What is Off The Record?:
This article in yesterday's Washington Post, Harsh Words Die Hard on the Web, about law graduates whose employment prospects were possibly impaired by anonymous posts brought to mind a growing concern of mine. Although it is not nearly so disturbing as being the subject of malevolent and hurtful anonymous posts, I find it troubling nonetheless.

I love the Internet, and it was the advent of accurate search engines, Google to be specific, that really brought out its potential. Add to this the ability to reach an audience via blogging. So far as I am concerned, the Internet + search + blogging is a modern miracle. But, as with any technological marvel, there are downsides. One for me is the threat to the sanctity of a private conversation. I once had private lunch at a restaurant with two student interns who peppered me with questions. Afterward, one of them posted an account of my answers as though it had been an interview. The account was positive and generally accurate, but contained candid statements concerning my career ambitions that, while I had no qualms about offering them in private, would certainly not want published. I later learned that a goodly number of my students had read it.

Another time, I was giving an invited luncheon talk to a small group of summer interns and, once again, some of my remarks were later blogged. As this was a more formal gathering rather than an entirely private lunch, the proprieties were murkier. Still, I was more frank about certain matters in this group of 20 or so students than I might have been on C*SPAN. I should emphasize that both of these incidents involved young overenthusiastic students who liked me and were not trying to embarrass me in any way. While I appreciated their passion, I did not appreciate their lack of discretion.

So here is my concern: I am often called by reporters. The default rule is that everything said is "on the record" unless I go off the record. BTW, perhaps I have been lucky, but I have never been burned by a reporter publishing my off-the-record remarks. In the world of Internet + search + blogging, however, what is "off" and what is "on" the record?

Of course, I expect if I make a casual remark to someone over lunch, or at a closed meeting, it may later be repeated to others. However inconsiderate this might be — and depending on what was said it could be perfectly all right — one expects the dissemination of such statements to be quite limited. But the Internet changes the potential for both preservation and distribution. One simply does not expect one's casual remarks to be enshrined forever in the Internet and readily accessible by doing a Google search.

When I was growing up, when you did something bad in school, it was jokingly said that it would be made a part of your "permanent record." Now that joke is coming true. Another example is "break up" websites where angry former spouses and lovers rake their ex's over the coals.

As there is no stopping the technology, what is the appropriate response? Be much more self-conscious and cautious about what one says in private? Over dinner? In one's office? Or does an ethic of "off-the-record" and "on-the-record" need to develop that is somehow scalable to the venue at which one is speaking? Should there be a default rule of "off-the-record" in some places or times? What is the (nonlegal) remedy for breach?

In the two examples above, I was quoted generally accurately, though in one case not entirely. What about unintentional or intentional distortion? I see this as a potentially stultifying development that could lead one to be more circumspect in what one says, even in what seems to be a purely private conversation, imagining how it might read on line. Everyone would have to monitor themselves constantly like politicians or celebrities must have to do (which is a sufficient reason never to aspire to be a politician or celebrity).

Will our private interactions be compromised or "chilled" unless we can develop a new cultural norm to handle the new power to disseminate information world wide? Or should we simply become far more cautious about our statements to others? Or am I making too much of this sort of occurrence? I wish I had answers to these questions, but I don't.

Then after we address this, we can tackle the need for a new cultural norm to govern people who talk loudly on their cell phones in public. Sheesh.
NickM (mail) (www):
Britain is moving away from the soundest cultural norm in dealing with the loud cell-phone chatters. See 5 posts below this one.

3.9.2007 10:03am
It's not the fact that people talk loudly on their cell phones that shocks me, it's WHAT they say.
3.9.2007 10:10am
Actually, I suspect the self-monitoring of politicians and celebrities will get worse: decades from now when today's teens and twenty-something Friendster-addicts start running for higher office, opposition researchers may have gold mines of reputation killers at their fingertips.

In fact, were I an aspiring opposition researcher, I would consider collecting such tidbits from likely targets (i.e. the usual suspects who will be running for higher office) today, before some of this material could be erased in some fashion.

