Police Bodycams: Crossing the Line from Accountability to Shaming

Police bodycams are an emerging high-profile tool in law enforcement upon which many hopes for improved oversight, accountability, even justice are pinned.

When it comes to police bodycams, there are many perspectives:

• Some celebrate them as an accountability measure, almost an institutionalized sousveillance.
• For others, they’re an important new contribution to the public record
• And where they are not included in the public record, they can at least serve as internal documents, subject to Access to Information legislation.

These are all variations on a theme – the idea that use of police bodycams and their resulting footage are about public trust and police accountability.

But what happens when they’re used in other ways?

In Spokane, Washington recently a decision was made to use bodycam footage for the purpose of shaming/punishment.  In this obviously edited footage, Sgt. Eric Kannberg deals calmly with a belligerent drunk, using de-escalation techniques even after the confrontation gets physical.  Ultimately, rather than meting out the typical visit to the  drunk tank, the officer opts to proceed via a misdemeanor charge and the ignominy of having the footage posted to Spokane P.D.'s Facebook page. The implications of this approach in terms of privacy, dignity, and basic humanity are far-reaching.

The Office of the Privacy Commissioner of Canada has issued Guidance for the Use of Body-Worn Cameras by Law Enforcement;  guidance that strives to balance privacy and accountability. The Guidelines include:

Use and disclosure of recordings

The circumstances under which recordings can be viewed:

• Viewing should only occur on a need-to-know basis. If there is no suspicion of illegal activity having occurred and no allegations of misconduct, recordings should not be viewed.
• The purposes for which recordings can be used and any limiting circumstances or criteria, for example, excluding sensitive content from recordings being used for training purposes. 
• Defined limits on the use of video and audio analytics.
• The circumstances under which recordings can be disclosed to the public, if any, and parameters for any such disclosure. For example, faces and identifying marks of third parties should be blurred and voices distorted wherever possible.
• The circumstances under which recordings can be disclosed outside the organization, for example, to other government agencies in an active investigation, or to legal representatives as part of the court discovery process.

Clearly, releasing footage in order to shame an individual would not fall within these parameters. 

After the posted video garnered hundreds of thousands of views, its subject is now threatening to sue.  He is supported by the ACLU, which expressed concerns about both the editing and the release of the footage. 

New technologies offer increasingly powerful new tools for policing.  They may also intersect with old strategies of social control such as gossip and community shaming.  The challenge – or at least an important challenge– relates to whether those intersections should be encouraged or disrupted.

As always, a fresh examination of the privacy implications precipitated by the implementation of new technology is an important step as we navigate towards new technosocial norms.

Peeple: the Commodification of Social Control?

From www.forthepeeple.com

Meet Peeple

We are a concept that has never been done before in a digital space that will allow you to really see how you show up in this world as seen through the eyes of your network.

Peeple is an app that allows you to rate and comment about the people you interact with in your daily lives on the following three categories: personal, professional, and dating.

Peeple will enhance your online reputation for access to better quality networks, top job opportunities, and promote more informed decision making about people.

My first interest in reputation in online spaces came from a particular kind of knowledge –knowledge that any girl who went to high school has -- that “reputation” and “dating” are never a good combination. Such evaluations are never as objective or truthful as they purport to be, and never without a cost to those who are being assessed/rated.  Maybe everyone knows this, but I’m inclined to think that some of us—those who by virtue of our Otherness are inevitably the object of critical review—internalize that knowledge at a much deeper level.

Given this, I confess that I smiled ruefully when I saw a photo of the two founders of Peeple—the self-described “positivity app launching in November 2015” that purports to enable users to rank people the way other apps (think Yelp) rank restaurants and, say, public restrooms. Peeple’s founders are blondish, youngish, and conventionally attractive.

                    Nicole McCullough and Julia Cordray

I’m not noting their appearance to be dismissive…but I am suggesting (fairly or not) that those who are least likely to have been socially marginalized and ostracized are also perhaps most likely to believe that an app designed to rate and comment on other people could “spread love and positivity.”

Frenzied media coverage has raised many of the most obvious problems with this business idea including:

• Users can set up profiles for others without  the consent of the person being rated
  
• Ratings are inherently subjective
  
• There aren’t credible safeguards for accuracy or protections from bias
  
• It will be up to a combination of automated software and human site administrators to determine if feedback is “positive” or “negative”, whether to publish it or remove it, etc.
  
• It presumes, without evidence, that crowd-sourced opinions are reliable
  
• The fundamental concept is an invasion of privacy and threat to reputation
  
• The approach objectifies human beings and commoditizes interpersonal relationships.
  

These are all important concerns, but I’d like to take a step back and look at the larger overarching potential impact of Peeple in terms of creating a state of perpetual surveillance that itself enforces and reinforces particular (mainstream) expectations of behaviour.

This project brings to mind the Panopticon—an architectural concept for institutional buildings, designed so that inmates/inhabitants can be observed from a central point without knowing whether they are being watched at any given moment. It’s based on philosopher Jeremy Bentham’s assertion that “the more constantly the persons to be inspected are under the eyes of the persons who should inspect them, the more perfectly will the purpose X of the establishment have been attained. Ideal perfection, if that were the object, would require that each person should actually be in that predicament, during every instant of time.” (Jeremy Bentham, The Panopticon Writings by Mweran Bozovic at Letter 1). 

