feed feature upset their established balance. Second, the Facebook incident may also reflect the fact that many people just don't appreciate the extensiveness of their exposure online. Although they may understand that what they put online is widely exposed, they might not really grasp the consequences.

Part of the problem is that the Internet makes it hard to visualize the breadth of our exposure. Placing information on a website and writing blog posts and comments feels more akin to chatting with friends, writing a diary, or talking on the telephone than like broadcasting live on television, publishing a novel, or addressing a crowded auditorium. This difficulty is compounded by the often ambivalent desire we have for concealment and exposure. Some teenagers have contradictory ambitions for their posts. One teenager interviewed for a story in the New York Times Magazine explained that "he wanted his posts to be read, and feared that people would read them, and hoped that people would read them, and didn't care if people read them." [20] Although at first blush the teenager's statement doesn't make much sense, its self-contradictions actually capture the ambivalent attitudes of many bloggers. Writing blog posts is exciting in many ways. It can be cathartic. It can be fun to express oneself openly. People enjoy venturing their deepest secrets, hoping for a sense of acceptance or understanding or even just a bit of attention. One blogger wrote: "Maintaining a blog with no one visiting or commenting would be [as] sad as a clown doing a show with no one watching." [21]

Blogging can be like writing a diary, only with the hope that others might read it. By blogging, you're putting yourself out there, often unfiltered and unedited. And because you can't see or touch your audience, because you blog in the solitude of your room, in front of your computer late at night, it doesn't seem like exhibitionism. There's no bright spotlight. It's just you and your computer. Blogging has an uncanny way of encouraging you to doff your inhibitions. Most of the time you wonder: Is anybody listening? Often, the answer is no. People feel as though they're exposing themselves on a stage before an empty auditorium. But with the Internet, in an instant, the spotlights could come on and the auditorium could be overflowing with people. The Electronic Frontier Foundation, in a guide to blogging safely, notes: "If you blog, there are no guarantees you'll attract a readership of thousands. But at least a few readers will find your blog, and they may be the people you'd least want or expect. These include potential or current employers, coworkers, and professional colleagues; your neighbors; your spouse or partner; your family; and anyone else curious enough to type your name, email address or screen name into Google or Feedster and click a few links." [22] A top law school recently provided blogging advice to its students: "We urge you to take the long view and the adult view of what you write. THINK about the words you send out into the world, and imagine what they would make you look like when you -- and surely some of you will -- find yourself under review at a confirmation hearing for a professional position you dearly desire." [23]

Get Me an Editor ... or Not

One of the main differences between blogs and mainstream media publications is style. Blog posts are edgy, not polished and buffed into the typical prefabricated write-by-the-numbers stock that often gets produced by the mainstream media. Discourse on the Internet is pungent. In many respects, this is a virtue. Just as the key to robust free speech is battling attempts at censorship, the key to robust blogging is, I think, battling internal censors. I often fire off posts about whatever half-baked (even quarter-baked) idea happens to be buzzing in my head at a particular moment.

But blog posts are created with no editors and published with no time delays. There's little time to cool down before sounding off. Just click the Publish button and unleash it to the world ... then think about the consequences later. It goes without saying that this is a recipe for some problems. That nude picture a teenager puts up in a moment of indiscretion -- it can be forever present, forever regretted. One girl chronicled her mental breakdown on her blog, describing her self-mutilation, sexual experiences, and family turmoil. When she thought the better of it, she removed the posts from her blog. [24]

Another part of the problem is that blogs and social network websites are the "in" technology that children have integrated into their lives. They are a means of socialization and communication. Just as conversations migrated to the telephone and then to email and instant messaging, now they are migrating to social network websites. The problem is that these sites are not designed in ways to emphasize the potential harms to privacy and other consequences. Cyberspace is the new place to hang out, the perils of exposure notwithstanding. The pressure to fit in, to do what everybody else is doing, overrides concerns about privacy.

In the end, I believe that people still want privacy, but privacy in the digital age is much more complicated than its old-fashioned equivalent. Rarely can we completely conceal information about our lives, but that doesn't mean that we don't expect to limit its accessibility, ensure that it stays within a particular social circle, or exercise some degree of control over it. Moreover, although it would be too authoritarian for the law to stop people from expressing themselves online, there are things that can be done to provide them with more protection.

THE POWER OF ARCHITECTURE

The technological design of the websites has an enormous impact on people's privacy. Lawrence Lessig and Joel Reidenberg emphasize the importance of Internet "architecture" -- the code used to structure our choices on the Web. [25] Architecture can shape people's behavior. [26] Physical architecture, such as buildings, can affect the way we live and interact with our peers. Spaces can be designed to encourage people to be more open, to communicate with each other more frequently. Or spaces can be designed to encourage solitude. Like physical spaces, virtual spaces on the Internet are also designed environments. Social network websites are a structured form of interaction, created according to rules set up by those who create the site. The design choices social network websites make will have profound effects on the way their users interact with each other.

Changing the Defaults

One of the primary problems with social network websites is that they are designed to encourage people to expose a lot of information with very little thought about the consequences. The default privacy setting on MySpace, for example, is that anybody in the public can view one's profile.


A section of the Myspace privacy settings. Under "Who Can View My Full Profile," the option selected by default is "Public."

Likewise, although Facebook allows users to restrict who can see their information, the default setting allows everybody to see it. [27] Unless a user changes the default settings, her profile will be accessible to millions of people. The default settings on many social network websites privilege openness over privacy. According to one study, although Facebook "provides users with a very granular and relatively sophisticated interface to control the searchability and visibility of their profiles," the users "tend to not change default settings." [28] In another study, two researchers concluded: "As a whole, users are familiar with the privacy features Facebook offers, and choose not to use them." [29]

Simply changing default settings might protect a lot of people. The settings or preferences screen on various websites may constitute one of the most important influences on the shape of privacy in the future. The law should not force companies to set specific defaults, but the companies should be encouraged to think about how the design of their websites affects privacy.

The Concept of "Friend"

As discussed earlier in this book, social network sites often have a very loose concept of "friend." The sites divide a person's social universe into "friends" and everybody else. Of course, a person's social network is far more complex, but it must be translated into the terms established by the social network websites. Because social network websites lack a more granular set of categories for social relationships, they encourage users to share information with others who otherwise would not be privy to it. Two scholars who study social network websites, Judith Donath and danah boyd, astutely observe: "By making all of one's connections visible to all the others, social network sites remove the privacy barriers that people keep between different aspects of their lives." To illustrate this phenomenon, they tell the story of a high school teacher who joined Friendster. To protect her privacy, she allowed her profile to be viewed only by "friends." But then one of her students found out she was on Friendster and asked to be added as a friend. This put her in an awkward position for several reasons. Her only choices were to acknowledge the student as a friend or to completely rebuff the student. No intermediate category existed for their relationship. Donath and boyd observe: "She had originally joined with some friends, many of whom had created 'crazy, fun' profiles, including suggestive testimonials, risque photographs, and references to wild times at the Burning Man festival. ... Although she could edit her own profile to be quite sedate, her friends' profiles were not. Accepting her student's friendship request would reveal her full network to her class, while saying 'no' felt rude and distancing."

We live complex lives, and we often inhabit many very different social circles. Donath and boyd note that "sometimes simply encountering people from different aspects of someone's life can be quite revealing. The discomfort can be felt both by the performer caught in two roles and the observer." [30] The difficulty with social network websites is that they view a person's relationships as one unified social network, when in fact people have a rather elaborate set of connections. Each connection involves different levels of exposure and different ways of sharing information. And while we may share information freely among one social circle, we may not want information to bleed between the different social circles we occupy simultaneously. But social network websites tear down these boundaries. They present a simplified picture of people's social network that eliminates the many nuanced barriers to information flow. To participate, people must often share information beyond the limits they would ordinarily establish in the real world.

The law shouldn't force websites to alter their design. This would be too authoritarian. But it is important for websites to consider the consequences that their architectural choices will have on the lives of millions of people.

Employer Responsibilities

Although there isn't a lot the law can do to address the self-exposure problem, the law can operate to help protect people in some limited contexts. Chris Hoofnagle, a researcher at Berkeley Law School, proposes the regulation of employers who would google prospective employees. [31] Under federal law, if an employer asks a credit-reporting agency to conduct a background check on a prospective employee, the employer has certain obligations to the applicant. For example, if information in the report dissuades the employer from making a job offer, he must reveal that to the applicant. [32] The purpose of this requirement is to allow the applicant a chance to explain. Perhaps the report was in error. Perhaps there's a reasonable explanation. With the use of search engines like Google, employers can conduct amateur background checks without any legal protections. There is no requirement that employers tell applicants that they were googled. What often happens is that an applicant is simply not called in for an interview, or if interviewed, is simply not invited back for further consideration. As we have seen, employers are increasingly using Google as well as searching social network websites to find out about applicants. But a lot of the information online isn't accurate. Another problem is that information about a different person with the same name can be mixed in. A requirement that employers who conduct online searches of applicants notify them about the search will at least give applicants a chance to be heard.

Of course, such a requirement could readily be violated. It would be difficult to prove that an employer had googled an applicant. But even if enforcement was problematic, many employers would probably respect a requirement to notify applicants. Moreover, such a rule would help establish a norm. And in such a difficult area to navigate, creating a norm would be a significant step forward.

Education

At the end of the day, if people want to expose themselves to the world, there's only so much that can be done to stop them. Self-disclosure is nevertheless a problem, as teenagers and college students are often revealing too much information and later regretting that they cannot take it back. Education is the most viable way to shape people's choices in this regard. For example, one study indicated that people have a lot of misunderstandings about who is able to search their Facebook profiles. Although most Facebook users are "aware of the true visibility of their profile ... a significant minority is vastly underestimating the reach and openness of their own profile." [33] We need to spend a lot more time educating people about the consequences of posting information online. In a survey conducted in 2006, "two thirds of parents had never talked with their teen about their MySpace use, and 38 percent of them had never seen their child's MySpace profile." [34] Teenagers and children need to be taught about privacy just like they are taught rules of etiquette and civility.

TO THE END OF THE INTERNET

A television commercial that I find immensely amusing opens with a guy surfing the Internet on his computer. He clicks the mouse, and all of a sudden, a computerized voice from his PC says: "You have reached the end of the Internet. You have seen all that there is to see." It's a commercial for high-speed broadband. The message is that the advertised broadband service is so fast that you can see the entire Internet.

Of course, the humor in this is that you can't exhaust the Internet. It's too big. Every day it grows by millions of new Web pages and blog posts. The Internet is akin to the endless library imagined by the writer Jorge Luis Borges. In his story "The Library of Babel," Borges wrote of a library with an "infinite number of hexagonal galleries." Initially, "when it was announced that the library contained all books, the first reaction was unbounded joy." But then people discovered the rub: finding the right book could take centuries, and many books were totally incomprehensible. [35] And so it is with the Internet. Unlike the hapless users of Borges's library, we Internet users have what has become known as "the search" -- the ability to use search engines like Google to help us find the information we're looking for. Google's great innovation has been not only to comb the Internet to bring back as many relevant pieces of information as possible but also to rank them in an order calculated to reflect their relative usefulness. [36]

But "the search" is just in its infancy. John Battelle, the author of a popular book on Internet searching, observes: "As every engineer in the search field loves to tell you, search is at best 5 percent solved -- we're not even in the double digits of its potential." [37] For example, a large part of the Internet has not been combed or cataloged by Google. The so-called invisible Web remains, which "comprises everything that is available via the Web, but has yet to be found by search engines." [38] Google searches the epidermis of the Web, but lots of content still remains undiscovered. [39] What will happen when the search improves?

The Internet is still quite young. In the first chapter of this book, I likened the Internet to a teenager, beginning to test out its new freedom and powers yet still in the early days of its development. The Internet is growing up rapidly, and no end is in sight. Nor is there any end to the issues in this book. Right now, the next great innovations are probably being created in somebody's dorm room or garage. After all, that's where Facebook and Google began.  [40] What's ahead will be amazing. It makes me giddy with excitement to think about it -- but also a bit frightened.

Will people be blogging and using social network websites a decade from now? Who knows? But people will almost certainly be spending a lot of time online. And it is a safe bet that people will be exposing details about their lives, as well as gossiping, shaming, and spreading rumors. The technologies may change, but human nature will remain the same.

Although the Internet poses new and difficult issues, they are variations on some timeless problems: the tension between privacy and free speech, the nature of privacy, the virtues and vices of gossip and shaming, the effect of new technologies on the spread of information, and the ways in which law, technology, and norms interact. New technologies do not just enhance freedom but also alter the matrix of freedom and control in new and challenging ways.

The questions are immensely complex, and there are no easy answers. Just when we think we're smoothing problems out, new technology adds another wrinkle. But we can take steps to protect privacy if we make an effort. We must. After all, it's just the beginning.  

[admin]

PART 1 OF 2

Notes

CHAPTER 1. INTRODUCTION

1. Don Park, Korean Netizens Attack Dog-Shit-Girl, Don Park's Daily Habit, June 8, 2005, http:/ /www.docuverse.com/blog/donpark/EntryViewPage.aspx?guid=e5e366f9-050f -4901-98d2-b4d26bedC3eI.

2. Jonathan Krim, Subway Fracas Escalates into Test of Internet's Power to Shame, Wash. Post, July 7, 2005, at DI.

3. Park, KoreanNetizens Attack, supra.

4. As of May 2006, the newspaper with the largest circulation in the United States is USA Today, with a circulation of 2,272,815. Other circulation figures: New York Times, 1,142,464; Chicago Tribune, 579,079; Boston Globe, 397,288. See Katharine Q. Steele, U.S. Newspaper Circulation Fell 2.5% in Latest Period, N.Y. Times, May 9, 2006. These are among the largest newspapers. Most have considerably smaller circulations. About half of the top hundred newspapers have circulations under 200,000, and papers close to the bottom of the top hundred list have circulations not much above 100,000. For a useful chart of newspaper circulation figures, see NYU School of Journalism, The State of Blogging at America's 100 Largest Newspapers, March I, 2006, http:/ /journalism.nyu.edu/pubzone/blueplate/issuel/ top100.html.

5. LAWRENCE LESSIG,CODE AND OTHER LAWS OF CYBERSPACE 58 (1999).

6. Steve Johnson, Dog Poop Girl Gets Online Whiplashing, DoggieNews.com, July 11, 2005, http://www.doggienews.com/2005/07/dog-p ... ashing.htm .

7. http://www.blogdogs.com/.

8. http://www.poopreport.com/.

9. Subway Turd Terrorist Gets Dubbed "Dog-Shit-Girl," PoopReport.com, June 30, 2005, http://www.poopreport.com/BM newswire/ 1353.html.

10. Cass R. Sunstein, Social Norms and Social Roles, 96 Colum. L. Rev. 903, 914 (1996).

11. See comments to Don Park, Korean Netizens Attack Dog-Shit-Girl, Don Park's Daily Habit, June 8, 2005, http://www.docuverse.com/blog/donpark/E ... wPage.aspx ?guid=e5e366f9-050f -4901 -98d 2-b4d 26bedeJeI.

12. Quoted in Jonathan Krim, Subway Fracas Escalates into Test of Internet's Power to Shame, Wash. Post, July 7, 2005, at DI.

13. Samantha Henig, The Tale of Dog Poop Girl Is Not So Funny After All, Columbia Journalism Review, July 7,2005, http://www.cjrdaily.org/archives/ooI660.asp.

14. JOHN BATTELLE, THE SEARCH 73-86 (2005). The technology behind Google was developed in 1996, but the company wasn't created until 1998.

15. Neil Swidey, A Nation of Voyeurs: How the Internet Search Engine Google Is Changing What we Can Find Out About Each Other and Raising Questions About Whether we Should, Boston Globe Magazine, Feb. 2, 2003, at 10.

CHAPTER 2. HOW THE FREE FLOW OF INFORMATION LIBERATES AND CONSTRAINS US

1. An early version of the printing press was invented in China in A.D. 600. See PAUL LEVINSON, THE SOFT EDGE: A NATURAL HISTORY OF THE FUTURE OF THE INFORMATION REVOLUTION 22 (1997). Gutenberg's invention sparked mass production of manuscripts in the West.

2. GINI GRAHAM SCOTT, MIND YOUR OWN BUSINESS: THE BATTLE FOR PERSONAL PRIVACY37- 38 (1995); ROBERT ELLIS SMITH, BEN FRANKLIN'S WEB SITE: PRIVACY AND CURIOSITY FROM PLYMOUTH ROCK TO THE INTERNET I02-20 (2000).

3. For a discussion of how blogs are transforming journalism, see DAN GILLMOR, WE THE MEDIA (2004).

4. Daniel W. Drezner & Henry Farrell, The Power and Politics of Blogs, Aug. 2004, at 4, http://www.danieldrezner.com/research/blogpaperfinal. pdf.