Seriously though, we run the risk that tomorrow's politicians will be expected to have lived in saintly bubbles unless the public's standards for politicians' behavior are diluted to a much greater extent than today.
3.9.2007 10:30am
MR (mail) (www):
Interesting post. I've learned from my law practice that anything you say to opposing counsel or unrepresented witnesses can and will be repeated in court, and thus I've learned to carefully moderate what I say. Apparently, I will need to continue such practices as I transition to academia.

When I was starting to practice, a partner said to me "Never say anything or write anything that you wouldn't want on the front page of the newspaper." I've heeded that advice, and I think it answers your question here precisely because there are so many more "front pages" and they are so much more accessible. Thus, unless you get explicit agreement that something will not be published or repeated to others, it's all fair game.

The harder question, of course, is enforcing that ethical standard in the listener, but I suspect that reputational effects will kick in, so that over time people will know who can't keep the "off the record" promise.
3.9.2007 10:35am
Bruce McCullough (mail):

20 years ago, when my cohort was starting out professionally, I had a conversation with a good friend who had just started work as an associate at a large law firm in NYC. He told me something that has stuck with me to this day: "Unless I'm talking with a close friend like you, I assume that everything I say is for attribution, and I am ready to see it all on page one of the NY Times."

This was well before the internet was in the public domain.

People who aren't your friends can't be expected to keep mum about the things you don't want repeated. And sometimes, you can't expect your friends to do this either, but you should know which of your friends can keep his mouth shut and which cannot.

Live and learn.

3.9.2007 10:39am
Bryan DB:
Perhaps the younger generation took the same view of your conversation as they do toward intellectual property rights in, for example, recorded music (i.e. theirs to do with what they wish). Your solution is to assume that everyone will re-publish what they hear, and you have to warn them not to at initiation of the conversation.
3.9.2007 10:54am
Shinobi (mail) (www):
My personal hope for the furture of politicians in the land of MySpace and Facebook is that people (especially the media) will learn to be rational. They will learn to take things in context, with a grain of salt, or perhaps disregard comments altogether in favor of judging political types by their actions.

This of course wont happen. Instead of focusing on what politicians are actually doing or not doing, we'll all get distracted when someone with absolutely NO political power beyond the ability to be athoritarianly partisan calls someone who is demonstrably not gay a faggot. Ooo Look Shiney! And then we'll gather around the watercooler and wonder how much of Britney's hair has grown back.

I don't have anything nice to say about the stupid things that the media and american people seem to find important these days, so I'm not going to say anything at all.
3.9.2007 10:58am
Roy Haddad (mail):
One interesting dimension to this that most people miss (but you hint on) is that since as of yet, authentication and verification encryption is not really being used, nothing that gets written on blogs and web pages is actually trustworthy. Any blog post, email, web page archive, could be falsified or misrepresented unless it has a digital signature or some other kind of encryption technology. For example, the operator of this web site could have made this post up and attributed it to this account, or modified the real post in some way.

This means that not only can something be mistakenly attributed to you, but also that you can cast doubt on statements that you did make, and that others can attempt various fraud (for example, you could make embarrassing statements in the guise of a competitor of yours). This last is serious, and a major reason we need to start using encryption.
3.9.2007 11:32am
Prof. Barnett, many residents of Washington, DC learned the hard way that few things are truly off the record, even before the advent of internet blogging. When I moved here, I made it a rule to never say anything private or controversial outside family circles that I wouldn't be prepared to defend if it were broadcast to a mass audience. Just a variation on the "think before you speak" theme.
3.9.2007 11:37am
I share Shinobi's hope but not his pessimism. There is a natural distinction between what is said in various contexts. On occasion, the distinction is conspiratorial or dishonest, as in the case of certain political machinations or hypocrisy. Depending on the exact circumstances, I don't see a problem with this sort of thing being made public.