Philosopher Michel Foucault later elaborated upon Bentham’s notion of the Panopticon, seeing in it a metaphor for the exercise of power in modern societies.  He explains that “…it arranges things in such a way that the exercise of power is not added on from the outside, like a rigid, heavy constraint, to the functions it invests, but is so subtly present in them as to increase their efficiency by itself increasing its own points of contact. (See Michel Foucault, Discipline and Punish: The Birth of the Prison).

What does this have to do with Peeple?  What overarching control could there be when the app itself clearly states that it is simply sharing feedback?  These reports aren’t happening in a vacuum – inevitably ratings are made with reference to a shared community standard  – setting and reinforcing community norms and reviewing whether or not individuals’ have appropriately met or performed those standards. 

Traditionally, surveillance within the panopticon was intended to impose and enforce chosen norms/rules/behaviours.  Its goal was the production of “docile bodies” – to remove the need for policing of behaviour via force, replacing it instead with the creation of a state of vulnerability induced by the perception of perpetual visibility that resulted in individuals self-policing their own behaviours towards the desired outcome. 

With Peeple, we run that same risk of creating docile bodies and enforcing desired behaviours – knowing that information is collected and shared will (perhaps inevitably) influence the behaviour of an individual who is subject to those reviews. Anyone who wants to continue active and productive participation in a community must be aware of this information repository and the standards that it maintains and enforces.  The collection and sharing of reputation becomes in essence a form of social control. 

Worryingly, in the case of Peeple, it’s a form of social control that is both privately administered and inherently commodified.

Customer Service, Extortion, and Reputation: KlearGear.com

UPDATE:  Protecting Brand Image or Gaming the System? Consumer 'Gag' Contracts in an Age of Crowdsourced Ratings and Reviews by Lucille M. Ponte

The growing power of reputation is indisputable.  As society becomes more dispersed –geographically and spatially (expanding to online spaces) – we increasingly deal with others we do not know well, or sometimes know at all. In order to facilitate these dealings and build the requisite trust necessary for e-commerce and other social, economic and political interactions, that uncertainty between strangers must be addressed. It is more than authentication of identity, it’s “I don’t want to know who you are so much as I want to know how I should treat you, and whether I should trust you.”

In these relationships information about individuals, organizations and institutions that is available online becomes extremely important. 

The various roles and resonances of reputation are being played out very publicly in the case of KlearGear.com—a dismal tale of poor customer service, faux consumer advocacy, and the power of erroneous credit reports making life miserable for consumers.

Recently news sites and bloggers have been buzzing about KlearGear’s treatment of customer Jen Palmer. Ms. Palmer’s partner ordered Christmas presents for her from KlearGear.com in 2008.  Though paid for, the gifts never arrived, and despite multiple efforts she was unable to contact anyone at KlearGear to resolve the problem.  Eventually PayPal cancelled the transaction and Ms. Palmer expressed her frustration on for-profit consumer complaint site RipoffReport.com. 

Three years later the Palmers were contacted by KlearGear.com demanding that the negative comments from RipoffReport.com be removed within 72 hours, or face a $3,500 “fine”. Failure to pay the “fine” would be reported to credit bureaus and have a negative impact on their credit rating.

KlearGear.com cited a non-disparagement clause in their Terms of Sales providing that

In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts kleargear.com, its reputation, products, services, management or employees.

When Ms. Palmer attempted to take down her comment, she says she was notified that RipoffReport would only allow her to do so if she paid a $2,000 fee (!).  Subsequently KlearGear.com has attempted to collect the $3,500 fine and followed through on the threat to report it as a delinquent account to credit bureaus. Palmer’s attempts to challenge the report have been unsuccessful and as of this writing, it remains on her record.

Reputation fallout

As someone who has taught contract law, I can’t help but observe that from a purely contract standpoint, it is certainly arguable that KlearGear has no claim here.  Since the order was never fulfilled and the payment was refunded there would seem to be no contract, and thus no term that could be enforced. 

Even more egregious, as TechDirt found, it appears that the clause KlearGear cited wasn’t even part of the Terms at the time the Palmer order was placed! 

Reputation is at the heart of this case:

KlearGear: KlearGear’s recognition of the importance of branding and reputation is evident through their inclusion of the non-disparagement clause.  Whether such a clause is or should be enforceable is debatable, but at the very least its inclusion signals an awareness of the importance of reputation management.

RipoffReport.com: Another acknowledgement of the importance of reputation, as well as an exploitative attempt to profit from it, is evident in RipoffReport.com’s refusal to remove the post in question without payment a $2,000 fee.  RipoffReport’s own Terms of Use claim that in order to create a complete record, posts on RipoffReport will not be removed. This statement is clearly at odds with their attempt to profit from the Palmer’s alarm over the threats from KlearGear.  Legitimate consumer protection sites are predicated on mobilizing the power of reputation in order to protect consumers and empower consumers to protect themselves by providing access to information with which to make educated decisions, not extortion.

Credit Reporting Agencies: Credit bureaus and reports are, of course, a long-standing use of reputation. Various organizations contribute input their financial transactions with individual consumers and their performance obligations during those transactions.  This information is collected in a central database and this amalgamated information can be consulted in order to assess the credit-worthiness of an individual consumer.  Credit reports can be a double edged sword – while they nominally provide an important resource, they may also (as in the Palmer case) report and perpetuating inaccurate information. Palmer asserts that the negative credit report resulting from this incident still stands and has resulted in the denial of loans.

