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A Few Quick Thoughts on Fair Game

I have too much work to do, but there's some matters about the Xanga affair that are preying upon my mind. There has been a lot of triumphalism in the news lately about the 'power' of blogs--and skepticism about this is fitting--but it does raise some questions about how we treat each other.

As it's now panned out, it looks like the Xanga site in question, Misled Youth, wasn't secured correctly to begin with. What Modern Vertebrate and then chillinois posted seems to have been publicly accessible, whether it was meant to be or not.

On the other hand, what I was surprised to find when I sent an instant message to the author this morning was that no one had contacted her yet. This put me in the embarassing position of pointing out the existence of the Kos article, being the bearer of ill news. And this surprised me. Tracking her down wasn't hard: her blog had almost half a dozen contact methods listed.

Now, besides an 'abortion is murder' style post at the top of the page, very little of her blog was political. It looked like a diary/community blog page that she kept for friends, and a Technorati search for the blog shows few incoming links. (Of course, she does link to it in a Yahoo profile and link to it off bulletin boards, which somewhat tempers the criticism.) The work didn't seem to be a serious attempt to enter a political fray. It's mostly just a diary of a young woman.

And yet neither MV nor chillinois nor Kos seems to have given her a bit of warning, a chance to take down any of the 'personal' areas of the site, as she has done now. (UPDATE: Please see the comments. 'Chillinois' claims to have written an email to an address on the blog on Sunday but received no reply. As I explain in the comments, this doesn't really change the following analysis.)

Now, I certainly don't think they should have a legal obligation to do so. Indeed, if you read my technical discussion in the preceding piece, I advocate putting the legal burden for securing information mostly on the owner of the information and the operator of the server. But legal obligations don't cover the whole scope of one's duties.

Had I not read about this in Kos--in which case, as I've said, keeping quiet about it is wholly ridiculous--I would have at least paused to consider the consequences of my actions. For instance, chillinois posted a copy of a picture of the young lady posted on her girlfriend's gay.com site. Now suppose that the image was there without the consent or permission of Misled Youth: this is the kind of thing that might put strain on a couple, if there were legitimate concerns over privacy. And that would be outside of whatever this might do to the relationship between the young lady and her (supposed--remembering this may still be a hoax) father. That would at least give me pause: do I really want such a thing on my conscience?

Evidently, this matters not at all to some of Kos's readers. A selection from his comments, not untypical of one side of the debate:

This is a war. A deadly war; remember Argentina, remember Chile. The disappeared could very easily become our reality.
We must use, every tool we have short of violence to win. These people are utterly ruthless. If we fight fair and they fight with no rules, we will lose.

Keyes attacked Cheney's daughter becasue she is gay. Keyes daughter is an adult, so she is fair game. And, if you read her blog Maya shares her father's twisted, derranged ideas about abortion, Kerry and more. She campaigns with her father. In their words she is a "politcal operative." They would not hesitate to destroy our "political operatives."

Or, less lucidly if more briefly:

fuck all you losers~!!!!!
i wonder how many of those wailing & gnashing their teeth are actually paid operstives ...."she is but a CHILD! cmon KOS, we dont do this!!! we are The Noble Failures!!!!"

well if being noble leads to failure let me dish some fuckin dirt & WIN!!!!!!

(Though again, to be fair to Kos, a very sizeable proportion, if not half, of his commentors are against the post.)

Whatever Kos's right to publish, I have to wonder that he didn't find some kind of moral duty to notify. "I, the mighty Kos, have a readership that reaches to the skies and blots out the moon on clear nights. I'm about to cast my mighty eye upon you, and I suspect [incorrectly, as it turns out] that I'm about to expose you due to a security glitch. You might fancy taking down the posts." If he were writing about myself, or Brian Leiter, or Crescat Sententia--blogs that are large enough in the ecosystem, have been obviously beaten about a bit--I'd think differently. But if you're about to expose someone's personal life, particularly if you think they might have meant to keep it private... that just seems a bit dubious.


