The Web Means the End of Forgetting, Part I

GUEST: Jeffrey Rosen
VTR: 09/20/10

I’m Richard Heffner, your host on The Open Mind.

And over the past decade I’ve frequently asked today’s guest to join with me here so that we might parse a variety of concerns that we share relating largely to the loss of personal privacy in our new age of anxiety, of increasing surveillance for the sake of national security and of obeisance to the Mighty Web with its digital wonders.

A law professor at George Washington University and Legal Affairs Editor of The New Republic, Jeffrey Rosen writes often for The New York Times Sunday magazine.

Some months back he wrote there what I can only characterize as one heck of a scary, scary piece titled “The Web Means the End of Forgetting”.

And I’d like to begin today by asking my guest to explain himself and the title.

ROSEN: When we started talking about privacy more than a decade ago, Dick, it was just a few people, a few celebrities who had to worry about being judged out of context, having little snippets of their lives come to stand for the whole and suffering disadvantage as a result.

In the age of Facebook, millions upon millions of people are experiencing the problem that we talked about ten years ago.

I’d like to use as an icon the example of Stacy Snyder, this is the 25 year old teacher who not long ago was fired from her job as a, as a student teacher and her entire career was derailed because she put up on MySpace a picture of herself in a pirate hat with a plastic cup and the caption “drunken pirate”. And her supervisor said she was promoting underage drinking, she objected, they fired her, she lost her teaching degree. She sued.

The court said, “Too bad. You’re a public employee and this is not a matter of public concern”. And as a result she, today is working in human resources.

That problem, the idea that a single picture we post or a blog post or a chat, or a snippet of information about us will stay on the web forever is really challenging our ability to re-invent ourselves, to have new beginnings, to have forgiveness, to grow.

It’s such an American ideal to always have second chances and to be able to escape your past. That is increasingly difficult in the age where the web never forgets.

HEFFNER: Well, I’m terribly impressed … wonderfully impressed by your thought and it’s so true, that the American ideal has been that of re-creating oneself. And you’re saying now that’s gone.

ROSEN: It was in the 1830s that Daniel Webster popularized the phrase “the self-made man”. And that idea, that in America you could always leave your past behind … “gone to Texas”, if your debts were too crushing. Have a fresh start was crucial to the idea of self invention and self-discovery.

Now that ideal has been under siege in different ways in the 20th century, in the post-war era … people were worried about increasing homogenization that challenged that individuality.

But the dawning of the age of the Internet was supposed to resurrect that possibility of the “Protean self” as one sociologist called it. The idea that we could segment our identities into scores of avatars and web ID and Chat Face handles and so forth. It hasn’t turned out that way.

With the … what the web enthusiasts didn’t anticipate was the impossibility of deletion, the impossibility of forgetting and that idea that you’re constantly tethered to your past.

And to make things even scarier … the fact that the worst thing that we’ve done is often the first thing that people know about us because it’s human nature to remember the bad and to discount the good.

HEFFNER: So ay de mi … “oh my God” what are we going to do? Is there any way … do you see this as a function of the masters of the universe of digital futures?

ROSEN: That’s a part of it. The master of the universe of the world of digital futures are the great media corporations … Google and Facebook.

HEFFNER: And do you think they could deal with this in a positive way? Or is that where we are and where we have to go?

ROSEN: They could. Facebook tomorrow if it decided that this was a problem … could make it easier for us to delete our pasts.

They could create an application that before your store a picture says “Do you want this to stay up forever? Or do you want it to disappear in three days or three months?” That would go a long way toward solving the problem.
HEFFNER: You say it would go a long way. Jeffrey, do you really think that the many young people who love to see themselves and their inner persons on the screen and available to everybody else … do you think they take heed of that warning?

ROSEN: Some would and some wouldn’t. Young people are much more sophisticated about this problem than we, their elders, think.

A poll suggests that as they’re experiencing the costs of the world that doesn’t forget, 70% of employers doing background Google searches on people and a similar number denying promotions or jobs to people … young people are wising up and they care about this and they get it.

Now some … there will always be people who make mistakes. The, the drunken photo from Cancun that you forget to withhold. But just the possibility of a baseline of deletion would go a long way toward re-creating the kind of forgetfulness that we used to experience in small villages.

