Time for a muzzle

The online world of lies and rumor grows ever more vicious. Is it time to rethink free speech?

(Globe Staff Illustration / Greg Klee)
By Drake Bennett
February 15, 2009
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HERE ARE TWO stories about the Internet.

The week before last, the crippled economy coughed up a gift for picked-on college students across the country: It shut down Juicy Campus, a notorious website where campus gossips nationwide were invited to hold forth anonymously. "Just remember, keep it Juicy!" the home page had exhorted. Posters had duly obliged, and many students had found their social skills, weight, grooming habits, sexual orientation, and/or promiscuity to be the subject of gleefully vicious discussion by unseen online classmates. In a healthier economy, it's unclear if anything could have closed down Juicy Campus - university administrators and even state prosecutors were eager to take it on, but had all but conceded that they had few legal options, and the website had been rapidly expanding the number of its member campuses.

And then there is this: Last month, someone posted a map showing the names, home locations, and occupations of thousands of people who gave money to support the passage of Proposition 8, the ballot initiative outlawing gay marriage in California. A number of these Proposition 8 supporters have since reported threatening e-mails and phone calls.

Speech now travels farther faster than the Founding Fathers - or the judges who created much of modern free speech law - could have dreamed. The Web has brought a new reach to the things we say about others, and created a vast potential audience for arguments that would once have unfolded in a single room or between two telephones. It has eaten away at the buffer that once separated public and private, making it possible to expose someone else's intimate information to the world with a few keystrokes, or to take information that would formerly have been filed away in obscure public records and present it digestibly as a goad to collective political action.

One of the results has been the advent of a new culture of online heckling and shaming, and the rise of enormous cyber-posses motivated by social or political causes - or simple sadism.

Now, some legal scholars are beginning to argue that new technologies have changed the balance of power between the right to speak and the right to be left alone. At conferences, in law review articles, and, increasingly, in the courts, some lawyers are suggesting that the time has come to rethink some of the hallowed protections that the law gives speech in this country, especially if that speech is online. The proposals vary: Some focus on restricting material that can be posted online or how long it can stay there, others on whether we should be less willing to protect online anonymity. More ambitious schemes would have courts treat a person's reputation as a form of property - something to be protected, traded, and even sold like any other property - or create a legally enforceable duty of confidentiality between friends like that which exists between doctors and their patients.

At stake is the basic question of what we will allow people to say and do online, whether it's on a message board, a Craigslist ad, or a YouTube video - and who gets to set the rules governing what's OK and what's not. As the Web grows increasingly interactive, the system of informal and formal rules that determines appropriate behavior is only beginning to emerge, and thinkers on both sides of the debate agree that courts can go a long way toward shaping it. The argument over what to do about online speech, in other words, is an argument over whether the Web's unruly nature is something to be celebrated or tamed.

"Right now, it's pretty much like the Wild West, and we need to do something to combat that norm," says Daniel Solove, a professor at George Washington University and leading advocate of reining in online speech.

Free speech advocates caution that these sorts of measures, no matter how carefully drawn up, are likely to backfire, creating a snarl of lawsuits. For all the pain of being exposed or attacked online, the far greater threat, these thinkers believe, is that the Web becomes a place where the rules are set by the most litigious and the thinnest-skinned, stifling the free flow of ideas and opinions that today define it.

Relaxing the protections for online speech, argues Kurt Opsahl, a lawyer with the Electronic Frontier Foundation, an advocacy group, "would relegate comment on the Internet to only that provided by large and powerful and very cautious media."

Proponents of the new privacy protections, however, insist that all they are doing is helping to level the playing field between private citizens and those who, for whatever reason, are using the Web to expose others' secrets to the wider world.

. . .

Modern American privacy law arose, in part, out of concern over an earlier transformative technology: the Kodak "snap camera." For the first few decades after cameras were invented, they were large and expensive, and nobody could take your picture unless you sat still for several minutes. When the Kodak hit the market in 1884, it changed all that - the new camera was cheap and comparatively small, and it took a picture in an instant.

"Suddenly, your photograph could be taken without your permission, or even without your knowledge," says Lawrence Friedman, a professor at Stanford Law School and prominent historian of privacy law. And if that picture was compromising in any way, it could easily find its way into one of the many cheap, lurid newspapers that made up the era's burgeoning "penny press."

Alarmed by this new landscape, two young Boston lawyers, Louis Brandeis and Samuel Warren, wrote an article in the Harvard Law Review that served as the foundation for most of the state laws that today protect privacy. (Brandeis would go on to serve on the Supreme Court.) Brandeis and Warren's basic argument, innovative at the time, was that people should be able to sue others for the wrong of exposing their private lives to public scrutiny.

According to concerned legal scholars like Solove, the power and pervasiveness of the Web have now unsettled the privacy law regime that the Kodak helped create. Not only does the Web allow for anonymous, immediate posting of information, but search engines make that information retrievable for curious people everywhere. And whether it's an address, a lewd photograph or video, or a written insult, it remains on the Web until someone actively removes it, and even then copies can survive elsewhere.