5. HUGH HEWITT, BWG 37-42 (2005).

6. Drezner & Farrell, The Power and Politics of Blogs,supra, at 14, 15-16.

7. Jennifer Vogelsong, For Better or for Worse, Teens Are Leading the Way When It Comes to Journaling Online, York Daily Record, July 17, 2005.

8. Drezner & Farrell, The Power and Politics of Blogs, supra (over 10 million blogs in 2004); Carl Bailik, Measuring the Impact of Blogs Requires More than Counting, Wall St. Journal Online, May 26, 2005, http://online.wsj.com/public/article/0,,SBm685593 903640572-1 ZI yf _FU 605JAeIW 460ycF 3f TH4_20060526 ,oo.html ?mod-tff _main_tff_top (31.6 million blogs in 2005).

9. David Sifry, The State of the Blogosphere: August 2006, Sifry's Alerts, Aug. 7, 2006, http://www.sifry.com/alerts/archives/000436.html.

10. Id.

11. http:/ /www.dailyrotten.com/.

12. http:/ /www.wonkette.com/.

13. http://gawker.com/.

14. http:/ /ovetheardinnewyork.com.

15. http://www.thesuperficial.com.

16. http:/ /www/thesneeze.com/mt-archives/cat_steve_dont_eat_it.php.

17. http:/ /www.cryingwhileeating.com.

18. http:/ /www.wibsite.com/wiblog/dull/.

19. http://belledejour-uk.blogspor.com. For a discussion of the blog, see Jason Deans, Channel 4 to Dramatise "Call-Girl" web Diaries, The Guardian, Jan. 20, 2005, http:// www.guardian.co.uk/print/0,3858,5107415-1II748,00.html.

20. Web Therapy, The Guardian, Feb. 8, 2005, http://www.guardian.co.uk/print/0,3858 ,5121805- 111748,00.html.

21. http:/ / roughdrafy. typepad.com/dotmoms.

22. Jeffrey Rosen, Your Blog or Mine? N. Y. Times Magazine, Dec. 19, 2004.

23. Todd Eastham, Internet Is Bulletin Board for Katrina Victims, Reuters, Sept. 4, 2005.

24. http:/ /www.xanga.com/ieem.aspx?user= To T0247&tab=weblogs&uid=261268578.

25. Kerry Burke, Scott Shifrel & Melissa Grace, Victim's E-Journal Led to Slay Suspect, N.Y. Daily News, May 17, 2005, http://www.nydailynews.com/front/story/310320p-265498c .html.

26. GLENN REYNOLDS, AN ARMY OF DAVIDS 44, 92, 95 (2006).

27. Beantown Becomes Blogtown: At the Democratic Convention, Online Journalism Arrives, Wall St. Journal, July 26, 2004.

28. Donna Smith, Blogs Seen as Powerful New Tool in U.S. Court Fight, Reuters, July 8, 2005·

29. REYNOLDS, ARMY OF DAVIDS, supra, at 9.

30. G. Jeffrey MacDonald, Teens: It's a Diary. Adults: It's Unsafe, Christian Science Monitor, May 25, 2005.

31. Id.

32. Robert J. Samuelson, A web of Exhibitionists, Newsweek, Sept. 20, 2006.

33. Giles Turnbull, The Seven-Year-Old Bloggers, BBC News, June 14, 2004, http:// news.bbc.co. uk! I/hi/ magazine/ 3804 773.stm.

34. Social Network, Wikipedia, Feb. 8, 2007, httpp://en.wikipedia.org/wiki/Social_network.

35. For a general introduction to social networks, see DUNCAN J. WATTS, SIX DEGREES: THE SCIENCE OF A CONNECTED AGE (2002); ALBERT-LASZLO BARABASI, LINKED (2002); MALCOLM GLADWELL, THE TIPPING POINT (2000).

36. WATTS, SIX DEGREES, supra, at 38-40.

37. JOHN GUARE, SIX DEGREES OF SEPARATION: A PLAY(1990).

38. Quoted in Anick Jesdanun, MySpace Rises as New Online Star, Associated Press, Feb. 12, 2006.

39. Reuters, Myspace, Seventeen Launch Parents Education Program, Sept. 24, 2006.

40. Michelle Andrews, Decoding Myspace, U.S. News & World Report, Sept. 18, 2006.

41. Samuelson, web of Exhibitionists, supra.

42. Andrews, Decoding Myspace, supra.

43. Ralph Gross & Alessandro Acquisti, Information Revelation and Privacy in Online Social Networks (The Facebook Case), ACM Workshop on Privacy in the Electronic Society, Nov. 7, 2005, at §2.1.

44. Judith Donath & danah boyd, Public Displays of Connection, 22 BT Technology Journal 71, 72 (2004).

45. Id.

46. Gross & Acquisti, Information Revelation, supra, at §2.1.

47. Libby Copeland, Click Clique: Facebook's Online College Community, Wash. Post, Dec. 28, 2004.

48. Id.

49. Harvey Jones & Jose Hiram Soltren, Facebook: Threats to Privacy, Dec. 14, 2005, at 4, http:// ocw.mit.edu/NR/rdonlyres/Electrical-Engineering-and-Computer-Science/ 6-805Fall-2005/8EE6DICB-A269-434E- BEF9- D5C4B4C67895/0/facebook.pdf.

50. Id. at 14.
51. Gross & Acquisti, Information Revelation, supra, at §3.3.

52. Id.

53. Fred Sturzman, Student Life on the Facebook, Jan. 8, 2006, http://chimprawk.blogspot .com/2006/01/student -life-on-facebook.html.

54. Seth Kugel, A Web Site Born in U.S. Finds Fans in Brazil, N.Y. Times, Apr. 10, 2006, at CI.

55. Anthony Hempell, Orkut at Eleven Weeks: An Exploration of a New Online Social Network Community, Apr. 16, 2004, http://www.anthonyhempell.com/papers/orkut/.

56. http://www.orkut.com/About.aspx.

57. Nandini Vaish, Netting New Friends: Online Social Networking Is Catching on in India in a Big Way with Some Unusual Results, India Today, Dec. 4, 2006, at 74.

58. Savita V, India-Specific e-communities on the Rise, The Economic Times, Dec. 7, 2006, http://economictimes.indiatimes.com/ articleshow/733381.cms.

59. http://www.nexopia.com; http://www.piczo.com.

60. http://www.adoos.com.

61. http://www.passado.com; Reuters.NetworkingSitePassado Plans to Expand, Dec. 11, 2006.

62. http://www.bebo.com; Mark Ward, Teen Craze Over Networking Sites, BBC News, Dec. 20, 2006.

63. Sara Kehaulani Goo, A Search for Ourselves, Wash. Post, Dec. 20, 2006, at DoI.

64. Leo Lewis, Mixi Prepares to Cater for Flood of Baby Boomers, Financial Times, Dec. 6, 2006, at 28; Tim Kelly, Mixi Mixes It Up in Asia, Forbes, Oct. 16, 2006. Mixi is located at http://mixi.jp/.

65. http://mop.com/; http://www.cuspace.com/.

66. Barbara Grady, Cyworld Enters MySpace Territory, San Mateo County Times, Aug. 15, 2006.

67. http://us.cyworld.com/.

68. Grady, Cyworld, supra.

69. Hwang Si-young, Cyworld Faces Challenges in Overseas Expansion, Korea Herald, Dec. 10, 2006.

70. Id.

71. http://www.dogster.com/; http://www.catster.com/.

72. http://www.hamtrerster.com/.

73. Ben McGrath, Oops, New Yorker (June 30, 2003).

74. STEVEN L. NOCK, THE COSTS OF PRIVACY: SURVEILLANCE AND REPUTATION IN AMERICA 2 (1993).

75. Proverbs 22:1.

76. WILLIAM SHAKESPEARE, OTHELLO, act II, sc. iii.

77. ARTHUR MILLER, THE CRUCIBLE 133 (Penguin ed. 2003) (originally published in 1953).

78. John Adams, Discourses on Davila: A Series of Papers on Political History, in 6 THE WORKS OF JOHN ADAMS 234 (Charles Francis Adams, ed. 1854).

79. C. H. COOLEY, HUMAN NATURE AND THE SOCIAL ORDER (1902); see also J. Sidney Shrauger & Thomas J. Schoeneman, Symbolic Interactionist View of Self-Concept: Through the Looking Glass Darkly, in THE SELF IN SOCIAL PSYCHOLOGY25, 25 (Roy F. Baumeister, ed. 1999); ARNOLD M. LUDWIG, How Do WE KNOW WHO WE ARE? A BIOGRAPHY OF THE SELF 54 (1997). Dianne M. Tice observes: "In 1902, Cooley proposed the 'looking glass self' as a metaphor for how the self-concept is determined by the views of others, and many subsequent theorists and researchers have reconfirmed that other people's perceptions constitute an important part of the self and exert a strong influence on individuals' conceptions of themselves." Diane M. Tice, Self-Concept Change and Self-Presentation: The Looking Glass Self Is Also a Magnifying Glass, in THE SELF IN SOCIAL PSYCHOLOGY, supra, at 195, 215.

80. NOCK, COSTS OF PRIVACY, supra, at 124.

81. FRANCIS FUKUYAMA, TRUST: THE SOCIAL VIRTUES AND THE CREATION OF PROSPERITY 26 (1995). For more about trust, see TRUST AND RECIPROCITY (Elinor Ostrom & James Walker, eds. 2003); ERIC M. USLANER, THE MORAL FOUNDATIONS OF TRUST (2002); RUSSEL HARDIN, TRUST AND TRUSTWORTHINESS (2002); TRUST IN SOCIETY (Karen S. Cook, ed. 2001); TRUST: MAKING AND BREAKING COOPERATIVE RELATIONS (Diego Gambetta, ed. 1988); ADAM B. SELIGMAN, THE PROBLEM OF TRUST (1997); Helen Nissenbaum, Securing Trust Online: Wisdom or Oxymoron?, 81 B.U. L. Rev. 635 (2001).

82. NOCK, COSTS OF PRIVACY, supra, at 124.

83. AVNER GREIF, INSTITUTIONS AND THE PATH TO THE MODERN ECONOMY: LESSONS FROM MEDIEVAL TRADE 58-89 (2006).

84. ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY (2000).

85. Associated Press, The Decline of Manners in the U.S., Oct. 14, 2005.

86. FUKUYAMA,T RUST, supra, at 310; Pamela Paxton, Trust In Decline? Contexts (Winter 2005).

87. Carol A. Heimer, Solving the Problem of Trust, in TRUST IN SOCIETY 40, 65 (Karen S. Cook, ed. 2001).

88. NOCK, COSTS OF PRIVACY, supra, at 3.

89. MARSHALL McLUHAN, THE GUTENBERG GALAXY 31 (1962) ("The new electronic interdependence recreates the world in the image of a global village."); see also MARSHALL McLUHAN & BRUCE R. POWERS, THE GLOBAL VILLAGE: TRANSFORMATIONS IN WORLD LIFE AND MEDIA IN THE 21ST CENTURY (1989).

90. Ostrowe v. Lee, 175 N.E. 505, 506 (N.Y. Ct. App. 1931).

91. The quotation is from Theodore Tilton, husband of Elizabeth Tilton, who had a scandalous extramarital affair with the famous preacher Henry Ward Beecher during the late nineteenth century. Tilton is quoted in RICHARD WIGHTMAN Fox, TRIALS OF INTIMACY: LOVE AND Loss IN THE BEECHER-TILTON SCANDAL 35 (1999).

92. Rosenblatt v. Baer, 383 U.S. 75, 86 (1966).

93. Robert C. Post, The Social Foundations of Defamation Law: Reputation and the Constitution, 74 Calif. L. Rev. 691, 694 (1986) (quoting J. HAWES, LECTURES ADDRESSED TO THE YOUNG MEN OF HARTFORD AND NEW HAVEN 95 (1828)); see also THOMAS STARKIE, A TREATISE ON THE LAW OF SLANDER, LIBEL, SCANDALUM MAGNATUM, AND FALSE RUMOURS (1826).

94. See id. at 707-8.

95. Id. at 711.

96. Nicholas Emler, Gossip, Reputation, and Social Adaptation, in GOOD GOSSIP II7, II9 (Robert F. Goodman & Aaron Ben-Ze' ev, eds. 1994)

97. SHAKESPEARE, OTHELLO, supra, act II, sc. iii, II. 261-66.

98. RICHARD A. POSNER, THE ECONOMICS OF JUSTICE 271 (1983).

99. Richard A. Epstein, The Legal Regulation of Genetic Discrimination: Old Responses to New Technology, 74 B.U. L. Rev. I, 12 (1994).

100. Barbara Mikkelson & David P. Mikkelson, Tommy Rot, Urban Legends Reference Pages, May 6, 2006, http://www.snopes.com/racial/business/Hilfiger.asp; Tommy Hilfiger "Racist" Rumor Is Fashionable Again, About.com, http://urbanlegends.about.com/ library/weekly/ aa121698. htm.

101. ABC News, Misidentified Bryant Accuser Fires Back, ABCNews.com, Sept. 30, 2004, http://abcnews.go.com/GMAlprint?id=124910; Jill Lieber & Richard Willing, Teen Misidentified as Bryant's Accuser Fights Back, USA Today, July 28, 2003.

102. ABC News, Misidentified Bryant Accuser, supra.

103. Lieber & Willing, Teen Misidentified, supra.

104. Jennifer 8. Lee, Net Users Try to Elude the Google Grasp, N.Y. Times, July 25, 2002.

105. Richard A. Posner, Bad News, N.Y. Times, July 31, 2005.

106. David Linhardt, Employers Screen Applicants With Facebook, University Daily Kansan, Jan. 30, 2006.

107. Alan Finder, For Some, Online Persona Undermines a Resume, N.Y. Times, June 11, 2006.

108. Id.

109. Id.

110. O. Kharif, Big Brother Is Reading Your Blog, Business Week Online, Feb. 28, 2006.

111. Bree Sposato, MySpace Invaders, N.Y. Magazine, Nov. 21, 2005.

112. Ivan Tribble, Bloggers Need Not Apply, Chronicle of Higher Education, July 8, 2005.

113. Associated Press, Official Sues Students Over MySpace Page, Sept. 22, 2006.

114. Heather Armstrong: Bloggers on Blogging, Rebecca's Pocket (Aug. 2005), http://www .rebeccablood.net/bloggerson/heatherarmstrong.html.

115. http://www.dooce.com.

116. Heather Armstrong, I Have Something to Say, Dooce.com, Feb. 12, 2002, http://www .dooce.com/ archives/ daily/ 02_12_2002.html.

117. Heather Armstrong, Collecting Unemployment, Dooce.com, Feb. 26, 2002, http://www.dooce.com/archives/daily/02_26_2002.html.

118. Scott Jaschik, You May Have Been YouTubed, Inside Higher Ed, Sept. 6, 2006, http://insidehighered.com/ news/ 2006/ 09/ 06/youtube.

119. Sara Kehaulani Goo, YouTubers Ponder Google,Wash. Post, Oct 11, 2006.

120. http://www.icann-nce.org/pipermail/disc ... 06826.html. The website at this URL has been removed from the Internet.

121. Alan Feuer & Jason George, Internet Fame Is Cruel Mistress for Dancer of the Numa Numa, N.Y. Times, Feb. 26, 2005,at AI.

122. Id.

123. http://www.newnuma.com.

124.The facts about the Little Fatty incident are from Raymond Zhou, Fatty -- The Face That Launched 1,000 Clicks, China Daily, Dec. 11, 2006, http://www.chinadaily.com .cn/cndy/2006-11/15/content_733158.hrm; Clifford Coonan, The New Cultural Revolution: How Little Fatty Made It Big, The Independent, Dec. 27, 2006; Jane Macartney, Face of "Little Fatty" Finds Fame Among Chinas web Users, The Times, Nov. 21, 2006; Reuters, "Little Fatty" an Instant Internet Phenomenon in China, Dee. 8, 2006. To see more of the images, visit http://www.slideshare.net/debasish/litt ... s-internet -hero.

125. The video was posted at http://www.waxy.org/archive/2003/05/13/finding_.shtml.

126. Tu Thanh Ha, "Star Wars Kid" Cuts a Deal With His Tormentors, Globe and Mail, April 7, 2006.

127. For more background about the story, see Amy Harmon, Fame Is No Laughing Matter for the "Star WarsKid," N.Y. Times, May 19, 2003, at C3.

128. Daily Log: Star Wars Kid, Waxy.org, Apr. 29, 2003, http://www.waxy.org/archive/ 2003/04/29/star_ war.shtml.

129. Quoted in Stewart Kirkpatrick, Shame and Misfortune, The Scotsman, Apr. 29, 2004.

130. Harmon, Fame Is No Laughing Matter, supra.

131. Amanda Paulson, Internet Bullying, Christian Science Monitor, Dec. 30, 2003; Jan Wong, 15 Minutes of Shame, Globe & Mail, May 7, 2005.