 BEST PRACTICES SIDEBAR:  All individuals should periodically review their credit report for inaccuracies and errors.  The Office of Consumer Affairs has information about how to do so. 

Reputation: the double-edged sword

Ironically, in their attempt to guard against negative reviews and reputation damage, KlearGear has managed to attract dramatically more negative attention than Ms. Palmer’s original RipoffReport post ever could have.  The attempt to enforce the Terms of Sale clause drew attention, and then those investigating the report discovered that Ms. Palmer’s original claim was true – that it was impossible to contact anyone from KlearGear.  Reports have also emerged calling attention to KlearGear improperly advertising TRUSTe and BBB certifications that they do not hold. KlearGear’s negative Better Business Bureau record, the debate over whether the extortionate clause should be part of a contract (and whether it was part of an actual contract between the Palmers and KlearGear) create even more negative attention and reputation damage to the company. 

Reputation is a powerful force in our modern culture—exceedingly influential and extraordinarily vulnerable.

UPDATE: as of September 19 KlearGear.com has gone into “social media lockdown”, deleting its Facebook presence and locking its Twitter account, and RipoffReport is defending its practice of refusing to remove reports at authors’ request and $2,000 “VIP Arbitration” charge.

UPDATE 25 November 2013:  Public Citizen is representing the Palmers, and has now sent Kleargear a demand letter requesting (1) that they remove the erroneous credit bureau notice; (2) that they pay $75000 in damages for the effects of the notice; and (3) that they commit to no longer using the non-disparagement clause against clients.  Will be interesting to see what Kleargear's response is!

UPDATE 21 May 2014:  Despite judgement against them, and despite a clause in the Kleargear ToU that explicitly invokes the laws of the State of Michigan, Kleargear's parent company is now arguing (publicly, but not yet in court) that since they are resident in France they were not served properly and thus the judgement does not apply.  You have to wonder how much further they'll go to avoid taking responsibility for their actions...

UPDATE June 2014:  Despite their posturing about not being served properly, Kleargear did not raise any formal objections, and accordingly a default judgement has been issued in favour of the Palmers in the amount of $306,750.00

a dismayed yelp -- shouldn't we have some rights to our own reputation?

A case against Yelp got dismissed this week.  It’s an interesting one too – businesses who claim that Yelp manipulates ratings against businesses who do not purchase advertising on Yelp. 

Yelp bills itself as an “online urban guide” – a crowdsourced local business review site.  Consumers rate their experience(s) with a business, and  the accumulated ratings and experiences are available to anyone (though you’ll need an account to actually submit a review).    The company themselves isn’t particularly local though – with over 130 million unique visitors per day in over 20 languages, Yelp’s Alexa rank for May 2014 was a more than respectable 28.  This is a company that may speak local but has definite range and scope for the exercise of power.

Yelp has long been dogged by allegations that they manipulate the rankings of businesses – either that they will remove negative reviews for businesses who purchase advertising or alternatively that a refusal to buy advertising could result in the disappearance of positive reviews.  Finally, a group of small businesses filed suit against Yelp claiming that it was extorting small businesses into buying advertising. 

Extortion, they say.  When I think of extortion I think of blackmail.  Organized crime.  That sort of thing.  A battle between a crowd-recommendation site and a variety of entrepreneurs seems a little…bloodless.  (maybe my parents *did* let me read inappropriate materials – turns out the woman from the town library who called my mom to report me was right after all!)

Anyone reading the headlines after the case was dismissed might be excused for thinking that Yelp had been vindicated.

Yelp Extortion Case Dismissed by Federal Court

Court Sides With Yelp

Appeals Court Rules for Yelp in Suit Alleging the Online Review Site Manipulated Reviews

Well, the court didn’t exonerate Yelp.   There was no finding here that the manipulation didn’t or couldn’t happen.  Nope, the lawsuit was dismissed because….drum roll please….businesses don’t have a right to positive reviews online. 

The business owners may deem the posting or order of user reviews as a threat of economic harm, but it is not unlawful for Yelp to post and sequence the reviews," Judge Marsha Berzon wrote for the three-judge panel. "As Yelp has the right to charge for legitimate advertising services, the threat of economic harm that Yelp leveraged is, at most, hard bargaining.

Does it matter?  Isn’t this just a battle between businesses?  Well….no.  Not necessarily.  In a world of crowdsourcing and reputation, granting a business carte blanche to manipulate reviews is a scary prospect.  An even scarier one is the idea that you might not have rights over your reviews/reputation.

(fear not RTBF-foes -- i'm not suggesting we should have the right to change, erase or otherwise manipulate such reviews....i'm just suggesting maybe nobody else should be able to do so either, especially with a view to harming me reputationally)

Writing the Right Law, Not Just a Law

In the wake of Rehteah Parsons death on 7 April 2013, Nova Scotia became the first Canadian jurisdiction to pass cyberbullying legislation, with the Cyber Safety Act becoming law on 10 May 2013.  At the time of its introduction multiple concerns were raised about the breadth of the Act, and the vagueness of its definitions, as well as the constitutionality of its approach.  This week the first formal complaint under the Act was made, by Nova Scotia legislator and actress Lenore Zann, after a teen posted a nude still from an acting performance to Twitter. 

