Posted by Randy Barnett: What is Off The Record?: http://volokh.com/archives/archive_2007_03_04-2007_03_10.shtml#1173397082
This article in yesterday's Washington Post, [1]Harsh Words Die Hard on the Web, about law graduates whose employment prospects were possibly impaired by anonymous posts brought to mind a growing concern of mine. Although it is not nearly so disturbing as being the subject of malevolent and hurtful anonymous posts, I find it troubling nonetheless. I love the Internet, and it was the advent of accurate search engines, Google to be specific, that really brought out its potential. Add to this the ability to reach an audience via blogging. So far as I am concerned, the Internet + search + blogging is a modern miracle. But, as with any technological marvel, there are downsides. One for me is the threat to the sanctity of a private conversation. I once had private lunch at a restaurant with two student interns who peppered me with questions. Afterward, one of them posted an account of my answers as though it had been an interview. The account was positive and generally accurate, but contained candid statements concerning my career ambitions that, while I had no qualms about offering them in private, would certainly not want published. I later learned that a goodly number of my students had read it. Another time, I was giving an invited luncheon talk to a small group of summer interns and, once again, some of my remarks were later blogged. As this was a more formal gathering rather than an entirely private lunch, the proprieties were murkier. Still, I was more frank about certain matters in this group of 20 or so students than I might have been on C*SPAN. I should emphasize that both of these incidents involved young overenthusiastic students who liked me and were not trying to embarrass me in any way. While I appreciated their passion, I did not appreciate their lack of discretion. So here is my concern: I am often called by reporters. The default rule is that everything said is "on the record" unless I go off the record. BTW, perhaps I have been lucky, but I have never been burned by a reporter publishing my off-the-record remarks. In the world of Internet + search + blogging, however, what is "off" and what is "on" the record? Of course, I expect if I make a casual remark to someone over lunch, or at a closed meeting, it may later be repeated to others. However inconsiderate this might be -- and depending on what was said it could be perfectly all right -- one expects the dissemination of such statements to be quite limited. But the Internet changes the potential for both preservation and distribution. One simply does not expect one's casual remarks to be enshrined forever in the Internet and readily accessible by doing a Google search. When I was growing up, when you did something bad in school, it was jokingly said that it would be made a part of your "permanent record." Now that joke is coming true. Another example is "break up" websites where angry former spouses and lovers rake their ex's over the coals. As there is no stopping the technology, what is the appropriate response? Be much more self-conscious and cautious about what one says in private? Over dinner? In one's office? Or does an ethic of "off-the-record" and "on-the-record" need to develop that is somehow scalable to the venue at which one is speaking? Should there be a default rule of "off-the-record" in some places or times? What is the (nonlegal) remedy for breach? In the two examples above, I was quoted generally accurately, though in one case not entirely. What about unintentional or intentional distortion? I see this as a potentially stultifying development that could lead one to be more circumspect in what one says, even in what seems to be a purely private conversation, imagining how it might read on line. Everyone would have to monitor themselves constantly like politicians or celebrities must have to do (which is a sufficient reason never to aspire to be a politician or celebrity). Will our private interactions be compromised or "chilled" unless we can develop a new cultural norm to handle the new power to disseminate information world wide? Or should we simply become far more cautious about our statements to others? Or am I making too much of this sort of occurrence? I wish I had answers to these questions, but I don't. Then after we address this, we can tackle the need for a new cultural norm to govern people who talk loudly on their cell phones in public. Sheesh. References 1. http://www.washingtonpost.com/wp-dyn/content/article/2007/03/06/AR2007030602705.html _______________________________________________ Volokh mailing list Volokh@lists.powerblogs.com http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
