Conference: "Speech, Privacy, and the Internet: The University and Beyond" | University of Chicago Law School

University of Chicago Law School

law.uchicago.edu | Nov 21st 2008

Speech, Privacy, and the Internet: The University and Beyond
November 21-22 (Fri & Sat)
Co-organizers: Martha Nussbaum, Cass Sunstein

Keynote: Lawrence Lessig

The conference is devoted to an interdisciplinary discussion of the legal and ethical issues posed by the new ways in which privacy can be invaded. The current rise in invasive personal gossip, much of it anonymous and much of it directed at students, often by other students, creates an atmosphere that threatens to disrupt the climate of instruction. On the other hand, restrictions on such internet sites raise delicate free speech issues. What challenges do these developments raise on campus, and what direction should universities take to meet these challenges?

The conference is free and open to the public. No registration is necessary, but space may be limited.

Friday, November 21

• 9:45: Welcoming Remarks: Dean Levmore, Martha Nussbaum, Cass Sunstein
• 1-3: Dangers and excesses of Cyber-Gossip (download .mp3)
  • Daniel Solove, “The Future of Reputation: Gossip, Rumor, and Privacy on the Internet”
  • Brian Leiter, “Cleaning Cyber Cesspools”
  • Chair: Tom Ginsburg
• 3:15-5:15: Anonymity, Information
  • Saul Levmore, “The Internet's Anonymity Problem” (download .mp3)
  • Cass Sunstein, "Believing False Rumors”
  • Chair: Richard McAdams
• 5:30 Keynote Address: Lawrence Lessig
  Introductory remarks, Provost Thomas Rosenbaum

Saturday, November 22

• 9:45-11:45: Privacy, Gossip, Free Speech (download .mp3)
  • John Deigh, “When Speech Invades Privacy: Some Ruminations on Cohen v. California”
  • Geoffrey Stone, “The First Amendment and Gossip”
  • Chair: Rosalind Dixon
• 1-3: Gender and Cyber-Insults (download .mp3)
  • Danielle Citron, "Cyber Civil Rights"
  • Martha Nussbaum, “Objectification and Ressentiment”
  • Chair: Madhavi Sunder
• 3:15-5:45: Reputation and Cyberspace (download .mp3)
  • Anupam Chander, “Youthful Indiscretion in an Internet Age”
  • Lior Strahilevitz, “Rehabilitating Online Reputation”
  • Frank Pasquale, “Reputation Regulation: Rationalizing Internet Intermediary Responsibility"
  • Chair: David Weisbach

Questions about the conference can be sent to chicago.internet.conf@gmail.com

The conference is sponsored by the University of Chicago Law School.

Local participants: Cass Sunstein, Martha Nussbaum, Brian Leiter, Geoffrey Stone, Saul Levmore, Anupam Chander, Lior Strahilevitz

Outside participants: Lawrence Lessig (Stanford), Daniel Solove (George Washington), John Deigh (Texas), Danielle Citron (Maryland), Frank Pasquale (Seton Hall)

Abstracts/titles:
(full papers may be available as PDFs, and may require password permission to view; email chicago.internet.conf@gmail.com for more information)

Karen Bradshaw:
"Bridging Online and Physical Communities in the Academic Setting" (co-written with Souvik Saha)

Professional and reputational damage, sexual harassment, and links to increased suicide rates are all tied to abuses on social networking websites. Unlike traditional academic communities, online communities are not monitored by academic administrators and faculty. As a result, participants may engage in hate speech and defamation with lessened fear of reprisal. Administrators largely fail to recognize the pervasive and community nature of social networking websites. Analogizing online communities to note passing or gossiping misses the point, and produces inadequate responses. Reactionary responses – such as limiting in-class internet use or suspending offenders – fail to inject the norms of academic communities into online communities, and fail to protect against future abuses.

