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-- DonnaAckermann - 06 Dec 2009
Unwitting Victims: The Third-Party Privacy Problem | |
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> | Please find a new version of this paper below. | | | How Blogs and Online Pictures Invade Personal Privacy | |
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< | Our class discussion about privacy concerns on the internet was eye-opening and has made me rethink what I post on the internet. But our class discussion and online readings primarily focused on two kinds of autonomy privacy concerns: those of a consumer, in terms of what companies can do with our information; and those of an individual, in terms of what information we choose to put on the web, even when we do not realize the consequences of what we disclose online. While those two issues of privacy are important, I would like to explore a different privacy concern: what happens when we expressly choose not to post anything online, but a third party posts pictures or writes a blog about us? In today’s world, where hundreds of millions of people are on social networking sites, such as Facebook, and where many people write a daily blog, can we prevent third parties from publicizing our private lives, and if so, how? | >
> | Our class discussion about privacy concerns on the internet was eye-opening and has made me rethink what I post on the internet. But our class discussion and online readings primarily focused on autonomy privacy concerns with respect to consumers and individuals. I would like to explore a different privacy concern: what happens when we expressly choose not to post anything online, but a third party posts pictures or writes a blog about us? In today’s world, where hundreds of millions of people are on social networking sites, and where many people write a daily blog, can we really prevent third parties from publicizing our private lives, and if so, how? | | | | |
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< | There is a notion in today’s world that everything is worthy of reporting; no action is too trivial or too mundane to be publicized. Twitter, AIM, G-chat, and Facebook statuses convey that attitude, as it is not uncommon for a person’s status to read, “in class” or “eating.” It is no longer a special event but daily life that merit mention; blogs capture this recent trend by documenting a person’s everyday interactions. The problem is not that people choose to post an online status or write a blog about their own lives (which is a separate privacy issue), but that because I had some interaction with the blogger, I become part of the blogger’s daily life, and our interaction is recorded, discussed, and analyzed for everyone to read. I therefore lose my privacy, even though I posted nothing online and in no way publicized our interaction.
Sometimes people might not care that their interaction is online because they reason that they are not doing anything wrong, but even in those situations, people lose their privacy, one blog entry at a time. And what about those times when people really do care if something is posted online about them because they are trying to keep their actions a secret? For example, a couple who is having an affair bumps into an acquaintance; he then writes about his interaction with the couple, thereby exposing the affair. Moral issues aside, people should be allowed to determine their own lives and not have their secrets revealed by a third party.
And sometimes, it’s not a secret that people are trying to preserve, but their dignity. For example, people who post pictures of a coworker drunk at the annual holiday office party prevent the coworker from keeping his bad judgment from going public. In the past, when a person acted stupidly in a public space, the damage was limited to whoever was in the room; now the person’s actions are publicized for everyone to see and subject to public scrutiny. And the problem is that individuals have no control over that; nothing they do can control what others post about them. | >
> | Simply put, the amount of information available on the internet has exploded exponentially. Gossip abounds; it fills the public arena and assumes a life of its own. Photos support the rumors; blogs disperse them everywhere. As the reach of gossip expands, so can the damage. Yet if we are to preserve the First Amendment right of free speech, we cannot suppress these new forms of communication. Is there room for regulation? What’s next? | | | Possible Solutions | |
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< | Legally, I do not think there are any solutions that would work to prevent third parties from recording my life. The most obvious option, a suit for invasion of privacy under many states’ tort law, would likely proceed on two different grounds: a person’s privacy is invaded (1) by an unreasonable intrusion into the person’s seclusion, solicitude, or private affairs; or (2) by unreasonable publicity given to the person’s private life. But an invasion of privacy suit would likely fail because either ground requires proof that the intrusion is highly offensive to a reasonable person, and potential plaintiffs will have difficulty arguing that a blog post or picture is highly offensive. The Restatement specifically says that there is no liability for a defendant who takes a photograph of a person walking on a public highway, since the person is in public, available to be seen by anyone. The blogs and pictures that are posted online document these everyday public interactions, and therefore an invasion of privacy tort suit will fail. Additionally, a claim for defamation will fail where the blogger is only representing his opinions, which are protected by the First Amendment.