Listed below are links to weblogs that reference A Few Quick Thoughts on Fair Game:

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So there's a story that has been broken by the blogosphere about Alan Keyes, (running against Barak Obama for an Illinois Senator seat), and his daughter, Maya. It seems that a smart blogger has put two and two together and... [Read More]

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It sounds like you're recommending a greater ethic for care for information found on the internet than discovered through other means. For example, if a blogger knew what Alan Keyes's daughter looked like, and bumped into her and her girlfriend at a lesbian club, the blogger probably would not feel constrained from posting on this incident unless Ms. Keyes specifically said, "Please pretend that you never saw me here." Indeed, some would claim that this is another situation where the democratization of publishing allows news that wouldn't surface in the mainstream media to become public. (Whether gossip of this nature ought to be counted as "news" is a separate question.)
If you're gonna put stuff on the internet, it's gonna be found. It's being published in a public space; it's up to the publisher to make sure that any information that needs to be secured is secured properly. There is no expectation of privacy on the web in the age of Google (and the Wayback Machine, for that matter). Kos did nothing wrong; if the young woman in question didn't want the whole world to see what she was up to (particularly given her father's status as a public figure), she shouldn't have put it on the internet. End of story.
Kos did nothing legally wrong. With that I agree. And I'd agree as to where I'd put the legal burden. But imagine that a new post were to appear on a site like that, indicating that a relationship had been broken up, a young woman was on the outs with her family, and was spending a very lonely night fending off calls from reporters. (Not saying any of this has happened, merely pointing out the risk.) Don't you think Kos should feel some twinge of conscience about that?
The hypothetical is irrelevant. To turn it around, you think that Linda Tripp and Lucianne Goldberg lose any sleep over what they did to Monica Lewinsky?
(sigh) So you don't believe it relevant for actors to ponder possible consequences of their actions? That's an odd mode of thought. As for what you mean to be a rhetorical question, yes, I think Tripp and Goldberg should feel at least some guilt for running Lewinsky through the wringer. That said, if you look to those two for a moral compass, so be it.
The problem with hypotheticals like the one you posited is that there's seemingly no end to the possible permutations. While actors should keep an eye on probable consequences of their actions, I don't think that anyone would say that it's the actor's responsiblity to think about all possible possibilities. Moreover, unless I'm mis-reading your comments, your hypo deals not with the possible direct consquences of Kos' actions but rather an action that the young lady in question may or may not undertake; how Kos could possibly forsee what her actions might be (beyond the obvious kneejerk reaction of deleting those posts) is, quite frankly, beyond me.
As for whether or not Kos should feel a twinge of guilt? Considering that 1) the girl is the daughter of a public figure, and thus, by extention, is kind of a public figure herself 2) she wrote about her experiences in a public forum 3) those experiences stand in stark contrast to her father's public pronouncements, it's an entirely legitimate story for Kos to pursue. If any one of those three factors were different--say, for example, the information had come from some breaking into her hotmail account-- then it would be a very different issue.
Just to save Tony a minute: That being publicized as a lesbian and having her journal read by people searching for ways to attack her father politically might be traumatic for Ms. Keyes is a probable consequence. 1) The children of public figures are not automatically public figures themselves. Be honest -- until this last week, had you the slightest idea of Alan Keyes's family? I certainly didn't even know that he'd spawned. 2) Kos apparently believed, if one takes his "here's the post where she hides part of her site" remark seriously, that he was getting information that was not intended to be public. If we judge the ethics of an actor by intent, he intended to publicize something that he thought was private. 3) Pretty much everything on my blog (which is not at all private) "stands in stark contrast to [my] father's public pronouncements." If, God forbid, he runs for office, I wouldn't want him to be judged by my experiences and views. Keyes believes that homosexuality is wrong, and unfortuantely he's not alone in that view. Many American parents are waking up this morning hoping that today will be the day that their son or daughter will get over a "phase." It's sad, and I feel sorry for those families and for the Keyes family, but its relevance to the political debate is negligible. Keyes was a bigot long before his daughter started kissing women, he's still one now, and we can only hope that he'll stop being one eventually.
Do they still teach "public officials" / "public figures" / "limited purpose public figures" in Con Law, or do you have to wait until Monaghan's First Amendment? (Recommend the latter in any event.) Strictly speaking, it goes to the legal effect of a person's status and so isn't really on point, but as it flows from a ... sort of philosophical conception of free speech and debate and privacy &c., it's at least fun to think about. Query: Would it be any different (not necessarily better or worse, but different) if Alan Keyes had _not_ recently made an issue of Mary Cheney's homosexuality? -TtP
