Legal issues with privacy in social media stem from the nature of social media – an inherently communicative and open medium. A cliché is that in social media there is no expectation of privacy because the very idea of privacy is inconsistent with a “social” medium. Scott McNealy from Sun Microsystems reportedly made this point with his famous aphorism of “You have zero privacy anyway. Get over it.”
But in evidence law, there’s a rule barring assumption of facts not in evidence. In social media, by analogy: Where was it proven that we cannot find privacy in a new communications medium, even one as public as the internet and social media?
Let’s go back to basic principles. Everyone talks about how privacy has to “adapt” to a new technological paradigm. I agree that technology and custom require adaptation by a legal system steeped in common law principles with foundations from the 13th century. But I do not agree that the legal system isn’t up to the task.
All you really need to do is take a wider look at the law.
Privacy writers talk about the law of appropriation in privacy. The law of appropriation varies from state to state, though it is a fairly established aspect of privacy law. Basically, it involves the right to control how your image and identity are used, and in particular to prevent others from exploiting your image and identity. You generally do not forfeit this right of privacy by putting yourself in public. (Witness, for example, the uproar when Facebook launched its NewsFeeds and Beacon services.)
That’s fine only to a point, since appropriation defines privacy as a property right that only you can exploit. It doesn’t address the conceptual problems of access, interference, the right against being bothered, and the other sorts of constitutional privacy rights generally covered by the idea that we have the right simply to be left alone.
More interesting may be something completely different, like the public sphere. If social media becomes the means by which we communicate, it then would seem to take on characteristics of other public communications such as the telephone lines, the cell phone airwaves and the “public” spectrum. Long ago, the airwaves and the radio spectrum (including the wireless spectrum) were assigned for regulation by the government under the FCC and its predecessors. Long ago, too, principles governing the regulation of the telephone lines were brought under a “utility” formulation, at least in part out of concern for the debilitating effects of unregulated competition on a basic public need.
The internet may be the first of these public spheres to defy easy geographical jurisdiction by the United States and other governments. But the regulatory framework has nonetheless been developing apace, probably much like the 19th century US history of regulation over railroads.
And yet, while you are communicating on the public telephone lines, in no way have you given up your expectation of privacy by doing so. Well, that is not entirely true, and that’s the point.
The government is required to get a warrant to tap your [landline] phone. Why? Because there’s an expectation of privacy, which can be overcome by a 4th Amendment showing of certain unusual cause. And yet, you’ve voluntarily put the information out there. Same with social media, so you’ve made it available, but how is that really different than what is happening on the telephone lines? In any event, those traditional landline warrant requirements often don’t apply to cellular phones, particularly where the information sought can be location, usage information and activities rather than conversations. (See New York Times, “The End of Privacy?”)
Then there are the “company town” cases. These involve situations where a single employer is, for all practical purposes, the government in a town. There were many of these cases in the early 20th century involving mill towns, steel towns and other major industrial company towns. (See for example, Marsh v. Alabama, 326 US 501 (1946).) The companies operated company stores, they employed the police, they provided public services and utilities – they were the only employer around. The companies argued that various company actions like workplace rules or speech limitations did not subject them to constitutional principles such as the 1st Amendment (which generally apply only to governments). The courts eventually ruled that because of the expansive influence of the single employer, the companies were “the government” because they were, effectively, acting in the place of the government. (According to a National Geographic story from March 2007, Disney was able to exempt itself from any of these shackles in Florida through sweetheart deals with the state legislature in the 1960s. That’s a story for a different day.)
The internet is a public place, perhaps as “public” as the town square or any other place that serves as a gathering point. Many have argued that social media realizes the ultimate forum in communications democracy.
On the other hand …
As a public place, you do and should give up a level of privacy by virtue of being in public. This is the philosophy behind 4th Amendment search and seizure cases where the government argues that there is a lower expectation of privacy when individuals put themselves “out there”. Although, it’s really this question of what is “putting yourself out there” that is always being challenged. See for example last year’s US Supreme Court case involving the secret installation of a GPS device in a drug defendant’s automobile, United States v. Jones, 565 US ___ (2012).
Thus there is an expectation of privacy protection for what you do in your home, but less so in your trash that you put out to the curb. Less so in your car. Less so on the telephone lines. And less so on the internet. Expectations still are there, but they are much lower than in other places.
There’s nothing new about this. But that’s the point. It is not correct to say that you forfeit an expectation of privacy because you put so much information about yourself out there on the internet. You do forfeit an absolute level of privacy, but you do that every time you leave your house.
What the big deal may be is the assumption that because you are in public and everybody can access you, that everybody can have you. As Daniel Solove wrote about Facebook in Scientific American, “Instead of viewing privacy as secrets hidden away in a dark closet, [Facebook] considered the issue as a matter of accessibility. They figured that most people would not scrutinize their profiles carefully enough to notice minor changes and updates. They could make changes inconspicuously. But Facebook’s News Feeds made information more widely noticeable. The privacy objection, then, was not about secrecy; it was about accessibility.”
Again, this really shouldn’t be such a remarkable legal matter, since it has never been true that because you’re sitting in a public coffee shop writing this blog, you are therefore suddenly naked and out there to be approached, hit-upon, barraged or assaulted. There are laws against all of these things, including criminal statutes, rules against playing a radio on the subway, laws against solicitations and panhandling, and regulations requiring permits for all sorts of public protests, appeals, speeches, parades and … noise.
You cannot very well argue that your privacy is intruded upon because someone learns something about you from something you put on Facebook. But when Facebook (or some successor fabulous social media community) becomes the de facto communications medium in this country, we might expect that we will develop the same kind of limitations on access that developed over time on the telephone lines. Or maybe that the law will evolve to recognize the necessity of facilitating such public information – and for the same purposes – in the same way that we now provide such information to the telephone company, to the Social Security Administration, to the Internal Revenue Service and to countless other organizations, governments and utilities, all so that we can simply function in a complicated society.
From my perspective, it’s the younger generation and full-on social media users who are more keenly aware of the privacy issues than my older generation looking down our noses. Again, it goes back to the question of whether social media is anything other than, ultimately, an evolving public communications medium. And if that’s the case, the not-unreasonable expectation is that we nonetheless retain our right to limit how our identities are exposed, shared, mixed, aggregated, commercialized and exploited. But nor would such an expectation be inconsistent with how all major earlier public communications media have legally developed.
Suppose we get to the point that we have to put information “out there” in order to practically function in a technologically sophisticated and interconnected society. If that happens, yes the information becomes publicly viewable by all (or perhaps by those who need to see it in the same way that data is theoretically available to “all” by virtue of using your telephone). But does that mean that the information becomes “public”? Or even if public (“Take My Privacy, Please”, David Pogue wrote 12 years ago), it is a separate thing entirely to require that we have therefore allowed free public access. We do not have to legalize allowing employers (prospective or current) to view our publicly available social media information. We do not have to allow the news media to publish information about private individuals.
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