132. Ha, "Star WarsKid" Cuts a Deal, supra; Tu Thanh Ha, Parents File Lawsuit Over Star WarsKid Video, Globe and Mail, July 23, 2003.

133. Ghyslain Raza, Wikipedia, http://en.wikipedia.org/wiki/Ghyslain_Raza.

134. Carl Bailik, How Big an Internet Star Was the “Star Wars” Kid?Wall St. Journal Online, Dec. 14, 2006, http://online.wsj.com/public/article/SB ... 9031-HC7A4 Ifkyv8bz__bUCj6CT8PHus_20071215.html. According to one estimate by a U.K. firm, the Star Wars Kid video has been viewed about 900 million times. Bailik casts considerable doubt on these statistics. But it is probably safe to say that the video has been viewed more than 100 million times. On video websites such as YouTube, numerous versions of the video are posted, and the views of them amount to about 100 million. Id. Several years ago, Ghyslain’s “lawyer said in a court filing that the video
was so widely circulated that one Internet site solely dedicated to the two-minute clip recorded 76 million visits by October, 2004.” Ha, “Star Wars Kid” Cuts a Deal, supra.

135. Only the Very Best Videos of . . . The Star Wars Kid, Screaming Pickle, http://screaming pickle.com/humor/legends/StarWarsKid/.

136. Put the Star Wars Kid in Episode III, http://www.petitiononline.com/Ghyslain/petition .html.

137. http://www.petitiononline.com/mod_perl/ ... i?Ghyslain.

138. Daily Log: Star Wars Kid TV Tribute Roundup, Waxy.org, Mar. 20, 2005, http://www .waxy.org/archive/2005/03/20/star_war.shtml.

139. Marie-Chantale Turgeon, 10 Reasons to Blog, http://www.meidia.ca/archives/2005/06/ 10_reasons_to_b.php?l=en.

140. Eve Fairbanks, The Porn Identity, New Republic, Feb. 6, 2006.

CHAPTER 3. GOSSIP AND THE VIRTUES OF KNOWING LESS

1. April Witt, Blog Interrupted, Wash. Post Magazine, Aug. 15, 2004, at W12.

2. Id.

3. Jessica Cutler’s blog, Washingtonienne, has been taken off the Internet. Archived copies of the blog are still available online. The blog Wonkette has posted an archived copy. See The Lost Washingtonienne,Wonkette, http://www.wonkette.com/archives/the -lost-washingtonienne-wonkette-exclusive-etc-etc-004162.php. The blog is also reproduced in its entirety in Robert’s legal complaint against Jessica.

4. Julie Bosman, First With the Scoop, if Not the Truth, N.Y. Times, Apr. 18, 2004.

5. Wonkette is located at http://www.wonkette.com. At the time Wonkette linked to Jessica’s blog, it had fewer daily visitors. Although it was already quite popular at the time, its coverage of Jessica’s blog helped to catapult Wonkette to higher levels of popularity.

6. Witt, Blog Interrupted, supra.

7. Quoted in Wonkette, Washingtonienne: Eliminated by Process, May 21, 2004, http:// www.wonkette.com/archives/washingtonien ... 009677.php.

8. Witt, Blog Interrupted, supra.

9. Ana Marie Cox, Washingtonienne Speaks!! Wonkette Exclusive!! Must Credit Wonkette!! The Washingtonienne Interview!! Wonkette, May 21, 2004, http://www.wonkette.com/ politics/media/washingtonienne-speaks-wonkette-exclusive-must-credit-wonkette-the -washingtonienne-interview-9693.php.

10. http://www.jessicacutleronline.com/.

11. Witt, Blog Interrupted, supra.

12. Ana Marie Cox, Biography Page, Ana Marie Cox Website, http://www.anamariecox .com/bio.html.

13. In the interest of full disclosure, I have provided advice to Robert’s counsel subsequent to his filing of the lawsuit. Before providing advice, I made it clear that I would continue to publicly express my opinions about the case regardless of whether they were critical of Robert’s positions in the case. The opinions expressed about the case in this book are solely my own.

14. Internal Affairs: Playboy.com Poses Questions to the Infamous Washington, D.C., Sex Blogger, Playboy.com, Aug. 31, 2004, http://www.playboy.com/commerce/email/cyber club/08_31_04/story/dcintern_pop.html.

15. Witt, Blog Interrupted, supra.

16. Orin Kerr, When Professors Read Pseudonymous Student Blogs, Volokh Conspiracy, Apr. 26, 2005, http://volokh.com/archives/archive_2005 ... 1114540880.

17. Anonymous George Washington University Law School Student, Hoist By My Own Petard, Idlegrasshopper, Apr. 20, 2005, http://idlegrasshopper.blogspot.com/2005/04/ hoist-by-my-own-petard.html.

18. Former Boston Herald Columnist Fired from Teaching Job, Associated Press, July 19, 2005.

19. More Midterm Meltdowns, The Phantom Professor, Feb. 25, 2005, at http://phantom prof.blogspot.com/2005_05_01_phantomprof_archive.html. This post has been removed from the website.

20. Office Hours, The Phantom Professor, May 3, 2005, http://phantomprof.blogspot.com/ 2005_05_01_phantomprof_archive.html.

21. Scott Jaschik, The Phantom Professor, Inside Higher Education, May 11, 2005, http://www.insidehighered.com/news/2005/05/11/phantom.

22. Id.

23. Colleen McCain Nelson, SMU Blogger Unmasked, Unemployed, Dallas Morning News, May 15, 2005.

24. Id.

25. Jaschik, Phantom Professor, supra.

26. Id.

27. Id.

28. Id.

29. Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure, 53 Duke L.J. 967, 1005–6 (2003); see also David Bauder, Identifying Rape Victims Troubles Media, Ft. Lauderdale Sun-Sentinel, Aug. 3, 2002, at 3A.

30. Fernanda B. Viegas, Bloggers’ Expectations of Privacy and Accountability: An Initial Survey, Journal of Computer-Mediated Communication, vol. 10, issue 3 (2005), http:// jcmc.Indiana.edu/vol10/issue3/viegas.html.

31. Quoted in id.

32. Eric Hsu, Students’ Web Sites Put Schools in Quandary, Bergen (N.J.) Record, July 24, 2005.

33. H. J. Cummins, When Blogs and Jobs Collide, Minneapolis Star Tribune, Aug. 14, 2005.

34. Bob Sullivan, Kids, Blogs, and Too Much Information, MSNBC.com, Apr. 29, 2005, http://www.msnbc.msn.com/id/7668788/.

35. Malcolm Gladwell, The Tipping Point 7, 9, 30–33, 35, 58–59 (2000).

36. Id. at 25.

37. Albert-László Barabási, Linked 31, 34 (2002).

38. Aaron Ben Ze’ev, The Vindication of Gossip, in Good Gossip 1, 22, 24 (Robert F. Goodman & Aaron Ben-Ze’ev, eds. 1994)

39. Jörg R. Bergmann, Discreet Indiscretions: The Social Organization of Gossip 21–22 (1993).

40. Keith Devlin, The Math Gene 255 (2000).

41. Sally Engle Merry, Rethinking Gossip and Scandal, in Reputation: Studies in the Voluntary Elicitation of Good Conduct 47 (Daniel B. Klein, ed. 1997).

42. Nicholas Emler, Gossip, Reputation, and Social Adaptation, in Good Gossip, supra, at 117, 135.

43. Karen J. Brison, Just Talk: Gossip, Meetings, and Power in a Papua New Guinea Village 11 (1992). When gossip occurs behind people’s backs, rumors often “circulate unchecked” and are hard to combat if “diffuse and hidden.” Id. at 12.

44. Diane L. Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and Brandeis’s Privacy Tort, 68 Cornell L. Rev. 291, 333–34 (1983).

45. This argument is frequently raised in support of outing gays. See, e.g., Kathleen Guzman, About Outing: Public Discourse, Private Lives, 73 Wash. U. L.Q. 1531, 1568 (1995) (“Outers offer up the victim as a ‘sacrificial lamb’ to portray themselves as purifying redeemers, able to solve the problems of discrimination.”). Outing gays, the argument goes, will help alter society’s perception of gays by demonstrating that mainstream people or role models are gay. For more background on outing, see John P. Elwood, Note, Outing, Privacy, and the First Amendment, 102 Yale L.J. 747, 776 (1992) (arguing that outing to establish a person as a gay role model should be outweighed by privacy rights, whereas outing to point out the hypocrisy of public officials should be permitted).

46. Brison, Just Talk, supra, at 112.

47. Martin Heidegger, Being and Time 158 (Joan Stambaugh, trans. 1996) (originally published in 1953).

48. Patricia Meyer Spacks, Gossip 4 (1985).

49. Brison, Just Talk, supra, at 12. Professor Cynthia Kierner observes that gossiping was a way to “jockey for social position” in postrevolutionary America. Cynthia A. Kierner, Scandal at Bizarre: Rumor and Reputation in Jefferson’s America 64 (2004).

50. Robert Post, The Legal Regulation of Gossip: Backyard Chatter and the Mass Media, in Good Gossip, supra, at 65, 65.

51. Paul M. Schwartz, Internet Privacy and the State, 32 Conn. L. Rev. 815, 843 (2000).

52. Id. at 842–43.

53. Richard A. Posner, The Economics of Justice 232–34 (1981).

54. Steven L. Nock, The Costs of Privacy: Surveillance and Reputation in America 11–12 (1993).

55. Id. at 124.

56. Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America 8 (2000); see also Lawrence Lessig, Privacy and Attention Span, 89 Geo. L.J. 2063, 2065 (2001).

57. Karel Capek, The Last Judgment, in Tales from Two Pockets 159–60 (Norma Comrada, trans. 1994) (1929).

58. William H. Gass, Fiction and the Figures of Life 45 (1979); see also Georg Simmel, The Sociology of Secrecy and of Secret Societies, 11 American Journal of Sociology 441, 442 (1906) (we “never can absolutely know another” but form our conception of others based on “fragments”).

59. William James, The Principles of Psychology 282 (Harvard U. Press edition 1983) (originally published in 1890). Virginia Woolf embraced this pluralistic conception of selfhood in her novel Orlando: “Biography is considered complete if it merely accounts for six or seven selves, whereas a person may well have as many as a thousand.” Virginia Woolf, Orlando: A Biography (1928).

60. Erving Goffman, The Presentation of Self in Everyday Life (1959); see also Alan Westin, Privacy and Freedom 33 (1967).

61. Roy F. Baumeister, An Overview, in The Self in Social Psychology 1, 8 (Roy F. Baumeister, ed. 1999).

62. Quoted in Philip Roth, In Defense of Intimacy: Milan Kundera’s Private Lives, Village Voice, June 26, 1984, at 42.

63. Joseph Bensman & Robert Lilienfeld, Between Public and Private: Lost Boundaries of the Self 174 (1979).

64. Id. at 49.

65. Milan Kundera, Testaments Betrayed 260–61 (1995).

66. Hannah Arendt, The Human Condition 22–24 (1958).

67. Arnold M. Ludwig, How Do We Know Who We Are? A Biography of the Self 49 (1997).

68. Erving Goffman, Stigma: Notes on the Management of Spoiled Identity 96 (1963).

69. Id.

70. Ludwig, How Do We Know Who We Are? supra, at 117.

71. Thomas Nagel, Concealment and Exposure & Other Essays 7 (2002).

72. Goffman, Stigma, supra, at 3, 7–9, 30.

73. Susan Sontag, Illness as Metaphor and AIDS and Its metaphors 38, 143, 6, 58 (1990).

74. Stan Karas, Privacy, Identity, Databases, 52 Am. U. L. Rev. 393, 427 (2002).

75. Paul M. Schwartz, Privacy and the Economics of Personal Health Care Information, 76 Tex. L. Rev. 1, 29 (1997).

76. See, e.g., Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 Harv. L. Rev. 1003 (1995) (reviewing market-based theories of racial discrimination).

77. Pauline T. Kim, Genetic Discrimination, Genetic Privacy: Rethinking Employee Protections for a Brave New Workplace, 96 Nw. U. L. Rev. 1497, 1500, 1538 (2002).

78. R.I.P. Jennicam, BBC, Jan. 1, 2004, http://news.bbc.co.uk/2/hi/uk_news/magazine/ 3360063.stm.

79. Alan F. Westin, Privacy and Freedom 35 (1967).

80. Amitai Etzioni, The Limits of Privacy 196 (1999).

81. Fred Cate, Privacy in the Information Age 30 (1997).

82. Robert C. Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, 77 Calif. L. Rev. 957, 968 (1989).

83. Robert C. Post, Three Concepts of Privacy, 89 Geo. L.J. 2087, 2092 (2001).

84. Peter Gay, Schnitzler’s Century: The Making of Middle-Class Culture, 1815–1914, at 273 (2002).

85. Arnold H. Modell, The Private Self 95 (1993). Notes to Pages 68–72 217

86. Lawrence M. Friedman, Name Robbers: Privacy, Blackmail, and Assorted Matters in Legal History, 30 Hofstra L. Rev. 1093, 1112 (2002).

87. John Dewey, Experience and Nature 167 (Jo Ann Boydston, ed. 1987) (originally published in 1925); see also John Dewey, Human Nature and Conduct 97 (Jo Ann Boydston, ed. 1988) (originally published in 1922) (discussing “the difference between a self taken as something already made and a self still making through action”). As the psychologist Carl Schneider notes, protection against disclosure is similar to the skin of a fruit or the shell of an egg. Carl D. Schneider, Shame, Exposure, and Privacy 37 (1992); see also David L. Bazelon, Probing Privacy, 12 Gonz. L. Rev. 587, 590 (1977) (“[P]rivacy shelters the emerging individual’s thoughts from public disclosure and control so that the fear of being watched, exposed, ridiculed, or penalized does not crush the seeds of independent thinking before they can mature.”).

88. Friedrich Dürrenmatt, The Assignment 24 (Joel Agee, trans., Random House 1988).

89. Secretary’s Advisory Committee on Automated Personal Data Systems, U.S. Dep’t of Health, Education & Welfare, Records, Computers, and the Rights of Citizens (1973), http://aspe.os.dhhs.gov/datacncl/1973pr ... acemembers .htm.

90. See generally T. Markus Funk, The Dangers of Hiding Criminal Pasts, 66 Tenn. L. Rev. 287 (1998) (arguing that expunging certain juvenile crimes from a person’s record is a mistake).

91. Sarah Bilder, The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce, 61 Mo. L. Rev. 743, 756–57 (1996).

92. See Funk, Hiding Criminal Pasts, at 288 (suggesting that state laws permitting the expunging of juvenile criminal records are “grounded on a belief that juveniles will outgrow their reckless youthful behavior”).

93. People v. Price, 431 N.W.2d 524, 526 (Mich. Ct. App. 1988).

94. Merry, Rethinking Gossip and Scandal, supra, at 47.

95. Leora Tanenbaum, Slut! Growing Up Female with a Bad Reputation xvi, xv (2000).

96. Anita L. Allen, Why Privacy Isn’t Everything: Feminist Reflections on Personal Accountability 2 (2003).

CHAPTER 4. SHAMING AND THE DIGITAL SCARLET LETTER

1. Nate Kushner, Laura K. Krishna Is Just a Dumb Kid With a Nice Mom, A Week of Kindness, March 30, 2005, http://www.aweekofkindness.com/blog/archives/2005/ 03/laura_k_krishna_1.html. Kushner changed Laura’s real last name to Krishna after pleas from Laura and her mother to take the information offline.

2. PZ Myers, A Plagiarist Gets Her Comeuppance, Pharyngula, Mar. 29, 2005, http:// pharyngula.org/index/weblog/comments/a_plagiarist_gets_her_comeuppance/. Myers’s blog is now located at http://scienceblogs.com/pharyngula/.

3. http://peoriacrackhouse.blogspot.com.

4. Post of July 22, 2005 by Anonymous, Peoria Crack House, http://peoriacrackhouse. blogspot.com/2005_07_01_peoriacrackhouse_archive.html.

5. Tracy Connor, Hunt Perv Caught in a Flash, N.Y. Daily News, Aug. 26, 2005.

6. Photo Finish for Flashers, N.Y. Daily News, Aug. 28, 2005.

7. Man Caught on Camera Phone Flashing Subway Rider, Associated Press, Sept. 1, 2005.

8. Kevin Poulsen, Camera Phone Has Life After Theft, Wired, Aug. 29, 2005, http://www .wired.com/news/privacy/0,1848,68668,00.html.

9. Id.

10. JohnsGoat, Long Island Trash . . . , Long Island Press Electronic Bulletin Board, Aug. 21, 2005, http://www.longislandpress.com/bb/viewtopic.php?p=2037. The post and comments have been removed and can no longer be found on the Internet. I have an archive copy of the post and comments on file.

11. Poulsen, Camera Phone Theft, supra.

12. JohnsGoat, Long Island Trash, supra.

13. Michael B. Conforti, To Catch a Thief: Cell Phone Theft Spawns E-Harassment, Long Island Press, Sept. 1, 2005, http://longislandpress.com/?cp=162&show=article&a_id =5538.

