Balkinization  

Thursday, June 30, 2005

Of Privacy and Poop: Norm Enforcement Via the Blogosphere

Daniel Solove


By way of BoingBoing comes this fascinating incident in Korea. A young woman’s dog pooped inside a subway train. Folks asked her to clean it up, but she told them to mind their own business. A person took photos of her and posted them on a popular Korean blog. Another blogger, Don Park, explains what happened next:

Within hours, she was labeled gae-ttong-nyue (dog-shit-girl) and her pictures and parodies were everywhere. Within days, her identity and her past were revealed. Request for information about her parents and relatives started popping up and people started to recognize her by the dog and the bag she was carrying as well as her watch, clearly visible in the original picture. All mentions of privacy invasion were shouted down with accusations of being related to the girl. The common excuse for their behavior was that the girl doesn't deserve privacy.

While the girl clearly behaved badly, those Korean netizens' behavior is even worse and inexcusably so. Abuse by the mob is indistinguishable from abuse by dictators yet they just don't see it in the heat of righteousness.
I posted a while ago about how norm enforcers can be valuable in promoting social norms of etiquette and civility. These norm enforcers police norms for free, sometimes even doing so at a cost to themselves. According to the article I discussed, the “tendency to sanction breaches of social norms is the key to human cooperation.”

But norm-enforcement also has a dark underbelly. As Richard McAdams argues, certain norms are unnecessary and undesirable; and even desirable norms can be enforced to an undesirable degree. See Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 412 (1997).

The dog-shit-girl case involves a norm that most people would seemingly agree to – clean up after your dog. Who could argue with that one? But what about when norm enforcement becomes too extreme? Most norm enforcement involves angry scowls or just telling a person off. But having a permanent record of one’s norm violations is upping the sanction to a whole new level. The blogosphere can be a very powerful norm-enforcing tool, allowing bloggers to act as a cyber-posse, tracking down norm violators and branding them with digital scarlet letters.

And that is why the law might be necessary – to modulate the harmful effects when the norm enforcement system gets out of whack. In the United States, privacy law is often the legal tool called in to address the situation. Suppose the dog poop incident occurred in the United States. Should the woman have legal redress under the privacy torts?

Some commentators to Don Park’s blog contend that the behavior of these cyber norm-enforcers is justifiable because that the woman was in public and thus had no privacy:

The initial blogger. Do I think he had every right to post her? Yep. She was in public, and it really doesn't matter if she was in front of 100 or 1,000,00 people, she was willing to act that way in the public sphere. So an upset person chose to mention how upset he was to others. I agree with the earlier poster's mention of a college newspaper doing something along the same lines: it is a minor issue, but sometimes we have power to change behavior with our voices. In this case, I'd bet that many other people are suddenly more conscious of their dog poop and are more likely to serve the public good by cleaning it up.
Yet another commentator writes:

I really don't think it matters that it came out on the internet. It happened in a public place so it is excusable to discuss it in a public forum. This isn't going to ruin her life, it might make her clean up her dog's mess for a month though while the story goes around. We are a fickle bunch and she will be forgotten before the end of the season.
But this comment is wrong. She will not be forgotten. That’s what the Internet changes. Whereas before, she is merely remembered by a few as just some woman who wouldn’t clean up dog poop, now her image and identity are eternally perserved in electrons. Forever, she will be the “dog-shit-girl”; forever, she will be captured in Google’s unforgiving memory; and forever, she will be in the digital doghouse for being rude and inconsiderate.

Consider the famous incident involving the “Star Wars Kid,” a sad tale of a nerdy 15-year kid who filmed himself waving a golf ball retriever around as if it were a lightsaber. To tease him, some other kids digitized it and posted on the Internet along with his name. It was downloaded by millions around the world, and new versions of it quickly emerged replete with special effects and music. Forever, this person will be known as the Star Wars Kid. There’s even a Wikipedia entry for him!

Another tale involves involves a person whose private email to her friends was spread around cyberspace. James Grimmelmann has a wonderful essay about this email incident and social norms on LawMeme.

The easy reaction is to steel ourselves and chalk it up to life in the digital age. But that’s just giving up. The stakes are too high to do that. Consider the thoughts of another commentator to Don Park’s blog:

It reminds me of the struggles that editors face when deciding about what pictures to run in the newspaper. Those editors need to make a judgement call based on the value of the picture and its relevance to the story. But here, the person was outraged and ran the picture of the girl. That's totally different. It shows the dangerous flip side of citizen media. Moral outrage is easy to flame. But the consequences can be mortal. Will the ease in inciting moral outrage create a mob driven police state? It may be when the powerful realize how they can use citizen "reporters," to influence mobs. That seems to be one of the real dangers of citizen journalism. . . .
Compounding the problem is the fact that the norms of the blogosphere are just developing, and they are generally looser and less well-defined than those of the mainstream media. Thus, cyberspace norm police can be extremely dangerous – with an unprecedented new power and an underdeveloped system of norms to constrain their own behavior. Remember the famous saying about police surveillance: Who will watch the watchers? In the blogosphere, we might ask: Who will norm the norm police?

I believe that, as complicated as it might be, the law must play a role here. The stakes are too important. While entering law into the picture could indeed stifle freedom of discussion on the Internet, allowing excessive norm enforcement can be stifling to freedom as well.

All the more reason why we need to rethink old notions of privacy. Under existing notions, privacy is often thought of in a binary way – something either is private or public. According to the general rule, if something occurs in a public place, it is not private. But a more nuanced view of privacy would suggest that this case involved taking an event that occurred in one context and significantly altering its nature – by making it permanent and widespread. The dog-shit-girl would have been just a vague image in a few people’s memory if it hadn’t been for the photo entering cyberspace and spreading around faster than an epidemic. Despite the fact that the event occurred in public, there was no need for her image and identity to be spread across the Internet.

Could the law provide redress? This is a complicated question; certainly under existing doctrine, making a case would have many hurdles. And some will point to practical problems. Bloggers often don’t have deep pockets. But perhaps the possibility of lawsuits might help shape the norms of the Internet. In the end, I strongly doubt that the law alone can address this problem; but its greatest contribution might be to help along the development of blogging norms that will hopefully prevent more cases such as this one from having crappy endings.

Comments:

All the more reason why we need to rethink old notions of privacy. Under existing notions, privacy is often thought of in a binary way – something either is private or public. According to the general rule, if something occurs in a public place, it is not private. But a more nuanced view of privacy would suggest that this case involved taking an event that occurred in one context and significantly altering its nature – by making it permanent and widespread.

Such a contextual approach to privacy is elaborated in Helen Nissenbaum's "Privacy as Contextual Integrity" (PDF).

Also, you might be interested in this study on " Bloggers' Expectations of Privacy and Accountability"
 

For those interested in further discussion about this issue, there are a number of interesting posts and comments over at PrawfsBlawg:

Marcy Peek, Re Internet Vigilantism (I have been engaging a number of folks in a discussion in the comments to this post)

Kaimi Wenger, More Thoughts on Internet Vigilantism

Kaimi Wenger, Internet Vigilantism
 

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