By the way, I'm curious about your note topic. I _just_ saw something on the first page of the NYT's National section, I think within the past two weeks, but I cannae remember what it is, only that at the time I thought it'd be a great topic. I assume there's a posting-thread about your note, but I can't find it. -TtP
TtP: Trust me, if it was a possible topic in Con Law, Prof. Con Law probably covered it. We got the distinction last year. The above isn't meant to be a 'legal' argument: I agree that Kos had every right to publish what he did. It's more of a 'how do blog authors treat one another' pondering. People sometimes forget that not every blog is there in order to gain readership. In fact the vast majority, in communities like Livejournal or Xanga, probably aren't. And some of them are run by people who haven't spent large amounts of time online, or don't know of the existence of Kos, or what-have-you. They don't spend much effort tracking who's reading. If Kos linked to me, I'd know in a couple of hours: my traffic would spike. But Ms. Keyes didn't seem to be looking at her traffic, or she wouldn't have been surprised when I talked to her. I suppose I'm just wondering if someone in my position--or more importantly Kos's--doesn't have some ethical obligation to announce before he's going to pounce on much smaller prey. As for the note: I've not posted much about the topic yet, simply because I don't know what I can write about it. I need to look at the form I signed....
All points well taken. As for me, I'm just a lowly 1L right now, I know that there's much more that my brain has to process on these kinds of issues...
Paul (Frankenstein): And your contributions are appreciated: I hope you don't feel we were being overly critical of you personally. There's no such thing as a 'lowly' 1L.
You're very, very wrong on two counts. First, I sent Ms. Keyes an e-mail Sunday. I received no response and still have not. If you had checked with me first, you would have known this. Second, she DID take her site down in August, when her father was being courted. She writes in her blog about how people had contacted her asking where the site went. She PUT IT BACK UP shortly afterwards.
And one more thing, Ms. Keyes also has a personal posted at gay.com. If you had done a tenth of the reporting that I have, you might have had a different opinion.
some photo comparisons: http://www.outletradio.com/grantham/archives/000813.php
Question, why would someone post private material in a non-protected part of the World Wide Web. Seems to me that when you post information in a public forum (it doesn't get more public than the internet) you are automatically giving your consent for others to view that information. Unless it was specifically noted on the site, any viewer would be left with the (correct) assumption that it was public domain, and the informaiton therein would be free for all.
Chillinois: I will respond here to what I haven't back where you managed a particularly profane attack. (For my readers--worth taking a look, since it's an argument with some holes.) First, you are correct that I didn't check with you as to whether you had sent an email, and that may well have been a mistake. You can take it as read, however, that I took you for a blogger in the vein of Leiter, Kos, Crescat, or any of those above: those who intentionally blog to a larger audience, can be expected to keep track of what's said of them. Perhaps I would have expected a less histrionic reply. In any event, I didn't expect someone discussing your blog to come as a shock to you. Secondly, there is a question of notice. I will shortly update this entry to reflect your claim that you sent an email on Sunday. However, the question one would have is whether you thought she had received it prior to your posting. You state that you didn't get a reply, and that you sent the letter on Sunday. Let's be generous and say that you sent the email on 6AM on Sunday morning, your time. Your first post on this subject is stamped about 9PM. That gives your target a oh-so-generous 15 hours. In the meantime, it takes no account of her not checking her mail, her email not working, your email not working, the addresses getting screwed up (either to you or with reply), or you writing to an address she only checks occasionally. (Note to my 1L readers: you'll easily recognize that the argument above tracks some of the reasons for 'service of process' rules.) Now, maybe you feel this put her on notice. I do not. My evidence for this is that very very shortly after sending the links during my IM conversation, the site started to be taken down, as you noted at 10:35 AM on Monday. So if I need to restate the normative argument above, from "neither MV nor chillinois nor Kos seems to have given her a bit of warning" to "she seems to have received notice from none of those who linked to her," so be it. I suppose these days I take the idea that warning must be effective to be worthwhile somewhat for granted.
Even Maya's friends are drawn in. And no matter how much you think sex should be a factor in politics or the media isn't it fair and right that in a society with freedom of speech protections, we can publish and use publicly availiable information. I do not see how any of her friends can have any reasonably expectation of privacy when they publish contact and other personal information on their unsecured blogs. If you don't want it out there isn't it your own responsibility not to publish it in a public forum? http://www.xanga.com/home.aspx?user=stokedgfx Wednesday, September 29, 2004 today's mood | praying for some peace of mind What do you want to tell John Chase at 312-259-4538? Do you know what I don't appreciate? I don't appreciate the intrusion of reporters into my life and the lives of my friends. Is it acceptable for reporters from the Chicago Tribune to hound teenagers to try to leach intimate details on the lives of their friends? All of those in my inner circle, as well as those in the inner circles of others have been sent notes that read, "Call me at 312-222-4381 or my cell phone at 312-259-4538. John Chase, Tribune staff reporter." Bad idea giving away your cell phone number, Mr. Chase. Are Mr. Chase's methods of collecting information for a potential story � hounding teenagers to give-up intimate details about their friends � acceptable methods? Tell him what you think. In the meantime, my friends would like their privacy back. 11:46 AM - add eprops - add comments - email it Name: name omitted here but not on his blog State: Chicago, Illinois Birthday: 1/21/1983 Gender: Male Occupation: Student Website: visit my website AIM: StokedGFX
