Redefining Empathy In Light Of Web's Long Memory

In an era when 75% of employers research applicants online, erasing youthful indiscretions is next to impossible. Jeffrey Rosen accepts that parts of private lives become public on the Internet, but hopes that it will lead us to be more forgiving of one another's missteps.

TONY COX, host:

Americans have long prided themselves on the ability to make a fresh start. We learn from our mistakes, move on and reinvent ourselves.

But in an era when three-quarters of employers say they check out job applicants on the Web, well, the days when you could leave your youthful discretions behind you may well be over, and never mind having different personas at work and in your free time.

In his recent New York Times magazine article, law Professor Jeffrey Rosen explains that we're only just beginning to understand what it means to live in a world where the Internet remembers everything we've ever said or done. And when high-tech fixes to sanitize our online reputations can only go so far, Rosen says it's may be time to become more forgiving of people's lives outside of the office.

What experiences have you had with controlling your identity online? Have mistakes come back to bite you? Our number here in Washington is 800-989-8255. Our email address: talk@npr.org. And you can join the conversation, of course, at our website. Just go to npr.org and click on TALK OF THE NATION.

Jeffrey Rosen joins me now here in studio 3A. He is a professor of law at George Washington University in Washington and a nonresident senior fellow at the Brookings Institution. His article is titled "The Web Means the End of Forgetting." And you can find a link to it at our website. Again, npr.org, click on TALK OF THE NATION. Jeffrey Rosen, welcome back to TALK OF THE NATION.

Professor JEFFREY ROSEN (George Washington University): It's great to be here.

COX: I have to tell you, reading your article, you know, it made me afraid. You know, and I don't know if that was what your intent was, maybe was to make us aware of what happens to us when we put things online - personal, even truthful things that we don't think what the impact of that might be five or 10 years down the line.

Prof. ROSEN: You know, this is a story you don't have to exaggerate to make people afraid. I'm just so struck about how everyone gets this. They connect to it. They have stories themselves or they have friends who've been tripped up by some youthful Facebook photo or haven't gotten jobs, who have been fired or not promoted because of something they've said online. With 500 million people on Facebook, lots and lots of citizens are understanding the reality of what it's like to live in this world where the Internet never forgets and the stories just come tumbling out. Everyone's got one.

COX: They absolutely do. In fact, you talk in your article about Stacy Snyder. Tell us that story.

Prof. ROSEN: What a dramatic example of this problem. This was a young woman who four years ago was a 25-year-old teacher in training in Pennsylvania. And days before she was supposed to graduate from Millersville University, her supervisors at the high school where she was a student teacher found that she'd posted a picture to a MySpace page. It was a picture of herself in a pirate costume at a party. She was drinking from a plastic cup and the subtext was drunken pirate. So her supervisor says she was promoting underage drinking among her students. This was an inappropriate photo. They dismissed her from her post. The university didn't give her a teaching degree.

She sued. She says the First Amendment protects my right to post this. And a judge in 2008 rejected the claim. He said because she was a public employee and her speech didn't relate to matters of public concern, it wasn't protected by the First Amendment.

It seems that Stacy Snyder is going to be an icon when we look back on this early digital age because the problem she suffered is one that more and more people are experiencing.

COX: Is the issue, Jeffrey, is it one of technology, meaning that there is not the technology to dispose of this material, or is it one of a lack of either awareness or desire to clean up the Internet so that people can not have to go through what Stacy Snyder went through?

Prof. ROSEN: I think it really is both of those things. I mean, you could imagine technologies that would go a long way toward solving this problem. Facebook could, if it wanted, arrange things so that you are asked before you post the photo, do you want this to be stored forever or for three months or for three days? And if Facebook doesn't want to do it themselves, they can encourage the development of applications that would allow us to have expiration dates for data.

But they've chosen not to do this. They want the stuff to be transparent, not private. And as a result, they've been resistant to these technologies.

COX: And on what basis? You're a lawyer. On what basis was Stacy Snyder's case lost, since she didn't break any laws per se and this yet prevented her from seeking the employment that she would apparently have otherwise been qualified for?

Prof. ROSEN: It's a great question and I think the judge said public employees, which she was, have a lower expectation of privacy than private citizens and -because her speech related to private matters, not public matters, it wasn't protected. Ironically, the fact that it was private made it even less entitled to First Amendment protection. It's a quirk of the fact that employers have broad discretion to fire you for all sorts of reasons.

COX: Now, we have seen this kind of behavior involving people who are public figures; politicians, celebrities, athletes. But now it is sort of calmed down to, you know, just - like the rest of us, just regular folks.

Prof. ROSEN: It is. I mean, there was this woman, 25-year-old woman, told The New York Times newspaper she's got to run home from parties at 3:00 in the morning and de-tag herself from photos because she doesn't want people to know that she has two dresses, one she wears for dates and the other for work. And she said I'm just an ordinary person but I have celebrity problems. A lot of people are finding that.

