Law and Letters Book Event: The Future of Reputation

For other L&L book reviews, go here and here.

I am very excited to give my long-delayed (sorry, dissertation meetings/IRB proposals come first) review of Dan Solove's new book, The Future of Reputation. You can buy it here.

I LOVED this book. It is immensely readable and fun to read. The substantive material is itself interesting; the way it is written sustains my interest from beginning to end. That is the basic "thumbs up" review. For a more substantive, summary-type of review, go here for Frank Pasquale's review. Also, here are a bunch of other reviews.

But you know you are not going to get the typical review here.

Instead, I want to discuss this book in the following ways, and I promise you that they are somewhat connected:

I. The Structure of the Book: Anecdote as Argument, and a Narrative of Norms

II. Damn You, Stanley Fish: Interpretive Communities, Norm Enforcement, and Bounded Notions of Privacy/Public Concern

III. For Shame: A Limited Defense of Public Shaming

IV. Why Should You, Voyeuristic Reader, Care About Privacy? Why Should I, The Solipsistic Over-Sharing Meta-Blogger, Care About Privacy?

I. The Structure of the Book: Anecdote as Argument, and a Narrative of Norms

Solove employs several (in)famous anecdotes of internet violations of privacy to make his argument for a clearer, more rigorous definition of privacy law (I will not summarize the argument--go read the book!). I like this approach for several reasons: because this is a general audience book (as opposed to esoteric academic text that no one would want to read), this works very well for driving home his argument. It grounds his argument in understandable, relatable, real-life examples. So many academic books--especially and ironically those arguing for clarification in the law--tend to talk "over" people's heads, abstractly, and without any sort of real-life evidence. Not that anecdotal evidence is rigorous empirical evidence, but it is something. And of course, Solove's project is not empirical (I honestly can't imagine how it could be), so anecdotal evidence serves his thesis well. Talk in the realm of the pneuma, and you'll never get people to understand why the law is so important to daily life. The examples Solove offers are (in)famous and scattered across the globe and among different demographics: from an inconsiderate Japanese girl who won't clean up after her dog to an underdog-type little boy who is publicly embarassed for being his Star Wars loving self to a very indiscreet Senate staffer--we could all be this person whose privacy was violated (or who violated their own privacy). We are more likely to be the audience who punitively, derisively, or voyeuristically participated in the discussion following the violations of privacy though.

I think of his anecdotes as doing more work than merely serving his argument. They are discrete examples of different types of privacy violation and/or public shaming, but to me there's a sort of thread that binds these bright little capsules of argument, like a bunch of paper lanterns. They are little stories, but even vignettes may have an overarching theme--and the one here is obvious: Solove's argument for an expanded and clarified definition of privacy (which I will not explain, I am serious, go read the book). Less obvious, perhaps, is the thread I am interested in: anecdote as argument lends itself to creating a narrative of norms.

Taken in the aggregate, the discrete anecdotes become all the more shocking in how our (my?) generation has redefined the concept of "privacy." I can remember each anecdote that Solove mentions to illustrate his thesis. When I read them all in a row, I am shocked that I have such an appalling lack of discretion, such a high tolerance for voyeurism, and such a mean-spirited nature that I admit to having delighted in laughing along or shaming along with the rest. (I have never argued that I am a good person on this blog, mind you snarks.) The narrative that the string of anecdotes told (privacy = good) served to reinforce a set of norms I often forget in discrete instances of schadenfreude and snark. The narrative of norms got me in the end, and it made Solove's thesis all the more persuasive.

II. Damn You, Stanley Fish: Interpretive Communities, Norm Enforcement, and Bounded Notions of Privacy/Public Concern

I, the lapsed deconstructionist (I was so po-mo), am not a big fan of Stanley Fish. At least anything he writes on the law, and anything he writes for the New York Times. Not only am I not a big fan, I might be considered a big hater. I do have some sympathy for (but hardly agreement) with his idea of "interpretive communities", summarized thus:

This aspect of Fish's theory is one of the most radical and controversial. He posits that meaning inheres not in the text but in the reader, or rather the reading community. "In the procedures I would urge," he writes, "the reader's activities are at the center of attention, where they are regarded not as leading to meaning but as having meaning." He can hold this because he believes that there is no stable basis for meaning. There is no correct interpretation that will always hold true. Meaning does not exist "out there" somewhere. It exists, rather, within the reader.

Wikipedia has this, which I offer because my Fish books are at my parents' house:

Fish's work in this field examines how the interpretation of a text is dependent upon each reader's own subjective experience in one or more communities, each of which is defined as a 'community' by a distinct epistemology. For Fish, a large part of what renders a reader’s subjective experience valuable—that is, why it may be considered “constrained” as opposed to an uncontrolled and idiosyncratic assertion of the self—comes from a concept native to the field of linguistics called linguistic competence. In Fish’s source the term is explained as “the idea that it is possible to characterize a linguistic system that every speaker shares.” In the context of literary criticism, Fish uses this concept to argue that a reader’s approach to a text is not completely subjective, and that an internalized understanding of language shared by the native speakers of that given language makes possible the creation of normative boundaries for one’s experience with language.