E. Lindsay Calkins:
"Information Omnivores and Online Coping"

The internet is the consummate customization tool. While personalization and self-sorting can yield great intellectual benefits, scholars have also voiced concern about its detrimental effects on diversity and democratic debate. However, a recent study indicates that internet use increases exposure to diverse ideas among well-educated information consumers. For this sub-set, we should therefore not be concerned about voluntary self-selection. Rather, this group is especially vulnerable to the effects of online choice saturation. In order to cope with the overabundance of choice, sophisticated internet users sacrifice privacy, join formal and informal organizations, and maintain static use habits. It is these sticky behaviors, rather than active filtering, that are the most pernicious to intellectual diversity in the university setting.

Anupam Chander:
“Youthful Indiscretion in an Internet Age”

Youth are allowed mistakes in greater measure than adults. Today, however, because of the digital medium, youthful exuberance and experiment, intellectual curiosity, and teenage rebellion may be subject to the prying eyes of authorities, both governmental and private, both contemporaneously and far into the future. The disciplinary effects of such possible future ramifications may be graver today than ever before. The consequences may be particularly severe for women, given societal practices related to sexuality. What might the law do to protect youthfulness in youth?

Danielle Citron:
“Cyber Civil Rights”

Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. These destructive groups target individuals with defamation, threats of violence, and technology-based attacks that silence victims and concomitantly destroy their privacy. Victims go offline or assume pseudonyms to prevent future attacks, impoverishing online dialogue and depriving victims of the social and economic opportunities associated with a vibrant online presence. Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital "scarlet letters" that ruin reputations. Today's cyber attack groups update a history of anonymous mobs coming together to victimize and subjugate vulnerable people. The social science literature identifies conditions that magnify dangerous group behavior and those that tend to defuse it. Unfortunately, Web 2.0 technologies accelerate mob behavior. With little reason to expect self-correction of this intimidation of vulnerable individuals, the law must respond.

General criminal statutes and tort law proscribe much of the mobs' destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. Civil rights suits reach the societal harm that would otherwise go unaddressed and would play a crucial expressive role. Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim's employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.

John Deigh:
"When Speech Invades Privacy: Some Ruminations on Cohen v. California"

In Cohen v. California, the U. S. Supreme Court held that displaying the words ‘Fuck the Draft’ in a public place was a constitutionally protected exercise of speech. Accordingly, the Court reversed the conviction of one Paul Cohen, who had worn, in the hallway of a municipal court, a jacket on the back of which these three words were boldly inscribed. Justice Harlan wrote the majority opinion. He acknowledged that the communicative value of the particular words in this case was to express emotion, that Cohen could have used other, less emotively charged words, to express his opposition to the draft. Nonetheless, Harlan argued, Cohen’s speech was protected because the protection of speech provided by the Constitution is not limited to the use of speech to communicate thoughts but includes its use to communicate feelings as well. In my paper I will critically comment on this argument, and then consider how my comment extends to personally offensive speech on the internet, particularly, offensive speech whose demeaning character can be regarded as invading the privacy of the people it demeans.

My critical comment on Cohen v. California will consist in reflections on different standard philosophical defenses of a right to freedom of speech and whether they support Harlan’s thesis that the right covers speech used to communicate feelings as well as thoughts. I divide these defenses into two sorts. First, there are defenses that focus on the recipients of speech and appeal to their interests and how they are served by open debate—e.g., Holmes’s marketplace of ideas analogy. Second, there are defenses that focus on the speaker and appeal to his or her liberty interests as citizens in a democracy. I expect to conclude that defenses of the first sort do not support Harlan’s thesis and defenses of the second at most support it for speech that one can construe as political. I expect then to argue on the basis of this conclusion that we should not see personally offensive speech on the internet as protected by a right to freedom of speech.