It’s so … it always gets my, my goat when people say we live in a global village. It’s a misnomer because … in genuine communities … genuine villages long ago … in the Babylonian Talmud, for example … sure people observed much, but the human memory is fallible … people forgot … and much more importantly, if you ask for forgiveness, people could forgive.

There’s no one to ask for forgiveness in the age of the web that doesn’t forget. God wipes your slate clean. Today the master of the digital cloud … Google … can’t wipe your slate clean or has chosen not to.

So, in fact, we’re in a less forgiving world than we were millennia ago with these smaller communities that actually could forgive and forget.

HEFFNER: Now, now, let me ask the question … are you saying that the master of the web could, but won’t?

ROSEN: Could do more than it’s doing now. Google is thinking about this problem. Its … wants to allow people to respond to posts about themselves that they think are inaccurate. But Google could store data less … for shorter periods of time than it does. It stores our web searches for 18 months right now. And it could do it for less.

And, and it’s pressing ahead on this regard too. There’s a new application called “Social Search” where Google is making it possible to see what our friends and acquaintances are searching for.

Now I don’t know about you, but that’s sort of my wildest nightmare, that’s a privacy Chernobyl that, that our browsing, our reading, literally, would be open to the world, even, even voluntary. So, there are just a series of choices … they’re technological, they’re legal, but ultimately they’re, they’re questions of values about how we’re going to design these systems and I’m afraid that we’re moving too blithely ahead, assuming that we have no ability to re-create the privacy that we used to have, when, in fact, there are lots of possibilities for doing so.

HEFFNER: You don’t mention government …

ROSEN: (Laugh)

HEFFNER: … you don’t mention regulation. Why not?

ROSEN: I, I do entertain it and it can be helpful, but I don’t think it’s the core of the problem. So there … there are regulations that could be passed.

Germany, which is extremely prescient on these issues is prohibiting employers from doing certain kinds of Google searches, saying it’s not permissible to do background searches for certain kinds of jobs.

And the American government, the states or the Federal government could do the same thing. We have laws that prohibit you from not hiring people for legal off-duty conduct, like smoking. You could say you can’t refuse to hire someone for a drunken Facebook picture.

Now, there are arguments on the other side, you want to have as much information as possible. Those laws might be helpful, but my … the reason … and you and I have talked about this, Dick.

My, my … I am concerned about free speech. The most aggressive proponents of regulation, such as my colleague Daniel Solove at George Washington, a wonderful privacy scholar … says you should be able to sue your Facebook friends if they violate your privacy settings.

Basically, if you share information under a certain circumstance and they pass that on without your consent, you should be able to sue them.

I, I’m concerned about the free speech implications of that … generally …

HEFFNER: Who’s free speech?

ROSEN: The, the free speech of the …

HEFFNER: Of the corporation?

ROSEN: … the … of the friend. No, no, not of the corporation … of the friend. If … generally the courts have said if I share something with a friend and the friend betrays me, I’m out of luck. He’s not going to be my friend anymore, but I shouldn’t be able to sue him.

And then the idea of legalizing this most delicate area of social interaction which happens to take place on the web, I think … strikes me as a little heavy-handed.

HEFFNER: Regulation of the web would be heavy handed?

ROSEN: No. Broader regulation of the web, I think, is helpful and necessary so the most important advance for free speech in this century … or at least in the first half of, of the new millennium comes not from the Supreme Court, but from the Federal Communications Commission … which you know a lot about …

HEFFNER: What Federal Communications Commission?

ROSEN: The one the Obama … FCC … lead by my old friend and co-clerk Julius Janikowski who’s proposed “Principle of Network Neutrality” which says that all web providers have to treat data equally and can’t block or degrade any particular applications.

So, for example, when Comcast … the largest Internet service provider in America blocked BitTorrent a popular file sharing application not long ago and prevented users from downloading the King James Bible, it did so, many thought because BitTorrent was competing with Comcast’s own file sharing applications.

The principal of network neutrality would say “that’s not permissible, you have to treat all applications equally”.

