Re-Shaming the Debate: Social Norms, Shame, and Regulation in an Internet Age
Advances in technology communication have dramatically changed the ways in which social norm enforcement is used to constrain behavior. Nowhere is this more powerfully demonstrated than through current events around online shaming and cyber-harassment. Low cost, anonymous, instant, and ubiquitous access to the Internet has removed most — if not all — of the natural checks on shaming. The result is norm enforcement that is indeterminate, uncalibrated, and often tips into behavior punishable in its own right — thus generating a debate over whether the State should intervene to curb online shaming and cyber-harassment.A few years before this change in technology, a group of legal scholars debated just the opposite; discussing the value of harnessing the power of social norm enforcement through shaming by using State shaming sanctions as a more efficient means of criminal punishment. Though the idea was discarded, many of their concerns were prescient and can inform today’s inverted new inquiry: whether the State should create limits on shaming and cyber-bullying. Perhaps more importantly, the debate reintroduces the notion of thinking of shaming within the framework of social norm enforcement, thus clarifying the taxonomy of online shaming, cyber-bullying, and cyber-harassment. This article ties together the current conversation around online shaming and cyber-bullying and cyber-harassment with the larger legal discussion around social norms and shaming sanctions. It argues that the introduction of the Internet has altered the social conditions in which people speak and thus changed the way we perceive and enforce social norms. Accordingly, online shaming is (1) an over-determined punishment with indeterminate social meaning; (2) not a calibrated or measured form of punishment; and (3) of little or questionable accuracy in who and what it punishes. In thus reframing the problem, this article looks at the viability of the legal, normative, private, and State solutions to controlling online shaming. It argues that looking only to State regulation will be an inefficient and ineffective solution. Instead, it proposes using the realizations from the shame debate, successful uses of online norm enforcement, and private remedies to inform the debate around State intervention.
Freedom of Speech, Information Privacy, and the Troubling Implications of a Right to Stop People from Speaking About You
Proposed "information privacy" rules that give us the power to "control . . . information about ourselves" and to mandate "fair information practices" sound appealing. Why, after all, should a business be able to communicate information about its clients without the clients' permission, and why should the media be able to publish unnewsworthy private information about us for the whole world to see? The difficulty is that the right to information privacy -- the right to control other people's communication of personally identifiable information about you -- is a right to have the government stop people from speaking about you. And the First Amendment (which is already our basic code of "fair information practices") generally bars the government from "control[ling the communication] of information," either by direct regulation or through the authorization of private lawsuits. This article makes two main points: (1) While privacy protection secured by contract turns out to be constitutionally sound, broader information privacy rules are not easily defensible under existing free speech law. (2) Creating new free speech exceptions to accommodate information privacy speech restrictions could give us much more than we bargained for: Most of the justifications given for information privacy speech restraints are directly applicable to other speech control proposals that have already been proposed, and accepting these justifications in the attractive case of information privacy speech restrictions would create a powerful precedent for those other restraints. My chief goal is to consider, as concretely as possible, what these unintended consequences of various justifications for information privacy speech restrictions might be. I ultimately conclude that these consequences are troubling enough that I must reluctantly oppose such information privacy rules. But I hope the article will also be useful to those who are committed to supporting information privacy speech restrictions but would like to design their arguments in order to minimize the risks that I identify, and even to those who welcome the possibility that information privacy speech restrictions may become a precedent for other restrictions because they believe the Court has generally gone too far in protecting, say, nonpolitical speech or speech that injures the dignity of others.
The Area of Freedom, Security and Justice ten years on: Successes and future challenges under the Stockholm Programme. CEPS Paperbacks. June 2010
This book celebrates the tenth anniversary of the Area of Freedom, Security and Justice (AFSJ) by bringing together the views of key practitioners and policy-makers who have played an outstanding role in thinking about and shaping EU policies on freedom, security and justice. 
 
Ten years ago, the member states transferred competences to the EU for law and policy-making in the fields of immigration, asylum and border controls, and began the transfer process for criminal justice and policing. This decade of European cooperation on AFSJ policies has experienced very dynamic convergence, the enactment of a large body of European law and the setting-up of numerous EU agencies working in these domains. Such dynamism in policy-making has not been without challenges and vulnerabilities, however. As this collective volume shows, the main dilemmas that lie ahead relate to an effective (while more plural) institutional framework under the Treaty of Lisbon, stronger judicial scrutiny through a greater role for national courts and the Court of Justice in Luxembourg, better mechanisms for evaluating and monitoring the implementation of EU AFSJ law and a more solid fundamental rights strategy. The contributions in this volume address the progress achieved so far in these policy areas, identify the challenges for future European cooperation in the AFSJ and put forward possible paths for making more progress in the next generation of the EU’s AFSJ.