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Privacy, Free Speech and Anonymity on the Internet

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Daniel J. Solove
Associate Law Professor, George Washington University and Author, 'The Future of Reputation: Gossip, Rumor and Privacy on the Internet'
Friday, January 11, 2008; 12:00 PM

Daniel J. Solove, associate law professor at George Washington University and author of "The Future of Reputation: Gossip, Rumor and Privacy on the Internet," will be online Friday, Jan. 11 at Noon ET to resume his discussion about the Megan Meier-MySpace suicide case and the growing concern over the "Google Generation."

Read the Style story: A Deadly Web of Deceit

A transcript follows.


Daniel J. Solove: I'm glad to be here today to discuss your questions and comments about the Megan Meier case, as well as privacy, gossip, rumor on the Internet. I look forward to the discussion.


Saint Joseph, Mo.: I am an old man in the Midwest. My son and I have a blog/online magazine. I have visited the social network sites to promote our site and have been shocked at the amount of detail people share with the world. Am I cynical? I tell my adult children, "Don't put pictures of you children on the Internet." They think I am over cautious.

Daniel J. Solove: People do indeed put a lot of personal information about themselves online, especially teenagers and college students. I call them "Generation Google." They'll have to live with an extensive amount of fragments of gossip and rumor about their lives on the Internet, readily accessible anytime a person does a Google search under their name. Since people are just learning about social network websites and blogs, many haven't experienced the consequences of putting too much information out there. Over time, hopefully, more critical awareness might lead to people being advised and educated to think before they post. But then again, you can tell teenagers what to do, but it's hard to get them to listen.


Washington, D.C.: Do you feel like people are finally learning the lesson not to post embarassing pictures of themselves online?

Daniel J. Solove: Not really. Blogs and social network websites have become very popular in only the past few years. So most adults don't have the experience of regretting what they posted online a decade ago. Many in the generation now in high school and college will have these regrets ten years from now, and unfortunately, that's when the lessons most sink in.


Hamilton, N.J.: Professor, I understand the fraudulent aspects of this case, but assuming "Josh" was a real person and said those things to Megan, wouldn't he have been protected under the First Ammendment?

Daniel J. Solove: Yes. The First Amendment protects people's right to say all sorts of hurtful and mean things to each other. They can't defame another (spread false lies that damage their reputation); they can't invade people's privacy (spread intimate personal information about them that is not of legitimate public concern). But they can speak anonymously, and the First Amendment protects their right to do so.

What the Drews and others did in the Megan Meier case is quite despicable, but the First Amendment prevents the government from banning people from creating anonymous blogs or profiles (or from creating blogs or profiles under a pseudonym). For example, Samuel Clemens can write under the name Mark Twain. James Madison can write under the name Publius.


Washington, D.C.: This story about Megan is horrifying... it's terrible that an ADULT (and mother!) would behave in such an immature way (creating a fake online persona as a teenage boy) even if it had not ended tragically. And it's also so distressing to see that bullying -- since everyone around the country can jump in -- online is now just as dangerous as bullying in a school hallway.

What's also disturbing is how children still lack any perspective -- that this too shall pass. This poor fragile girl just wasn't equipped (would any of us be?) to deal with the sheer venom that was hurled at her. I'm not sure why Lori Drews cannot be charged with something... inciting others to commit crimes? But there has to be something that can be done to punish this moronic adult and teach a real lesson to this bullying kids.

Daniel J. Solove: I agree that the behavior of the mother was immature and irresponsible, but it still remains unclear who said the nasty things to Megan in the name of Josh Evans. The mother created the profile, but young children learned the password of that profile and they were writing things too. It is hard to parse out blame unless we know who wrote what. We also need to know what those who wrote the nasty comments knew about Megan's fragile mental state. Most people don't commit suicide in response to being insulted, broken up with, or bullied. Did they know of Megan's fragile mental condition?

I don't think that the conduct of the Drews (or the idea of creating a fake persona to speak with Megan) was good. But when it comes to criminal law, people are culpable only when they caused the suicide and had a culpable mental state (were aware that their actions would carry a foreseeable risk that they would cause Megan to kill herself). These things are hard to prove. This doesn't mean that their actions weren't moronic, irresponsible, and mean, but people act this way all the time, and it doesn't add up to criminal conduct.


