Neil Richards, Social Reading and Intellectual Privacy
Comment by: Tommy Crocker
Workshop draft abstract:
This article deals with the overlooked privacy and media law implications of one of our most important new technologies – electronic reading. I will examine the importance of privacy protections to the new modes of electronic reading, and the need for intellectual privacy protection of reading habits in order to ensure a robust and free culture of public debate. I will show how recent radical developments in reading technologies and social media have unsettled many long-standing norms of intellectual privacy, and that legal and technological regulation of reader privacy in particular is necessary to preserve the vital civil liberties at stake. The article builds on my prior work on intellectual privacy, and is part of a larger project I have been working on for several years about the relationships between free speech and privacy, and how we should rethink our approach to these values in media and information law.
The generation of ideas frequently depends on access to the ideas of others who have come before, as intellectual property scholarship has shown in detail. In a free society, access to new ideas (whether we agree with them or not) requires the ability to read widely and without constraint. Oversight or interference with our reading habits can curtail our willingness to read freely and to experiment with ideas that others might think deviant, laughable, or embarrassing. But the right to read has been underappreciated and under-theorized.
At the same time, the right to read is increasingly under threat in the modern age of networked communications and access to information. In terms of making information and ideas broadly available, the Internet has opened up new horizons of access, on a scale that is unprecedented in human history. Moreover, the rise of laptops, smart phones, tablets, and electronic books means that more and more of what we read is being mediated by digital technologies. But these technologies have a potential dark side: while they open up new opportunities to read and interact with new ideas, they also create records of reading habits and intellectual explorations. For instance, Amazon maintains records not just of the books its users buy, but also the books they don’t, and the pages they browse. The Kindle website allows anyone to view the most-read passages on Kindle readers from automatically collected data on reading habits. And Facebook wants to become not just a media platform, but a social media platform, with all of our media consumption shared by default to everyone we know.
While companies sometimes claim they will respect the confidentiality of such records, in reality these records are subject to a very low level of legal protection. Moreover, other legal requirements such as copyright and child protection laws mandate a logic of surveillance that can become highly intrusive. Thus, the DMCA requires the unmasking of anonymous users in order to protect copyright holders from infringement. And in order to protect children from adult content, users of Youtube.com who wish to access content flagged as indecent must register with YouTube and create accounts that allow even greater surveillance and identification of their viewing habits. This creates the irony of greater intellectual privacy protections for users who read and view only the non-objectionable content, and creates a chill on the unfettered right to read anonymously.
In this article, I will show that many of the answers to these pressing problems of modern technology can be found in an unlikely source – in the professional and legal norms of librarians. Librarians were the original information stewards – a paper version of the Internet in the pre-electronic era. The norms of reader privacy and patron confidentiality developed by the American Library Association can point the way to a better understanding of reader privacy in the digital age – striking the balance between open access to ideas, and the privacy necessary to engage with those ideas on our own terms. It may seem paradoxical the solution to such modern problems can be found in such a dusty old source, but in reality this shows the timelessness and importance of the vital civil liberties that are at stake.