Dear Eugene and Declan,
I've been misunderstood and taken out of context! (Not by you, gentlemen, but indulge me for a moment.)
What author hasn't felt this after reading a book review? To be reviewed, by definition, is to be narrowed and simplified, to have your arguments presented through someone else's filter. But it's impossible for authors to avoid subjecting themselves to this sort of indignity, because reviews are necessary to persuade people to buy books and evaluate the arguments on their own. It would be silly for me to demand privacy after writing a book, because the point of writing a book is to express myself, to speak to readers, and perhaps to influence the way they think. (Now is the time for the wanted gaze.) Still, if I got a bad review in a very prominent publication, I would feel like my dignity had been assaulted and my public face had been misdefined, and I would use all the resources at my disposal to correct the misrepresentation. But no one would suggest that I should be able to sue the reviewer and have a judge settle the question, because ultimately the merits of my arguments and the true nature of my personality would be a matter of opinion, and mine might not be the most reliable.
Now imagine that I'm a private citizen who has ventured into cyberspace journalism for the first time. I'm thinking, in particular, of the sister of a friend of mine, who wrote a wonderful "Diary" for Slate last summer about being a sorority girl. The diary was a smash--she found her voice and expressed it perfectly--but it provoked a hormonally heated thread in "The Fray," in which readers wrote in with hurtful and cruel gossip, speculating about her and her personal life. This, understandably, devastated her, but she had no recourse. If the gossip had been oral, and expressed around the water cooler, she could have ignored it. But because it was recorded and archived in cyberspace, it continued to haunt her until it was finally removed.
In the book, I discuss how cyberspace has elided the distinction between oral and written gossip, ensuring that social judgments that used to be expressed behind closed doors are now published and stored, often with brutalizing effects. Oral gossip is an effective way of enforcing social norms while still respecting privacy. But once gossip about intimate aspects of someone's behavior and personality is archived, it takes on a public character that makes it harder for her to change her behavior without feeling like her public face has been assaulted. Thus, cyberspace has made more Americans vulnerable to the indignity that used to be suffered only by the very famous or the very rich--the indignity of being gossiped about in print. (Remember, it was mild gossip about a lavish breakfast party that Samuel Warren had put on at his daughter's wedding that provoked Warren and Brandeis to write their famous article on the right to privacy.) And even though most Americans, alas, will never write a Diary for Slate, many are vulnerable to the indignity suffered by my friend's sister as more and more of our intimate activities--from gossip to e-mail to chat--are recorded in cyberspace and vulnerable to involuntary exposure.
What is the appropriate response to this new threat to privacy in cyberspace? It's a hard question, but I remain convinced that law isn't the answer. Eugene: When I said, "Maybe we need new Brandeis torts for the 21st century," I had just made clear that you and I agree that we don't need new restrictions on speech in the 21st century; I was just wondering aloud whether "we're wrong to be so skittish." (This trifle is my only complaint about being judged out of context; by and large, you and Declan are fairly judging me in all of my wondrous and ineffable complexity.) I agree with you that there are serious First Amendment issues raised by legal restrictions on the publication of truthful but embarrassing information, and recommend to readers your fascinating Stanford Law Review article on the subject.
When it comes to protecting ourselves against the special indignity of being gossiped about in cyberspace, I agree with Declan that technological self-help, despite its drawbacks, is more effective than law and politics. We need more "scribble" technologies that allow us to erase our own chat. We need more editorial judgments and filtering mechanisms and chat-room moderators to prevent hurtful and gratuitous gossip from being recorded and archived in prominent places. "The Fray" comments on our dialogue so far have been thoughtful and constructive (although, Ben, I disagree with you that "to know a person through their logs is the truest way of knowing a person"). But in the case of my friend's sister, I wish that the editors of Slate had filtered out the gratuitous private gossip rather than publishing it; I also wish it hadn't been archived: every day for her was a torture. When I made this argument at a book forum sponsored by the Electronic Privacy Information Center, Whitfield Diffie, the great encryption inventor and Internet theorist, disagreed strongly: He said that destroying logs was an offense against history. But in the 19th century, Henry Adams, the American historian and aesthete, burned his letters and wrote the greatest American autobiography, because he feared nothing more than the judgments of biographers. All of us are entitled, in the 20th century, to the same ability to suppress personal information in the interests of influencing (but not, of course, controlling) the conditions of our self-presentation.
Finally, on the technology front, I'm grateful to Declan for the helpful links; but, as I argue in the book, technologies of pseudonymity, rather than anonymity, may ultimately be more useful to consumers. Austin Hill, the president of Zero-Knowledge, is planning to introduce in the fall a new version of the product that allows users to reveal parts of their identity in different contexts without revealing their actual identity. So, for example, if I want to enter a chat group about prostate cancer, I can prove that I'm a man; if I want to look at dirty pictures, I can prove that I'm an adult, and if I want to get a driver's license, I can prove that I live in D.C. and have green eyes--without revealing that I'm Jeff Rosen. These and other technologies, such as digital certificates, allow us to desegregate our identities and reveal only as much of ourselves as is necessary for a given virtual interaction. They are an exhilarating antidote in a balkanized age, in which we're told too often that we are defined by our immutable characteristics and will never be able to transcend the perspectives of our race or gender. They put within our grasp the central value of privacy, as I understand it, which is the ability to reveal different parts of ourselves in different contexts. If these wonderful technologies become more socially acceptable, I'll revise my judgment that the Internet is threatening privacy rather than reconstructing it.
But now I'm sounding giddy with cyber-optimism. Eugene, please, some cold water?