Washington, D.C.: Prof Solove,

How much of what Lori Drew did wrong was pretending to be a teen? If there actually had been a Josh Evans that did these things, would people be so mad?

Daniel J. Solove: I think what makes the case grab so many people's attention and ire is the interesting combination of: (1) new technology -- the fact a social network website profile was used -- and many people still don't know much about social network websites; (2) anonymity -- the fact that a fake persona was created; (3) the fact that an adult was involved in the creation of the fake persona and in the conduct toward Megan; (4) the terribly tragic consequences of the case, where Megan committed suicide, where Megan's family fell apart, where nearly everybody involved had their lives adversely affected.


Alexandria, Va.: Professor,

What kind of expectation of privacy should an applicant for a job have with respect to "background checks" by the potential employer? (For routine, non-government jobs). For example, let's say the applicant has a relatively immature music blog that hasn't been updated in 7 years but still comes up if the employee is "googled?" In your opinion, can the applicant justly assume that the employer should not "dig" for this information and hold it against the applicant?

Daniel J. Solove: Unfortunately, the applicant can have no such expectation. Many employers are googling their prospective employees. In my book, I discuss several instances where people's blogs or social network profiles resulted in their not being hired or even in their being fired from a job. I think that the law should require an employer to inform an employee or prospective employee if the employer does an online "background check" of that employee. But currently, the law doesn't make any such requirement unless the employer seeks background information from a credit reporting agency. If the employer does his or her own background check by searching online, the law provides no protection.


Minneapolis, Minn.: I've been reading, writing, and speaking in this area of privacy for some time now, and I have two additional concerns that I think people are not hearing about very often.

First, the Internet is archived by many organizations such as Google and the Internet Archive. Unless protective measures are taken on a given Web site, information a person posts today may continue to exist within these searchable archives even after it is deleted on the original Web site. I have personally tested the Internet Archive on a Web site a schoolmate had years ago (and was the partial reason I believe he lost a job opportunity). While he deleted the embarrassing content years ago, I can locate it easily through the archives.

Second, new searching products are likely to evolve in the next few years. Take a look at Microsoft's Photosynth product. At first glance it is just a very interesting way to have a massive database of photos associated with each other based on similar characteristics (for example, thousands of different photos of the Vatican all linked together). However, if you think about it, this technology will likely allow the indexing of photos of an individual across the Web without the need for text labels naming who is in the photo. In other words, it is quite possible that this technology will recognize you in not only your online professional biography picture, but also in your college drunken frat picture and thousands of other pictures of you on the Web -- serving all this information up to anyone that cares to look.

Privacy seems to be an illusion. I would like to read your comments on those issues.

Daniel J. Solove: There is indeed an Internet archive, called the "Wayback Machine" that archives Internet content. So if you delete a blog post, it still might appear in the Internet archive. You can contact the Internet archive to get something deleted from it. I blogged about that here: http://www.concurringopinions.com/archives/2005/11/does_anything_r.html

Google also keeps an archive of online content in its cache. This is refreshed periodically, so deleted information will disappear from Google's cache over a period of time.

So it is possible to clean out information from the Internet, but it takes a bit of know-how and obviously becomes harder if it is on more than a few websites.

Regarding Internet searching technology, it is still in its early years. It has advanced rapidly, and I think it will continue to advance. So your portrait of the future is certainly plausible.

But I don't think that privacy is an illusion. Privacy involves many things, from keeping control over information to ensuring that people maintain confidentiality to limiting how others can use our information to preventing surveillance. There are a lot of things that we can do to protect privacy, and I don't think it is productive to say that technology has taken away our privacy and we have to live with it. Technology may enhance privacy problems, but a lot of these problems are caused by things that government, businesses, or other individuals do -- they are caused by practices and activities that are facilitated by technology. And while we can't stop technology, we can do something about these practices and activities.


washingtonpost.com: Does Anything Really Disappear from the Internet? (Concurring Opinions Nov. 16, 2005)


Washington, D.C.: Professor, do you think some jurisdictions will legislate in haste in an attempt to prevent similar situations? I'm horrified by what happened to Megan Meier but I wouldn't want sweeping laws regulating what can be said online in an emotional response.

