Daniel J. Solove is a law professor and leading thinker in Online Reputation Management and Privacy issues. Professor Solove has appeared with ReputationDefender CEO Michael Fertik for media in the past and is well equipped at dealing with the confluence of law and technology.
Ars Technica recently reviewed his two works The Future of Reputation: Gossip, Rumor and Privacy on the Internet and Understanding Privacy. Both the review itself and the works covered are well thought out pieces that address ReputationDefender’s core competancies: what will privacy and reputation look like in the digital age? We will quote in part from the page, but it is really worth reading the entire article.
Though Solove’s own avowed methodological preference is for a “bottom up” approach that proceeds from specific cases and controversies to more general conceptions, it’s probably easier to begin with the more abstract Understanding Privacy. It is, Solove laments, in sore need of some understanding, for despite an ever-growing theoretical literature, he argues that privacy remains “a concept in disarray” for the robed and the gowned alike.
The reason, Solove avers, is that scholars and judges have too often approached privacy by first developing an essentialist or reductivist definition of privacy, and proceeding from there to consider how specific cases fit into their rubric. The upshot, he says, has been a crude and dualistic conception of privacy interests that ill-fits either our colloquial use of the term “privacy” or our real-world expectations.
In the grips of what Solove calls the “secrecy paradigm,” for instance, courts have routinely held that once information is disclosed to anybody—albeit with implicit or even explicit guarantees of confidentiality—it is as though it had been disclosed to everyone. Thus you have no Fourth Amendment privacy interest in dialed telephone numbers you’ve transmitted to the phone company, or financial information you’ve provided to your bank.
This binary conception of privacy has also made courts reluctant to recognize any form of privacy harm other than disclosure—making public that which was previously private. Thus if you are photographed at an embarrassing moment on a public street, courts won’t generally find a privacy interest (as opposed to, perhaps, some intellectual property interest) at stake if that fleeting moment is frozen and disseminated on the Internet. Nor, in most cases, will they see any important qualitative distinction between “public” but widely dispersed and fragmented information, and the same information aggregated in one place, where all sorts of interesting inferences can be drawn from the juxtaposition of individually inert data points.
This last point is particularly important. As we exist more and more in media, our expectations of privacy are less and less. As more people become familiar with Online Reputation Management and defend their reputation online, concepts such as internet privacy will become more prominent in literature and media.