COX: Well, let's take a call, because I know people out there have some thoughts about this. By the way, this is TALK OF THE NATION. Tony Cox sitting in with Jeffrey Rosen, talking about the dangers of the Internet, some of them hidden, you might say. Give us a call: 800-989-8255. Our email address is talk@npr.org. Lets go now to Portland, Oregon, where Jeff is standing by. Jeff, welcome to TALK OF THE NATION.

JEFF (Caller): Hi. How are you doing?

COX: Great. How are you?

JEFF: Good. So, I'm a school administrator and really have run into this headlong. We get particularly younger teachers or younger teacher candidates who want to have a really distinct line in their life between, you know, their play life and their work life. And they often will, you know, say, they're in a band or they're in some group and they tell their kids about it and then next thing you know they're - you know, parents are googling and they see their second grade teacher, you know, at a big music festival with a beer in his hand and a buxom, you know, date. It doesn't work.

COX: What do you mean exactly? Does it - I want to make sure that I'm clear on what you're saying. It doesn't...

JEFF: From a parent's perspective, you know, looking at the person who spends all day with their child and is in a position of great authority and responsibility...

COX: I see.

JEFF: ...seeing him - of course people are allowed to have a private life, but the issue with the Internet now is that we all can see it. And it's very hard to keep the line bright between work and home, particularly in a job like teaching.

COX: Absolutely. I understand your point now. Thank you very much for the call, Jeff. What do you say to him?

Prof. ROSEN: I think it's a great point. You really crystallized the problem. It doesn't work to have a line between your work self and your play self, as you said. And a psychology professor I quoted said the same thing. He said, I have to reconcile my professor self with my having-a-few-drinks self, but that's a good thing because we'll be less hypocritical and everyone will be more accepting. But I'm not so sure. You point to the difficulty.

I mean, one thing privacy protects is the ability to present different aspects of our identity in different contexts, to have a work self, a play self, a home self. And when that segmented self disappears and you have to be held accountable at work for everything you do at home and in private, lots of people stumble along the way. It's a very confusing world to live in, and I'm not sure it's going to be good for the development of individuality, creativity, all the things that we really value as human beings.

COX: Especially when that other self is from your past, perhaps way in your past.

Prof. ROSEN: Very much so.

COX: Absolutely.

Prof. ROSEN: And that ability to overcome your past, as you said, is such an American idea. I mean that's supposed to be the core of the self-made man or the ability to go to Texas, the constantly open frontier. The idea that you can never escape your past, figuratively, on Facebook with your high school friends contacting you, and then literally with these photos coming up like, you know, characters in a horror movie to haunt you years later, is just challenging that American ideal.

COX: Is seems as if this is something that is particularly acute for teachers, and we have a teacher on the line from Miami right now, Yvonne. Welcome to TALK OF THE NATION.

YVONNE (Caller): Hi. Thank you for taking my call. This is a little bit different situation maybe than what you're talking about, and I share your alarm with the situations that you're describing. But I'm a person who doesn't have a persona online, really, or have Facebook page, and yet I still feel very vulnerable. As a college instructor there are all kinds of sites out there where students are free to rate their professors. You know, they don't necessarily rate them on teaching ability. They might rate them on, you know, how hard they think they were graded or how horrible a person they think they've might have been.

And, you know, I think that on the Internet people feel free to, you know, flame and insult and degrade people in ways that they never would in formal evaluations and things like that. So even people who, you know, are successfully pursuing their career sometimes I think can be - I haven't had this experience, but it something that I think is very concerning, you know, that instructors like myself - you know, discontented students can say horrible things.

And, you know, I always wonder if my next employer is going to go and look up those things and use them as part of my student recommendation. I could counteract them with excellent recommendations from other people, but, you know, is it fair to have that record out there in the public? That's my comment.

COX: Thank you, Yvonne, for that. She raises a point that raises, in my mind, Jeffrey, this question: What can we do about it? Should we - is the simplest answer to just be more judicious about what you allow to be put on the Internet either from yourself or those who know you if you're on Facebook, things of that sort?

Prof. ROSEN: Well, the caller notes that being judicious isn't going to save you. I mean, those rate-my-teacher sites are brutal. I should say, having been rated, I think I got only an average hotness rating, and that really stinks.

(Soundbite of laughter)

COX: I've been rated...

Prof. ROSEN: You know, that's tough.

COX: ...myself. I know what you're talking about.

Prof. ROSEN: But what's - what that suggests is that just being judicious is not enough. We need technologies and laws to respond. Some people have proposed one solution to the problem that we're talking about here: Reputation bankruptcy. Jonathan Zittrain is a Harvard cyberscholar. And he says just the way you can declare personal bankruptcy every 10 years and your tax liens and your debts are not held against you, so you should be able to clean the slate for your reputation. You should have all negative information disclosed. You should be able to respond to it. And maybe at 10-year intervals your anonymous teacher ratings and your ratings on other people's sites should just be wiped clean. Very interesting suggestion.

COX: Sort of a mulligan, huh? A do-over?

Prof. ROSEN: Right, we all need it.

COX: Yeah, absolutely.

(Soundbite of laughter)

COX: Here's another emailer. This is a tweet question, actually, talking about things going into cyberspace and staying there forever. As early as November 10th of this year, the Library of Congress will begin archiving all - and the writer capitalized the word all...

