Solove’s Future of Reputation

I’m on the same blog as Dan Solove, so perhaps I’m a bit biased toward his creative efforts. But I have to recommend his Future of Reputation to Madisonian readers for a number of reasons–I don’t think I’ve ever encountered such a fun read that also manages to be a scholarly work on cyberlaw.

Solove draws us in with the old classics of humiliation–South Korea’s infamous “dog poop girl,” Jessica Cutler’s embarrassed paramour, and the Star Wars kid. Each sparked an avalanche of comedy, critical comment, spoofs. . . . and, like hope at the bottom of Pandora’s box, a tiny bit of sympathy as we wonder: will we be next?

Pace Andy Warhol, that’s not likely, but Solove uses the titillating stories to explore a deeper question: do we have any right to control true information about ourselves? Or influence the way we are portrayed? If somebody posts a vicious lie, they can be liable for defamation. But what about disclosure of private facts–should we have any right to stop that?

In past articles, Solove’s done a great job analyzing (and advocating for the extension of) individual rights vis a vis big data aggregators like Choicepoint, banks, and the government. FutureRep breaks new ground because it focuses on a harder issue: how to deal with Web 2.0’s swarm of privacy-invading individuals. When it comes to privacy, we may well be our own worst enemies. But didn’t Yochai Benkler assure us that peer production would be liberating? Who wants to put the brakes on a Generation Google that doesn’t merely not object to a loss of privacy, but appears even to demand it?

The lasting contribution of FutureRep is that Solove dons his other scholarly hat–as an interpreter of the humanities–to give us reasons why we should want to protect our privacy–and respect that of others. We hear from John Dewey on the sanctity of second chances, Thoreau on nonconformity, even philosopher of gossip Ben Ze’ev. I can’t put Solove’s case for privacy in a nutshell, but let’s just say it gives us ample reason not to “just get over” total transparency.

Does Solove offer us a way out of the privacy morass? His recommendations subtly weave together proposed changes in law, norms, and technology to help tame the reputational ramifications of persistently searchable, replicable, and unaccountable data stores. He wants to see important social networking platforms and search engines build in some protections for those who can be harmed by information on them. But he respects the First Amendment, and would only make the original poster of harmful information of no public concern legally liable for it–not the cascade of re-posters and commenters that power the blogosphere.

At this point, I hesitate to give more details because I feel the book is too rich to keep summarizing in a blog post. However, I can’t emphasize enough how important Solove’s project is. In an era of knee-jerk libertarianism and First Amendment absolutism, Solove demonstrates that there are some baseline norms and laws that should govern the spread of personally identifiable information, gossip, and rumors. Against the conventional wisdom that would declare the ‘net ungovernable, Solove offers hope that a gossip-saturated blogosphere can become a more fair, decent, and perhaps even public-minded place.