N. P.: And no matter how much you think sex should be a factor in politics or the media isn't it fair and right that in a society with freedom of speech protections, we can publish and use publicly availiable information. I do not see how any of her friends can have any reasonably expectation of privacy when they publish contact and other personal information on their unsecured blogs. Again, there's no argument above saying that one shouldn't legally be able to do this. But even in a society with 'free speech' and 'free speech protections,' the fact that one can publish something does not mean that someone should publish it. And it certainly doesn't mean that you should do so without notice. You or I can do many things that don't infringe any laws, aren't presumptively wrong, that will nevertheless hurt other people. The question I'm posing is whether it is proper for people who, through one means or another have gained the power to hurt other people to do so without taking certain reasonable precautions. Keyes and her friends obviously felt they were, in some sense, private. This may have been legally incorrect, which I am not disputing. Nonetheless, community bloggers on sites like Xanga or Livejournal often feel they have a higher expectation of privacy than people who blog like I do. And, as the post you quote indicates, now a number of people--some of whom may very well not have blogs--are being hounded by reporters. Shouldn't a blogger consider that they might cause this kind of harm before they post, whether it's legal for them to do so or not?
The social and ethical implications you bring up are things that need to be discussed at large. I lean towards taking care not to damage other people, but that mostly applies to my own actions. I would not want to see severe restrictions within society at large that restrict publishing public information or restricting freedom of speech, whether they are legal or ethical. I believe to do so would be a greater harm to our society that would come down eventually to harm individuals. As a case in point take a look at how the libel laws in England, which are more stringent than the USA's have restricted the press there from reporting on corporate malfeasance and corruption. And this case about Alan Keyes is a very public and important issue. To some more so than others. My view which is shared by enough people to make it a politically decisive and newsworthy, is that Alan Keyes stand on gay civil and human rights has a direct bearing on how millions of people will be governed if he is elected. He himself has brought his personal moral views into the debate. Like it or not the way a candidate relates his stated personal views to his family is news. That someone figured out the aspects of Maya's publicly expressed persona that relate to her fathers anti gay stand is relevant news. As discussed here, she was not really hiding it. Even without the blog many know that rainbow jewelry worn in a political parade is a clear signal of solidarity if not identification. She has a role as a public figure and she was taking a wide-open public stand marching in that parade. That more details are out there in the public blog was fair game. Are we really hurting her by performing basic journalistic techniques, is she not responsible for her own actions? Well yes and no. While ultimately she bears responsibility for her own publicly projected persona, and we may find rationalizations for absolving ourselves she still may feel or experience real hurt. That deserves our compassion. But that is life, it is often complicated with contrasting interests, particularly in the public sphere. And maybe even within Maya herself. It is what she has to deal with so I wish her well if it is not easy. One question is whether we should as a society, endorse the wholesale examination of a politicians personal moral views and how they behave in private or relate with their family. And as such, how much should we examine their family members. The Bush daughters and Chelsea Clinton were successfully kept out of political discussion by the effective strategy of their parents. Did this knowledge give journalists or bloggers the power to hurt Maya or her friends and family. I suppose so. And that is sometimes an effect of their job. What should moderate our actions? Is it fair if I say that I know it will be embarrassing for the family, but I feel that it important for people to know these deduced facts to evaluate a candidate? If as a journalist I believe that it was so relevant and of such importance to the character and political platform of the candidate that the news will have an impact, should I feel the responsibility to disseminate this information? If I was an activist can I take the stand that the hurt that will be imposed by legislation against gays, which Keyes will try to enact if elected, will be such a great hurt on so many people that the use of such information in my anti Keyes campaign is necessary. To all 3 I say yes. Even though ones definition of relevance may vary from another�s. Yes in all circumstances. Hey I deplored the focus on Clinton's dalliances, but they were news