14. JohnsGoat, Long Island Trash, supra.

15. Id.

16. Id.

17. Jim Heid, The Apple Store Squatter Saga Continues, Jim Heid’s Macintosh Digital Hub, July 11, 2005, http://www.macilife.com/2005/07/apple-s ... -continues .html.

18. Steve Rubel, Is Anyone’s Privacy Safe from the Bloggers, MicroPersuasion, Aug. 3, 2005, http://www.micropersuasion.com/2005/08/ ... _priv.html.

19. For background about norms, see Robert Ellickson, Order Without Law (1991); Lawrence Lessig, The Regulation of Social Meaning, 62 U. Chi. L. Rev. 943 (1995); Richard McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 Harv. L. Rev. 1003 (1997); Richard McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338 (1997); Cass Sunstein, Social Norms and Social Roles, 96 Colum. L. Rev. 903 (1996); Lior Strahilevitz, How Changes in Property Regimes Influence Social Norms: Commodifying California’s Carpool Lanes, 17 Ind. L.J. 1231 (2000); Robert C. Ellickson, The Evolution of Social Norms: A Perspective from the Legal Academy, in Social Norms 35, 35 (Michael Hechter & Karl- Dieter Opp, eds. 2001).

20. Richard Weste, The Booke of Demeanor and the Allowance and Disallowance of Certaine Misdemeanors in Companie (c. 1619). Quoted in Norbert Elias, The Civilizing Process 112 (1994).

21. Rachel Metz, Cell-Phone Shushing Gets Creative, Wired.com, Jan. 18, 2005, http://www.wired.com/news/wireless/0,1382,66310,00.html.

22. Christine Rosen, Our Cell Phones, Ourselves, New Atlantis (Summer 2004).

23. Id.

24. The commercials are available at http://icpm.8m.com/.

25. Henry David Thoreau, Walden and Other Writings 113 (Barnes & Noble, Inc. 1993) (originally published in 1854).

26. Alain Corbin, Intimate Relations, in A History of the Private Life, vol. 4, From the Fires of Revolution to the Great War 605 (Michelle Perrot, ed., Arthur Goldhammer, trans. 1990); Michelle Perrot, The Family Triumphant, id. at 143.

27. Anita L. Allen, Lying to Protect Privacy, 44 Vill. L. Rev. 161, 162 (1991).

28. Metz, Cell-Phone Shushing, supra. The cards are available at http://www.coudal.com/ shhh.php.

29. Carl D. Schneider, Shame, Exposure, and Privacy 22–26 (1992).

30. http://rudepeople.com.

31. http://platewire.com.

32. Jennifer Saranow, The Snoop Next Door, Wall St. Journal, Jan. 12, 2007, at W1.

33. http://flickr.com/photos/uno4300/345254682/; http://flickr.com/photos/nojja/2050 62960/; http://flickr.com/photos/caterina/59500/.

34. See, e.g., Orn B. Bodvarsson & William A. Gibson, An Economic Approach to Tips and Service Quality: Results of a Survey, 36 Social Science Journal 137–47 (1999); Orn B. Bodvarsson & William A. Gibson, Economics and Restaurant Gratuities: Determining Tip Rates, 56 Amer. J. Econ. Sociology, 187–204 (1997); April H. Crusco & Christopher G. Wetzel, The Midas Touch: The Effects of Interpersonal Touch on Restaurant Tipping, 10 Personality & Social Psychology Bulletin 512–17 (1984); Mary B. Harris, Waiters, Customers, and Service: Some Tips About Tipping, 25 Journal of Applied Social Psychology 725–44 (1995).

35. Ofer H. Azar, The Social Norm of Tipping: A Review, Journal of Economics, at 3 (2005) http://econwpa.wustl.edu:80/eps/othr/pa ... 503013.pdf.

36. http://www.bitterwaitress.com.

37. http://www.bitterwaitress.com/std/index ... =1&id=2135.

38. http://www.bitterwaitress.com/std/index ... =1&id=2120.

39. Katherine Rosman, Leak Chic: Everybody’s an Anonymous Source These Days, Wall St. Journal, Dec. 15, 2005.

40. http://www.hollabacknyc.blogspot.com.

41. http://dontdatehimgirl.com/.

42. http://dontdatehimgirl.com/about_us/index.html.

43. http://dontdatehimgirl.com/faqs/.

44. Edwin Powers, Crime and Punishment in Early Massachusetts, 1620–1692, at 200 (1966).

45. Mark Spatz, Comment, Shame’s Revival: An Unconstitutional Regression, 4 U. Pa. J. Const. L. 827, 831 (2002).

46. Powers, Crime and Punishment, supra, at 270 (1966); Raphael Semmes, Crime and Punishment in Early Maryland 70 (1938).

47. Lawrence M. Friedman, Crime and Punishment in American History 40 (1993).

48. Francis Watt, The Law’s Lumber Room 48, 56 (1898).

49. William Andrews, Punishments in Oldentime: Being an Historical Account of the Ducking Stool, Brank, Pillory, Stocks, Drunkard’s Cloak, Whipping Post, Riding the Stang, etc. 5 (Research Publications 1990 on microfiche) (originally published in 1881).

50. Dan Markel, Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate, 54 Vand. L. Rev. 2157, 2169 (2001).

51. Nathaniel Hawthorne, The Scarlet Letter 46, 47 (Barnes & Noble edition, 1998) (originally published in 1850).

52. Barbara Clare Morton, Bringing Skeletons Out of the Closet and Into the Light: “Scarlet Letter” Sentencing Can Meet the Goals of Probation in Modern America Because It Deprives Offenders of Privacy, 35 Suffolk U. L. Rev. 97, 102–4 (2001); Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 Mich. L. Rev. 1880, 1912–15 (1991).

53. Morton, Skeletons, supra, at 102–4.

54. Markel, Shaming Punishments, supra, at 2169.

55. Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan, trans., Pantheon edition 1977).

56. Jeff Stryker, Using Shame as Punishment: Have Sex, Get Infamous, S.F. Chronicle, Mar. 13, 2005.

57. Dan M. Kahan, What Do Alternative Sanctions Mean? 63 U. Chi. L. Rev. 591, 632 (1996).

58. John Borland, Privacy Jam on California Highway, CNET, May 13, 2004, http://news .com.com/Privacy+jam+on+California+highway/2100-1038_3-5212280.html.

59. Eugene Volokh, Appalling Service from Dell, Volokh Conspiracy, Nov. 23, 2005, http://volokh.com/posts/1132781578.shtml.

60. Matthew Fordahl, Sony to Release Patch to Reveal Hidden Copy-Protection Software, Associated Press, Nov. 2, 2005.

61. Mark Russinovich, Sony Rootkits and Digital Rights Management Gone Too Far, Mark’s Sysinternals Blog, Oct. 31, 2005, http://blogs.technet.com/markrussinovich/archive/ 2005/10/31/sony-rootkits-and-digital-rights-management-gone-too-far.aspx.

62. Kim Hart, Angry Customers Use Web to Shame Firms, Wash. Post, July 5, 2006, at D1.

63. Lior Jacob Strahilevitz, “How’s My Driving?” for Everyone (and Everything?), 81 N.Y.U. L. Rev. 1699, 1708–09 (2006).

64. The programs Strahilevitz recommends are a lot more controlled than much of the online shaming currently taking place.

65. Martha C. Nussbaum, Hiding from Humanity: Disgust, Shame, and the Law 230, 235 (2004).

66. Id. at 235. For more on shame, see William Ian Miller, Humiliation (1993); Shame, Social Research, vol. 70, issue 4 (Winter 2003).

67. Bernard Williams, Shame and Necessity 78 (1993) (“The basic experience connected with shame is that of being seen, inappropriately, by the wrong people, in the wrong condition. It is straightforwardly connected with nakedness.”).

68. See Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 412 (1997).

69. Nussbaum, Hiding from Humanity, supra, at 234.

70. Ivan Moreno, Pot Smokers on the Web, Rocky Mountain News, Apr. 28, 2006, http:// www.rockymountainnews.com/drmn/local/ar ... 79,00.html.

71. http://www.colorado.edu/police/420_Phot ... /index.htm. The website has been removed from the Internet. I have a copy of the website in my files.

72. H. G. Reza, When Blame Knocks on the Wrong Door, L.A. Times, Aug. 25, 2005.

73. http://www.revengeworld.com.

74. http://www.revengeworld.com/About.cfm.

75. Rebecca Riddick, Website Encourages Blacklist of Med-Mal Plaintiffs, Law.com, July 25, 2006, http://www.law.com/jsp/article.jsp?id=1153744532499.

76. Robert D. Cooter, Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant, 144 U. Pa. L. Rev. 1643 (1996).

77. Ofer H. Azar, The Social Norm of Tipping: Does It Improve Social Welfare? Journal of Economics, at 4 (2005), http://econwpa.wustl.edu:80/eps/othr/pa ... 03/0503013 .pdf.

78. Lawrence E. Mitchell, Understanding Norms, 49 U. Toronto L.J. 177, 243 (1999).

79. Borland, Privacy Jam, supra.

80. http://www.carpoolcheats.org/. The website is now completely removed from the Internet. Quotations from the website can be found at Borland, Privacy Jam, supra.

81. http://www.christiangallery.com/atrocity/.

82. Frederick Clarkson, Journalists or Terrorists?, Salon.com, May 31, 2001, http://archive .salon.com/news/feature/2001/05/31/nuremberg/index.html.

83. Rene Sanchez, Abortion Foes’ Internet Site on Trial, Wash. Post, Jan. 15, 1999, at A3.

84. Sharon Lerner, The Nuremberg Menace, Village Voice, Apr. 4–10, 2001, http://www.villagevoice. com/news/0114,lerner,23570,1.html.

85. Doctor Says Anti-Abortion Web Site Endangered Her Life, Associated Press, Jan. 8, 1999, http://www.cnn.com/US/9901/08/abortion.trial.03/.

86. Planned Parenthood v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc).

87. Strahilevitz, “How’s My Driving?” supra, at 1708.

88. Gustave Le Bon, The Crowd: A Study of the Popular Mind 1 (1896).

89. Cass R. Sunstein, Group Judgments: Statistical Means, Deliberation, and Information Markets, 80 N.Y.U. L. Rev. 962, 1004 (2005).

90. Howard W. French, Online Throngs Impose a Stern Morality in China, N.Y. Times, June 3, 2006.

[admin]

PART 2 OF 2 (Notes Cont'd.)

CHAPTER 5. THE ROLE OF LAW

1. David Brin, The Transparent Society 8–9 (1998).

2. Quoted in Daniel J. Solove, Marc Rotenberg & Paul M. Schwartz, Information Privacy Law 635 (2d ed. 2006).

3. Robert Ellis Smith, Ben Franklin’s Web Site: Privacy and Curiosity from Plymouth Rock to the Internet 108–9 (2000).

4. Id. at 108–10.

5. Charles Dickens, Martin Chuzzlewit 318 (Penguin edition 1975) (originally published in 1843–44).

6. Gini Graham Scott, Mind Your Own Business: The Battle for Personal Privacy 37–38 (1995).

7. Henry James, The Reverberator 62 (1888).

8. Quoted in Smith, Ben Franklin’s Website, supra, at 117. For an extensive and interesting account of gossip about U.S. presidents and politicians, see Gail Collins, Scorpion Tongues: Gossip, Celebrity, and American Politics (1998).

9. Janna Malamud Smith, Private Matters 81 (1997).

10. Richard Wightman Fox, Trials of Intimacy: Love and Loss in the Beecher- Tilton Scandal 20–21 (1999).

11. John D’Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America 162–63 (2d ed. 1997). Other accounts state that Woodhull was motivated by more personal reasons. One commentator concludes that “Woodhull published the story because she was angry at one of Beecher’s sisters, who opposed including her in the suffrage leadership.” Collins, Scorpion Tongues, supra, at 68.

12. Smith, Private Matters, supra, at 73–94.

13. Fox, Trials of Intimacy, supra, at 33.

14. Daniel J. Solove, Reconstructing Electronic Surveillance Law, 72 Geo. Wash. L. Rev. 1264, 1272 (2004).

15. Smith, Ben Franklin’s Website, supra, at 124.

16. E. L. Godkin, The Rights of the Citizen: IV. To His Own Reputation, Scribner’s Magazine (1890); see also E. L. Godkin, The Right to Privacy, The Nation, Dec. 25, 1890. For more background about Godkin, see Elbridge L. Adams, The Right to Privacy and Its Relation to the Law of Libel, 39 Am. L. Rev. 37 (1905); Dorothy J. Glancy, The Invention of the Right to Privacy, 21 Ariz. L. Rev. 1 (1979).

17. Don R. Pember: Privacy and the Press 21 (1972).

18. See Samuel D. Warren & Louis D. Brandeis, The Watuppa Pond Cases, 2 Harv. L. Rev. 195 (1888); Samuel D. Warren & Louis D. Brandeis, The Law of Ponds, 3 Harv. L. Rev. 1 (1889).

19. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).

20. William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 383, 423 (1960).

21. James Barron, Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890): Demystifying a Landmark Citation, 13 Suffolk U. L. Rev. 875, 893 (1979).

22. Smith, Ben Franklin’s Web Site, supra, at 118–19.

23. Warren & Brandeis, The Right to Privacy, supra, at 196, 195.

24. Smith, Private Matters, supra, at 76 (1997).

25. Id. at 196–97.

26. See Neil M. Richards & Daniel J. Solove, Privacy’s Other Path: Recovering the Law of Confidentiality, 96 Geo. L.J. (forthcoming Nov. 2007). The article is available online at http://ssrn.com/abstract=969495.

27. See Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235 (Minn. 1998) (noting that Minnesota was one of the few states that had not recognized the privacy torts, but reversing course and embracing the torts). The only states not recognizing any of the privacy torts are North Dakota and Wyoming. Robert M. O’Neil, The First Amendment and Civil Liability 77 (2001).

28. Harry Kalven, Jr., Privacy in Tort Law: Were Warren and Brandeis Wrong? 31 L. & Contemp. Probs. 326, 327 (1966).

29. Alfred C. Yen, Western Frontier or Feudal Society?: Metaphors and Perceptions of Cyberspace, 17 Berkeley Tech. L.J. 1207 (2002).

30. John Perry Barlow, Declaration of the Independence of Cyberspace, Feb. 18, 1996, http://homes.eff.org/~barlow/Declaration-Final.html.

31. David R. Johnson & David Post, Law and Borders: The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996).

32. James Grimmelman, Accidental Privacy Spills: Musings on Privacy, Democracy, and the Internet, LawMeme, Feb. 19, 2003, http://research.yale.edu/lawmeme/modules.php ?name=News&file=article&sid=938.

33. Letter of Laurie Garrett, Feb. 17, 2003, in comments to Could This Be True? MetaFilter, Feb. 11, 2003, http://www.metafilter.com/mefi/23493.

34. Grimmelman, Accidental Privacy Spills, supra.

35. Michelle Andrews, Decoding Myspace, U.S. News & World Report, Sept. 18, 2006.

36. ACLU v. Miller, 977 F. Supp. 1228 (N.D. Ga. 1997).

37. Jennie C. Meade, The Duel, http://www.law.gwu.edu/Burns/rarebooks/exhibits/duel .htm.

38. Barbara Holland, Gentlemen’s Blood: A History of Dueling 22 (2003).

39. Cynthia A. Kierner, Scandal at Bizarre: Rumor and Reputation in Jefferson’s America 40 (2004).

40. Quoted in Alison L. LaCroix, To Gain the Whole World and Lose His Own Soul: Nineteenth-Century American Dueling as Public Law and Private Code, 33 Hofstra L. Rev. 501, 517 (2004).

41. Quoted in Douglas H. Yarn, The Attorney as Duelist’s Friend: Lessons from the Code Duello, 51 Case W. Res. L. Rev. 69, 113 (2000).

42. Meade, The Duel, supra.

43. William Blackstone, Commentaries on the Laws of England, vol. IV, at *199 (1768).

44. C. A. Harwell Wells, Note, The End of the Affair? Anti-Dueling Laws and Social Norms in Antebellum America, 54 Vand. L. Rev. 1805, 1807, 1831–32 (2001).

45. Kierner, Scandal at Bizarre, supra, at 39.

46. Quoted in Holland, Gentlemen’s Blood, supra, at 3.

47. As Hamilton explained: “The ability to be in the future useful, whether in resisting mischief or effecting good, in those crises of our public affairs which seem likely to happen, would probably be inseparable from a conformity with public prejudice in this particular.” Alexander Hamilton, quoted in Meade, The Duel, supra.