Although Fish argues that the only possible meaning of a text is what the author intends, he claims that any actual attempt to access this is not possible. Any attempt to determine what exactly the author intended will result in nothing more than an interpretation based upon the interpretive community of the reader making the interpretation. Fish distinguishes the former as an epistemological point about what texts mean, whereas the latter is a sociological one about how claims about those meanings are produced.

Why do I bring this up? Because it is a basic argument for context, and in this case, the context is not historical, political, sociological, etc--e.g., some external, independent context--but rather the context of readership and audience.

Solove's arguments have at their heart an argument for such context. In each of his anecdotes, the Internet enlarges the context of a discrete act far beyond its original intended parameters: the little boy makes a tape of himself with a light saber for his own amusement (or for his sympathetic friends); the dog poop girl's moment of inconsideration and embarrassment could have been limited to that train car or heck, at least Japan; Jessica Cutler's sexual indiscretions were originally intended for an audience of her personal friends. The context of audience and readership are important for Solove's thesis.

My interest in audience-as-context has more to do with norm enforcement: within a small group, norms are identifiable and easily declared and enforced. The problem is that we don't have small groups or communities anymore. See, e.g., Putnam's "Bowling Alone." What are norms nowadays? I can identify a few norms of Liberal College City: respect pedestrians, recycle, buy sustainable, eat organic, don't vote for Bush. It's still a pretty big city though, and these are the only norms I can see on a daily basis. But that said, normative enforcement is pretty lax, except for the fact that my curb looks loserly if I don't have my recycling bins out, and I would really hate to be the car with a Bush/Cheney sticker out on the street.

Norms are particular and localized; yet the Internet is vast and diffuse. What happens, then, when a privacy violation spreads like wildfire throughout the Internet? Chaos! Read the book for more. But basically, I would say that it shatters the readership interpretive community to pieces; interpretations might have been controlled if only those who really "knew" Jessica Cutler read her blog, but once it hit Wonkette--everyone had an opinion without knowing the people they were judging. One of Solove's take-away points is that privacy is fluid: we might violate our own privacy all the time to our friends, but we are appalled when strangers know our business. Privacy is not rigid, it is fluid--but it has not altogether disappeared either. I would call it "bounded," that we have a certain expectation of privacy between our friends, a different type amongst our colleagues, and limited to our geographic area. The Internet takes this boundedness and destroys the borders. On the other hand, the internet expands the bounds of "public concern"---if it reaches the Internet, everyone believes they have a right to know, a stake in their interest, and a freedom to opine, snark, shame. Boundaries are shattered and expanded, but nothing is contracted. The context is everything, the readership entirely determinative of interpretation: but even though privacy has its bounds, they mean almost nothing on the Internet. Before, public stonings occurred in the town square, but that is an example of a bounded community of norm-enforcement: four corners, only a certain number of people, and only those with an actual interest-stake participated. Not so, now, with the vast blogospheric public square. The one to cast the first stone may not be the one with the highest interest-stake, but rather the one with the most vitriol with the biggest voice.

III. For Shame: A Limited Defense of Public Shaming

All of the above said, I can't help but support some instances of public shaming. I've on occasion complained of something (without going into ad hominem, or giving identifying details) if only to elicit sympathy and feel assured that my conception of norms was violated, and that others agree with me. For instance, I got reassurance that I was not unjustifiably mad about being ditched by my former best male French friend on the streets of Manhattan at midnight in favor of skirt chasing, particularly when he had borrowed all of my cab fare for dinner. Yes, you read that right, "former." I got a lot of "bros before hos" affirmation, whether by comment or email. I kept him pseudonymous, although I admit that mutual friends know who he is, and the full story behind this (and the eventual fallout that resulted from even greater douche baggery, which to my credit I did refrain from blogging--kind of). But still, that readership community is bounded, and the strangers who chance upon my blog will have no way of further shaming him or knowing more about him--not that he is sensitive to rebuke.

This is the concept behind "Crap Email From a Dude", which I love to read. Part of Putnam's thesis in "Bowling Alone" is that not only are norms hard to enforce in our ever more atomized, anonymous, large-scale living patterns, but that norms are hard to identify and disseminate. Enter, the Internet. Crap behavior is capable of being identified, across geographic region, socioeconomic class, gender, race, and age! We can all come to some sort of agreement! Well, not always. Sometimes we disagree (read the comments).