Daniel J. Solove: Yes -- some jurisdictions are already attempting to do so. I am very wary of hastily-drafted reactionary legislation. There is a danger that legislatures will create vague and overbroad laws that are too restrictive of free speech.


Washington, D.C.: Hi Professor,

The point about employers "googling" their potential employees -- if you set your profile to private, as in, only your 'friends' can view your profile, is there still a way for employers to look at it, or would they even go that far?

Daniel J. Solove: There are some instances where employers have asked college student interns or recent college graduates whom they hired to give them access to Facebook. I think that such employer behavior is improper, but it isn't clear that it is illegal.

The more restricted one's profile is (i.e. the fewer people who one allows to view it), the less likely that an employer will discover it.


Washington, D.C.: I identify with Megan. I was picked on all through elementary and junior high (this was the 60s-70s). And then we moved, due to job relocation, and I was reborn. No one knew me. I had a fresh start. When I think about what I went through when I was 12-13 and what girls of that age have to deal with today with internet stalking, I don't know if I would have survived.

Daniel J. Solove: The ability to have a fresh start is imperiled today. It used to be the case that the gossip and rumor that people experienced in high school and college would disappear over time and be forgotten. It would be known only locally within a particular social circle. But now it is all online, searchable and accessible from anywhere.


Ballston, Va.: What do you think about the conduct of the "Web vigilantes" in this case? Personally, I'm torn. Part of me says that its a mob of unruly forums trolls meting out their own brand of justice. Another part of me says that society has always censured behavior that it finds despicable, irrelevant of that despicable behavior's legality.

Daniel J. Solove: I don't think that online shaming is a productive response. Because of the ability to communicate rapidly and to spread information quickly, we are seeing mob-like behavior erupt online. People are quick to condemn without finding out all the facts. People also vie for attention, and online shaming campaigns tend to get nastier, without people trying to outdo each other.

Shaming is an important social function, necessary to ensure that people follow norms and behave courteously towards each other. It is essential for social control. But online shaming often becomes uncontrollable -- it often turns into anarchy and it can sometimes lead to violence and harassment. Ironically, although shaming is done to facilitate social order, it can readily spiral out of control, subverting social order.

Moreover, online shaming is different from many forms of offline shaming. Offline shaming (an angry scowl or glare, or telling somebody he or she was rude) is temporary; online shaming can be permanent, a digital scarlet letter that is connected to people for life.


washingtonpost.com: This concludes today's discussion. Please return tomorrow, Friday, Jan. 11, at Noon ET for further exploration of the topic by Prof. Solove. Thank you for joining in.


Daniel J. Solove: I'm delighted to be returning today to continue the conversation. Thanks for your excellent questions thus far. The number of questions coming in is overwhelming, so I can't answer them all, but I hope to get to many more today.


Washington, D.C.: The issue of anonymity is interesting to me. Can you talk about how some companies or employers have gotten around first amendment rights to discover who people are online?

Daniel J. Solove: In many cases, people think that when they are anonymous or pseudonymous online that it means that nobody can find out who they are. This is generally a false assumption. In my book, I discuss the difference between anonymity and traceability. Anonymity means that oneís name isnít publicly connected to what one writes. But that person may still be readily traceable. An employer can sleuth out the identity of an anonymous blogger by matching up details that the person provides in posts to actual people. Most people are not particularly adept at being anonymous and leave all sorts of clues to their identity. Plus, some people might even blog from their work computers, and employers can readily trace the posts back to them.

But if an employee is good about not leaving traces behind, an employer can still find out his/her identity by locating that personís IP address and then issuing a subpoena to that personís Internet Service Provider (ISP), which keeps logs of what IP addresses are assigned to particular individuals who have accounts with the ISP. But to do this, the employer must file a lawsuit for some kind of wrong (defamation, leakage of trade secrets, etc.) and only then can the subpoena be issued. Courts will review the subpoena and weigh the anonymous speakerís First Amendment free speech rights against the employerís need to identify the speaker to proceed in the lawsuit. If the lawsuit is a viable one, then typically the subpoena will be allowed to issue. If the suit is frivolous, then the subpoena will be denied ("quashed" in legal lingo). If you want to read more about how all this works, I discuss it a lot in The Future of Reputation and in this blog post.