48. Van Vechten Veeder, The History and Theory of Defamation, 3 Colum. L. Rev. 546, 548 (1903).

49. Kierner, Scandal at Bizarre, supra, at 40.

50. Wells, Anti-Dueling Laws, supra, at 1823.

51. Holland, Gentlemen’s Blood, supra, at 3.

52. Kierner, Scandal at Bizarre, supra, at 39, 41.

53. Id. at 45.

54. Id. at 44, 42, 61.

55. LaCroix, Dueling, supra, at 511–12, 454, 547–50, 552. Lawrence Lessig notes that although legal prohibitions on dueling were ineffective, another type of legal sanction “might actually have been more effective.” People engaging in duels were restricted from holding public office. Since holding public office was “a duty of the elite,” the restriction gave gentlemen a reason for “escaping the duel” without “appealing to selfinterest or the rules of commoners.” Lessig, however, concedes that “even this sanction was ineffective for much of the history of the old South” because legislatures “would grandfather all duels up to the time of the legislation and would repass the grandfather legislation every few years.” Lawrence Lessig, The Regulation of Social Meaning, 62 U. Chi. L. Rev. 943, 971–72 (1995).

56. Wells, Anti-Dueling Laws, supra, at 1839.

57. David S. Parker, Law, Honor, and Impunity in Spanish America: The Debate Over Dueling, 1870–1920, 19 Law & Hist. Rev. 311, 319, 325 (2001).

58. LaCroix, Dueling, supra, at 515.

59. John Lyde Wilson, The Code of Honor, or Rules for the Government of Principals and Seconds in Duelling 6 (1858), quoted in LaCroix, Dueling, supra, at 559.

60. LaCroix, Dueling, supra, at 565.

61. Madison v. Yunter, 589 P.2d 126, 130 (Mont. 1978).

62. Quoted in Joanne B. Freeman, Slander, Poison, Whispers, and Fame: Jefferson’s “Anas” and Political Gossip in the Early Republic, 15 Journal of the Early Republic 25, 31 (1995).

63. Quoted in id. at 30.

64. Veeder, History, supra, at 563.

65. Rodney A. Smolla, The Law of Defamation §1:2, at 1–4 (2d ed. 2000).

66. Veeder, Defamation, supra, at 548.

67. Restatement (Second) of Torts §559.

68. Id. at §578.

69. Zechariah Chafee, Government and Mass Communication 106–7 (1947).

70. Rodney A. Smolla, Dun & Bradstreet, Hepps, and Liberty Lobby: A New Analytic Primer on the Future Course of Defamation, 75 Geo. L.J. 1519 (1987).

71. See Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235 (Minn. 1998) (finally recognizing a common-law tort action for invasion of privacy, noting that Minnesota remained one of the few holdouts).

72. Restatement (Second) of Torts §652B.

73. Id. at §652E.

74. Id. at §652C.

75. Id. at §652C comment (c).

76. Id. at §652D.

77. Rodney A. Smolla, Accounting for the Slow Growth of American Privacy Law, 27 Nova L. Rev. 289, 289 (2002).

78. Richard A. Posner, Overcoming Law 545 (1995).

79. Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997).

80. Mike, Todd Hollis and Defamation Suits, Crime & Federalism, June 8, 2006, http://fed eralism.typepad.com/crime_federalism/2006/06/todd_hollis_and.html

81. Comment ofmtneergal to Robert J. Ambrogi, Don’tSueHerBoy, Law.com Inside Opinions: Legal Blogs, June 30, 2006, http://legalblogwatch.typepad.com/legal_blog _watch/2006/06/dontsueherboy.html.

82. Comment of Big Larry to Robert J. Ambrogi, id.

83. Laura Parker, Jury Awards $11.3M Over Defamatory Internet Posts, USA Today, Oct. 11, 2006.

84. Jacob A. Stein, Defamation, Washington Lawyer (Nov. 2001).

85. Lyrissa Barnett Lidsky, Silencing John Doe: Defamation and Discourse in Cyberspace, 49 Duke L.J. 855, 857 (2000).

86. Robert N. Bellah, The Meaning of Reputation in American Society, 74 Cal. L. Rev. 743, 744 (1986).

87. Jerome A. Barron, The Search for Media Accountability, 19 Suffolk U. L. Rev. 789, 789–90 (1985).

88. Lyrissa Barnett Lidsky, Defamation, Reputation, and the Myth of Community, 71 Wash. L. Rev. 1, 14 (1996).

CHAPTER 6. FREE SPEECH, ANONYMITY, AND ACCOUNTABILITY

1. John Milton, Areopagitica (George H. Sabine, ed. 1954) (originally published in 1644).

2. U.S. Const. amend. I.

3. Cohen v. California, 403 U.S. 15, 24–25 (1971).

4. New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964).

5. Chaplinksy v. New Hampshire, 315 U.S. 568, 572 (1942).

6. New York Times Co. v. Sullivan, 376 U.S. 254, 271–72 (1964).

7. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

8. Id. at 342.

9. New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).

10. Randall P. Bezanson, The Developing Law of Editorial Judgment, 78 Neb. L. Rev. 754, 774–75, 763–64 (1999).

11. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340–41 (1974).

12. Id. at 341 (quoting Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J. concurring)).

13. William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 423 (1960).

14. Thomas I. Emerson, The System of Freedom of Expression 556 (1970).

15. Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking About You, 52 Stan. L. Rev. 1049, 1050–51 (2000).

16. Laurent B. Frantz, The First Amendment in the Balance, 71 Yale L.J. 1424, 1424 (1962); Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 Sup. Ct. Rev. 245, 246.

17. Konigsberg v. State Bar of Cal., 366 U.S. 36, 61, 63 (1961) (Black, J., dissenting).

18. Hugo L. Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865, 867 (1960).

19. Elizabeth S. Black, Hugo Black: A Memorial Portrait, The Supreme Court Historical Society (1982), http://www.supremecourthistory.org/04_l ... mes/04_c17 _j.html.

20. T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943, 943 (1987).

21. See, e.g., Sable Communications, Inc. v. FCC, 492 U.S. 115, 126 (1989) (striking down a ban on indecent dial-a-porn services under strict scrutiny).

22. Gerald Gunther, The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972).

23. Volokh, Freedom of Speech, supra, at 1083–84.

24. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758 (1985) (“We have long recognized that not all speech is of equal First Amendment importance.”). Cass Sunstein has argued that a workable system of free speech depends upon “making distinctions between low and high value speech, however difficult and unpleasant that task may be.” Cass R. Sunstein, Low Value Speech Revisited, 83 Nw. U. L. Rev. 555, 557 (1989).

25. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978).

26. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758–59 (1985) (quoting First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978)).

27. Although the Supreme Court has applied strict scrutiny to restrictions on speech of public concern, it has not done so to restrictions on speech of private concern. See, e.g., Florida Star v. B.J.F., 491 U.S. 524, 532 (1989) (refusing “to hold broadly that truthful publication may never be punished consistent with the First Amendment. Our cases have carefully eschewed reaching this ultimate question.”); Bartnicki v. Vopper, 532 U.S. 514, 529 (2001) (noting that the Court has “repeated refusal to answer categorically whether truthful publication may ever be punished consistent with the First Amendment.”).

28. Diane L. Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and Brandeis’s Privacy Tort, 68 Cornell L. Rev. 291, 294, 362 (1983).

29. See, e.g., C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 990–1009 (1978) (explaining three theoretical models addressing the scope of First Amendment speech protection); Richard H. Fallon, Jr., Two Senses of Autonomy, 46 Stan. L. Rev. 875 (1994) (asserting and applying two theories relating to the autonomy-based First Amendment doctrine); Martin H. Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591, 593 (1982) (“[F]ree speech ultimately serves only one true value, which I have labeled ‘individual self-realization.’ ”).

30. Sean M. Scott, The Hidden First Amendment Values of Privacy, 71 Wash. L. Rev. 683, 723 (1996).

31. See Paul M. Schwartz, Privacy and Democracy in Cyberspace, 52 Vand. L. Rev. 1609, 1665 (1999) (noting that privacy shapes “the extent to which certain actions or expressions of identity are encouraged or discouraged”).

32. Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object, 52 Stan. L. Rev. 1373, 1426 (2000); see also Anita L. Allen, Uneasy Access: Privacy for Women in a Free Society 44 (1988) (“The value of privacy is, in part, that it can enable moral persons to be self-determining individuals.”); Ruth Gavison, Privacy and the Limits of Law, 89 Yale L.J. 421, 455 (1980) (“Privacy is also essential to democratic government because it fosters and encourages the moral autonomy of the citizen, a central requirement of a democracy.”).

33. Richard S. Murphy, Property Rights in Personal Information: An Economic Defense of Privacy, 84 Geo. L.J. 2381, 2397 (1996).

34. Alan F. Westin, Privacy and Freedom 37 (1967).

35. See Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People 26, 154–55 (1960).

36. Owen M. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405, 1411 (1986).

37. Quoted in John H. Summers, What Happened to Sex Scandals? Politics and Peccadilloes, Jefferson to Kennedy, 87 Journal of American History 825, 826 (2000).

38. As Keith Boone contends: “Privacy seems vital to a democratic society [because] it underwrites the freedom to vote, to hold political discussions, and to associate freely away from the glare of the public eye and without fear of reprisal.” C. Keith Boone, Privacy and Community, 9 Soc. Theory & Prac. 1, 8 (1983).

39. John Stuart Mill, On Liberty 18 (David Spitz, ed. 1975) (originally published in 1859).

40. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

41. Frederick Schauer, Reflections on the Value of Truth, 41 Case W. Res. L. Rev. 699, 706 (1991); see also Anita L. Allen, The Power of Private Facts, 41 Case W. Res. L. Rev. 757, 766 (1991) (arguing that allocations of power can sometimes be more valuable than the protection of true speech); Julie E. Cohen, Privacy, Ideology, and Technology: A Response to Jeffrey Rosen, 89 Geo. L.J. 2029, 2036 (2001) (“The belief that more personal information always reveals more truth is ideology, not fact, and must be recognized as such for informational privacy to have a chance.”). For a critique of Schauer’s position, see Erwin Chemerinsky, In Defense of Truth, 41 Case W. Res. L. Rev. 745 (1991).

42. Pearse v. Pearse, 63 Eng. Rep. 950, 957 (Ch. 1846) (Bruce, V.C.).

43. Restatement (Second) of Torts §652D.

44. Id. at § 652D cmt. d.

45. Id. at § 652D cmt. h.

46. See Michaels v. Internet Entertainment Group, Inc., 5 F. Supp. 2d 823, 837 (C.D. Cal. 1998) (acknowledging the president of Internet Entertainment Group’s estimate that the company would lose one third of its $1,495,000 subscription revenue without the Bret Michaels and Pamela Anderson sex video).

47. Barber v. Time, Inc. 159 S.W.2d 291, 295 (Mo. 1942).

48. Shulman v. Group W. Productions, Inc., 955 P.2d 469 (Cal. 1998).

49. Zimmerman, Requiem, supra, at 357 (recognizing the argument that editors of an article have a right to strengthen the force of their evidence by naming names).

50. Bonome v. Kaysen, 32 Media L. Rep. 1520 (Mass. Super. 2004).

51. Id.

52. http://underneaththeirrobes.blogs.com/.

53. Article III Groupie, Hotties in the Holding Pen: Untimely SFJ Nominations, Underneath Their Robes, July 17, 2004, http://underneaththeirrobes.blogs.com/main/2004/06/ greetings_welco.html.

54. Jeffrey Toobin, SCOTUS Watch, New Yorker, Nov. 21, 2005, http://www.newyorker .com/talk/content/articles/051121ta_talk_toobin

55. Jonathan Miller, He Fought the Law. They Both Won, N.Y. Times, Jan. 22, 2006, at sec. 14NJ, at 1.

56. Will Baude, The Other 10 Questions for Article III Groupie, Crescat Sententia, Aug. 29, 2005, http://www.crescatsententia.org/archive ... tml#005865.

57. Comment to Orin Kerr, Article III Groupie Comes Out of the Closet, Volokh Conspiracy, Nov. 14, 2005, http://volokh.com/posts/1131979281.shtml.

58. Miller, He Fought the Law, supra.

59. Amanda Lenhart & Susannah Fox, Bloggers: A Portrait of the Internet’s New Storytellers, Pew Internet & American Life Project, July 19, 2006, http://www.pewinternet.org/ pdfs/PIP%20Bloggers%20Report%20July%2019%202006.pdf.

60. Talley v. California, 362 U.S. 60 (1960).

61. Smith, Ben Franklin’s Web Site, supra, at 41–43.

62. McIntyre v. Ohio Elect. Comm’n, 514 U.S. 334, 342–43 (1995).

63. Gary T. Marx, Identity and Anonymity: Some Conceptual Distinctions and Issues for Research, in Documenting Individual Identity 311, 316, 318 (Jane Caplan and John Torpey, eds. 2001).

64. A. Michael Froomkin, Flood Control on the Information Ocean: Living with Anonymity, Digital Cash, and Distributed Databases, 15 J.L. & Comm. 395, 408 (1996).

65. Adam Smith, The Wealth of Nations 854 (Modern Library edition 1994) (originally published in 1776).

66. McIntyre v. Ohio Election Comm’n, 514 U.S. 334, 382 (1995) (Scalia, J. dissenting).

67. http://harrietmiers.blogspot.com/.

68. http://jmluttig.blogspot.com/.

69. Joyce Pellino Crane, Internet Bullying Hits Home for Teen: Anonymous Attacks a Growing Concern, Boston Globe, June 30, 2005.

70. Margaret K. Collins, Push to Criminalize False Info on Web, NorthJersey.com, Sept. 20, 2006/.

71. Denise Grady, Faking Pain and Suffering on the Internet, N.Y. Times, Apr. 23, 1998, at G1.

72. Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community 177 (2000).

73. Katharine Q. Seelye, Rewriting History: Snared in the Web of a Wikipedia Liar, N.Y. Times, Dec. 4, 2005. Wikipedia is located at http://en.wikipedia.org/.

74. Ken S. Myers, Wikimmunity: Fitting the Communications Decency Act to Wikipedia, 20 Harv. J.L. & Tech. 163 (2006).

75. Alexa.com keeps track of the current most visited websites around the world. See http://www.alexa.com/site/ds/top_500.

76. John Seigenthaler, A False Wikipedia “Biography,” USA Today, Nov. 29, 2005, http:// www.usatoday.com/news/opinion/editorial ... edit_x.htm.

77. Id.

78. Katharine Q. Seelye, A Little Sleuthing Unmasks Writer of Wikipedia Prank, N.Y. Times, Dec. 11, 2005.

79. Seigenthaler, False Wikipedia “Biography,” supra.

80. Seelye, A Little Sleuthing, supra.

81. John Seigenthaler, Sr., Wikipedia, Sept. 30, 2006, http://en.wikipedia.org/wiki/John _Seigenthaler_Sr.

82. Simon Freeman, Wikipedia Hit By Surge in Spoof Articles, The Times (London), Dec. 15, 2005, http://www.timesonline.co.uk/article/0, ... 68,00.html.

83. Comment to Daniel J. Solove, Fake Biographies on Wikipedia, Concurring Opinions, Dec. 1, 2006, http://www.concurringopinions.com/archi ... aphie.html.

84. Yuki Noguchi, On Capitol Hill, Playing WikiPolitics, Wash. Post, Feb. 4, 2006, at A1.

85. Evan Hansen, Wikipedia Founder Edits Own Bio, Wired News, Dec. 15, 2005, http:// www.wired.com/news/culture/0,1284,69880,00.html.

86. Orin Kerr, More on Wikipedia (Plus Updates), Volokh Conspiracy, Oct. 18, 2004, http://volokh.com/posts/1098119066.shtml.

87. Wikipedia, Wikipedia: Replies to Common Objections, Dec. 20, 2006, http://en .wikipedia.org/wiki/Wikipedia:Replies_to_common_objections.

88. Tal Z. Zarsky, Thinking Outside the Box: Considering Transparency, Anonymity, and Pseudonymity as Overall Solutions to the Problems of Information Privacy in the Internet Society, 58 U. Miami L. Rev. 991, 1028, 1032, 1044 (2004).

89. The Electronic Frontier Foundation, a digital rights organization, created a manual to help people better protect themselves from being traced. Electronic Frontier Foundation, How to Blog Safely (About Work or Anything Else), Apr. 6, 2005, http://www.eff .org/Privacy/Anonymity/blog-anonymously.php.

90. Ralph Gross & Alessandro Acquisti, Information Revelation and Privacy in Online Social Networks (The Facebook Case), ACM Workshop on Privacy in the Electronic Society, Nov. 7, 2005, at §4.2.

91. Michael Barbaro & Tom Zeller, Jr., A Face Is Exposed for AOL Searcher No. 4417749, N.Y. Times, Aug. 9, 2006, at A1.

92. See Talley v. State of California, 362 U.S. 60, 64 (1960).

93. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1994).

94. See, e.g., Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999); Dendrite International, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. Super. A.D. 2001); Doe v. Cahill, 884 A.2d 451 (Del. 2005).

95. In some cases, courts have required that people demonstrate that their case is strong enough to defeat a summary judgment motion. The plaintiff “must introduce evidence creating a genuine issue of material fact for all elements of a defamation claim within the plaintiff’s control.” See Doe v. Cahill, 884 A.2d 451, 462–63 (Del. 2005).