The quick turnaround of Nova Scotia’s Act was a result of the widespread alarm and concern that erupted when the general public were made aware of the alleged rape, harassment and eventual suicide of Rehteah Parsons.  It is always tempting in the wake of a shocking event to react quickly to prevent future recurrences.  Unfortunately, the notion that the best response is to quickly draft a law to deal with the issue and move on is incorrect.  

To put it bluntly, it’s important to write the right law, not just a law.   

A missed opportunity

For an example of how this approach can go terribly wrong, consider the Video Privacy Protection Act in the United States.  It was drafted and passed by the US Congress in 1988, after a media outlet acquired and published Robert Bork’s videotape rental history during his nomination to the US Supreme Court. The Act protects the privacy of information about rentals of “pre-recorded video cassette tapes or similar audio visual material.” 

The Act is an excellent example of the failure of law to deal effectively with technology.  In the wake of a perceived violation of privacy legislation was drafted and passed to deal with that particular technology and prevent that particular kind of violation from recurring. So although the Electronic Privacy Information Centre describes the Act as “one of the strongest protections of consumer privacy against a specific form of data collection,” because of its specific link to a particular (and increasingly out-dated) medium it also constitutes a lost opportunity to apply similar, meaningful privacy protections against data collection more broadly in the US. 

What is Cyberbullying?

The recent wave of “cyberbullying” legislation poses the same risk—leaving the issue inadequately addressed with an ill-conceived legislative response to a poorly understood issue. These concerns were raised at the time the Bill was introduced, now that a complaint has come forward, it’s a good opportunity to re-examine the issue.

Conventionally, bullying is defined as having three components: 

• Aggressive behavior that involves unwanted, negative actions.
• A pattern of behavior repeated over time
• An imbalance of power or strength.

Dan Olweus, psychologist and noted author on the topic says, “A person is bullied when he or she is exposed, repeatedly and over time, to negative actions on the part of one or more other persons, and he or she has difficulty defending himself or herself."

Experts disagree over whether these same characteristics are present in cyberbullying.  Certainly traditional bullying requires a physical contact, or sharing physical space, while cyberbullying does not.  Because there is no requirement for co-location, cyberbullying may arise in multiple online spaces.  This—combined with the persistence of information in online spaces—means that cyberbullying can be seen or participated in by many more people, in many more places.  Online spaces can also facilitate anonymity or pseudonymity among those engaged in the bullying, which further increases the power differential and vulnerability experienced by someone being bullied.

After a Nova Scotia teen tweeted a topless photo (a still shot found online, from an episode of “The L Word” in which Ms. Zann was an actor) with the question “What happened to the old Lenore?”, the legislator contacted his parents, his school principal, and local school board as well as the police and CyberSCAM units, alleging that his actions constituted cyberbullying. 

The new Nova Scotia law defines cyberbullying as follows:

"cyberbullying" means any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person's health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way;

Discussing her complaint, Ms. Zann pointed to a three-hour discussion that took place on Twitter between herself, the youth himself and others, claiming that "It's not necessarily the image itself, but the fact that someone is tweeting that at me and saying, 'Hey Lenore Zann, where's the old Lenore now,' and calling it porn and things like that. I found that really humiliating and harassing."  Interestingly, it is also worth noting that under the Act’s expansive definition, the tone and content of Ms. Zann’s responses during that encounter could arguably open her to similar allegations of cyberbullying.

Meaningful protections

Ms. Zann’s invoking of humiliation classifies this incident as cyberbullying in the broad terms of the Cyber Safety Act, but it raises serious questions as well. Is this the sort of situation cyberbullying legislation was created to address?  Should politicians be able to use cyberbullying legislation to stifle questions and criticisms?  Are they the vulnerable persons such legislation was meant to protect?

These are emerging quandaries of digital life that have yet to be put to the test. As we grapple with new cultural and legal issues presented by interactions in online spaces—striving to balance protection of the vulnerable with freedom of expression, balance privacy with safety—complexities and long-term repercussions must be considered.

It isn’t enough to just do something, it’s important to do the right thing.

What a Turkey: Enforcing Community Norms

Over American Thanksgiving weekend 2013, the twitterverse was abuzz over a clash between reality TV producer Elan Gale and fellow airline passenger “Diane”—a confrontation live-tweeted by Mr. Gale himself.   Mr. Gale first recounts Diane’s conversation with a flight attendant and is clearly disapproving of Diane’s behaviour.  The confrontation then takes off with Mr. Gale sending notes (thoughtfully pictured in his twitter updates) to Diane in her seat castigating and insulting her.  The tale ends with both passengers getting off the flight, whereupon Diane slaps Gale. 

Though Mr. Gale’s accounts of the confrontation were initially greeted with great delight, subsequent discussion delved into other issues including the his own behaviour, readings of the incident that focussed on underlying misogyny and  privilege implicit in Mr. Gale’s behaviour and concern about the ethics  of live-tweeting private conversations. 

On 2 December, Gale admitted that the whole fracas (and indeed Diane herself) was his own invention and had not happened.   Why a blog post about it then?  Well, because the “event” and people’s responses to it shines a light on several interesting aspects of online privacy, identity, and reputation. It is an opportunity to take a closer look at the phenomenon of publicly exposing the behaviour of others, and/or online “shaming.” Is this a new assault on privacy rights? Or, in fact, extensions of traditional practices of social regulation, created and employed by communities to reinforce chosen social norms. 