Jacksonville Beach, Fla.: Professor,

Teenagers, especially teenaged girls, have always been capable of mean and insensitive acts. Do you think there is something unique about the effects of this behavior when it is facilitated by the internet? In other words, even though this case had a tragic outcome, is it any different than passing hurtful notes or pretending to like someone in order to hurt them (things that teenagers have always been guilty of)? Thank you for your insight.

Daniel J. Solove: It is true that teenagers (both boys and girls) can be immensely cruel and mean to each other, and the spreading of gossip and rumor in school certainly occurred long before the Internet. But the Internet does change things. First, one could readily escape gossip and rumors in school after graduating. People forget. People move away. The information stays local and fades over time. But when it gets on the Internet, it has the potential to spread much more widely, and it isn't forgotten -- it readily pulls up in searches under people's names -- no matter where they move to.

In my book, I discuss the sad story of the "Star Wars Kid. A teenager in Canada filmed himself playing around with a golf ball retriever pretending it was a light saber. His performance was awkward and funny. Some of his tormentors found the video and uploaded to a site on the Internet where people could download it for free. Millions Ė tens of millions in fact Ė downloaded the video! All across the Internet, people were mocking the kid. There are dozens of new versions of the video created, with special effects and music. The kid dropped out of school and really suffered greatly as a result. Itís hard enough being teased by a bunch of students at oneís school. Imagine being picked on by tens of millions of people around the world!


Washington, D.C.: Since MySpace clearly cannot control what age people are when they log on (since Megan was underage), do you think they should require proof of age (via social security numbers or other credit-type checks) when people sign up? That might not have stopped Lori Drews, but could have kept Megan off MySpace for another year -- maybe a year where she would have developed better coping skills for the madness she would encounter online. (Not blaming her of course, but a company who allows little kids access even when it purports not to.)

Daniel J. Solove: An ID requirement might be very hard to implement. Credit reports can have errors and mistakes. Making it harder to sign up for an account could inhibit thousands (perhaps millions) of users above a minimum age requirement. And thereís nothing wrong with using social network websites or blogging. I think that these technologies are generally good. The best solution, I think, is for parents to understand what their kids are doing online and teach them how to be responsible online.


Las Vegas, Nev.: This discussion and article reminds me of a Science Fiction story written by Steve Allen (yes,the TV guy) in the 60s, "The Public Hating" in which the covicted is placed in the middle of the L.A. Coliseum and the 100,000 seats are filled with citizens who focus their hatred and emnity on the poor soul, who is tormented to death. Perhaps that concept is coming.

Via the "internets"

Daniel J. Solove: I haven't read Allen's story, but it sounds great. Thanks for pointing it out.


Washington, D.C.: The Megan Meier story really shows how, as parents, our need to look out for our children and teens has really expanded the scope of our vigilance and our need for resources and tips on this new world our kids and grandkids navigate in.

There's a new e-newsletter for parents, teens, and educators called BNetSavvy, go to bNetS@vvy part of a 4NetSafety program between the National Education Association's Health Information Network and the National Center for Missing and Exploited Children, funded by Sprint's phone recycling program. There's a teen site NSTeens to help teens understand the need to be Internet safe and bNetSavvy offers tips and articles from teens, parent, educators and experts. The current one is on cyberbullying.

Are there any safeguards you'd suggest for parents and what do you think of the town's cyberbullying law?

Daniel J. Solove: Some tips for parents, educators, and others:

1. Google yourself and your family members periodically to make sure that nothing bad is online. Most of the time, you might be pleasantly surprised by what you find -- most information about people online is good.

2. If you find something bad on a website about yourself or your child, contact the author of that site and ask for it to be taken down. Hopefully, they will comply. The best solution is preventative medicine. If it says online, you never know who might eventually find it; and it could go viral (i.e., become really popular on the Internet and spread to many other sites, where it becomes nearly impossible to eradicate from the Internet).