96. The facts are taken from the complaint in Clifton Swiger v. Allegheny Energy, Inc. (E.D. Pa.).

97. The facts in this section are taken from Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997); Zeran v. America Online, Inc., 958 F. Supp. 1124 (E.D. Va. 1997); and Zeran v. Diamond Broadcasting, Inc., 203 F.3d 714 (10th Cir. 2000).

98. Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).

99. 47 U.S.C. §230(c)(1).

100. Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).

101. Id.

102. Barnes v. Yahoo! Inc., 2005 WL 3005602 (D. Oregon 2005

103. The Digital Millennium Copyright Act, 17 U.S.C. §512.

104. Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003).

105. Appellants Reply Brief, Carafano v. Metrosplash.com, Inc. No. 02-55658, 2003 WL 22023295 (Feb. 11, 2003).

106. Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir. 2003).

107. The facts are taken from Jori Finkel, The Case of the Forwarded E-mail, Salon.com, July 13, 2001, http://archive.salon.com/tech/feature/2 ... curity_net work/index.html; Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).

108. Batzel v. Smith, 333 F.3d 1018, 1035 (9th Cir. 2003).

109. Id. at 1038, 1040 (Gould, J. dissenting).

CHAPTER 7. PRIVACY IN AN OVEREXPOSED WORLD

1. Jerome Burdi, Burning Man Gets Hot over Steamy Videos, Court TV, Aug. 26, 2002, http://archives.cnn.com/2002/LAW/08/26/ctv.burning.man/.

2. Evelyn Nieves, A Festival with Nudity Sues a Sex Web Site, N.Y. Times, July 5, 2002. Burning Man’s suit was filed before the Video Voyeurism Prevention Act was introduced. Among the claims were intrusion, appropriation, public disclosure, breach of contract, and trespass.

3. Id.

4. Gill v. Hearst Pub. Co., 253 P.2d 441 (Cal. 1953).

5. Restatement (Second) of Torts §652D (comment c).

6. Cefalu v. Globe Newspaper Co., 391 N.E.2d 935, 939 (Mass. App. 1979).

7. Penwell v. Taft Broadcasting, 469 N.E.2d 1025 (Ohio App. 1984).

8. http://www.earthcam.com/.

9. http://flickr.com/.

10. YouTube Serves Up 100 Million Videos a Day Online, Reuters, July 16, 2006.

11. http://en.wikipedia.org/wiki/Moblog.

12. Katie Dean, Blogging +Video = Vlogging, Wired.com, July 13, 2005, http://www.wired .com/news/digiwood/0,1412,68171,00.html.

13. Andrew Jay McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C. L. Rev. 989, 1041–42 (1995).

14. Nader v. General Motors Corp., 255 N.E.2d 765, 772 (N.Y. App. 1970) (Brietel, J. concurring).

15. Helen Nissenbaum, Privacy as Contextual Integrity, 79 Wash. L. Rev. 119, 144–45 (2004).

16. McClurg, Privacy Law, supra, at 1041–43.

17. Marcia Chambers, Colleges: Secret Videotapes Unnerve Athletes, N.Y. Times, Aug. 9, 1999, at D4.

18. Clay Calvert, Voyeur Nation: Media, Privacy, and Peering in Modern Culture (2000).

19. See, e.g., La. Rev. Stat. Ann. §14:283; N.J. Stat. Ann. §2C:18-3; N.Y. Penal Law §250.45.

20. RCW 9A.44.115.

21. Washington v. Glas, 54 P.3d 147 (Wash. 2002)

22. 18 U.S.C. §1801.

23. Quoted in Anick Jesdanun, Facebook Feature Draws Privacy Conerns, Associated Press, Sept. 7, 2006.

24. Dave Wischnowsky, Facebook Alienates Users, Chicago Tribune, Sept. 8, 2006.

25. Peter Meredith, Facebook and the Politics of Privacy, Mother Jones, Sept. 14, 2006.

26. Quoted in Jesdanun, Facebook Feature, supra.

27. Wischnowsky, Facebook Alienates Users, supra.

28. Mark Zuckerberg, An Open Letter from Mark Zuckerberg: Creator of Facebook, Sept. 8, 2006. The letter appeared on the Facebook website when users logged in. It has since been removed.

29. Bruce Schneier, Lessons from the Facebook Riots, Wired, Sept. 21, 2006.

30. Lisa Lerer, How Not to Get a Job, Forbes, Oct. 13, 2006.

31. The Greatest CV Ever Filmed, Oct. 10, 2006, http://www.metro.co.uk/weird/article .html?in_article_id=20878&in_page_id=2&expand rue.

32. Paul Tharp, Wannabe Banker’s Video Resume Backfires, N.Y. Post, Oct. 12, 2006.

33. Michael J. de la Merced, A Student’s Video Résumé Gets Attention (Some of It Unwanted), N.Y. Times, Oct. 21, 2006.

34. Comments to Andrew Ross Sorkin, The Resume Mocked Around the World, DealBook, Oct. 19, 2006, http://dealbook.blogs.nytimes.com/2006/ ... ume-mocked -round-the-world-vayner-speaks/.

35. Interview with Aleksey, Rita Cosby Live, MSNBC, Oct. 23, 2006.

36. Creepy Orwellian Trance of Aleksey Vayner Fails to Generate Fun, IvyGate Blog, Nov. 20, 2006, http://ivygateblog.com/blog/2006/11/cre ... f_aleksey_ vayner_fails_to_translate_into_fun.html.

37. Douchebag Hall of Fame: The Inevitable Charter Member, Gawker, Oct. 16, 2006, http://www.gawker.com/news/douchebag-ha ... f-fame-the -inevitable-charter-member-207845.php.

38. Interview with Aleksey on ABC, 20/20, Dec. 29, 2006.

39. Merced, Student’s Video Résumé, supra.

40. “Whatsoever things I see or hear concerning the life of men, in my attendance on the sick or even apart therefrom, which ought not to be noised abroad, I will keep silence thereon, counting such things to be as sacred secrets.” Hippocratic Oath, quoted in Daniel J. Solove, Marc Rotenberg & Paul M. Schwartz, Information Privacy Law 350 (2d ed. 2006).

41. Mark Twain, The Autobiography of Mark Twain xxxv (Charles Neider, ed.).

42. Hammonds v. AETNA Casualty & Surety Co., 243 F. Supp. 793, 801 (D. Ohio 1965).

43. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

44. Wendy Meredith Watts, The Parent-Child Privileges: Hardly a New or Revolutionary Concept, 28 Wm. & Mary L. Rev. 583, 592 (1987); Glen Weissenberger, Federal Evidence §501.6, at 205–9 (1996).

45. In re Grand Jury, 103 F.3d 1140, 1146 (3d Cir. 1997) (“The overwhelming majority of all courts—federal and state—have rejected such a privilege.”).

46. See, e.g., State v. DeLong, 456 A.2d 877 (Me. 1983) (refusal to testify against father); Port v. Heard, 594 F. Supp. 1212 (S.D. Tex. 1984) (refusal to testify against son); United States v. Jones, 683 F.2d 817 (4th Cir. 1982) (refusal to testify against father in grand jury).

47. In re A&M, 61 A.2d 426 (N.Y. 1978).

48. The Supreme Court has held that in Fourth Amendment law, people lack a reasonable expectation of privacy when they trust others with their information. See, e.g., Smith v. Maryland, 442 U.S. 735, 744 (1979) (a person “assumes the risk that the [phone] company [will] reveal to the police the numbers he dialed.”). Undercover agents are not regulated by the Fourth Amendment because people assume the risk of betrayal. See Hoffa v. United States, 385 U.S. 293, 302 (1966); Lewis v. United States, 385 U.S. 206, 210–11 (1966).

49. Nader v. General Motors, Inc., 225 N.E.2d 765, 770 (N.Y. 1970).

50. See, e.g., Argyll v. Argyll [1967] 1 Ch. 302 (1964) (spouse liable for breach of confidence); Stephens v. Avery, [1988] 1 Ch. 449 (1988) (friend liable for breach of confidence); Barrymore v. News Group Newspapers, [1997] F.S.R. 600 (1997) (lover liable for breach of confidence).

51. Barrymore, supra, at 602.

52. Id. at 600, 601.

53. Douglas v. Hello! Ltd, [2003] 3 All Eng. Rep. 996.

54. Neil M. Richards & Daniel J. Solove, Privacy’s Other Path: Recovering the Law of Confidentiality, 96 Geo. L.J. (forthcoming Nov. 2007). The article is available online at http://ssrn.com/abstract=969495.

55. Benjamin Franklin, Poor Richard’s Almanac (July 1735) quoted in John Bartlett, Bartlett’s Familiar Quotations 309:15 (Justin Kaplan, ed., Little Brown, 16th ed. 1992).

56. Times Mirror Co. v. Superior Court, 244 Cal. Rptr. 556 (Cal. Ct. App. 1988).

57. Y.G. v. Jewish Hospital, 795 S.W.2d 488 (Mo. Ct. App. 1990).

58. Multimedia WMAZ, Inc. v. Kubach, 443 S.E.2d 491 (Ga. 1994).

59. Duran v. Detroit News, Inc., 504 N.W.2d 715 (Mich. Ct. App. 1993).

60. Fisher v. Ohio Department of Rehabilitation and Correction, 578 N.E.2d 901 (Ohio Ct. Cl. 1988).

61. Lior Jacob Strahilevitz, A Social Networks Theory of Privacy, 72 U. Chi. L. Rev. 919 (2005).

62. Id. at 952, 967.

63. Joanne B. Freeman, Slander, Poison, Whispers, and Fame: Jefferson’s “Anas” and Political Gossip in the Early Republic, 15 Journal of the Early Republic 25, 33 (1995).

64. Id.

65. Giannecchini v. Hospital of St. Raphael, 780 A.2d 1006 (Conn. Super. 2000).

66. Dr. Laura Schlessinger, Men Leave Because Liberal Feminism Gives Permission, New Orleans Times Picayune, July 11, 1999, at E7; Dr. Laura’s Anti-Female Rant, N.Y. Post, Sept. 14, 2006.

67. Patrizia DiLucchio, Dr. Laura, How Could You?, Salon.com, Nov. 3, 1998, http:// archive.salon.com/21st/feature/1998/11/03feature.html.

68. Id.

69. Polly Sprenger, Dr. Laura Drops Her Suit, Wired, Dec. 15, 1998, http://wired-vig .wired.com/news/politics/0,1283,16843,00.html.


70. Marcus Errico, Dr. Laura Dishes on Nude Photos, E Online, Nov. 4, 1998, http://www .eonline.com/print/index.jsp?uuid=3159acb0-ee3e-454a-ab74-ac7f972390c6&content Type=newsStory.

71. DiLucchio, Dr. Laura, supra.

72. 17 U.S.C. §102(a).

73. Jonathan Zittrain, What the Publisher Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted Privication, 52 Stan. L. Rev. 1201, 1203 (2002).

74. Lawrence Lessig, Privacy as Property, 69 Social Research 247, 250 (2002).

75. Zittrain, What the Publisher Can Teach the Patient, supra, at 1206–12.

76. See, e.g., Lawrence Lessig, The Future of Ideas 107–11 (2001); Raymond Shih Ray Ku, Consumers and Creative Destruction: Fair Use Beyond Market Failure, 18 Berkeley Tech. L.J. 539, 567 (2003) (“[C]onsumer copying does little to reduce the incentives for creation because, for the most part, the creation of music is not funded by the sale of copies of that music.”); Mark A. Lemley, Beyond Preemption: The Law and Policy of Intellectual Property Licensing, 87 Cal. L. Rev. 113, 124–25 (1999) (“[G]ranting property rights to original creators allows them to prevent subsequent creators from building on their works, which means that a law designed to encourage the creation of first-generation works may actually risk stifling second-generation creative works.”); Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 Yale L.J. 283, 295 (1996) (“An overly expanded copyright also constitutes a material disincentive to the production and dissemination of creative, transformative uses of preexisting expression.”).

77. Eldred v. Ashcroft, 537 U.S. 186, 190 (2003) (declaring that copyright is “compatible with free speech principles.”).

78. Restatement (Second) of Torts §652C.

79. Jonathan Kahn, Bringing Dignity Back to Light: Publicity Rights and the Eclipse of the Tort of Appropriation of Identity, 17 Cardozo Arts & Ent. L.J. 213, 223 (1999).

80. Pavesich v. New England Life Insurance Co., 50 S.E. 68, 70 (Ga. 1905).

81. Id. at 80.

82. William Prosser, Privacy, 48 Cal. L. Rev. 383, 406 (1960).

83. Paulsen v. Personality Posters, Inc., 299 NYS2d 501 (1968).

84. Rosemont Enterprises, Inc. v. Random House, Inc., 294 N.Y.S.2d 122 (1968).

85. See Hosking v. Runting, [2004] NZCA 34, at [46] (“As the law currently stands, a successful action requires information that is confidential, communication of that information to another in circumstances importing an obligation of confidence and unauthorised use or disclosure.”); International Corona v. Lac Minerals, [1989] 2 S.C.R. 574 (stating elements of breach-of-confidentiality tort); ABC v. Lenah, [2004] HCA 63, at [34] (discussing the breach-of-confidentiality tort).

CHAPTER 8. CONCLUSION

1. Google keeps a cache of old versions of websites, so even after a name is removed from a website, it still exists in Google’s cache and is accessible to a person doing a search. But the cache is refreshed at regular intervals, so it will eventually disappear. There is also a project called the Internet Archive that saves old versions of the Internet. See http:// www.archive.org. But information can be removed from the Internet Archive upon request. See Frequently Asked Questions, http://www.archive.org/about/faqs.php.

2. ReputationDefender, http://www.reputationdefender.com/. For more about the company, see Ellen Nakashima, Harsh Words Die Hard on the Web, Wash. Post, Mar. 7, 2007, at A1.

3. Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes 62, 54, 5 (1991).

4. Tracey Meares, Drugs: It’s a Question of Connections, 31 Val. L. Rev. 579, 594 (1997).

5. John H. Summers, What Happened to Sex Scandals? Politics and Peccadilloes, Jefferson to Kennedy, 87 Journal of American History 825, 825 (2000).

6. Id. at 835.

7. Id. at 842.

8. See Rodney A. Smolla, Free Speech in an Open Society 134 (1992) (“When the press avoided reporting on the sexual liaisons of John Kennedy, however, it engaged in a paternalistic decision that the behavior was not probative of Kennedy’s fitness for public life.”); Jeffrey B. Abramson, Four Criticisms of Press Ethics, in Democracy and the Mass Media 229, 234 (Judith Lichtenberg, ed. 1990) (“There was also the nonreporting of the love lives of Lloyd George, Franklin Roosevelt, Dwight Eisenhower, John Kennedy, and Martin Luther King, Jr.”).

9. See Ellen O’Brien, Chelsea Comes of Age, but Not Before Our Eyes, Boston Globe, Sept. 4, 1994, at 1; Joan Ryan, Clintons Let Go—Chelsea Enters Stanford, S.F. Chron., Sept. 20, 1997, at A1; see Howard Kurtz, First Daughter’s Privacy No Longer Off Limits, Chi. Sun-Times, Nov. 27, 1998, at 32 (“For six years the media followed an unspoken pact to avoid coverage of Chelsea Clinton, allowing the president’s daughter to grow up outside the harsh glare of publicity.”).

10. Ryan, Clintons Let Go, supra.

11. See, e.g., Gail Collins, The Children’s Crusade, N.Y. Times, May 1, 2001, at A23 (arguing that “it’s always news when the offspring of important elected officials break the law,” but noting that when “there’s no legal issue involved, it’s a judgment call”); Joanne Ostrow, Don’t Beat About the Bush Kids, Denver Post, June 10, 2001, at K1 (questioning whether “the media [went] overboard in reporting Jenna Bush’s recent underage drinking citation”).

12. David Bauder, Identifying Rape Victims Troubles Media, Sun-Sentinel (Ft. Lauderdale), Aug. 3, 2002, at 3A; Richard Roeper, Case Shows Absurdity of Media’s Rape ID Policy, Chi. Sun-Times, Aug. 5, 2002, at 11.

13. See id. (“So the media were tripping all over themselves trying to stick to policy—but hardly anyone questioned whether the policy itself is outdated.”); Chris Frates, L.A. Radio Show Names Bryant’s Accuser, Denver Post, July 24, 2003, at B1.

14. J. M. Balkin, How Mass Media Simulate Political Transparency, 3 Cultural Values 393, 402 (1999).

15. John Stuart Mill, On Liberty 11 (Norton edition, David Spitz, ed. 1975) (originally published in 1859).

16. Anita L. Allen, Coercing Privacy, 40 Wm. & Mary L. Rev. 723, 737 (1999).

17. Harvey Jones & José Hiram Soltren, Facebook: Threats to Privacy, Dec. 14, 2005, at 20–21
http://ocw.mit.edu/NR/rdonlyres/Electri ... ence/6-805 Fall-2005/8EE6D1CB-A269-434E-BEF9-D5C4B4C67895/0/facebook.pdf.