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> | Legally, I do not think there are any solutions that would work to prevent third parties from recording my life. The most obvious option, a suit for invasion of privacy under many states’ tort law, would likely proceed on two different grounds: a person’s privacy is invaded (1) by an unreasonable intrusion into the person’s seclusion, solicitude, or private affairs; or (2) by unreasonable publicity given to the person’s private life. See Restatement (Second) of Torts: Invasion of Privacy § § 652A, 652B (1977). But an invasion of privacy suit would likely fail because either ground requires proof that the intrusion is highly offensive to a reasonable person, and potential plaintiffs will have difficulty arguing that a blog post or picture is highly offensive. See Id. §§ 652B, 652D. The Restatement specifically says that there is no liability for a defendant who takes a photograph of a person walking on a public highway, since the person is in public, available to be seen by anyone. Id. § 652B cmt. c. The blogs and pictures that are posted online document these everyday public interactions, and therefore an invasion of privacy tort suit will fail. Additionally, a claim for defamation will fail where the blogger is only representing his opinions, which are protected by the First Amendment. | | | So if there is no workable solution under existing law, theoretically, Congress or state legislatures could expand the invasion of privacy tort to specifically address third-party postings; the new law could require bloggers or online posters to obtain permission from those mentioned in the blog or those who appear in pictures. It is unlikely that such a statute would be passed at all, but even if it were, it would be nearly impossible to enforce because of the sheer volume of online blogs and photos. | |
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< | Since there is no viable cause of action or statute that could address this problem, and since it is the nature of the internet age in which we live that people blog and post pictures, and because of the actions of third parties, it appears that there is no way to control the loss of one’s privacy even if a person chooses not disclose private information online. The resulting conclusion is that two options remain: ask your friends never to post anything about you, which even if your friends agreed (and many may not), it would not solve the problem when strangers or acquaintances write about you or post pictures of you online. Alternatively, the best option may be to stay home all day, every day, and never interact with another human. And since that is not going to happen, we will undoubtedly all lose a bit more of our privacy every day, and there is nothing we can do about it. | >
> | Another idea is to use the V-Chip technology that is included in all televisions and apply it to the internet in order to address the third-party privacy problem. Indeed, Congress passed the Child Safe Viewing Act of 2007, signed into law by President George W. Bush, which directs the Federal Communications Commission (FCC) to investigate whether the V-Chip technology could be expanded to the internet context. See http://abcnews.go.com/Technology/story?id=3488856&page=1; http://news.cnet.com/8301-13578_3-10111752-38.html?part=rss&tag=feed&subj=News-PoliticsandLaw. The FCC prepared an extensive report which basically concluded that there are several content-blocking technologies available, but parents are unaware of them or unclear how to use them. Even the V-Chip itself is not widely used. FCC Report, p. 8. Moreover, the V-Chip’s focus – in the television context and even if implemented in the internet arena – is to allow parents to control what their children view (based on a ratings system), not to give people more control over what other people post about them. This technology, then, even if adopted for the internet and even if widely used, will not help solve the third-party privacy problem. Plus, many argue that content-blocking technology is a form of censorship which violates the First Amendment and is especially problematic for the internet, where innovation and freedom are supposed to be its hallmarks. See, e.g., http://abcnews.go.com/Technology/story?id=3488856&page=1. | | | | |
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> | Since there is no viable cause of action, statute, or technology that could address this problem, and since it is the nature of the internet age in which we live that people blog and post pictures, and because of the actions of third parties, it appears that there is no way to control the loss of one’s privacy even if a person chooses not to disclose private information online (especially when people continue to use the internet carelessly. See e.g., http://www.nytimes.com/2010/01/21/technology/21password.html?em). The resulting conclusion is that two options remain: ask your friends never to post anything about you; even if your friends agreed (and many may not), it would not solve the problem when strangers or acquaintances write about you or post pictures of you online. Alternatively, the best option may be to stay home all day, every day, and never interact with another human. And since that is not likely to happen, we will undoubtedly all lose a bit more of our privacy every day, and there is nothing we can do about it. | | | | |
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> | COMMENTS | | | Donna - As someone who has begged friends to take pictures off facebook, I found this piece very interesting. As you point out, we must be aware that every social interactive we have has the potential to be published worldwide. Although you acknowledge that legislative action would be difficult to achieve, I am curious if you have any thoughts about what an ideal statute would look like if one were to exist. I'm not sure if this is relevant, but do you think something like the new anti-paparazzi law recently passed in California, could be expanded to at least protect non-celebrity from having unwanted pictures posted online? Also, do you think the sheer number of blogs, tweets, etc., might limit the harms caused? |
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