Now despite Julius Janikowski’s bold proposal, I was very disappointed to see recently that Google and Verizon did a side deal where they decided the Network Neutrality would apply to broadband Internet services providers, but would not apply to wireless communications. And if that is true than that will be far less free speech on our wireless devices than is necessary.

HEFFNER: But of course that’s why I ask what my friend Jeffrey Rosen is going to propose in terms of strong government regulation in this area?

ROSEN: Again, the, the regulation is of the private corporations which, for better or for worse, are not regulated by the Constitution, generally.

It’s an irony, isn’t it. We’ve spent two centuries of American history worrying about threats to free speech from the government and threats to privacy from the government and now Google and Facebook have far more control than the government does.

So the solutions are not Constitutional and the regulations are probably more administrative than …

HEFFNER: Why do you say the solutions are not Constitutional?

ROSEN: Well because Google doesn’t violate my free speech when it blocks me from speaking because it’s a private company.

Or at least I can’t … it violates my free speech, but it doesn’t violate my First Amendment rights. And when Facebook allows surveillance that embarrasses me … it’s not violating my Fourth Amendment right against unreasonable searches and seizures, although it’s very much violating my, my privacy interests.

HEFFNER: But you seem to feel that it is functioning outside of what is in the general interest or the general welfare. And certainly we can still be concerned with the general welfare.

ROSEN: Without any question. And this great challenge which I just find so daunting and so exciting … how to preserve Constitutional values, having to do with privacy, free speech and the general welfare … in an age when they’re threatened more by the private sector than by government and the Constitution doesn’t formally constrain … strikes me as the great challenge of our age.

HEFFNER: Do you find some approach that you think could be workable?

ROSEN: I think this network neutrality suggestion is a step in the right direction. And I’d like to think about ways of encouraging the development of these technologies of deletion. So I was interested to see that four Senators wrote to Facebook recently … including Al Franken who has proved to be a remarkably intelligent civil libertarian in these regards and understands that the threats to speech and privacy come more from corporations than from government.

Franken and his colleagues wrote to Facebook and said they were very concerned by the recent change in Facebook privacy policies and called on the Federal Trade Commission to investigate.

So even the threat of government action might induce large corporations to adopt these privacy friendly technologies.

HEFFNER: And what’s your assumption about what’s going to happen? I shouldn’t say “assumption”, what’s your bet?

ROSEN: This is a constant battle. I mean the, the … there are so many moving pieces and where it will end up, I don’t know. But I’m not a determinist, I always reject those who say privacy is over, get over it. The human need, the demand for enclaves of control over the way we present ourselves to others is so strong … and the concern that people have over their own reputations is so palpable that I think that an aroused citizenry will demand some forms of protection and eventually they’re going to get it.

HEFFNER: You know, I can’t let you get away with the dismissive “for those who say privacy is over, get over it” … you set that aside … you reject it. I’ll, I’ll reject it, too. But I think it’s unrealistic.

ROSEN: It’s unrealistic and we should just accept it that it’s over … get over it? I …

HEFFNER: Accept … I think look at … more squarely in the fact than I think you do.

ROSEN: Well …

HEFFNER: You’re so damned angry about this, Jeffrey.

ROSEN: No, I’m not angry, I’m, I’m …

HEFFNER: Well in all of the pieces you’ve written and that the things we’ve …

ROSEN: (Laughter)

HEFFNER: … discussed here at the table …

ROSEN: I, I don’t, I don’t feel angry. I feel engaged and energized, just as a citizen and a, a human being.

I just look at the reaction to some of these more intemperate statements. Eric Schmidt, the CEO of Google said, recently, he gave a version of the privacy is over statement and then said, “Well, the solution is for people, when they reach young adulthood to be able to change their names”. That’s the solution to having (laugh) a fresh beginning.

And there was just an aroused … there was a lot of outrage because people recognize that you shouldn’t have to, literally leave your identity behind.

So I’m not, I’m not a meliorist about this stuff … I’m also not a pessimist. I think that this is a complicated problem that has many moving parts and things go forward and backward, but you just don’t want to be simplistic about this and recognize this … the, the problem and the solution is a combination of technology regulation and changes in social norms.

And remember, Dick, that’s going to really determine the balance of all of this. In some areas we’ve become more forgiving. It’s no longer disqualifying to smoke pot. You can get on the Supreme Court or be President.