Don't discount the internet's assistance in norm identification, dissemination, and enforcement. I delighted that there was such widespread outcry against Autoadmit (I will not link, they suck), which had its own brand of vicious, sociopathic privacy violation and shaming ratcheted up with appalling misogyny and racism, and peppered with threats of violence. Actually, I wonder why Solove did not bring that up as an example in his book. I imagine it is because he wrote the book before the debacle really unfolded, and Gutenberg printing-time lags far behind internet light-year time. I agree with Solove that shaming has its limits, and the use of identifying details is something to be very, very careful about--because real life people are destroyed when their names are sullied and their reputations are compromised. But I distinguish that reputation destroying done by namers and the sociopaths on Autoadmit, and that pseudonymous, sympathy-gathering, norm-identifying tepid public shaming done on Crap Email From a Dude--and, I admit, myself. I can't claim to be particularly discreet, nor above mild public rebuke myself. I do, however, want to eventually write an empirical paper on behavioral norms in the blogosphere.

IV. Why Should You, Voyeuristic Reader, Care About Privacy? Why Should I, The Solipsistic Over-Sharing Meta-Blogger, Care About Privacy?

Which leads me to my last point: why should you or I care about privacy?

I don't know how precisely to articulate this without sounding hypocritical, but I do. I do care. I may not seem to care, but I do. Those who know me are surprised (shocked, appalled) by my "over-sharer" tendencies. My friends are used to it. New acquaintances slowly get used to it, and their amusement turns to affection (I hope). To a certain extent, I can't imagine being any other way--I have good, deep, quickly intimate friendships because I am the way that I am, and those who respond positively to it like me forever. Even some professor friends are cool with it, though of course I limit my oversharing to those who are likewise indiscreet (or merely indulgent). And hey, I have a personal academic blog. Clearly I have boundary issues.

And so do you, gentle reader. You read my blog. You know a lot of random stuff about me, and seem to care. I don't blog boring, quotidian things (today I...), but you for some reason like to read my movie reviews, music picks, thoughts on academia, and maybe even a bit about myself and my weird immigrant background. You probably read other personal blogs, in which the authors are even more train-wrecky. You can't help it. I certainly can't.

That said, it's not like you or I have given up on privacy. I blog much less on personal stuff than before, particularly now that my readership has grown beyond my friends. When I had only 20 readers a day, half of whom were my friends, the other half random people, I didn't care what I wrote. Now that I get about 200 visitors a day, most of them academics (26 of whom I've come out to), lawyers, grad students, other professionals--yes, I have self-censored. I try to stay interesting, but I get less personal. Except for my norm-identification/enforcement posts (and those are much less frequent now that I have weeded such norm-violators from my life, thanks to the support of my norm-agreeing readers), I blog very little on people in my life except in positive ways. I adamantly refuse to blog about my romantic life, or about my family. I may blog about my upbringing, if only to make a broader point about access to education, gender, or race.

I do, however, put a lot of myself in the blog--just not my day-to-day experiences or identifying details or things that compromise the privacy of others. Opinions are not personal to me; my thoughts on a movie or book are up for grabs. It is a part of being a public intellectual, or in my case, public pompous ass. I like to blog about my work and what I am learning, because I think of education as a collaborative enterprise. I like to indulge in my quirky side on the blog, because I am a raging narcissist the way that all solo bloggers are.

The question is, what is mine to share, and what is yours? I think that my blog friends understand that almost everything that may be considered a "shared memory" is up for grabs, as is pseudonymous anything. Others don't share this broad definition of what is "bloggable." I try to intuit others' conceptions of privacy: if they are private people in general, they will not appreciate being blogged about, whether in a positive or negative manner. General descriptions are probably okay (for instance, I am allowed to say that I appreciate my roommate for introducing me to running, but cannot describe her in any other way). But in general, what's mine is mine, what's yours is yours. I ran into this problem recently with the Former French Friend, whom I gave a CD of my pictures from the last year before our fallout. This was a gesture of friendship, a CD of our common memories--and some non-common ones got slipped in due to shared folders. He puts up all the pictures on Facebook, even the memories he never shared. We are no longer friends. He refuses to take them down. At least the pictures of which he was no part, and the pictures of myself Whether or not they are his memories, or mine--no matter, despite my requests for him to do so. D-bag? Yes, he is. They are his memories too, but they are pictures of me, and they exist somewhere, other people I do not know will see them, and I cannot control this. This is the evil of the internet, these are the perils of online social networking, this is my penance for being naive and too trusting.

Ah, but look--this brings us back to points I, II, and III: I have shown you, by a series of anecdotes, an argument for a fluid-yet-rigorous conception of privacy leading to a narrative of norms; I have engaged you, my small, bounded community of readers, in norm-identification/dissemination/enforcement, I have publicly shamed a former friend, and I have shown that even those with very broad, relaxed standards of privacy do care about privacy violations when norms are violated to unintended viewers/readers.

And with that, I hope that you will find Solove's book as useful for understanding privacy law and our own (individual, community) ever-shifting notions of privacy. Please do read his book. Solove writes very smart, cogent arguments that I do not do justice in the above weird review.