[S]ome legal scholars are beginning to argue that new technologies have changed the balance of power between the right to speak and the right to be left alone. At conferences, in law review articles, and, increasingly, in the courts, some lawyers are suggesting that the time has come to rethink some of the hallowed protections that the law gives speech in this country, especially if that speech is online. The proposals vary: Some focus on restricting material that can be posted online or how long it can stay there, others on whether we should be less willing to protect online anonymity. More ambitious schemes would have courts treat a persons reputation as a form of property – something to be protected, traded, and even sold like any other property – or create a legally enforceable duty of confidentiality between friends like that which exists between doctors and their patients.
At stake is the basic question of what we will allow people to say and do online, whether its on a message board, a Craigslist ad, or a YouTube video – and who gets to set the rules governing whats OK and whats not. […]