"How's My Driving?" for Everything - Pervasive Reputation Tracking as Legal Theory
Why are cops needed in Times Square but not on a small town's Main Street? Why are small town drivers so much safer than big city drivers? Why do blog commenters sometimes say harsher, meaner, sillier or more unorthodox things than they would dare say to their friends or family? These are complex questions that defy simple and singular answers. But one partial answer that draws together these three examples is the role of anonymity and obscurity. Reputation may be the most effective mechanism around for getting individuals to behave in a socially cooperative way; more effective than law and more effective than conscience or altruism.
In my earlier post, "How's My Driving?" for Everyone, I discussed whether we might rely on reputation and feedback mechanisms (similar to those used on eBay) to improve the performance of urban drivers. The paper that I was blogging about focuses on driving. But it implicates a much bigger issue too. Namely, as reputation and feedback systems become more reliable, more ubiquitous, and less expensive, we can expect to see these systems displace criminal and tort law as mechanisms for social control. After the jump, I will offer some thoughts about the effects of that displacement.
In small-town America, people are more reluctant to behave badly in public spaces than they are in large urban public spaces. There are few secrets in small towns, and as a result gossip networks function effectively to identify and sanction deviants. The effect is a powerful disincentive to behave in a deviant manner. This reputation-centered social control can be good, when the conduct in question is drunken and disorderly behavior, say, and bad, when the conduct in question is, say, political speech on behalf of an unpopular idea.
Over the next few decades, urban centers could increasingly resemble small towns. Technologists working on "wearable communities" want to give each of us a small device that will not only function as a cell phone, iPod, and Blackberry, but also integrate functions of social networking software like Myspace into our forays in the public sphere. Hence, when I enter a bar, my device may alert me to the fact that sitting off to the left is someone with whom I attended college, that standing near the jukebox is a fellow Sopranos junkie who lives on my block, and that an ex-girlfriend of mine also dated the gentleman playing darts by the back window. These wearable communities will likely integrate reputational information. Hence, my device may tell me that someone I know and trust has a really awful run-in with the woman at table 3 or the bartender while the bartender was working his day job. Or it may tell me that dozens of individuals have identified the person ordering scotch at the bar as someone who becomes violent when intoxicated. In a small town, where all the patrons are regulars, this is information I'd know already, but in Manhattan or Chicago, this information could prove enormously useful.
One advantage of such information is that it allows the citizens themselves to police misconduct. We won't need many cops to be on the lookout for violent drunks or intoxicated drivers if we can identify inexpensive ways to harness stranger-on-stranger feedback. And, as people with the propensity to behave badly recognize that there are "eyes" everywhere, they will be deterred from engaging in misconduct likely to provoke the disapproval of passers by. To that end, it is useful to start thinking about various settings in which this information could prove particularly useful. As I suggest in the paper, such information could prove quite valuable with respect to citizen monitoring of police officers, and help us regulate the conduct of peace keepers in conflict zones, hotel patrons, soccer hooligans, flea market vendors, and ticket scalpers, to name just a few examples. In all these settings, as on eBay, existing social norms reflect reasonably broad consensus about which behaviors are appropriate. Prevalent norms are basically healthy here, and feedback technology can aid substantially in their enforcement.
What's more, when we start asking people to justify their feedback, we can identify an entirely new and decentralized mechanism for identifying norms and informing the public about them. This is critical. One component of a "How's My Driving?" for Everyone regime would be the opportunity to identify and publicize those forms of driver misbehavior that are most annoying to motorists. Publicizing this information would educate bad drivers about what they are doing wrong and show them how to get along better with fellow motorists. We can imagine that wearable communities will offer the same kind of guidance to, say, overzealous pick-up artists, conversationalists who unknowingly invade others' personal space, lecturers who speak too softly or loudly, and bus passengers who could benefit from a hot shower.
And yet, there are obviously numerous instances in which majoritarian norms are controversial. People may be too quick to condemn intellectual, political, or artistic innovation. As a result, insecure geniuses whose ideas might have ultimately prevailed if protected by anonymity will be too discouraged by the high costs of nonconformism. Majority norms may reflect stubborn biases, like racial, gender, or religious animus. In other settings, there is simply no consensus about what the existing social norms are. Here, feedback will be noisy and unhelpful, at least until preferences crystalize and converge. Finally, a lack of obscurity may unduly hinder adolescent (or adult) experimentation that allows people to discover who they are and what they enjoy doing.
One challenge for legal thinkers in the years ahead, and this is something I am just beginning to wrestle with, is to try to disaggregate the two settings -- those in which feedback mechanisms might reduce undesirable urban (or virtual) anonymity and those in which anonymity and obscurity are critical to human flourishing. This is an important issue for us to think about, because the benefits of pervasive reputation tracking are substantial, and those benefits are going to make their expansion into some places they might not belong incredibly tempting.