Brian Leiter:
“Cleaning Cyber Cesspools”

Brian Leiter shall introduce the term "Cyber-Cesspool" to refer to those places in Cyberspace-chat rooms, web sites, blogs, often the comment section of blogs-whose raison-d'etre is to demean, harass, and humiliate
individuals: for short, to violate their "dignity." Privacy is one component of dignity, but only one: threats of physical or sexual violence violate dignity, so too lies about someone's behavior and personality, so too especially demeaning and insulting language, at least at the extremes.

The Internet is currently awash in Cyber-Cesspools of all varieties, and current law provides almost no meaningful or effective remedies. This failure of remedy is related to the more general failure of U.S. law, especially constitutional law, to protect the dignity of persons and its tendency to subordinate the dignity of persons to a particular conception of liberty. (I will follow Schauer in accepting the constitutional status quo on this score.) Since Cyber-Cesspools are beyond the reach of constitutional regulation by the state in America, a number of commentators have suggested enhancing private remedies by, for example, making intermediaries-those who host blogs or service providers-liable for tortious speech on their sites, which would, of course, require repeal of Section 230 of the Communications Decency Act. I do not want to revisit those proposals here. Instead, I want to (1) call attention to the important role that Google plays in making Cyber-Cesspools viable and damaging; (2) examine the question of what Google should do about this and what the law may be able to make Google do about it; and (3) show that corrective steps by Google to minimize the damage of Cyber-Cesspools do not violate any morally viable conception of freedom of speech.

Saul Levmore:
“The Internet's Anonymity Problem”

The Internet is a well-known medium for juvenile and destructive communication. When offensive communications are dispatched by identified senders, they do not seem to present a new problem even when the medium is the Internet, with its remarkable reach. A sender's reputational interest, combined with the law of defamation and harassment, but also free speech, creates an environment that, while not to everyone's liking, is not much different from that found in other media. But anonymous and pseudonymous communications, especially in the blogosphere where many speakers are unidentified, may well present a new and significant problem. I begin with the question of whether theInternet poses a special problem requiring legal attention, and then turn to the familiar device of a hypothetical bargain among citizens or users as a means of thinking about likely, or perhaps desirable, regulation or practice.

This approach suggests different conventions for the Internet, and it raises the possibility of legal intervention, much as law often provides default rules that parties wish they could have privately arranged. There remains the question of whether the interest in, or legal rule protecting, free speech trumps this bargain, or democratic solution. I argue that if it does so, it is to a limited degree, and that that the Internet otherwise runs the risk of being the modern successor to the bathroom wall.

Martha Nussbaum
“Objectification and Ressentiment”

Much of the damage done by the spread of gossip and slander on the internet is damage to women. Much of it involves what feminists have called “objectification”: treating women as objects for people’s use and abuse. Getting clear about the concept of objectification is important as a prelude to seeing what is morally and legally wrong with a lot of what goes on in internet gossip.

The feminist concept of objectification was analyzed and clarified in a paper of Nussbaum’s in 1995, which argued (a) that objectification is best understood as a cluster concept, involving a number of distinct notions, including denial of autonomy, instrumental use, denial of subjectivity, and several others; (b) that the most salient item in this cluster is the use of a woman as a (mere) instrument; (c) that whether objectification, in the context of sexual relations, is morally heinous, morally neutral, or even fine and great, cannot be determined by examining a single episode or piece of behavior, but only by examining the overall pattern of relationship in which the episode is embedded: people whose overall relationship is characterized by mutual respect and reciprocity may agree to use one another as (mere) instruments in some sexual contexts without moral difficulty.

