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Time For A Muzzle

Publication Date: 
February 15, 2009
The Boston Globe
Drake Bennett

Professor Lawrence M. Friedman is quoted and Professor Mark A. Lemley is mentioned in an article in the Boston Globe about privacy law and the internet:

Speech now travels farther faster than the Founding Fathers - or the judges who created much of modern free speech law - could have dreamed. The Web has brought a new reach to the things we say about others, and created a vast potential audience for arguments that would once have unfolded in a single room or between two telephones. It has eaten away at the buffer that once separated public and private, making it possible to expose someone else's intimate information to the world with a few keystrokes, or to take information that would formerly have been filed away in obscure public records and present it digestibly as a goad to collective political action.

One of the results has been the advent of a new culture of online heckling and shaming, and the rise of enormous cyber-posses motivated by social or political causes - or simple sadism.


Modern American privacy law arose, in part, out of concern over an earlier transformative technology: the Kodak "snap camera." For the first few decades after cameras were invented, they were large and expensive, and nobody could take your picture unless you sat still for several minutes. When the Kodak hit the market in 1884, it changed all that - the new camera was cheap and comparatively small, and it took a picture in an instant.

"Suddenly, your photograph could be taken without your permission, or even without your knowledge," says Lawrence Friedman, a professor at Stanford Law School and prominent historian of privacy law. And if that picture was compromising in any way, it could easily find its way into one of the many cheap, lurid newspapers that made up the era's burgeoning "penny press."


There are already responses, both legal and otherwise, for people who want to fight back against online assaults on their reputation. They can pay a company - one called ReputationDefender is perhaps the best known - to track down any information about them online and to then attempt to have it taken down. Or they can bring a defamation lawsuit, as two female Yale Law School students are doing against anonymous posters to a college admissions message board called AutoAdmit.


Several of the proposals for how to defang so-called cyber-harassment, therefore, focus on this issue of trying to make websites accountable, in one way or another, for what their often anonymous users post. Mark Lemley, a law professor at Stanford and one of the lawyers representing the plaintiffs in the AutoAdmit case, has proposed a framework under which websites would be liable for user postings unless they agreed to obey injunctions to take such postings down.