More often the distinction between on and off the record is the distinction between a personal comment and an official statement. This is especially true in fields like the law and politics, where the players often have an explicit obligation to represent views other than their own. And most personal preferences really don't reach the level of a stark moral imperative. People in general are quite capable of making the distinction.

Another important difference between on and off the record is that off the record discussions often involve all sorts of brainstorming, hypothetical situations, and exploratory statements that one really wouldn't expect to be binding. Again, people in general are capable of making the distinction.

The progress of technology can not eliminate the difference between official and unofficial statements, it has simply made unofficial statements more widely accessible.

I think the concerns are very real that off the record statements could end up being damaging to a career. But I don't think it's unreasonable to hope that in most cases, if the statements were defensible in their original context, they will be defensible publicly. And that public defense shouldn't involve backpedaling or denial, just a simple explanation of the original context.

I'm more concerned that the resulting time and effort explaining statements to various groups could draw resources away from more important endeavors. But it's possible that the resulting discussion will have a positive effect in helping people "learn to take things in context, with a grain of salt, or perhaps disregard comments altogether in favor of judging political types by their actions."

We shall see.
3.9.2007 11:47am
Sadly at my school students restrain their message board posts because of the risk that future employers will forget that statements are made in an academic context. Sad for our nation that the marketplace of ideas in DC is impoverished for similar reasons. I'll let you know if I come up with a better solution than reliance on social maturity.
3.9.2007 12:37pm
hey (mail):
Anything you do or say anywhere at any time WILL be republished, especially if it is sufficiently damaging to you or in the interests of those who oppose or dislike you. You can not trust anyone, not even your mother or wife. Act accordingly.
3.9.2007 1:48pm
This is no help to Randy, but in re E's problem and JBL's observation, one of the best tools is anonymity / pseudonymity.

In groupware & structured collaboration, it's especially in the early phases -- idea-generation, brainstorming, exploration, etc. -- that the process benefits from the participants' ability to switch to an anonymous mode. This is for several reasons, including Little guy is afraid to speak up, Focus on ideas not people, Aversion to going against CW, etc. Online discussions are of course the easiest place to implement robust anonymity.

Later phases -- e.g. critiquing & prioritizing -- can also benefit from anonymity (e.g. no one is eager to say "The Boss's idea won't work"), but the benefits it brings to the early phase persist through the whole process.

In fact, for sensitive topics, I'd ask why any organizer/facilitator of a brainstorming session or academic discussion would insist on attribution? In many cases it's just not worth the trouble &risk.

(Pseudonymity certainly helped our own Juan Non-Volokh to speak freely for many months, and the Leiterian witch-hunt to expose him demonstrates how precious that protection can be to some people, and how a bully can use identity as a weapon.)
3.9.2007 1:55pm
Newspaper Asks Public to Identify Local Blogger - From today's news, more on the use and advantage of anonymity, and on the lengths Bad Guys will go to in order to use identity as a weapon. (h/t Instapundit)
3.9.2007 2:03pm
Colin (mail):
Related to this topic, and concerning a Slashdot item I read the other day, whatever happened to that AutoAdmit site? I seem to recall it was run by a Penn 1L, who had behaved pretty unprofessionally. I think, although I could be 100% incorrect, that Prof. Volokh even suggested that his comments and/or actions be forwarded on to the relevant bar's character &fitness committee when he graduated. I think that would be about now... does anyone know what, if anything, happened?
3.9.2007 3:23pm
barts185 (mail):

My personal hope for the furture of politicians in the land of MySpace and Facebook is that people (especially the media) will learn to be rational. They will learn to take things in context, with a grain of salt, or perhaps disregard comments altogether in favor of judging political types by their actions.

This of course wont happen.

Funniest thing I have read in a while. I went from wondering what world you were living in to laughing.

3.9.2007 5:02pm
Ron Hardin (mail) (www):
My policy is always say what I actually think. Being pretty old with views not reversing much but rather only being elaborated where necessary, I'm happy with everything that's out there even from a decade and a half ago. I may be tactless, but it works out pretty well.