So, in 20 years there will be some political candidate … a woman will be running for President … and one candidate will have to be disqualified because of an embarrassing college picture and then the rest will be immunized and that particular form of misconduct will be okay.

But there will always be something new. Some new norm that people are tripping over and I, I don’t believe that we’re just going to be completely forgiving and that all indiscretions will be cheerfully shrugged off because that’s not human nature.

HEFFNER: But you think it is more akin to, or part of human nature for us to hold on to the privacy need …the instinct for privacy?

ROSEN: The instinct is hard-wired. I mean there are studies of primates in, in zoos going behind the open area where the bars are in order to engage in intimate activities.

But less palpably the, the desire to control your reputation is the central concern of, of literature, of history. People care deeply about the way they’re thought of and the status and deference that they get, the degree to which they’re attended to. The desire to control the face we present to the world is … people will fight and die for.

Now, what people really want, of course, on the web is not control over their privacy settings, they want control over their reputation, control over the way they’re thought of. But this is unrealistic. None of us can completely control what others think of us or say about us. So there’s a dissonance between what people want and what’s reasonable to expect.

But the idea that, that people are not going to care about this … that they wont’ rise up in the streets the way their, their predecessors fought wars … I, I think is unrealistic.

HEFFNER: No, I wasn’t suggesting that there will be a benign acceptance of this. But I am suggesting that perhaps the value … you say it’s hard-wired. Now you say you can take chimpanzees or other … do you really mean hard-wired … have you gotten to the point that you want to defend something by saying “Well, it’s hard-wired”.

ROSEN: No. I’m … I, I …that was my opening gambit. And then I said, forgetting about the source of it, and don’t even call it privacy … if you call it reputation, if you call it identity … control over identity … status … I, I don’t know whether it’s hard-wired or culturally determined and it certainly takes different forms in different cultures.

But the fact that all over the world … in Europe, too, you’re finding calls for a right to oblivion … you have the French Data Commissioner calling for a Constitutional right to oblivion. You have Argentinean scholars marching in the streets. This is taking different forms in different countries, but people care about the face they present to the world.

HEFFNER: Jeffrey, it’s so interesting … you say “people” and I have this image of great masses and masses and masses … then you refer to officials … you refer to officialdom … here, there or elsewhere, you refer to those who are perhaps students of privacy. I find it very hard to believe that the kids I know, who are so giving about this … aren’t less interested in the privacy that you hold so dear … you know, and reputation.

ROSEN: Yes. Generational generalizations are very dangerous. Ah … again, polls show that when it comes to people getting angry about not being hired because of Facebook pictures, kids understand it better than we do because they’re closer to it.

But there are mass movements on this behalf. When Facebook changed its privacy policies last year, there were tens of thousands of people on the web who rose up and forced retreat.

So there are virtual mobilizations on behalf of these particular policies. And this is … we’re at the dawn of this new era. We, we began talking about privacy 10 years ago … Facebook has really only been up and running for a, a couple years. I think as more and more people are suffering tangible disadvantages … and that’s what it takes … not, not … we, we’ve had wonderful philosophical discussions about the meaning of privacy, but that doesn’t make people march in the streets.

It’s not getting a job, or it’s getting fired. And as more people experience this, there will be more mass mobilizations.

HEFFNER: What’s the counterbalancing emotional payoff of being involved in these networks? It has to pay off or the kids and so many of their elders wouldn’t be involved in it. It’s meeting some need to share.

ROSEN: Absolutely. We are social creatures .. the need to connect … only connect as Forster said is so powerful, the need to feel plugged in. The, the desire to be attended to … the, the, the urge of exposure and display in order to distinguish yourself … for status and attention … is incredibly powerful.

Now, whether all of these needs are met is not clear. There are very interesting studies showing that the more time people spend on Facebook the fewer genuine intimate connections they have … expressing a form of digital narcissism, according to one scholar.

So we may make bad bargains, but there’s no question that the urge to share and display serves a deep human need.

HEFFNER: What an incredible genius it took to develop that sharing approach.

