Reputation 2.0

04.30.08 | Category: Valley Future, Zen Law

Bill Fenwick, Drue Kataoka & Michael Fertik

On Tuesday April 22nd ValleyZen was invited to observe “The First Amendment in the Digital Age,” a Stanford seminar by Beth Noveck. She is a Professor of Law and the Director of the Institute for Information Law & Policy at New York Law School. Noveck teaches in the areas of intellectual property and innovation law and policy, constitutional law, e-democracy and e-government. The topic for this week concerned the development and use of impenetrable anonymizing software which makes it impossible to identify the source of a posting on the Internet. The class discussed the effects on the constitutional rights of freedom of press and individuals’ right of privacy. The guest presenter was Michael Fertik, CEO of Reputation Defender. His company offers, for a fee, assistance to persons if they find themselves in the disastrous situation like the one he discussed in the seminar.


Tor (anonymizing Internet software) is available on the Web. It carries out posting without being traceable to any IP number. Mr. Fertik described the result of combining Tor with a federal law giving “Protection for private blocking and screening of offensive material.” The software and the federal statute makes possible false and defamatory posts which threaten, degrade, and harass without risk of detection.

Drue Kataoka, Bill Fenwick & Prof. Beth Noveck

Two, young post-graduate students are currently suffering irreparable injury to their reputations and future prospects by someone’s use of Tor. Because of the inability to identify the IP number of the perpetrator’s computer[s] and the federal statutory immunity given to:

“any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service”

the court is unable to stop the outrageous activity. Anonymity is important to free speech and press as was established by Thomas Paine’s Common Sense Pamphlets. However, add use of Tor on the Internet and it unbalances the current compromise between individual rights and freedom of the press. Now a combination of sophisticated technologies and the federal statute is destroying the right to privacy and the right to feel secure in our civil society.

A dialogue about how enabling developments in information technology may require adjustments to social and constitutional policies dealing with privacy and freedom of press and speech is in the spirit of Zen and in the best interest of the high tech community.

It appears to us that this is an intersection of Zen, the Valley and High Tech that deserves an effort by all to assist in adjusting the imbalances that occur because of a technological enablement that may otherwise call forth some very unattractive solutions. Mr. Fertik believes some minor changes in the federal statute will resolve this and similar future dilemmas. ValleyZen also believes there are information technology solutions that can achieve the same result without undue restriction on the Internet.
It should be noted that Mr. Fertik’s company with the able assistance of Professor Mark Lemley and Keker & Van Nest, LLP, on a pro bono basis, is attempting to get a resolution of the unjust treatment of the post graduate students and relieve them of this nightmare.

What are you thoughts about future challenges that will be posed by technological developments to individual constitutional rights and appropriate approaches to solutions?

Bill Fenwick and Drue Kataoka
Bill Fenwick & Drue Kataoka

9 Comments so far

  1. Harry

    What is missing is that ReputationDefender presumably uses black-hat SEO techniques usually associated with spammers to achieve the goals of their clients (presumably proxy hijackings, triggering of spam filters through link farms and content duplicatons, etc).

    Clearly the current situation of free-for-all is a problem. But ReputationDefender-style techniques are not, in my view, the solution. First, I question their long-term effectiveness: there is no guarantee that the results that they provide will stay after a few major Google algo updates. Secondly, this solution is not scalable: we cannot get everybody to subscribe to ReputationDefender and its competitors.

    The real solution can come in one of two ways:
    1. Regulatory approach: limiting free speech, particularly defamatory speech
    2. Change in attitudes: people need to adjust their perception that everything they read on an anonymous source on the web is “the truth and nothing but the truth”.

    The trouble, though, is that (1) is highly undesirable, and (2) takes time. I guess in the interim, ReputationDefender and its brethren are the smallest of all possible evils, after all.

