Or take the case of Jessica Cutler, a junior staffer for a U.S. senator, who began blogging in 2004 as the Washingtonienne. According to Solove, Cutler’s blog “described daily adventures … which consisted of a lot of partying with various men.” The blog featured a revolving cast of a half-dozen of these, and Cutler wrote sexually graphic commentary about her exploits with them. A much-read Beltway gossip blog called Wonkette soon linked to Cutler. The resulting notoriety got Cutler fired, but it also attracted the likes of the Washington Post, the New York Times, and CNN, and earned her a $300,000 book contract and a Playboy photo shoot. Things went less swimmingly, Solove observes, for one of Cutler’s former boyfriends, a DC lawyer, who’d had no idea that her accounts of their trysts had been appearing on the Internet. Cutler had used his initials and mentioned that he worked for the same senator that she did, making his identity–and his spanking fetish–quite clear. “RS” left his job and launched suits against Cutler for invasion of privacy. The wrangling is being watched by privacy groups for the precedents it may establish about whether bloggers are obligated to protect the privacy of those they discuss. Solove points out that balancing the right to privacy against the First Amendment’s guarantee of free speech has always been problematic; Cutler’s case, however amusing, shows that the Internet has made that dilemma even more acute.
Solove describes the spectrum of sites set up to tarnish reputations. At the lighter end is Bitterwaitress.com, with its searchable “Shitty Tipper Database,” which contains alleged culprits’ names and their rankings as cheapskates. Sites such as Don’t Date Him Girl have greater potential to harm the people they profile. And on the dark end of the spectrum are fringe sites like the Nuremberg Files, which profiles doctors who perform abortions. Until it was forced to stop doing so, it listed those wounded by antiabortion activists in gray type and put a line through the names of those who’d been killed.
Solove sees an expanded role for law here, but he disapproves of authoritarian legislation that attempts to ban specific kinds of speech or activity. He also thinks that although people who feel abused online can and should have recourse to tort, defamation, and privacy law, each of these areas needs reconsideration. Before being allowed to proceed with litigation, he suggests, plaintiffs could be compelled to prove, first, that they sought redress outside court, and second, either that the defendants refused to remove harmful material or that the damage done was severe and irreparable.
Beneath Solove’s legal suggestions rests a keen insight about the extent to which the Internet changes basic questions about privacy. Traditionally, Solove reminds us, the law’s view of privacy has been binary: if somebody is filmed in public, that person is deemed to have had no reasonable expectation of privacy; anyone who really wanted privacy, the law generally says, should have stayed home. Similarly, if somebody communicates confidential information–that he’s HIV-positive, say–to a trusted circle of 50‑odd acquaintances, and one of them then conveys the facts beyond that circle, the law makes it difficult to sue for breach of confidentiality. Solove believes it should be harder for someone to betray trust in that kind of situation, and he proposes using social-network theory, which analyzes social relationships in terms of nodes (individual actors within a network) and ties (the relationships between those actors), to determine when a reasonable expectation of privacy exists.
Solove’s proposals in The Future of Reputation, if tried, might work or fail. They have the virtue, at least, of giving us something to think about beyond the old binary view of privacy, which is too blunt and dysfunctional to address privacy in the Internet era.