3. Find out whether your children are using social network websites or are blogging. Talk to them about it, and teach them that they should be careful about what they say about themselves, that they should be careful about whom they befriend online (could be a fake persona like what happened to Megan Meier, or even worse, it could be a child molester) . And also teach them that they should be careful about what they say about others, and not defame them or invade their privacy. Teach them that this could potentially result in a lawsuit, which could be costly and time consuming to defend.

On the town's cyberbullying law, I find it quite vague and overbroad. The use to terms that prohibit "annoying" somebody online strike me as very vague, and this could unduly chill much legitimate speech.


Baltimore, Md.: I never cease to be amazed at two or three ostensibly social-networking forums (no, I'm not going to name them here) that have somehow managed to descend into soft-core porn sites, with members posting pictures of their barely-clothed and sometimes very unclothed, bodies. As anonymous as the Web may be, it's not that improbable that someday I'll recognize someone in those pictures, just as I may recognize someone on "Antiques Roadshow" (yes, I did this week). Do you think it's time for a massive awareness campaign about how those photos are going to float about all over the place? Yesterday's story on appropriated photos should be a wake-up call. (and as I type, folks are uploading photos to that one site at the rate of perhaps one a minute... and a lot of them are very likely under 18 to boot...)

Daniel J. Solove: Yes, I do think that people need to be made more aware. Right now, most parents have little idea about what their children are doing online. Nobody is really educating children about the consequences of what they are posting online. I wrote my book, in part, to help spark that conversation.


Washington D.C., googling and jobs: I can see how it would be hard to disprove a picture, but if Jane Doe is googled by a prospective employer, and it turns out she has a racy blog, couldn't she say, "That isn't me"? In other words, how do employers know that what comes up in Google pertains to the prospective hire?

Daniel J. Solove: Yes, there are many cases where Google will pull up search results where blogs or other things might belong to somebody else with the same name.

But with a prospective hire, imagine the busy employer who has a stack of resumes on his or her desk. The employer googles Jane Doe, finds the racy blog, and then could either (1) still call and interview Jane and ask her about the blog, whereupon she'll explain that it belongs to another person with the same name; or (2) not bother to call Jane Doe even though there's a decent chance the blog belongs to somebody else, and instead call the person in next resume in the pile. For the busy employer, Option (2) might be the easiest way to go. So even if the employer doesn't know for sure that something pertains to the prospective hire, it might be just enough to make the employer decide to move on to the next applicant.


Arlington, Va.: Would any of the online child predator laws apply here? You have an adult essentially soliciting a minor in this case.

Daniel J. Solove: I don't have in front of me any of the solicitation laws, so I can't say anything definitively. But such criminal laws typically involve trying to get somebody to become involved in criminal conduct, or soliciting a minor with the intent to have sex. In the Megan Meier case, there is no indication of either. It appears from the facts that the Drews used the fake profile to create an emotional connection, a friendship with Megan. It is not against the law to pretend to be child's friend and to merely talk to them, or even say mean things to them.


Arlington, Va.: Do you think schools need to start incorporating Internet privacy issues into their curriculum so that kids understand some of the consequences of their actions? I've not heard of any schools devoting even a couple of hours a year to this, have you?

Daniel J. Solove: I haven't heard of many schools addressing these issues in the curriculum, but I think they should. Information that kids write about themselves and each other on the Internet can affect their futures, and there are many cases of people not getting jobs, or being fired from jobs, for information about themselves online. It can limit a student's potential future. That's why it is important to discuss. Not only are privacy issues of great importance for students' lives, but they are really interesting and provocative issues to debate in the classroom setting. I teach a course in privacy law to law students, and we have some fascinating discussions. Many privacy issues don't require much knowledge of the law to understand and talk about, and I think that high school and college students could really learn a lot by discussing and debating them.


Washington, D.C.: One thing I've tried to do with my blog is to never mention my last name. My surname is long and ethnic and only a handful of Americans share it with me. If I'm not libeling anyone or posting nude photos of myself, should I be generally okay?

(I Google myself regularly and what I mainly find is unauthorized republication of articles I wrote on a previous job.)

Daniel J. Solove: You're probably ok, but there are a few things to note:

1. Be careful also not to inadvertently invade other people's privacy. So if you speak about encounters with other people on your blog that involve private information about them, be sure that they either consent to being written about or to conceal their identities. There are some cases where bloggers poorly concealed the identities of others they spoke about who were then readily identified.