Not being inclined to flame wars is probably necessary.

On the other hand, saying what you actually think isn't a good route to management. You take your choice and pay for it one way or another.

Remember Peter's advice for avoiding the Peter Principle.
3.9.2007 6:18pm
Dan Simon (mail) (www):
Well, Prof. Barnett, perhaps if your career ambitions weren't such that widespread dissemination of them is slightly embarrassing to you, then all those overeager students wouldn't be rushing to report your every utterance to the world on their blogs. Personally, I'm quite comfortable speaking frankly about my unembarrassingly modest career ambitions, and that's probably why my lunch companions never seem tempted to blog about them--or about anything else I say, for that matter. But I look forward to your becoming the legendary, profoundly influential scholar that you hope one day to be--and to hearing you complain constantly about how terrible it is that people listen to you far more closely than you ever dared dream they might.

More generally, while I recognize the value of privacy, I question whether one of its benefits is that it restricts people's freedom to do embarrassing things in front of others with impunity. Social controls are an important--arguably the most important--regulators of human behavior, and it's far from clear to me that today's society suffers from a surfeit of them. If the Web makes people in some ways more discreet and circumspect on average--rather than less, as any casual Web-surfer would surely guess--then it's hard to imagine society being significantly harmed as a result.
3.9.2007 6:19pm
David M. Nieporent (www):
Randy, what you hint at but don't explicitly say is that the real problem isn't just search engines, but search engine archives. Web pages are pretty impermanent, but the Google cache lives on. (Not to mention the Wayback Machine.) Even if you tell one of your involuntary interviewers that you would appreciate it if he takes down the web page, and he complies pretty quickly, there's still a risk that Google already hit and archived it, so it will remain up. (In theory there's a procedure to remove pages from Google's cache, but very few people know about it or how to do it.)
3.9.2007 8:49pm
Cornellian (mail):
decades from now when today's teens and twenty-something Friendster-addicts start running for higher office, opposition researchers may have gold mines of reputation killers at their fingertips.

Or another possibility is that when today's teens and twenty-somethings are old enough to run for office, everyone will be so accustomed to seeing everyone's entire life on display that youthful indiscretions won't be much of any issue anymore. You'll have hard time finding any candidates who don't have them.

Not so long ago, a male politician could commit career suicide by crying in public. Now you can survive having smoked marijuana back in college in most political races in most states. Who knows what the standards will be 20 or 30 years from now. Heck, maybe at that point people will judge candidates on their merits, and not on what they did in college.
3.9.2007 9:09pm
Jens Fiederer (mail) (www):
So are you going to give us a LINK to this lunch-blogging, or do we have to Google it?
3.9.2007 10:40pm
David Maquera (mail) (www):
I think it is rather immature for someone to assume that comments made during a conversation/exchange with one, two, or a classroom of students are intended to be disclosed to the entire world. If you had wanted such comments disclosed to the world, you would have blogged them yourself at an earlier time.
3.10.2007 12:35pm
Public_Defender (mail):
Students need to learn discretion. You should tell them that their lack of discretion upset you so that they can learn the lesson from you, not a partner on their first job.

With experience, practicing lawyers get a sense of what's appropriate to tell to others under what circumstances. For example, a prosecutor recently told me that if one of our cases got decided on the merits, he'd get his "a** kicked" in the decision (which is why he's fighting on procedural grounds).

That prosecutor would not have been so frank with me if he expected me to write that down and file it with the court (or publish it on the internet with his name and the case information). The only way I might ever cite the prosecutor's words is if he or one of his colleagues called my merits argument frivolous. Since I don't expect that to happen, I won't file a pleading that repeats what he said. Students must learn that skill, the earlier the better.

Professor Barnett, you should tell all your students that you expect them not to publish conversations with you without your consent. You can explain that disclosures aren't illegal, but that they show poor judgment--the kind of poor judgment that affects reputation and recommendations.
3.11.2007 12:57pm