and had bearing especially after he gave a deposition. I personally do not believe the affairs he was having had any bearing on his job qualifications and were not relevant before the Jones lawsuit. I can't deny others might see otherwise. But if he were campaigning on a platform based on socially ostracizing people for adultery, I sure would have seen his sex life as relevant. Along with how he treats his own family on this issue. I do not believe that the friends of Maya or anyone should have any reasonable expectation of privacy when posting in a public blog. That they might have or were ignorant of the privacy issue is unfortunate, but does not protect them from false expectations. I am all for education as the means of people protecting themselves and in researching the story and its connections I corresponded with some of Maya's friends and made sure to inform them of the privacy issues right off. Nor do I see reporter as doing anything wrong in pursuing her friends to ask for comment. Whether they are fellow bloggers or not makes no difference. Whether he found them through a blog or more traditional methods like asking around her workplace or community a journalist is well within his professional ethics to make inquires. Would you have it any other way? Sure a blogger should take responsibility and consider the harm his action causes. And there are many circumstances where he should go ahead and publish even if some damage results.
[Editorial Note: I've removed this comment because it contained a lengthy post from another Xanga blog, and it may very well have been a post from an underage blogger. Because I wasn't entirely comfortable with copyright and other legal implications of the post, I've taken it down and mailed a copy of the original back to the owner for their records.]
NP: With due respect, please post such responses elsewhere. Whilst I don't mind people speaking fairly freely on here, I don't need cross-posting from other blogs. It's probably not a problem here, but I haven't the slightest idea what the copyright implications of you quoting a whole chunk of someone else's blog in my comments are, and don't want the precedent set so that I have to find out. I don't know who this person is you've posted. Besides, I can't imagine why anyone you're addressing would be reading this post.
I'm a Columbia Law School grad, as it happens. I have no qualms at all about the discussions of Ms. Keyes' sexuality, for the following reasons: (a) Ms. Keyes is apparently an "out" lesbian. (b) She posted this information in publicly accessible places on the Internet. (c) Her father is a candidate for the United States Senate, and has made this a public issue by attacking gays, attacking Mary Cheney as a "selfish hedonist" for being a lesbian, and publicly discussing how he would respond if (hypothetically) he were to find out that his daughter were a lesbian. (d) Ms. Keyes is actively participating in her father's campaign. If this isn't a legitimate subject for public discussion (both legally and morally) under these circumstances, I don't know what is.
If this isn't a legitimate subject for public discussion (both legally and morally) under these circumstances, I don't know what is. Depends on your motivation. Are you trying to sow trouble between Sen. Keyes and his daughter (who appears to be financially dependent on him; I can tell you that Brown University is heinously expensive)? Are you hoping to get Keyes to say that homosexuality is acceptable because his daughter does it (that's as likely as Jeb Bush's saying that drug addiction is acceptable because his daughter did it)? I'm just wondering where this will end. If we can turn up a guy who's slept with either Bush twin, should we parade that story around to prove a point about Bush's abstinence 'education' policy? It's legal, you might think it's moral, but it's indisputably tacky and for no good reason. The blogosphere notwithstanding, public discussion ought not be a giant circle jerk. Gossip about politicians and their families is still gossip. What information do you hope to gain, whom will you educate, what policy will be changed by talking about Maya Keyes's sexuality?
Keyes went out of his way to attack Mary Cheney as a "selfish hedonist" simply because she is a lesbian. He also discussed on television how he would react if, hypothetically, his daughter were a lesbian. I assume that he also endorses the proposed anti-gay marriage constitutional amendment. I think in these circumstances it's perfectly reasonable to confront Keyes with the fact (which he apparently already knew) that his daughter is in fact an out lesbian, and inquire how, if at all, that affects his stated views. I also think that, for example, it's appropriate to ask Jeb Bush how the kid-gloves treatment his daughter has been accorded for what are apparently multiple drug felonies square with his "throw the book at 'em" approach to other drug abusers. If people are or may be hypocrites, that's worth inquiring into. And if people purport to favor "family values" but advocate a constitutional amendment stopping their own kid from getting married, that's fair game too, IMO.
Frederick, I think you're missing the point with Alan Keyes. Unlike the Cheneys -- who are creepy, but not religious -- he is, to put it rudely, a flaming Jesus freak. If he already knew that his daughter was a lesbian and still thinks that homosexuality is an abomination, how is using his daughter as a political weapon against him going to improve his views on the subject? In the Keynes worlview, he is not preventing his daughter from getting married; on the contrary, he is ensuring that she never will enter some mockery of marriage. His own wife could turn out to be a lesbian, and he'd still be equating "family values" with inequality even as the new girlfriend moved in.

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