ROSEN: Indeed. And maybe Mark Zuckerberg will give them some credits (laugh) at some point. (Laugh). No, it, it is a … it’s just a staggering technology and it’s a remarkable …

HEFFNER: What are the numbers now?

ROSEN: Five hundred million Facebook users sharing something like a billion individual pieces of content every, every …

HEFFNER: Every day.

ROSEN: … month or every day.

HEFFNER: A month?

ROSEN: I mean it, it’s … the numbers … the mind reels. So think … we, we talked about privacy in the context of Louis Brandeis ten years ago.

Brandeis, at the dawn of the age of the tabloid press and the instant camera was concerned that gossip columns about aristocrats would lead what used to be whispered in the closets to be shouted from the roof tops. Those technologies pale and the number of people they affected are quaint compared to what we’re seeing today. Then it was a few fancy Boston lawyers who were gossiped about, now hundreds of millions of people every day gossiping about each other displaying things about each other …

HEFFNER: But the incredible thing ….

ROSEN: … and it’s all on the web.

HEFFNER: … is that they are gossiping about each other and themselves. That’s the thing that I think you tend to ignore. They’re gossiping about themselves.

ROSEN: Of course. I do not ignore it at all … that is a central part of this challenge. And we need to decide as a society … if you’re just gossiping about yourself and you’re revealing things that you shouldn’t reveal … do you have to take the consequences? That’s what Eric Schmidt said about the Facebook pictures …

HEFFNER: Changing the name?

ROSEN: Changing the name. And some people feel that about Stacy Snyder … the, the teacher who put up the drunken pirate picture … whether she was drunk or not … was a bad move, bad mistake … she should suffer the consequences.

I’m not that unforgiving. We all make mistakes, goodness knows. And it is impossible to live in this virtual world without revealing the wrong thing in the wrong context and be embarrassed about it. A humane society realizes that people make those errors and doesn’t coldly say there’s no possibility of redemption, really, because you’re the one who’s posted it about yourself.

HEFFNER: What chance do you think, when we began this program and we’re coming to a close, but we’ll do another, too … what chance to you think there is of preventing discrimination on the basis of the revelations we make in our stupidity … call it what you will.

ROSEN: Ah, preventing legally I just don’t think is a very realistic … it’s hard to stop people from having access to public information and holding others accountable.

But we can make it easier … this idea of reputation bankruptcy, that one scholar … Jonathan Zittrain has suggested that will allow us to wipe our virtual slates clean every five years, the way we have access to wiping our credit records clean or at least to have access to the bad things about us in our digital file and giving us a chance to respond. That is a possibility.

Technologies that make us think twice before sending the drunken email or posting a foolish picture … are helpful and norms will evolve. So I will just say that I … this will be a struggle, but I … ultimately I’m optimistic that the human need for control over identity is, is so strong that we will find ways of adapting to this new technology.

HEFFNER: Do you think we’ll find true technological ways of doing so? Of changing our names, wiping the slate.

ROSEN: Ultimately technology can only be an aid, it is not a panacea, it will have to be evolving norms and those evolving norms of forgiveness and forgetting are going to have to come not from our machines, but from ourselves.

HEFFNER: You sound Shakespearean …

ROSEN: (Laugh)

HEFFNER: … in that. And I’ve asked you this before. How hopeful are you that we’re going to … solve may be a poor word … we’re going to deal adequately enough with this problem in, in the near future.

ROSEN: You know I think I’m optimistic enough. Because the more I study these problems, the more they do seem to be recapitulating … well, the same problems of honor and reputation that Shakespeare dealt with, that Brandeis dealt with. These technologies change the ways that these battles are fought, but they don’t fundamentally transform human nature. And in the end our, our identities are so important to us that I’m sure we’ll find ways as a society of respecting them.

HEFFNER: Jeffrey Rosen, stay where you are, we’ll do another program … meanwhile thank you for joining me today.

ROSEN: Thank you so much, Dick.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as another old friend used to say, “Good night and good luck.”

And do visit the Open Mind website at HYPERLINK “http://www.theopenmind.tv” www.theopenmind.tv or thirteen.org/openmind.

N.B. Every effort has been made to ensure the accuracy of this transcript.  It may not, however, be a verbatim copy of the program.

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