The new paper will, first of all, revisit the conceptual analysis of objectification, revising it to some extent to incorporate excellent suggestions made by feminist philosopher Rae Langton in her (forthcoming) book Sexual Solipsism. Then the paper will turn to a topic utterly neglected in Nussbaum’s earlier paper: what are the motives that typically underlie the baneful forms of objectification? Beginning with the objectification and abuse of well-known people, and moving from that case to cases where the abused person is not famous, the paper will argue that a good deal of what is pertinent can be illuminated by examining (aversion of) the Nietzschean idea of ressentiment. People who feel themselves to be weak or inadequate vis a vis some other group of people seek to validate themselves by creating an entire world in which these people are no longer glorious, autonomous, or happy, a world in which they themselves enjoy complete power over those who formerly held power over them. The world so created is unstable because these creators (somewhat unlike Nietzsche’s Christians) continue to buy into the values they seek to besmirch in others (success, fame, happiness, sexual glamor), and at times are aware that they have not succeeded in attaining those valued qualities. This instability leads to a vicious ratcheting process, in which the assault on the happy and free has to be made in a more and more violent and hysterical tone of voice. It is possible for such assaults to continue unaddressed because the internet facilitates the creation of a whole world in which that person exists as a mere thing. The paper will examine the consequences for ethics and for law of thinking about internet gossip and abuse in this way.

Frank Pasquale:
"Resolving Struggles for Salience Online: Toward A Fair Reputation Reporting Act"

The same corporate entities that shrink individual expectations of privacy enjoy expansive trade secret protection. They also claim that the First Amendment bars regulation of their actions.

While some intermediaries’ actions are analogous to editorial decisions of a media entity, others are more aptly characterized as instances of the data provision and ordering commonly engaged in by credit bureaus.
The Fair Credit Reporting Act (FCRA) has not generated obligations that violate the First Amendment rights of the entities it regulates.
However, recent developments online have made its limited scope and other deficiencies more obvious than ever.

Persistent and searchable databases now feed unprecedented amounts of poorly vetted information into vital decisions about employment, credit, and insurance. Rumors about a person's sexual orientation (or experiences), health status, incompetence, or nastiness can percolate in blogs and message boards.

Even if the First Amendment and anonymity protect the authors of such rumors, affected individuals deserve to know whether certain important decisionmakers rely on them. In limited cases, the intermediary source of the information should also provide the target of a derogatory posting with the opportunity to annotate it. A Fair Reputation Reporting Act would empower individuals to know the basis of adverse employment, credit, and insurance decisions—and to go to their source (and the source of their salience) to demand some relief from digital scarlet letters.

Ruben Rodrigues:
"Privacy in the Era of Facebook: Can the Market Save Us?"

Social networking websites (such as MySpace, Facebook, and Twitter) have created versatile platforms for constant communication of nearly ubiquitous information about individual users. Never before has so much information, traditionally private by nature, becomes so public. All this information sharing is, of course, voluntary. Users give up their privacy in return for valuable services concerning communication, social organizing, and entertainment. As long as a competitive market exists for social networking, users can be expected to choose providers that effectively balance the costs to an individual in terms of diminished privacy with the benefits provided by enhanced social networking. Social networking websites, however, exhibit a number of characteristics common to natural monopolies. If the market for social networking becomes uncompetitive, a variety of legal options exist for enhancing competition, and thus, privacy; including a variety of options for keeping the switching costs in transitioning from one provider to another low. In particular, the law should be skeptical of claims of Contract or IP law by a suspect monopolist who's market power would be protected or expanded by such a claim.

Daniel Solove:
"The Future of Reputation: Gossip, Rumor, and Privacy on the Internet"

Professor Solove will discuss his book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. The Internet is transforming gossip, the way we shame others, and our ability to protect our own reputations. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent chronicle of our private lives-often of dubious reliability and sometimes totally false-will follow us wherever we go, accessible to friends, strangers, dates, employers, neighbors, relatives, and anyone else who cares to look.

Ironically, the unconstrained flow of information on the Internet may impede opportunities for self-development and freedom. Professor Solove proposes ways to rethink long-standing notions of privacy, recalibrate the balance between privacy and free speech, and shape norms about online behavior more effectively. His book is available online for free at http://futureofreputation.com.

Geoffrey Stone:
“The First Amendment and Gossip”

The Supreme Court has never ruled on whether the tort of invasion of privacy, or other regulations of speech to protect the privacy of information, is consistent with the First Amendment. I will discuss the relevant precedents and examine the arguments for and against the constitutionality of such restrictions of free expression.

