By Neil Richards
Professor of Law
Washington University School of Law
Sharing, we are told, is cool. At the urging of Facebook and Netflix, the House of Representatives recently passed a bill to “update” an obscure 1988 law known as the Video Privacy Protection Act (“VPPA”). Facebook and Netflix wanted to modernize this law from the VHS era, because its protection of video store records stood in the way of sharing movie recommendations among friends online. The law would have allowed companies to obtain a single consent to automatically share all movies viewed on Facebook and other social networks forever. The bill stalled in the Senate after a feisty hearing before Senator Franken, though some modernization of our video privacy law is inevitable.
But the VPPA debate is just the start; merely one part of a much larger trend towards “social reading.“ The Internet and social media have opened up new vistas for us to share our preferences in films, books, and music. Services like Spotify and the Washington Post Social Reader already integrate our reading and listening into social networks, providing what Facebook CEO Mark Zuckerberg calls “frictionless sharing.“ Under a regime of frictionless sharing, we don’t need to choose to share our activities online. Instead, everything we read or watch automatically gets uploaded to our social media feeds. As Zuckerberg puts it, “Do you want to go to the movies by yourself or do you want to go to the movies with your friends? You want to go with your friends.“ Music, reading, web-surfing, and Google searches, in this view, would all seem to benefit from being made social.
Not so fast. The sharing of book, film, and music recommendations is important, and social networking has certainly made this easier. But a world of automatic, always-on disclosure should give us pause. What we read, watch, and listen to matter, because they are how we make up our minds about important social issues – in a very real sense, they’re how we make sense of the world.
What’s at stake is something I call “intellectual privacy” – the idea that records of our reading and movie watching deserve special protection compared to other kinds of personal information. The films we watch, the books we read, and the web sites we visit are essential to the ways we try to understand the world we live in. Intellectual privacy protects our ability to think for ourselves, without worrying that other people might judge us based on what we read. It allows us to explore ideas that other people might not approve of, and to figure out our politics, sexuality, and personal values, among other things. It lets us watch or read whatever we want without fear of embarrassment or being outed. This is the case whether we’re reading communist, gay teen, or anti-globalization books; or visiting web sites about abortion, gun control, or cancer; or watching videos of pornography, or documentaries by Michael Moore, or even “The Hangover 2.“
I’m not saying we should never share our intellectual preferences. On the contrary, sharing and commenting on books, films, and ideas is the essence of free speech. We need access to the ideas of others so that we can make up our minds for ourselves. Individual liberty has a social component. But when we share – when we speak – we should do so consciously and deliberately, not automatically and unconsciously. Because of the constitutional magnitude of these values, our social, technological, professional, and legal norms should support rather than undermine our intellectual privacy.
“Frictionless sharing” isn’t really frictionless – it forces on us the new frictions of worrying who knows what we’re reading and what our privacy settings are wherever and however we read electronically. It’s also not really sharing – real sharing is conscious sharing, a recommendation to read or not to read something rather than a data exhaust pipe of mental activity. At a practical level, then, always-on social sharing of our reader records provides less valuable recommendations than conscious sharing, and it can deter us from exploring ideas that our friends might find distasteful. Rather than “over-sharing,“ we should share better, which means consciously, and we should expand the limited legal protections for intellectual privacy rather than dismantling them.
There is a paradox to reader privacy: we need intellectual privacy to make up our minds, but we often need the assistance and recommendations of others as part of this process, be they friends, librarians, or search engines. The work of the ALA and its Office of Intellectual Freedom offers an attractive solution to the problem of reader records. The OIF has argued passionately (and correctly) for the importance of solitary reading as well as the ethical need for those who enable reading – librarians, but also Internet companies – to protect the privacy and confidentiality of reading records. The norms of librarians suggest one successful and proven solution to this paradox. Most relevant here, this means that professionals and companies holding reader records must only disclose them with the express conscious consent of the reader.
The stakes in this debate are immense. We are quite literally rewiring the public and private spheres for a new century. Choices we make now about the boundaries between our individual and social selves, between consumers and companies, between citizens and the state, will have massive consequences for the societies our children and grandchildren inherit.
Social networking technologies have matured to the point where many new things are possible. But we face a moment of decision for reader records. The choice between sharing and privacy is not foreordained; there are many decisions we must make as a society about how our reader records can flow, and under what terms. We’ve heard from the advocates of “sharing” and “social,“ but we must also secure a place for the thoughtful, the private, and the eccentric. When it comes to the question of how to regulate our reading records, a world of automatic, constant disclosure is not the answer.
The choices we make today will be sticky. They’ll have lasting consequences for the kind of networked society we will build, and whether there’s a place in that society for intellectual privacy and for confidential, contemplative, and idiosyncratic reading. Sharing might be cool, but some things, like intellectual privacy and our centuries-old culture of solitary reading, are more important. We need to preserve them; we need to choose intellectual privacy.
[This essay is adapted from a longer article forthcoming in the Georgetown Law Journal. The paper can be read online for free (and anonymously!) here.]
Neil M. Richards is a Professor of Law at Washington University in St. Louis, where he writes and teaches about the relationships between civil liberties and technology. Born in England, he holds degrees in law and legal history from the University of Virginia, and was a law clerk for William H. Rehnquist, the late Chief Justice of the United States. His book, Intellectual Privacy, will be published by Oxford University Press in 2013.