When Dan Solove wrote The Future of Reputation, it was a warning. If you want to maintain your privacy, then keep your information private. But that’s hard work. It means not being able to do anything you want to do, because we’re entitled to do so. It means we don’t get to display our lives on Facebook and Twitter, gather up our likes and followers, then scream about how others have invaded our privacy for taking notice.
After all, don’t we have the right, the entitlement, to be fabulous in public while simultaneously controlling our public personas and denying its use when it’s not to our liking? Why no. No we don’t.
So why does an op-ed by Robert Levine appear in the New York Times arguing that we can have it both ways?
What we really need are more nuanced laws that can safeguard privacy in the digital age. Courts in the United States have held that public figures are less entitled to privacy than the rest of us. But the Hogan case became less about who’s a public figure and more about the ways in which the Internet has allowed our private information to be made public in ways we didn’t intend.
Much is made about “ways we didn’t intend,” as if the world revolves around what makes us happy. Let’s come clean: we intend to be brilliant, wonderful, interesting and fabulous. We intend to have other people love, adore, respect and appreciate us. That’s what we intend. Except we then do incredibly stupid things that make people feel slightly differently about us. NO FAIR!
Gawker defended the news value of the video, claiming that Mr. Hogan had lost his right to privacy because he was a celebrity and had already boasted for years about his sex life “on talk radio and shows like Howard Stern,” Nick Denton, Gawker’s founder, wrote on the company’s website after the verdict. Mr. Hogan, whose real name is Terry Bollea, countered that there was a firm line between the man and the alter ego he plays.
One of the more bizarre moment of the Hulk/Gawker trial was when Bollea testified as if Hogan was a different, separate person. Hogan was a public figure. Bollea was just a regular guy. Hogan was subject to the limited protections of a public figure. Bollea was entitled to have his feelings shielded from exposure. This is borderline psychotic.
“Terry Bollea’s a normal person,” he said, while Hulk Hogan is a crude character who bragged about his sex life — truthfully and otherwise — in ways Mr. Bollea never would. That response evoked snickers on social media, but the idea that a person may divulge some information in one context but not another is at the heart of modern privacy theory.
What is this “modern privacy theory” that Levine mentions? It’s a flight of narcissim and entitlement going back well before the internet age.
In his landmark 1967 book “Privacy and Freedom,” Alan Westin defined privacy as “the claim of individuals, groups or institutions to determine for themselves when, how and to what extent information about them is communicated to others.”
See something, say something? Nope. See something, than ask permission as to whether whoever got caught doing something wrong, or stupid, or dangerous, or foolish, wants you to say something. After all, shouldn’t they control their public persona? Shouldn’t they have a say in whether the world should know what they’ve done.
And before you note the absurdity of Levine’s contention, realize that there are a lot of people saying, “oh, yes, yes, he’s so right.” They do so because they want to control their world. They want to be public, and they want to shut down anyone or anything that might embarrass or humiliate them for being public.
Levine wants “nuanced laws” to protect privacy. Sounds legit, because who doesn’t want nuanced laws? After all, how else can one enjoy the bounty of freedom if there isn’t a nuanced law dictating how others are allowed to do it? But, of course, Levine offers no clue how such a law could exist.
Law is a bludgeon, not a scalpel. But when writing about all the hurt and pain of being exposed for one’s public conduct, there is no need to explain how fantasies are to be accomplished. Don’t you feel the pain? Don’t you understand how something must be done? Something must be done. What that something is isn’t Levine’s problem. He’s just the gusher of feelz, and that’s good enough to spew in the New York Times.
“Westin’s vision of privacy is that you could control your information as it left you,” says J. Trevor Hughes, chief executive of the International Association of Privacy Professionals. “But now, on the Internet, that control is increasingly out of our hands.”
Putting aside the possible agenda that the chief exec of the International Association of Privacy Professionals might have, making his observation slightly biased, Hughes is wrong. We have control. If you don’t want a bad picture of you on the internet, don’t put it on the internet. If you don’t want Bubba the Love Sponge giving Gawker video of Hulk Hogan having sex with his wife on the internet, don’t have sex with Bubba the Love Sponge’s wife, even if he tells you it’s good with him.
Yes, this means your entitlement to have sex with another man’s wife is lost. This means your entitlement to enjoy the income one gets from being Hulk Hogan, public clown, comes with a price. But then, regular folks like you and me don’t make our fortune by screaming to the public to look at me, listen to my sexual exploits. What about us?
But just as the Internet has made it easier to become a publisher, it has also become much easier for ordinary people to suddenly become public figures. Mr. Denton himself said, talking about people who posted on Facebook, “to the extent that they are published and they are viewed, they become some sort of public figure.” That makes public figures of more than 1.5 billion people, who might be shocked to find themselves described that way.
That’s right. We do things, and we are responsible for what we do. Post a picture on Facebook of you committing a crime, and get busted for it. Write a law blog and suffer the slings and arrows of anyone who disagrees with you. That, kids, is the deal. If you don’t want anyone ridiculing, mocking, hating you for what you have chosen to make public, then don’t make it public.
Do you have a right to make any damn thing you want public? You bet. This is America, and we have a right to be as stupid in public as we want to be. What we do not have is a right to censor the world, to control what others will say or do with the things we’ve chosen to expose about ourselves, the poor choices we make. Don’t want people to call you stupid? Don’t be stupid. But you have no right to privacy to scream stupid things in public, then demand that no one notice.
However unusual Mr. Hogan’s circumstances, his essential complaint is one that many of us share in and one that our laws haven’t addressed: How do we control our information in the digital age?
The solution that eludes Levine and his ilk is that law isn’t magic and can’t cure all hurt feelings. The way we control our information in the digital age is the same way we control our information in any other age. You want privacy? Keep it private. You don’t want the world to see it? Don’t put it in the internet. You don’t want anyone to know about that nasty thing you did? Don’t do it. Don’t be an entitled, whiny, narcissistic idiot. Problem solved.
But one issue remains unresolved. The New York Times feeds its readers a steady diet of opinion designed to influence views of personal privacy and political offense,* while starving its readers of any thought reflecting the alternative view, that we are responsible for our actions. If L.B. Sullivan went after the Times today, would it fight for a malice standard of defamation for the media, or would it feel his pain and cry for its lies and violation of the Montgomery Public Safety Commissioner’s privacy?
Much as Levine can’t have it both ways, neither can the New York Times. It may hold itself aloof today, secure that it would never wallow in the gutter like Gawker, but when the Pentagon Papers were published, stolen papers, it was filled with the sanctimony of the free press. But back then, free speech and press were progressive ideals, since replaced by protecting fragile feelings from hurt and the death of personal responsibility.
*This is not about privacy from governmental intrusion, which is limited by the Fourth Amendment to the Constitution. None of this involves the government, from which our reasonable expectation of privacy is theoretically protected.