"We can now readily capture information and images wherever we go, and we can then share them with the world at the click of a mouse," Solove wrote in his 2007 book, "The Future of Reputation." "Somebody you've never met can snap your photo and post it on the Internet. Or somebody that you know very well can share your cherished secrets with the entire planet."

The answer, Solove believes, lies in giving people more explicit control over information about them. As Solove sees it, the Web highlights an existing set of problems with how American law treats the divulging of intimate details - whether they end up on the Internet or not. For example, American courts tend to assume that once you tell someone a secret, unless that person is your doctor or lawyer or minister, it's basically public. It's therefore futile to sue a former lover for breach-of-confidentiality for telling someone about your sexual hang-ups, even if that "someone" is thousands of readers of a blog post.

"There's a notion in the law that if you tell a secret to another person you just risk that they might betray you," Solove says, "that if you tell a friend or spouse your secret and they spread it, you shouldn't have trusted them, it's tough luck and you should find new friends. I think that is problematic."

There is an alternative. In England, courts enforce a far broader duty of confidentiality, upholding breach-of-confidentiality lawsuits against loose-lipped ex-spouses and lovers. Solove would like to see the United States move to a legal regime more like that one, so that we're not held hostage by the questionable trustworthiness of our friends.

Such a significant shift makes legal scholars who are more protective of speech deeply uncomfortable. Eugene Volokh, a law professor at UCLA and a free speech and cyberlaw expert, sees that model leading to an almost comical set of limits on conversations.

"Let's say you are talking to your new girlfriend about past relationships," he says. "You tell her you feel you've been hurt by an ex-girlfriend, and she asks you to tell her about it. You then have to say, 'I'm sorry, but I'm legally bound not to reveal anything about that relationship.' "

Other proposed responses to the Web's ability to supercharge gossip are more specific.

There are already responses, both legal and otherwise, for people who want to fight back against online assaults on their reputation. They can pay a company - one called ReputationDefender is perhaps the best known - to track down any information about them online and to then attempt to have it taken down. Or they can bring a defamation lawsuit, as two female Yale Law School students are doing against anonymous posters to a college admissions message board called AutoAdmit.

Such lawsuits, however, are cumbersome, time-consuming, and costly, and usually bring even more attention to the offending statements the plaintiffs are suing over in the first place. And while lawsuits can expose the identities of anonymous posters (as has happened in the AutoAdmit case), there's no way of knowing in advance whether the defendants are, for example, minors and therefore immune from suit, or whether they're broke and incapable of paying damages.

An easier approach is to get website administrators to take down offending information. But while they're sometimes willing to do that, the administrators are under no legal compulsion to: A 1996 federal law explicitly exempts sites from liability for user comments.

Several of the proposals for how to defang so-called cyber-harassment, therefore, focus on this issue of trying to make websites accountable, in one way or another, for what their often anonymous users post. Mark Lemley, a law professor at Stanford and one of the lawyers representing the plaintiffs in the AutoAdmit case, has proposed a framework under which websites would be liable for user postings unless they agreed to obey injunctions to take such postings down.

Nancy Kim, a professor at California Western law school, argues for a different approach: Treating website owners like the proprietors of a bricks-and-mortar business, and holding them accountable for what happens there unless they have taken certain precautions to try to reduce the likelihood of libelous - or even merely intemperate - comments. Among the sort of "architectural restraints" she proposes are cooling-off periods before comments are posted and reminders making clear that anonymity is not assured in the case of libelous comments.

"The issue is, Did the website take reasonable steps to protect against foreseeable harm?" Kim says. She draws an analogy to a bar: If the guy at the next stool threatens to beat you up, gets kicked out of the bar, then comes back in and indeed beats you up, the bar can be held liable.

Here again, though, speech-friendly scholars see the potential for abuse. Jeffrey Rosen, a law professor at George Washington University who has written on privacy law, points out that in countries where websites can be held liable for user-generated content the law has been used to limit political speech: In Thailand, for example, YouTube was forced to block videos critical of the king.

"When you start insisting that websites have some duty of care that makes them more like bars than mutual street corners where everyone can speak, then you transform their legal obligations in ways that can have bad consequences," he says.

Kim and Solove, on the other hand, both argue that it should be possible to set up standards supple enough to distinguish between substantive speech and mere gossip, and to set standards that cut down on the most personally damaging types of online attacks without strangling free expression.

According to Michael Fertik, a lawyer and the founder of ReputationDefender, even in Germany, a country where it's far easier to sue for breaches of privacy and where websites are held liable for user content, the Web has not been reduced to a timorous, anodyne place - and there's still plenty of online gossip.

"There are sex websites, there are complain-about-your-boyfriend websites," he says. "Twenty percent of our customers are in Germany."

Solove, for his part, argues that describing the debate simply as one about freedom of speech leaves out an important part of the equation.

"We have to be able to go about most of our lives with the assumption that no one's going to be recording everything we do and broadcasting it on the Web," he says. That, he argues, is also a form of freedom worth protecting.

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