Online shaming

Daniel Solove has written about the “dog poop girl” -- an incident where photos of a girl allowing her dog to poop on the train and not cleaning it were taken on a metro train and posted to the internet.  Solove uses this incident as an example of how privacy is not a binary public/private switch but needs to be understood in a more nuanced way.  Just because this happened on a public train, he says, doesn’t automatically make it public.  Instead, privacy issues need to be assessed by looking at the situation in its full context, including the way(s) that a particular incident’s character may be changed by stripping it of context, disseminating it and making it “permanent and widespread.” 

The genesis of the Holla Back project in 2005 shows a similar appeal to community shaming.  A woman riding the subway one afternoon had a man sit down across from her, take his penis out of his pants, and begin masturbating.  Uncomfortable, she took a picture of him.  She reported the incident to a police officer, but she posted the photo and an account of the incident on Flickr and Craigslist.  The photo and report were reproduced in the New York Daily Mail the next day, which lead more than two dozen people to come forward with similar complaints about the offender who was then arrested and charged with public lewdness.   Interestingly, the perpetrator has spoken publicly about what he portrays as the inappropriateness of her actions in publicizing the photo and his actions. 

What these incidents have in common is the aspect of public shaming – what could have been a fleeting moment is instead recorded and made publicly available.  In both cases, public outrage erupted – people disapproved of these actions and articulated that disapproval (albeit targeting the individual as much as if not more than the action itself). 

This is not a phenomenon unique to the internet.   Rather, it is simply the technologization of the traditional means of establishing and maintaining mainstream community norms. 

Community norms and their enforcement

Norms are social constructions, the product of tacit negotiation and collective awareness. They are enforced both implicitly and explicitly, not necessarily via central authorities but within a community.  Social norms are promulgated and enforced through social interactions, and a key regulatory power of the community is shaming.  It is important to note, too, that shaming tends to target the individual, not the action.

While shaming can involve a direct confrontation with the norm-breaker, more often it is achieved via gossip.  Although traditionally disdained and dismissed as idle talk or rumour, gossip serves as an information exchange that promulgates, maintains and enforces social norms.  Shame acts to stigmatize those who transgress norms, and the threat of shame deters other individuals from such transgressions.

Identity and Reputation: Shaming the shamer

The fact that these incidents of shaming use technology or take place online does not make this a new phenomenon – community norms are evident in the response to the “dog-poop girl” or the subway flasher incidents.  Those responses do not occur in a vacuum, and it should not be presumed that they are of no effect.  Rather, when the community responds so strongly with disapproval, social norms about appropriate behaviour are articulated, enforced and reinforced.  This is exactly the traditional function of gossip and information sharing, and technologization does not change that.

In the end, the scenario that Elan Gale concocted and disseminated did generate community outrage, but not as he intended.  Mr. Gale’s efforts to focus disapproval on “Diane” backfired and online disapproval and shaming turned towards him, even more so now that he has revealed the whole thing was a hoax. Further evidence, perhaps, of the fact that community norms are socially negotiated. Interpretation and response to particular action cannot always be reliably enforced or predicted but rather occurs organically through community response.

Hoax or not, this incident and others like it show us the way in which the techno-social – the intersection of social norms and emerging technologies – can teach us lessons about ourselves and our world.  Some of the lessons may be new – but not all.  Some of them are as old as the hills.

Social Media Employment Background Checks: Sounding the Call for Regulation

Digital “footprints” on the internet may have an impact both pre-employment and post-employment, and these impacts may disproportionally affect non-mainstream groups whose information is being assessed against standards that are undisclosed and unregulated.  

A recent study (released 21 November) by Alessandro Acquisti and Christina M. Fong of Carnegie Mellon University explores this phenomenon.  Starting with actual information revealed on social media sites, the team created resumes, professional network profiles, and social network profiles.  The resumes were submitted to 4,000 real job opportunities with US employers.  The online profiles were then tweaked by the researchers to be revealing of either religion (Muslim or Christianity) or sexual orientation (homosexual or heterosexual) of the individual, while otherwise equivalent to each other.   

Interestingly, the study did not find that sexual orientation created significant differences in interview requests, but across the US the “Muslim” candidate received 14% fewer interviews than did the “Christian” applicant.  The variation by religious affiliation was especially pronounced when correlated with conservative political indicators by geographical region (areas that favoured conservative candidates in the last national election).  An online component of the study using the same (manipulated) profiles produced similar responses. 

Further, the study suggests that between one in three and one in ten employers were searching online for information about job candidates.

This number is at the low end of the scale, but not inconsistent with previous research.  For instance, a 2007 survey of 250 US employers found that 44% of employers used Social Security numbers to check into the backgrounds of job candidates.   2006 survey data from ExecuNet demonstrates a similar pattern, with 77% of executive recruiters using web search engines to research candidates and 35% of those stating that they had ruled candidates out based on the results of those searches.  In 2009, Harris Interactive research showed 45% of employers doing background checks that included social media, while a 2012 Career Builder study showed that two in five employers used social media to check out prospective employees, and of those who did not do so, 11% indicated they planned to start. 

Although the Carnegie Mellon study was focussed on the effect of two narrow characteristics, the authors expressed concern that particular identifiers may not be the only factor exerting an influence on employment decisions. The mere fact a candidate chooses to post such information online may itself lead to inferences and conclusions by prospective employers. 