  2. Michael Fertik

    How cool it was participate in Professor Noveck’s class. The students were knowledgeable and thoughtful, and Professor Noveck was an engaging and constructive discussant. The after-party was excellent, too; Bill Fenwick, Drue Kataoka, and Professor Noveck hung out post-class to reach further into the topics of Internet privacy and identity. Mr. Fenwick in particular offered a perspective I hadn’t yet encountered in these discussions, based on his direct involvement in earlier national debates on privacy and on his participation in relevant California rulemaking. I was glad to feel the first touches of what may turn out to be an emerging consensus among thoughtful and diverse people that something’s gotta give, without giving overmuch.

  3. Drue Kataoka

    Harry,
    I understand that you are saying that they are manipulating Google’s algorithm.
    I do not know all that is involved in Reputation Defender’s proprietary in-house methodology.
    However, I had the opportunity to listen to Michael speak and he seems genuinely invested in the principles that underpin what he is doing.
    He has taken the case described above on a pro bono basis and he has helped many of his clients through some very difficult situations.

    On their website Reputation Defender does not claim to “fix” everything for a client in one go. They recognize that a web presence needs to be maintained.

    However I agree with you that changes in peoples’ attitudes are necessary. Besides believing in everything one reads, believing in everything one sees is equally if not more so damaging.

  4. Bill Fenwick

    Michael and Harry,

    I found Michael’s presentation and background information to be most engaging. He makes you realize that what is happening to the post graduate students could be happening to anyone whether they are web savvy or never use the Internet. When a force as disrupting and time warping as the Internet and other high tech communication enablement arise, most, if not all, prior developed balances of basic constitutional rights are likely to require rebalancing.

    “Rebalancing” is simply another way of saying “changes in peoples’ attitudes.” Civil societies constantly struggle with how to get individual citizens to conduct themselves appropriately without the ever-presence oppressiveness of a police force for each citizen. The ultimate solution is appropriate individual values. In our accelerated development of technology we have not yet achieved the ability to expand or adjust value systems quickly enough to avoid injustice.

  5. Patrick Reilly

    Identity Commons is holding their sixth Internet Identity Workshop at the Computer History Museum in Mountain View from May 12th to May 14th (see http://iiw.idcommons.com). Participanting organizations will include Doc Searls, Jan Hauser, Kaliya Hamlin and Phil Windley. I suggest that this workshop would be an excellent to discuss the evolving concepts of persistent and trusted internet identity.

  6. Paul Pennelli

    Thank you for the thoughtful comment on ReputationDefender, Harry. I am happy to report – and I am hoping that you will be happy to learn – that ReputationDefender has disavowed the use of black-hat techniques. We try to be fairly transparent as to our methods on our FAQ, and we have always been consistently opposed to black-hat approaches.

  7. Drue Kataoka

    @Paul- Thanks for your information on Reputation Defender.

  8. Beth Simone Noveck

    It was a fun discussion! If you want to get a flavor of it, Michael and I had a similar, albeit shorter, sparring match on The Digital Age TV show, which is online here: http://video.google.com/videoplay?docid=7217515719920766636&hl=en

    I remain convinced that the primary issue in the Auto-Admit case is educating conservative industries like the legal profession about how to evaluate what recruiters read online and educating professional students about how to create a positive web-presence for themselves.

    Much of the discomfort and perceived harms, of course, are transitional. Reputation Defender offers a particular great service for people navigating their way around a social net. We’re still just beginning to get used to the interactive and social nature of the technology. But the Internet still affords far greater opportunities for good speech than it does for bad.

  9. Bill Fenwick

    Thanks for your comment Beth. Your prowess as an advocate for free speech is wonderful. However, as in our discussion after your class adjourned, I cannot get comfortable with the absence of a remedy for what is such blatantly destructive mean spirited speech that has not a single civil justification for its utterance. There has got to be recognition that when technology enables a tool so powerful, other constitutional rights are vulnerable to complete annihilation, some balancing must be provided by and for society. Otherwise our single best control over such conduct, being responsible for what we do or say, will be totally disarmed.

    I believe information, because of IT innovations, has now become the single most powerful force in our society and VR will make it even more so.

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