The Boston College Law Review published my paper Privacy, Free Speech and Blurry Edged-Social Networks last November.
From the Abstract:
of Internet-related scholarship over the past ten years has focused on
the enormous benefits that come from eliminating intermediaries and
allowing user generated one-to-many (one person to many people)
communications. Many commentators have noted the tension created
between the positive benefits for free speech and the negative effects
on user privacy. This tension has been exacerbated by technologies that
permit users to create social networks with “blurry edges” – places
where they post information generally intended for a small network of
friends and family, but which is left available to the whole world to
access. The thought is that someone the user cannot identify a priori
might find the information interesting or useful. These technological
advances have created enormous benefits as people connect to each other
and build communities online. The technology that enables these
communities, however, also creates an illusion of privacy and control
that the law fails to recognize. This Article discusses the
technological, social, and legal regimes that have created this
framework, and proposes a technical solution to permit users to
maintain networks with blurry edges while still appropriately balancing
speech and privacy concerns.
I propose a system of privacy tags, perhaps a common metadata system, that users can attach to any content (like a blog post or picture) to indicate their preference for subsequent reuse. Because of the potential chilling effect on speech a code-based approach might create, I suggest a neighborliness approach where people can choose to indicate their preference and rely on social norms to enforce it. Of course, I hope that the privacy torts that assume a user's musings on the public web are available for any reuse would adjust once subjective intentions of individuals become visceral. But I still prefer a liability rule to a property based approach.
I've been thinking about this project for a long time– when Creative Commons was launched a few doors down from my office at Stanford Law School, I thought: Why can't we do this for privacy? Some of my early thoughts from working with students at SLS are here. Professor Ann Bartow is less optimistic that a norms (as opposed to code or law) based approach will actually produce any behavioral change.
I am interested what others think about the "neighborliness" approach.