Acquisti & Fong note that prospective employers who inquire about religious affiliation during an interview open themselves to liability under federal or state equal employment opportunity laws—and also that the US Equal Employment Opportunity Commission has publicly cautioned against the use of online searches to investigate protected characteristics. 

Similarly, in Canada there is no explicit liability in the act of searching, but rather in the issue of whether hiring decisions are being made based on inappropriate criteria.  In other words, it isn’t just a matter of information found in such a search, but also in the (potentially unfair, possibly gendered, classed or sexualized) inferences that may be drawn from the search.

Though the study focussed on pre-employment checks, the issue of online searches does not become moot after an applicant has been hired.  PIPEDA applies to personal information about any federal employee, and other jurisdictions may also cover such information under some legal framework.  This protection is important because online searches may be a tool in disciplinary investigations. 

Self-censorship or meaningful regulation?

The conventional wisdom, of course, is always that individuals must take responsibility for their personal information and should carefully control what information is available online. 

This study is another confirmation that employer (and other institutional) use of online background searches, including social media sites, is an ongoing and increasingly normalized part of the employment relationship.  Given that this information is being accessed and used in pre- and post-employment situations, it is clear that such practices should be examined and regulated. This is necessary to ensure that, at the very least, only information that is correct and relevant will be used, and that the individuals impacted are aware of its collection and use. Mechanisms for the challenge, correction and redress of misinformation need to be established.

This is an emerging and accelerating challenge to individual privacy rights.  Policing the misuse of personal information should not be left as an exclusively individual responsibility – systemic utilization of such information requires a systemic policy and response. 

THE REPUTATION FILES: Pseudonymity, Exposure, and Impact(s)

The tale of Belle de Jour has taken a new turn, with an ex-boyfriend turning to the courts and media with his claims that his association with the sex worker/academic/blogger has destroyed his career and that her claims of having been a sex worker are fabricated.

The site Diary of a London Call Girl debuted in 2003, purporting to be a record of the experiences of a young woman as she began and then continued to work for an escort agency.  The author identified herself as Belle du Jour, and as the site become more popular and the franchise grew to include published books and a spin-off television series there was much public speculation as to Belle’s “real” identity. 

That speculation ended in November 2009, when Dr. Brooke Magnanti outed herself as Belle de Jour in the Sunday Times.  Dr. Magnanti is a research scientist at Bristol University in the UK, and has stated that she was employed by an escort agency for 14 months while completing her Ph.D. thesis. 

Now she is being sued in a Scottish court by Owen Morris with whom she had a 6 year relationship.  Writing as Belle du Jour, she bestowed upon Mr. Morris the pseudonym “The Boy” – he claims that when she revealed herself publicly, his identity too was exposed.   Accordingly Mr. Morris is suing her for damages and loss of earnings on the basis that she cost him his job and RAF career, breached his privacy, and defamed him. 

She says: Dr. Magnanti

The use of the pseudonym `Belle de Jour` allowed Dr. Magnanti to journal her experiences and later to commodify the popularity of her site while continuing separately to build her own academic career.  Clearly, the use of a pseudonym to keep these “selves” separate not only allowed Dr. Magnanti to develop professionally, but to build strong parallel reputations.  It is worth noting that both the university and her publisher have been publicly supportive of her. Bristol University has stated that Dr. Magnanti’s past is irrelevant to her university position, and her publisher has lauded her for the courage it had taken to come forward. 

An entry on her blog the day of the public revelation spoke about the importance of reconciling the different aspects of her personality, and denied that her offline self was any more “real” than her pseudonymous online self.  Both in her decision to unmask herself and in her subsequent comments, Dr. Magnanti demonstrates many key aspects of the interrelationship between privacy, identity and anonymity.  Choosing to control information about herself via the use of a pseudonym allowed her the privacy and freedom to develop both selves, both reputations, without confusion or dissonance emerging between them. 

He Says: Owen Morris

In contrast with Dr. Magnanti’s focus on authenticity, Mr. Morris’s lawsuit strikes a dissonant chord.  While alleging defamation and breach of his privacy, he is also challenging her backstory, claiming that the blog was begun before her time in London and that in fact the clients and characters she detailed were fabrications built upon her sex life with him. 

This dichotomy is interesting –his claims rest on the idea that being associated with someone of her reputation (as sex worker, not as academic) has damaged him and his reputation professionally and personally.  Simultaneously, however, he seeks to undermine the validity of that reputation at all, refusing the notion that he had ever been involved with a sex worker to begin with.

Rebuttal

Dr. Magnanti, in a blog post dated 11 August 2013, responds to Mr. Morris’s claims in the media and in court.  She lists significant documentary evidence that she is prepared to produce, including entries from his own journal where he acknowledges he knows that she was a sex worker, tax records showing earnings and appropriate taxes paid upon those earnings, diaries of her engagements during those years and more. 

At the close of her entry, Dr. Magnanti states that:

It matters because this is a concerted and direct attack on my work as a writer. Is it libel to say someone wasn't a sex worker? Well, it's libel to say someone was lying. When I was anonymous, being real was my main - my only - advantage. Mr. Morris and the Mail on Sunday have made some frankly nonsense claims, and I will be going to town on this.

Because I know people do not trust the word of a sex worker, that is why I saved everything.

Reputation Wars

What then is the real issue here? Whose reputation is at risk and why?

Sex work is not illegal per se in the UK.  Accordingly, the question of whether or not Dr. Magnanti’s experiences are real or fictionalized seems like a red herring. 