Lior Strahilevitz:
"Rehabilitating Online Reputation via Reciprocal Privacy"

Many of the problems associated with cyber-bullying and cyber-stalking are as much a problem of too much privacy as too little. Although the threats that anonymous speech may pose to personal privacy interests are reasonably well understood, the harms associated with anonymous search are not. Inspired by David Brin’s notion of reciprocal privacy, this paper will defend a simple but controversial default rule for Internet searches concerning private figures: Such searches are prohibited unless the person performing the search discloses his own true identity to the target of the search.

The intuition behind this proposal is straightforward. The searcher’s willingness to disclose the fact of his search to its target is a good proxy for the social value associated with the search. Where a search is motivated by idle curiosity or malicious intentions, the requirement that he identify himself combined with the possibility of a self-help response by the target often will deter the searcher from conducting the search in the first place. Relatedly, surreptitious searching may facilitate the sort of interpersonal misrepresentations that cause Richard Posner and others to attack information privacy protections more generally. Where, by contrast, there is a good reason for conducting the search (e.g., a desire to evaluate a job application or an interest in socializing) an identification requirement typically will not deter the search. What’s more, many of the harms associated with cyber-bullying and disclosures of private facts online stem from the anonymous nature of Internet searches. If victims of cyberbullying could receive an accurate answer to the question, “Who is Googling me?” then they could determine with greater reliability which individuals might have developed misimpressions of them that ought to be corrected.

The paper will point to existing American privacy laws that reflect, to varying degrees, the intuition behind this version of reciprocal privacy. It will discuss the controversy that the social networking web site Friendster sparked by switching briefly from a default regime of anonymous searches to reciprocal privacy. And it will explore applications of the reciprocal privacy default rule to the autoadmit controversy. The paper will also examine some problems associated with the proposed regime and discuss the legal limitations that might follow.

Cass R. Sunstein:
“Believing False Rumors”

Why do false rumors spread? Why do otherwise sensible people believe them? Why are they sometimes impervious to correction? There are several answers. (a) Some false rumors gain traction because of their fit with prior convictions within particular groups and cultures. People are strongly motivated to accept certain beliefs, however groundless; they also have good reasons to accept some of those beliefs. Diverse groups will have diverse thresholds for accepting false rumors. It follows that particular rumors can have a tenacious hold on some groups and cultures while dying a rapid death in others; multiple equilibria are likely. (b) Informational cascades are often responsible for belief in false rumors.

Such rumors typically spread as a result of such cascades; people believe them because they lack the information that would lead them to reject the signals given by the apparently shared beliefs of numerous others. The important point here is that with respect to many rumors, private signals are essentially nonexistent. (c) Reputational cascades help propagate false rumors. Sometimes people do not correct such rumors, and even endorse them, so as to curry favor or to avoid public opprobrium. Because of the role of early movers, multiple equilibria are
(again) likely, as some groups come to believe rumors that other groups deem preposterous. (d) Group polarization accounts for the intensity with which people accept false rumors. Likeminded people, engaged in deliberation with one another, increase one another’s confidence in rumors. Here too we see why false rumors are widely believed within some groups but widely rejected in others. As a result of group polarization, such rumors often become entrenched. (e) Biased assimilation can make false rumors exceedingly hard to correct. Because people with strong antecedent commitments process balanced information in a biased way, such information can strengthen people’s commitment to false perceptions. That commitment can also be strengthened by corrections, which therefore turn out to be self-defeating. These points have significant implications for freedom of speech and the marketplace of ideas, especially in the age of the Internet; they demonstrate that the exchange of information may not produce convergence on truth and that damaging false reports will often be widely credited. A “chilling effect” on false rumors can be highly desirable; the goal should be to produce optimal chill, rather than no chill at all.

Original Page: http://www.law.uchicago.edu/node/1080

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