18. Id. at 20.

19. Ralph Gross & Alessandro Acquisti, Information Revelation and Privacy in Online Social Networks (The Facebook Case), ACM Workshop on Privacy in the Electronic Society, Nov. 7, 2005, at §4.4.

20. Emily Nussbaum, My So-Called Blog, N.Y. Times Magazine, Jan. 11, 2004.

21. Marie-Chantale Turgeon, 10 Reasons to Blog, http://www.meidia.ca/archives/2005/06/ 10_reasons_to_b.php?l=en.

22. Electronic Frontier Foundation, How to Blog Safely (About Work or Anything Else), May 31, 2005, http://www.eff.org/Privacy/Anonymity/bl ... mously.php.

23. Quoted in Brian Leiter, Top Law School Warns Students: Watch What You Post! Sept. 1, 2005, http://leiterlawschool.typepad.com/leit ... hool_.html.

24. Nussbaum, So-Called Blog, supra.

25. See Lawrence Lessig, Code and Other Laws of Cyberspace 5–6, 236 (1999); Joel R. Reidenberg, Rules of the Road for Global Electronic Highways: Merging Trade and Technical Paradigms, 6 Harv. J. L. & Tech. 287, 296 (1993); see also Joel R. Reidenberg, Lex Informatica: The Formulation of Information Policy Rules Through Technology, 76 Tex. L. Rev. 553 (1998).

26. Lessig, Code, supra, at 5–6, 236. For a discussion of how physical architecture can influence behavior, see Neal Kumar Katyal, Architecture as Crime Control, 111 Yale L.J. 1039 (2002).

27. Jones & Soltren, Facebook, supra, at 6.

28. Gross & Acquisti, Information Revelation, supra, at §3.5.

29. Jones & Soltren, Facebook, supra, at 20.

30. Judith Donath & danah boyd, Public Displays of Connection, 22 BT Technology Journal 71, 78 (2004).

31. Conversation with Chris Hoofnagle, December 2006.

32. Fair Credit Reporting Act, 15 U.S.C. §1681b(b).

33. Alessandro Acquisti & Ralph Gross, Imagined Communities: Awareness, Information Sharing, and Privacy on the Facebook, Privacy Enhancing Technologies Workshop (PET), 2006, §4.4, at 13.

34. Michelle Andrews, Decoding Myspace, U.S. News & World Report, Sept. 18, 2006.

35. Jorge Luis Borges, The Library of Babel, in Collected Fictions 112, 112, 115 (Andrew Hurley, trans. 1998) (story originally published in 1941).

36. John Battelle, The Search: How Google and Its Rivals Rewrote the Rules of Business and Transformed Our Culture 65–93 (2005).

37. Id. at 252.

38. Id. at 254.

39. Albert-Lásló Barabási, Linked 164–65 (2002). For more about search engines, see Frank Pasquale, Rankings, Reductionism, and Responsibility, 54 Clev. St. L. Rev. 115 (2006). 40. Ellen Lee, Social Sites Becoming Too Much of a Good Thing, S.F. Chron., Nov. 2, 2006 at A1 (discussing creation of Facebook); Battelle, Search, supra, at 77–90

[admin]

Index

Note: Boldface page numbers refer to illustrations.

Abortion doctors, 100–101
Above the Law, 139
Absolutism, 127–28, 191
Accessibility of information, and privacy,
169–70, 191
Accountability: and reputation, 31–
32; and norm violations, 33; and
anonymity, 139, 140–42, 143,
146, 148–49
Acquisti, Alessandro, 26–27, 197
Actual malice, 126
Adams, John, 30, 118
AIDS, 70, 141
Allegheny Energy Service, 148–49
Allen, Anita, 74, 85, 197
Alternative dispute resolution, 124,
192
American Coalition of Life Activists
(ACLA), 100
Anderson, Pamela, 132, 183
Anonymity: and sexual assault victims,
36, 59, 195; in blogs, 59,
139, 141, 147, 149–50; and
shaming, 92, 101; and authoritarian
approach to privacy law, 113;
in lawsuits, 120, 121, 148; and
privacy/free speech balance, 136–
46, 191; and accountability, 139,
140–42, 143, 146, 148–49;
virtues of, 139–40; and openness,
142–46; law of, 146–49; traceable
anonymity, 146–47, 149; expectations
of, 165
AOL, 150–53
Apple Story Lady, 83–84
Appropriation tort, 119, 162, 186–
87
Arbitration, 124, 192
Arendt, Hannah, 68
Armstrong, Heather, 39
Article III Groupie, 136–39, 137
Australia, 188
Autonomy, 130, 132, 134, 160
Azar, Ofer, 99

Ballance, Bill, 183–84
Barabási, Albert-László, 62
Barlow, John Perry, 110–11
Barron, Jerome, 122
Barrymore, Michael, 175
Battelle, John, 204–5
Batzel, Ellen, 157–59
Beecher, Henry Ward, 107, 212n91
Ben Ze’ev, Aaron, 63
Berstein, Carl, 134
BitterWaitress, 87–88, 90
Black, Hugo, 127–28
Blackstone, William, 114
Blogger (website), 20, 21
Blogosphere: as norm-enforcing tool,
6; norms of, 9, 194–96; size of, 21;
error-correction machinery of, 37,
195; democratizing nature of, 48–
49; and ethics, 59, 195; and linking,
62; and customer complaints,
93; and defamation law, 121
Blogs (Web logs): and privacy, 1–2,
191, 198–99; circulation of, 2; instant
gratification of blogging, 5;
dissemination of information on,
11; mainstream media distinguished
from, 19–20, 23–24, 194–
96, 199–200; and self-expression,
19, 49; interactive nature of, 20–
21, 149–50; requirements for, 20–
21; increase in posts, 21, 22; types
of, 21–23; and journalism, 23–24;
as diaries, 24, 59, 198–99; employers’
monitoring of, 38; and
sex, 50–54; and gossip, 51, 52,
59, 181; anonymity in, 59, 139,
141, 147, 149–50; and linking,
61–62, 78; and ethics, 69; immunity
for bloggers, 153–54, 159,
160, 191; variations of, 164
Boone, Keith, 228n38
Borges, Jorge Luis, 204
Boston University, 55–56
boyd, danah, 27, 202
Boyden, Bruce, 144
Brandeis, Louis: and privacy, 108–
9, 190; and privacy law, 109–10,
113, 119–20; and tort remedies,
110, 113; and public disclosure,
128, 129, 162; and appropriation,
162; and confidentiality law,
176
Branding, 91, 95
Brandt, Daniel, 144, 147
Brazil, 28
Breach-of-confidentiality tort, 175–
76, 188, 234n85
Brin, David, 105
Brin, Sergey, 9
Brison, Karen, 64, 65
Bryant, Kobe, 36–37, 195
Burning Man Festival, 161–62, 167–
68, 231n2
Burr, Aaron, 115, 115
Bush, George W., 195, 235n11
Büyükkökten, Orkut, 28

Canada, 28, 188
Capek, Karel, 67
Carafano, Christianne, 155–57
Cardozo, Benjamin, 33
Carpool Cheats, 99–100
Cate, Fred, 72
Cell phone cameras, 33, 80, 164,
166, 168
Cell phone thief, 80–83, 82, 94
Cell phone use, norms of, 85, 86,
166
Censorship: and authoritarian approach
to privacy law, 112–13;
and privacy/free speech balance,
131; and blogs, 199
Children, 24, 197, 200, 204
China, 28–29, 43–44, 101–2
Citizen journalism, 8, 9
Cleveland, Grover, 107, 194
Clinton, Bill, 194–95
Clinton, Chelsea, 195, 235n9
Cohen, Julie, 130
College life, and blogs, 54–58
Commercial speech, 128
Communications Decency Act
(CDA), Section 230, 152–54, 155,
156–59, 191
Concurring Opinions, 61–62, 62
Confidentiality: and privacy law,
170–83, 187, 191, 193; and risk
of betrayal, 173–76; breach-ofconfidentiality
tort, 175–76, 188,
234n85; and social networks,
176–81; extension of liability for
breach of, 181–82; dangers of too
much confidentiality, 182–83; and
control, 184
Consumer Action, 93–94
Context: and personal information,
66–67; and complicated self, 68–
70; and privacy, 72, 165; and reputation,
74
Control: Internet’s potential for, 4–
5; social control, 6, 32, 65, 72; of
reputation, 11, 33–35, 189; of
personal information, 29, 170,
184–86, 188; of gossip, 65; of Internet
shaming, 94, 96, 101–2;
and privacy law, 183–87, 188,
191; and appropriation tort, 186–
87
Cooley, C. F., 30–31
Cooter, Robert, 98
Copyright Act, 185
Copyright law, 155, 184, 185–86,
188, 234n76
Corporations, shaming of, 93–94,
95
Coudal, Jim, 86
Cox, Ana Marie, 52, 53–54
Cremers, Tom, 157–58
Customer service, and shaming, 93–
94
Cutler, Jessica, 50–54, 74, 124,
130–31, 134–36, 139, 173,
214n13
Cyworld, 28–29

Daily Rotten, 21
Damages, limits to, 122, 124, 154,
155, 192
Day, Benjamin, 106
DealBook, 171–72
Declaration of Independence of Cyberspace,
110–11
Defamation. See Reputation
Defamation law: and personal information,
113; history of, 116; and
reputation, 116, 117, 118, 120,
121, 122; and rumors, 118, 158–
59; false light compared to, 119;
and blogs, 120–21, 191; and
threat of lawsuits, 123; limitation
in scope of, 125, 126; and Section
230 immunity, 152, 154, 155,
156, 157, 158, 191
Democracy, and privacy/free speech
balance, 130–31, 132, 160,
228n38
Democratic National Convention
(2004), 24, 53–54
Dewey, John, 73
Diaries, blogs as, 24, 59, 198–99
Dickens, Charles, 106
Disclosure, 74. See also Public disclosure
Discrimination, 70
Doctors Know Us, 98
Dog poop girl, 1–2, 3, 5–8, 49, 78,
92, 94, 168
Donath, Judith, 27, 202
Don’t Date Him Girl, 89–90, 121
Dooced, 39–40
DotMoms, 23
Douglas, Michael, 175
Draplin, Aaron, 86
Drezner, Daniel, 19–20
Dueling, 114–17, 115, 190, 224–
25n55
Due process, and shaming, 96–98
Dürrenmatt, Friedrich, 73

EarthCam, 164, 164
Eastman Kodak Company, 107–8,
108
Edison, Thomas, 107
Electronic Frontier Foundation, 199,
230n89
Eliot, George, 140
Ellickson, Robert, 193–94
Emerson, Thomas, 127
Emler, Nicholas, 63
Employment: and information on Internet,
38–40, 190, 203; and disease,
70–71
Encyclopaedia Britannica, 145
England, 174–76, 188
Epstein, Richard, 35
Escobar, Pablo, 178, 180
Etiquette, 84–85, 92
Etzioni, Amitai, 71
Europe, 28, 87, 114, 120

Facebook, 24, 27, 38, 169–70, 197,
198, 201, 204, 205
Fairbanks, Eve, 49
False light, 119
Farrell, Henry, 19–20
First Amendment: and censorship,
113; and defamation law, 118,
125, 126; and privacy law, 119–
20; and absolutism, 127–28; balancing
approach, 128–29; and
Seigenthaler, 143; and anonymous
speech, 148; and copyright laws,
186
Fiss, Owen, 131
Flickr, 87, 164
Fourth Amendment, 233n48
Fox News, 97
France, 114
Franklin, Benjamin, 131, 140, 176
Freedom: effect of free flow of information
on, 4, 17, 65–66; of Internet,
4–5, 6, 17; and privacy/free
speech balance, 12; and reputation,
30
Freeman, Joanne, 181
Free speech: and defamation law,
118, 119; and privacy law, 119;
good versus bad speech, 125–29,
227n24; threats to, 125; private
versus public concern, 128–29,
227n27; value of, 129–30; and individual
autonomy, 130; and
anonymity, 140. See also First
Amendment; Privacy/free speech
balance
Friedman, Lawrence, 72–73, 91
Friend Space, 26
Friendster, 24, 38, 202
Fukuyama, Francis, 31

Garrett, Laurie, 111–12
Gass, William, 67
Gawker, 22, 172
Gay, Peter, 72
Gays, outing gays, 216n45
General Motors, 174
George Washington University, 54–
55
Georgia, 113
Germany, 28
Gladwell, Malcolm, 60–61, 63, 89
Global village, 33, 37
Godkin, E. L., 107–8, 109, 110
Goffman, Erving, 68, 69, 70
Google: unforgiving memory of, 8;
as search engine, 9–13, 48, 204–5;
search prompt of, 10; and information
fragments preserved on Internet,
17, 33; and social network
site profiles, 27; and YouTube, 40;
and background checks, 41, 190,
203; and Wikipedia, 145; and
gossip, 181; cache of old versions
of websites, 234n1
Gossip: on Internet, 4, 11–12, 33,
59–60, 62–63, 74, 75, 113, 124,
176, 181–82, 190; history of, 11,
13, 33, 60, 65, 74, 105, 108,
216n49; and reputation, 32, 63–
64, 181, 189, 190; and blogs, 51,
52, 59, 181; good/bad qualities of,
63–65, 74, 205; and rumors, 64;
and truth, 64–65; and privacy,
109; and privacy law, 112, 127;
and dueling, 114, 116; newsworthiness
of, 132; and speaking
about one’s life, 134; and Section
230 immunity, 159; and social
networks, 179, 180; written versus
oral gossip, 181; and mainstream
media, 194; and selfexposure
problem, 196
Gould, Judge Ronald, 158–59
Greif, Avner, 31
Grimmelmann, James, 112
Gross, Ralph, 26–27, 197
Guare, John, 25
Gutenberg, Johann, 18, 208n1

Hamilton, Alexander, 115, 115,
116, 140, 224n47
Harrison, Benjamin, 194
Hawthorne, Nathaniel, 11, 91
Hearst, William Randolph, 106
Heidegger, Martin, 64
Henry, O. (pseud. William Sydney
Porter), 140
Henry IV, king of France, 114
Hilfiger, Tommy, 36
Hippocratic Oath, 173, 232n40
Holla Back NYC, 89
Holmes, Oliver Wendell, Jr., 131
Hoofnagle, Chris, 203
Horsley, Neal, 100–101
“How’s My Driving?” programs, 94,
101
Hurricane Katrina, 23, 122

Identifying information, and newsworthiness,
133–34
Identity: and reputation, 31, 33; and
second chances, 73; shame’s effect
on, 94–95
India, 28
Individual autonomy, 130, 132,
134, 160
Information: permanence and
searchability of, 4, 7–8, 17, 33,
42, 165; dissemination of, 11;
consequences of information fragments,
17, 38, 67, 96; and privacy
law, 17, 112–13, 125, 161; and
forms of media, 18; control of, 35,
184–86; quality of, 35–38, 41;
less versus more information, 65–
73; and defamation law, 117; and
First Amendment, 127; identifying
information, 133–34; accessibility
of, 169–70, 191. See also Personal
information
Instapundit, 23
Internet: and privacy, 1–2, 110; free
dimensions of, 4–5, 6, 17; gossip
on, 4, 11–12, 33, 59–60, 62–63,
74, 75, 113, 124, 176, 181–82,
190; permanence and searchability
of information on, 4, 7–8, 11, 33,
42, 165; rumors on, 4, 11, 118,
124; shaming on, 4, 6, 11, 78–83,
92–99, 101–2, 168, 190, 195; details
about lives on, 9–10; and
reputation, 30, 74; and global village,
33; quality of information
on, 35–38, 41, 48; and error correction,
37, 123, 124, 192; linking
function of, 61–62, 78; legal approaches
to privacy law, 110–13,
196; and defamation law, 118;
and traceable anonymity, 146; interactivity
of, 149; consequences
of exposure, 198, 199–200; architecture
of, 200–204; extent of,
204–5. See also Blogosphere;
Blogs (Web logs)
Internet Entertainment Group, 183–
84
Internet protocol, 143, 144, 147,
148
Intrusion upon seclusion, 119
Italy, 28, 114

Jackson, Andrew, 114
James, Henry, 106
James, William, 68–70
Japan, 28
Jay, John, 140
Jefferson, Thomas, 181
JenniCam, 71
“John Doe” lawsuits, 120, 121, 148
Johnson, David, 111
Johnson, Samuel, 115
Journalism: citizen journalism, 8, 9;
and blogs, 23–24; ethics of, 36,
59, 78, 194, 195; yellow journalism,
106–7, 108, 109. See also
Mainstream media
Judgments: and context, 66–67; rational
and irrational judgment,
70–71
Juvenile records, expungement of,
73