Was Mr. Morris damaged by Dr. Magnanti’s activities as a sex worker?  Was he damaged by her revelation of her “real” identity in 2009?  Have either of these in fact led to him suffering personal and professional harm that should be redressed?

Or is it Mr. Morris’s pride that has been damaged?  His insistence that he never knowingly slept with a sex worker seems to speak to a particular notion of masculinity that might be seen as “diminished” by such an association. 

This case revolves around many complexities of identity and reputation.

The case is in the Scottish courts and to my knowledge no decision has yet been reached.  It will be interesting to see what approach is taken in assessing whether Mr. Morris has indeed suffered tortious injuries, and in articulating what those injuries might in fact be. 

Case Study: Scientific American/Biology Online, reputation, expression, and the “urban whore”

The outset

When author Philip Hensher was recently asked by Professor Andrew Webber to write a book introduction for free, he declined to do so.  Frustrated, Webber called Hensher “priggish and ungrateful” on Facebook.  As the Guardian reports on 11 October 2013, this led to a storm of support for Hensher and lively discussion fuelled the growing frustration of authors who are increasingly expected to donate their time and skills for free. 

The outrage

Contrast this with the commotion that same weekend over at Scientific American online.  Dr. Danielle Lee was asked by one of Scientific American’s partner publications, Biology Online, to write a blog piece for them for free.  When she declined, Dr. Lee (who writes for Scientific American as The Urban Scientist) was asked angrily by the site’s editor "Are you an urban scientist or an urban whore?"

A bad enough situation, it seems to me, especially when we take note of the particularly sexualized way anger was expressed at Dr. Lee, reminiscent of the Kathy Sienna or Anita Sarkeesian attacks.  For more discussion of these attacks and discussions around gender in online spaces, see Sarkeesian’s TEDTalk on sexual harassment and cyber-mobs or Jessica Megarry’s blog from August 2013.

The outcry

Dr. Lee blogged about the experience on her Scientific American blog, and then over the weekend—controversially—Scientific American added insult to injury by removing her post, tweeting that "@sciam is a publication for discovering science. The post was not appropriate for this area & was therefore removed."

In a widely shared open letter Isis the Scientist criticized Scientific American’s actions, calling out not only the relationship between Biology Online and Scientific American but also challenging the assertion that the post was not about science and/or not appropriate.  She argues eloquently:

You see, science is about discovery, yes. But, more importantly, at its core science is about discovery with integrity. It’s about accepting data for what they are, even when they challenge our view of the world. It’s about reporting your conclusions, even when they are not popular and create conflict. Science is about chasing the truth and uncovering more of that truth with each new discovery. Not obscuring it.  I became a scientist because science is about honesty and curiosity and that little moment of excitement when you’re holding something brand new and you can’t wait to show it to the world.

I have a vision of what science should look like. When I close my eyes, I see a community where we are fascinated by the world around us. Our core value is, indeed, discovery, [t]he more senior of us extend our hand to raise up those more junior than us.  We mentor them, care for them, love them, and protect them. We respect and value that our diversity makes us stronger. We empower those folks to feel like super heroes, because they are. They really, truly are. More so than any character, these folks have the power to shape our future for the better.

What you’ve taught me today is that you do not share my values. You may post glossy, sexy pictures of science, but you are not interested in discovery. You do not value truth, honesty and integrity – the core values that I hold most dear as a scientist.  Most importantly, you did not empower my friend.  You shut her down when she shared that she had not been respected. You put the dollar before the scientist.

Scientific American’s decision to remove Dr. Lee’s post was roundly criticized by members of the scientific blogging community. Subsequently the post was restored on 14 October, along with a revised explanation indicating that the editorial decision to delete the post was based Scientific American’s inability to “…quickly verify the facts of the blog post and consequently for legal reasons we had to remove it.” In other words—to protect the reputation of the individuals involved and the site itself.

(Biology Online also published a notice that the offending editor had been fired, reiterating the collegial aims of their site, and thanking those who made them aware of the situation.)

The outcome

Reputation and trust cuts both ways.

What makes this debate something more than an internecine squabble in the blogosphere?  This was not just a polarized discussion of bloggers versus sites.  Nor was it about Dr. Lee herself. 

A significant part of what took place was negotiated at the level of public reputation and trust.  The response by the “blogosphere” made it clear not only was that Scientific American’s removal of Dr. Lee’s post was unacceptable, but that this behaviour in general was unacceptable and thus that Biology Online and perhaps all of its partners were now suspect and should be avoided as a result.  As Mika notes:

Trying to make it as a writer in the current era is as ridiculous with all the “We’ll pay you with exposure” or “Intern for 2 years and maybe we’ll hire you at minimum wage.” Working for free isn’t working. Biology isn’t my beat, but if it’s yours, beware: Biology-Online is not worth your effort.

Why do I say anything, when so many others have already said it? Because the practice of science is rough, figuring out which career matches the lifestyle you want to have, navigating industry-academia balances, and everything else. If we can share lessons with each other, it’s a bit easier to cope. Now you’ve been warned off a predatory site, know this isn’t considered normal or acceptable behaviour, and won’t be blindsided quite as hard if something like this happens to you.

These sites depend on content to drive traffic, and that traffic to drive advertising revenue.  Here is the real reputation issue at the heart of this controversy: when disputes come up that undermine the overall legitimacy of such a site within the self-same community it targets that can be fatal to the site’s very existence.