2. Even though you're anonymous on your blog, it is still possible for somebody to subpoena your identity from your ISP. But this would involve an instance where another might be accusing you of defamation or invasion of privacy or a copyright violation. You will be protected by the First Amendment protections of anonymous speech that I spoke about earlier in this chat.

3. A clever Internet sleuth might be able to figure out who you are. They might do so by linking up the IP address in an email you send them under your real name to an instance where your IP address is connected to a blog post or comment. I'm not a hard core techie, so I don't know all the techniques of identifying anonymous speakers online, but there are people out there who might be able to figure out who you are.

But these risks are generally low, and it sounds like you are blogging carefully and are vigilant about what is written about you online. So you're probably fairly safe.


Philadelphia, Pa.: This question goes to the confusion that many experience with purported anonymity on the Internet and its consequences. I am an attorney and I do not understand the decision by the prosecutors NOT to bring charges against Lori Drew, an adult woman, for pretending to be a 16-year-old boy and carrying on an inappropriate online relationship with a 13-year-old girl, that proximately resulted in the girl's death. Though it does not appear that the conversations were sexual in nature, they were certainly "romantic" and were consistent with the same type of "grooming" that we hear about online predators using to manipulate minors online. It seems to me that this woman crossed the line legally by inducing the girl into believing that the boy was romantically interested in her. The anonymous manipulation of the child by the adult female was certainly deviant and lascivious and no less abusive than if it had been by an adult male. As we have seen time and again on the Internet, were an adult male behind the messages, there is little doubt that prosecutors would be acting. Are the prosecutors confused by the fact that it was an adult female hiding behind the purported anonymity afforded by the Internet and is this a double standard that is obscured because it is the Internet that is the medium for the conduct?

Daniel J. Solove: I don't think that a double standard was at work in this case. To my knowledge, nothing in the facts indicated that there was anything sexual in the discussion. An adult pretended to be an anonymous friend to a child, but I have yet to read anything that indicates that the friendship involved talk of sex in any way. If it had, then that might involve criminal conduct, but even then, the adult would have to have the requisite criminal intent. Here, there appears to be no intent to actually have any kind of sexual relationship with the child. The intent appears merely to be to pretend to befriend the child so as to find out gossip. That's an irresponsible thing for an adult to do, but it's not criminal.


Fairfax, Va.: How do you think these issues will change as today's teens and college students become, not just part of the workforce, but employers and parents themselves? I suspect parents will become much more savvy about their children's Internet use, and employers more understanding of immature blogs or photos (to a point).

Daniel J. Solove: I think you're right about parents -- over time, they will learn more about their children's Internet use. In about 10-20 years, many parents will even have had blogs and social network profiles of their own, which they might be embarrassed about and not want their kids to see! But by then, who knows what the new technology that their kids will be using will be?

But I think that over the next few years, parents will learn more. If parents do want to learn more, I can throw in a gratuitous plug -- read my book.

As for employers, that's harder to predict. Some might more readily dismiss immature blogs and photos, but some might not (even if they, themselves, engaged in the same kind of conduct when they were younger). People are quite hypocritical about things. What people condemn in others they often have done themselves. So I don't want to underestimate this phenomenon.


Washington, D.C.: I am interested in the grass roots retribution occurring here. Do you see this happening more often, becoming more involved or severe? More frequent? What happened is horrible but the response is scary, too. Mob justice has had terrible results throughout history. Is this any different?

Daniel J. Solove: Mob justice depends upon people being able to rapidly get together and form a strong emotional bond or reaction about a particular incident. That's easy to do when there's already a collected crowd. But it is harder to do when everybody is dispersed in their homes or offices or work cubicles. With the Internet, however, it allows people to interact quickly, to communicate with each other. This is a great thing, but it also creates the ability of forming a mob in cyberspace. I chronicle a number of shaming incidents in The Future of Reputation, and they often have very mob-like qualities -- the discourse becomes quite shrill and over-the-top. A calm discussion of the incident often devolves into nasty slurs and attempts by people to outdo each other in meeting out "justice" to the wrongdoer.


Daniel J. Solove: Thanks for your questions and comments. I enjoyed discussing these issues with you.



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