Kahn, Jonathan, 186
Kansas City, Missouri, 92
Kaysen, Susanna, 135–36
Kennedy, John F., 142, 194, 235n8
Kennedy, Robert, 142–43
Kerr, Orin, 54–55, 145
Kierner, Cynthia, 115, 116, 216n49
Kirk, Rita, 58
Kodak camera, 107–8, 108, 109
Kozinski, Alex, 137–38
Kundera, Milan, 68
Kushner, Nate, 76–78

LaCroix, Alison, 116
Lat, David, 138–39
Law: role in privacy/free speech balance,
12, 13, 120–23, 125, 190–
96; and reputation, 34; and
norms, 84, 196, 205; and shaming,
92, 94, 96, 98; of anonymity,
146–49; and confidentiality, 174–
76; limits of, 193–94, 196; norms
compared to, 193–94; and self-exposure
problem, 196–200. See
also Defamation law; Privacy law
Lawsuits: and role of law, 113, 120–
23, 190, 191; and reputation disputes,
115, 116, 117, 122; “John
Doe” lawsuits, 120, 121, 148;
threat of, 120, 123, 152, 190; and
exhausting informal mechanisms,
123–24, 154, 190, 191–92. See
also Tort remedies
Le Bon, Gustave, 101
Lessig, Lawrence, 4, 185, 200, 224–
25n55, 234n76
Letterman, David, 71
Libel, 118, 122, 126
Lidsky, Lyrissa, 122
Liner, Elaine, 57–58
Literacy, 18
Little Fatty, 43–44, 44
LiveJournal, 24
Local government, and shaming, 78–
79
Looking glass self, 31, 211n79
Love, Courtney, 39
Lucas, George, 48, 186
Ludwig, Arnold, 69
Luttig, J. Michael, 141

Madison, James, 140
Maghribi traders, 31–32
Mainstream media: and blog stories,
2; size and scope of, 18–19; blogs
distinguished from, 19–20, 23–24,
194–96, 199–200; journalistic
ethics of, 36, 59, 78, 194, 195;
error-correction machinery of, 37,
78; and Star Wars Kid, 46–47;
and Washingtonienne, 53; blogs as
rivals to, 61; and JenniCam, 71;
limits of expression within, 91;
and norm enforcement, 97; and
Article III Groupie, 138; norms of,
194–96
Malkin, Michelle, 52
Marital communication, 174
Marketplace of ideas, and
privacy/free speech balance, 131–
32
Massachusetts, 92
Masterson, Chase, 155–57
Matchmaker.com, 156–57
McClurg, Andrew, 165
McKinley, William, 194
McLuhan, Marshall, 33
McNealy, Scott, 105
Meares, Tracey, 194
Media. See Mainstream media
Mediation, 124, 192
Medical malpractice, 98
Meehan, Martin, 144–45
Meiklejohn, Alexander, 130–31
Men, women’s websites for shaming,
89–90
Merry, Sally Engle, 74
MetaFilter, 111–12
Michaels, Bret, 132, 183
Miers, Harriet, 141
Milgram, Stanley, 25
Mill, John Stuart, 131, 196
Miller, Arthur, 30
Milton, John, 125
Minnesota, 223n27, 225n71
Mitchell, Lawrence, 99
Moblogs (mobile weblogs), 164
Modell, Arnold, 72
Moon hoax, 106
Movable type, 18–19, 18, 19, 19
Murdock, Rupert, 26
Museum Security Network, 157–58
MySpace, 24, 26–27, 28, 38, 39,
141, 200, 201, 204

Nader, Ralph, 174
Nagel, Thomas, 69
Newspapers, history of, 18, 106–7,
108, 109
Newsworthiness test, 129, 132–36
New York City subway flasher, 80,
83, 92, 94, 168
New Yorker, 30, 138
New York Post, 171
New York Times, 144, 147, 171, 195
New York Times v. Sullivan (1964),
126
New Zealand, 188
Nissenbaum, Helen, 165
Nock, Steven, 30, 32
Norms: and privacy, 2, 49, 71, 72,
167, 169, 193; enforcement of, 6–
7, 9, 12, 64, 85–87, 95, 97, 98–
99, 189; of blogosphere, 9, 194–
96; history of, 13, 85; and reputation,
31, 116; changing of, 32, 65,
85; and shaming, 32, 83–90, 92,
94, 102; and gossip, 63–64, 65;
and public versus private self, 69;
and law, 84, 196, 205; internalization
of, 98–99; and Internet users,
110–11; and middle-ground approach
to privacy law, 113; development
of, 122; and context, 165;
of confidentiality, 179; law compared
to, 193–94; and outing
gays, 216n45
North Dakota, 223n27
Nuremberg Files, 100–101
Nussbaum, Martha, 94–95, 96

Oakland, California, 92
Openness: of Internet, 111; and
anonymity, 142–46; and default
settings, 201

Page, Larry, 9
Park, Don, 1, 2, 6, 8, 11
Parker, David, 117
Patient-physician confidentiality,
173, 174
Peoria Crack House, 79–80, 83
Personal email, exposure of, 2, 29–
30
Personal information: exposure of,
2, 29; on social network websites,
24, 26, 27; control of, 29, 170,
184–86, 188; and reputation, 30,
189; less versus more of, 65–73;
Personal information (continued)
and shaming, 79; and defamation
law, 113; speaking about one’s
life, 134–36; suppression of, 182;
and self-exposure problem, 196–
200, 203–4
Phantom Professor, The, 56–58, 56
Pharyngula, 77
Planned Parenthood, 101
PlateWire, 86–87
Politics, 20, 24, 59, 130–31, 144–
45
Porter, William Sydney (Henry, O.),
140
Posner, Richard, 35, 37, 66, 120,
138
Post, David, 111
Post, Robert, 34, 65, 72
Poulson, Kevin, 81
Prisons, and shaming, 92
Privacy: and blogs, 1–2, 191, 198–
99; and Internet, 1–2, 110; and
norms, 2, 49, 71, 72, 167, 169,
193; conception of, 4, 7–8, 11; expectations
of, 7–8, 49, 165, 166,
167, 168, 169, 177, 178, 180,
197, 233n48; and public places,
7–8, 12–13, 161–70; and Google
searches, 9–11; and reputation,
35, 72, 114–20; and ethics of
mainstream media, 36, 59; posting
of private information online, 37–
38; and establishment of trust, 66;
public versus private self, 68–70;
and societal scrutiny, 71–72; and
context, 72, 165; and second
chances, 72–73, 218n87; threats
to, 105–8; and yellow journalism,
106–7, 108, 109; and gossip, 109;
and accessibility of information,
169–70, 191; self-exposure problem,
196–200; nuanced view of,
198–99. See also Privacy law
Privacy/free speech balance: conception
of, 4; and Internet’s rapid
spread of information, 11; role of
law in, 12, 13, 120–23, 125, 190–
96; tension in, 12, 142, 190, 205;
history of, 13; and control of reputation,
35; blogs’ role in, 58; and
authoritarian approach to privacy
law, 113, 120; and privacy invasion,
119–20; and absolutism,
127–28, 191; and newsworthiness
test, 129, 132–36; and publicdisclosure
test, 129–32; and democracy,
130–31, 132, 160,
228n38; and individual autonomy,
130, 132, 160; and marketplace
of ideas, 131–32; and
anonymity, 136–46, 191; and
harmful speech, 149–59
Privacy law: role for, 12, 13, 120–
24, 125, 190–96; and information,
17, 112–13, 125, 161; history
of, 108–10; and new technology,
109, 110, 163–66, 169, 205;
authoritarian approach to, 110,
112–13, 190, 196, 200, 203; libertarian
approach to, 110–12,
154, 190; middle-ground approach
to, 110, 113, 120, 154,
190; and reputation, 117, 119–20;
public disclosure of private facts,
119, 126–27, 128, 129, 132–36,
162–63; and strict scrutiny, 128,
227n27; and Section 230 immunity,
155, 156, 191; and public
places, 161–70, 187, 188, 193; binary
understanding of privacy,
162–63, 166, 167, 169, 170, 184,
190; and video voyeurism, 166–
68; and confidentiality, 170–83,
187, 191, 193; and control, 183–
87, 188, 191
Private citizens, and defamation law,
126
Prosser, William, 109, 127, 187
Prostitution solicitation, 92
Pseudonymous speech, 146
Public debate, 20, 126, 131
Public disclosure, of private facts,
119, 126–27, 128, 129, 132–36,
162–63
Public figures, 126, 194
Public places: and privacy, 7–8, 12–
13, 161–70; social network websites
as, 26, 27; and public roles,
68; and privacy law, 161–70, 187,
188, 193
Public versus private self, 68–70
Pulitzer, Joseph, 106
Putnam, Robert, 32, 141

Randolph, John, 115
Randolph, Richard, 115–16
Randolph, William, 116
Rehabilitation, 73, 95
Reidenberg, Joel, 200
Reingold, Howard, 8–9
Reputation: threat to control of, 4;
control of, 11, 33–35, 189; and
personal information on Internet,
30, 189; and accountability, 31–
32; and trust, 31–32, 66, 116; and
gossip, 32, 63–64, 181, 189, 190;
fragility of, 34, 36–37, 49; and rumors,
34, 36–37, 74, 189, 190;
and privacy, 35, 72, 114–20; and
shaming, 94, 95–96; and dueling,
114, 115–17; and defamation law,
116, 117, 118, 120, 121, 122; and
privacy law, 117, 119–20; and
public disclosure of private facts,
135; and anonymity, 140, 141,
144, 145–46, 150; and privacy/free
speech balance, 160; and confidentiality,
182; and public figures, 194
ReputationDefender, 192
Responsibility: and shaming, 6–7;
and role of law, 124; for harmful
speech, 149–59
Restatement of Torts, 132, 163
Revenge World, 98
Revere, Paul, 61
Reynolds, Glenn, 23–24
Rhode Island, 92
Ringley, Jennifer, 71
Rosen, Jeffrey, 66–67
Rudeness, 32, 94
Rude People, 86
Rumors: on Internet, 4, 11, 118,
124; history of, 11, 105; and reputation,
34, 36–37, 74, 189, 190;
and gossip, 64; and libertarian approach
to privacy law, 112; and
dueling, 114, 116; and defamation
law, 118, 158–59; and anonymity,
140, 141, 144; and Section 230
immunity, 159; and privacy/free
speech balance, 193
Russinovich, Mark, 93

Sand, George, 140
Sanger, Larry, 145
Scalia, Antonin, 140–41
Schlessinger, Dr. Laura, 183–84
Schneider, Carl, 218n87
Schneier, Bruce, 170
Schwartz, Paul, 65
Scott, Sean, 130
Screaming Pickle, The, 47–48
Secrecy, 173, 177, 178, 179
Section 230 immunity, 152–54, 155,
156–59, 191
Seigenthaler, John, 142–44, 145,
146, 147
Seigenthaler, John (son), 143
Self-conception, and reputation, 31,
211n79
Self-exposure problem, 196–200,
203–4
Selfhood, 68–70, 73, 217n59
Sex: and blogs, 50–54; and norms,
85; and reputation, 116; and individual
autonomy, 130; and speaking about one’s life, 135, 136; and
mainstream media, 194
Sexual assault, and journalistic
ethics, 36, 59, 195
Shakespeare, William, 30, 34
Shaming: on Internet, 4, 6, 11, 78–
83, 92–99, 101–2, 168, 190, 195;
and extent of punishment, 7, 95–
96; history of, 11, 13, 78, 90–92,
105; function of, 12, 205; and
norm enforcement, 12, 85–87, 90;
and norms, 32, 83–90, 92, 94,
102; and alienation, 94–95; and
reputation, 94, 95–96; and lack of
due process, 96–98; and vigilantism,
99–101, 102; and privacy
law, 123; and Section 230 immunity,
159; and privacy/free speech
balance, 193
Shannon, Mark, 151
SHHH card, 86, 86
Six degrees of separation, 25–26
Slander, 118, 126
Slashdot, 62
Small village, global village compared
to, 32, 33, 37
Smith, Adam, 140
Smith, Bob, 157–58
Smith, Robert Ellis, 107
Smolla, Rodney, 119–20
Snap camera, 107–8, 109
Social control, 6, 32, 65, 72
Social epidemics, 60–61
Social networks, 25, 26, 60–61, 63,
176–81, 180, 202
Social network websites: dissemination
of information on, 11, 193;
personal information shared on,
24, 26, 27; concept of, 25–26;
and social ties, 26–28; as worldwide
phenomenon, 28–29; employers’
use of, 38; and selfexpression,
49; and authoritarian
approach to privacy law, 113;
and confidentiality requirements,
192; architecture of, 200–204; default
settings of, 200–201, 201;
and socialization, 200; concept of
“friend,” 202–3
Sontag, Susan, 70
Sony BMG, 93
Sorkin, Andrew, 171–72
South, dueling in, 114, 116–17
Southern Methodist University, 56–
58
South Korea, 28
Spacks, Patricia Meyer, 65
Spain, 28
Star Wars Kid, 44–48, 45, 49, 98,
124, 213–14n134
Stigma, 70
Strahilevitz, Lior, 94, 178–80,
221n64
Strict scrutiny, 128, 227n27
Summers, John, 194
Sunstein, Cass, 6, 227n24
Superficial, 22
Surveillance cameras, 163–64

Tabloids, 106, 195
Taft, William Howard, 194
Taiwan, 28
Tanenbaum, Leora, 74
Teacher, Jim, 24
Technorati, 21, 22
Teenagers, 21, 24, 39, 42, 196–97,
198, 204
Telephone, 107. See also Cell phone
use
Thomas, Clarence, 172
Thoreau, Henry David, 85
Tice, Dianne M., 211n79
Tilton, Elizabeth, 107, 212n91
Tilton, Theodore, 107, 212n91
Tipping, norms of, 87–89, 99
Tipping point, and gossip, 60–61,
62
Toobin, Jeff, 138
Tort remedies: for privacy invasion,
110, 113, 119–20, 127, 129–30,
132, 225n71; for defamation,
118, 126; appropriation tort, 119,
162, 186–87; breach-ofconfidentiality
tort, 175–76, 188,
234n85. See also Lawsuits
Traceable anonymity, 146–47, 149
Trust: and reputation, 31–32, 66,
116; decline in, 32; and quality of
information, 35; and background
checks, 41; establishment of, 66;
and second chances, 73; and
anonymity, 141, 145; and confidentiality,
175, 176
Truth: and gossip, 64–65; determination
of, 66; and public versus
private self, 68–69; and defamation
law, 118, 126, 127; and public
disclosure of private facts, 119,
126–27; and privacy/free speech
balance, 131, 132
Twain, Mark, 140, 173–74
UBS, 170–73

Underground Newspaper, 59–60
Underneath Their Robes, 136–39
United Kingdom, 28
University of Colorado, 96–97
Upskirt photos, 166, 167
U.S. Constitution, 113. See also First
Amendment; Fourth Amendment
U.S. Supreme Court, 34, 118, 126,
127–29, 139, 148, 227n27,
233n48

Vengeance, and shaming, 98
Video voyeurism, 166–68
Video Voyeurism Prevention Act,
167, 231n2
Vigilantism, and shaming, 99–101,
102
Vlogs (video blogs), 164
Volokh, Eugene, 93, 127, 128
Volokh Conspiracy, The, 54–55, 93
Voltaire, 140
Voyeur Video, 162, 231n2

Wales, Jimmy, 142, 145
Warren, Samuel: and privacy, 108–
9, 190; and privacy law, 109–10,
113, 119–20; and tort remedies,
110, 113; and public disclosure,
128, 129, 162; and appropriation,
162; and confidentiality law, 176
Warshavsky, Seth, 184
Washington, 167
Washingtonienne, 50–53, 124, 130–
31, 136, 139, 173, 214n3
Waxy.org, 46, 48
Westin, Alan, 71
Wikipedia, 47, 142–46, 143
Wilson, John Lyde, 117
Wilson, Woodrow, 194
Winfrey, Oprah, 36
Witchcraft, 34
Wonkette, 22, 52–54, 139, 214nn3,
5
Woodhull, Victoria, 107, 223n11
Woodward, Bob, 134
Woolf, Virginia, 217n59
Wyoming, 223n27

Xanga, 24

Yahoo! chat rooms, 154–55
Yahoo! message boards, 148–49
Yellow journalism, and privacy,
106–7, 108, 109
YouTube, 39–40, 164, 171,
213n134

Zeran, Kenneth, 150–53
Zeta-Jones, Catherine, 175
Zimmerman, Diane, 64, 129
Zittrain, Jonathan, 185
Zuckerberg, Mark, 27, 169

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About the Author

Daniel J. Solove is associate professor, George Washington University Law School, and an internationally known expert in privacy law. He is frequently interviewed and featured in media broadcasts and articles, and he is the author of The Digital Person: Technology and Privacy in the Information Age. He lives in Washington, D.C., and blogs at the popular law blog http://www.concurringopinions.com.