Prof. ROSEN: Mm-hmm.

COX: ...public tweets made on Twitter. I had heard about this. Once your tweet is archived, it is there forever. There is a six-month delay from the moment a tweet is made to the time it is archived. A free site called Noloc, NoLOC, N-O-L-O-C.org, N-O-L-O-C.org, will automatically delete your tweet exactly one week before it is archived by the Library of Congress. Have you heard of this?

Prof. ROSEN: I have indeed. What a fascinating response to this peculiar decision that Congress made without a lot of debate to archive all the tweets. I mean, we think about tweets as something closer to written gossip, water cooler chat, the kind of stuff that you don't expect to last forever. For some reason they decided to archive it all. Now, they've not decided when to make the tweets available, and there's going to be an administrative regulation about whether scholars should be able to look at these tweets immediately or should have to wait 10 or 20 or 30 years. But I think it's a good example of just an unthinking preference for permanent archiving can have very serious consequences that people are uncomfortable with.

COX: Talking about serious consequences, our next caller is from Sacramento, California, and her story is - well, Stephanie, tell us your story yourself. There she is. Stephanie, you there?

STEPHANIE (Caller): Good afternoon, yes.

COX: Yes.

STEPHANIE: I was a senior at UCLA in 1996, and I intended to share a personal, private story with the student community in the student newspaper. And I published a private story about having been a survivor of date rape. In 1999, I was in a professional environment, in a cubicle environment, and I had a coworker come over to me and he said, so you're a survivor of date rape? I said, excuse me? And I went over to his computer monitor. He had pulled up some archived student newspapers. And unbeknownst to me, it made it on the Internet, and it's still there.

COX: Stephanie. Thank you very much for the call. We're sorry about that happening to you.

By the way, you're listening to TALK OF THE NATION from NPR News.

Jeffrey Rosen, there must be countless stories, maybe not exactly like that one but certainly similar to that.

Prof. ROSEN: So many. Things that you do when you're in college or in high school. When I was in college, this stuff wasn't archived. Now the student newspapers are; it transforms your ability to experiment when you're a kid. And, you know, if it was false information, you could ask it to be removed from Google and from the college newspaper, but the truth is that there's not an easy solution to that problem. You thought you were sharing with a limited group of people, and all of a sudden it goes out to the world. It reminds us, it's not just privacy we're concerned about.

Privacy protects us from being judged out of context based on information that's involuntarily disclosed. This is public information that you voluntarily disclosed to a limited audience, and then it was exposed to the rest of the world and you felt judged out of context.

COX: Now, we talked about, technologically, how some of this might be alleviated somewhat, but we haven't talked about it from a legal standpoint yet. What rights, if any, do we have as citizens to protect ourselves in this cyberspace environment?

Prof. ROSEN: There is not a lot you can do if the information is true but embarrassing. Obviously if it's false or slanderous, you could challenge them on those grounds. But true but embarrassing information, some scholars want to expand the law to take account of these situations. So one scholar, my colleague Daniel Solove at George Washington University, wants to allow you to sue your Facebook friends if they disclose information in violation of your privacy settings. An interesting suggestion, but it would have First Amendment problems because courts have generally said if you turn over information to one group of people, they can share it with the rest of the world.

Another legal suggestion is not to allow employers to Google you and hold you accountable for legal off-duty conduct. So just as there are laws in a bunch of states now that say you can't fire someone for smoking - smoking is a legal conduct, and you shouldn't be able to hold people accountable for that - some scholars want to expand that to Facebook. An interesting suggestion, but again, often it's relevant to Google someone for a job search. Do we really want to totally prohibit that sort of background check? So the truth is that although the legal suggestions are creative and worth exploring, my hunch is that they're not going to be the core to solving this very difficult problem.

COX: Is there civil remedy, civil court remedy here?

Prof. ROSEN: There's a series of - they're called torts, which sounds like a yummy dessert, but it's this civil...

(Soundbite of laughter)

Prof. ROSEN: ...civil area of law. They were proposed by the great Supreme Court Justice Louis Brandeis about a century ago. If the information is highly offensive to a reasonable person - say your landlord plants a hidden camera in your bedroom or someone uses your image to sell a product without your consent - then you could sue. But generally, who knows what's highly offensive to a reasonable person? Is the drunken pirate picture highly offensive? That - those civil remedies have proved too blunt an instrument to provide an awful lot of help to people.

COX: We've got to go, Jeffrey Rosen, but one question. Really quickly, I want to ask you, is there - is this limitless - cyberspace limitless in terms of the kind of information, the amount of information it can hold?

Prof. ROSEN: You know, some have noted that the data may erode or rust after time, so it's possible in the distant future it's going to go away. But for -in the long run we're all dead, and I'm not counting on it going away anytime soon.

COX: Jeffrey Rosen is a professor of law at George Washington University and legal affairs editor of the New Republic. He joined me today in Studio 3A. Jeffrey, thank you. Very interesting conversation we had.

Prof. ROSEN: Thanks. It was great.

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