With that kind of negative momentum building, it is hardly surprising that both Biology Online and Scientific American backed down on their previous positions, mumbling mea culpas as they went…

 

Dark shadows: reputation, privacy, and online baby pictures

In her article of 4 September “Why We Don’t Put Pictures of Our Daughter Online”, Amy Webb starts out with the understanding that parents who post information and pictures about their children are contributing to the eventual data shadow of that child.

She talks about the ever-increasing impact of the data shadow – the consequences of such information, from its availability to future friends and acquaintances all the way to potential employers and educational institutions having access to the data and the inferences they may draw.  

Alas, from this eminently sensible recognition, Webb’s approach quickly devolves into a couple of different (and contradictory) approaches.

Slate’s piece on why you shouldn’t post photos of children includes a photo of a cute child you shouldn’t post.

 

First, she argues that “[t]he easiest way to opt-out is to not create that digital content in the first place.”  I would challenge the assumption that opting out is the best answer.  The existence of a data trail need not be an inherently or exclusively negative thing.  Think of the issues that women seeking to leave marriages encountered historically and may still encounter --  the lack of a credit history in the name of the individual woman.  Financial matters being left to the husband can result in these women becoming “invisible “and this invisibility in turn may mean that the women are left without financial resources to draw on.  Opting out (I originally wanted to dub this approach as a kind of digital asceticism or cyberAmish, but found that not only were both terms already in use, but both actively encouraged the use of technology, not the avoidance of it) doesn’t stop digital presence from being important -- having this kind of presence is increasingly an important (perhaps even necessary) precursor to participation in all sorts of arenas.  Instead, it becomes a misguided, even comical scenario reminiscent of  Christopher Walken and Sissy Spacek raising Brendan Fraser in the claustrophobic  “safety” of a Cold War era bomb shelter (Blast from the Past, 1999).

Questions about how to authenticate identity are increasingly moving away from how an individual authenticates themselves and towards how other people’s relationships and perceptions of another act to authenticate that other.   Lack of digital shadow leaves an individual unable to authenticate herself, and thus denied access to useful resources, communities, relationships and information. 

Interestingly, despite her cry for opting out, it is clear that Webb believes deeply in the importance of a digital presence and does not see that changing.  She writes about the strategy of creating a “digital trust fund” for her daughter – how, after reviewing potential baby names to ensure no (current) negative associations or conflicts,

[w]ith her name decided, we spent several hours registering her URL and a vast array of social media sites. All of that tied back to a single email account, which would act as a primary access key. We listed my permanent email address as a secondary—just as you’d fill out financial paperwork for a minor at a bank. We built a password management system for her to store all of her login information…

The disconnects within her purported technical sophistication are many. 

It’s charmingly naïve to assume that Webb's "permanent" Verizon email address, the password management system or the logins set up now will still be operative by the time her daughter reaches an age where her parents deem it appropriate to allow her access to the digital identity they’ve set up.  (There is also a secondary question about the accountability of sites that are allowing her to set up accounts in another person’s name despite the controls they claim to have in place, but that’s another issue entirely.)

Even should those still be extant, what is the likelihood of the selected social media sites (or social media at all) remaining relevant?  Is this really a digital trust fund or the equivalent of the carefully hoarded newspapers and grocery store receipts that I had to wade through and then discard when we packed up my grandmother’s place?

Finally, her confidence that these steps will erase any baby digital footprints is misguided.  She writes that “[a]ll accounts are kept active but private. We also regularly scour the networks of our friends and family and remove any tags.” Nevertheless, it took less than 15 minutes for a moderately techie friend of mine (using nothing more than Google and opposable thumbs) to not only locate the name of Webb’s daughter, but the likely genesis of that name (the romantic overseas venue where Webb’s husband popped the question, and a family middle name.) 

Bizarrely, Webb’s well-intentioned effort to shield her daughter from potential future embarrassment of online baby pictures does not extend to self-reflection about the act of documenting, in detail, her meticulous gathering of data on her data including spreadsheets tracking her urination and poop. Webb wonders, “It’s hard enough to get through puberty. Why make hundreds of embarrassing, searchable photos freely available to her prospective homecoming dates? If Kate’s mother writes about a negative parenting experience, could that affect her ability to get into a good college?” completely without irony.

Am I saying that Webb has failed to sufficiently protect her daughter’s identity?  Not really.  I’m saying that in the modern world it is virtually impossible to keep information locked down.  It’s a waste and a distraction from the real issue.

So…let’s stop relying on opting out and/or protecting identity as a way to insure against the creation of data shadows and focus on guarding against negative repercussions from the content(s) of those shadows.  Instead of accepting that the use (and negative repercussions from that use) of online data are inevitable once the data exists, let us turn attention to establishing rights and protections for personal data. Why should information be considered presumptively public and broadly accessible?  What relevance does a blog post from a 14 year old have to a decision about whether that individual would be a good employee?  Should photographs of activities outside the sphere of school be considered as part of the “record” of a student applicant to academe? 

Webb says that "[k]nowing what we do about how digital content and data are being cataloged, my husband and I made an important choice before our daughter was born.”   Maybe the issue isn’t how the content and data are being catalogued – maybe it’s about how they’re being used.  Indeed, maybe if we stopped being distracted with futile efforts to “opt out” we might focus on forging effective and meaningful information controls.