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Boston University In the Context of the Digital Age: An Examination of the Elastic Nature of the Right to Privacy By Samantha

Mendaros

JO 525 Media Law & Ethics Professor Bob Zelnick April 12, 2011

Privacy is universally recognized as a fundamental, inalienable right. Supreme Court Justice Louis Brandeis hailed it as the most comprehensive of rights and the right most valued by civilized men1 in his dissenting opinion in Olmstead v. US (1928), and in Lake v. Wal-Mart Stores, Inc. (1928), Minnesota Supreme Court Chief Justice Kathleen A. Blatz argued on behalf of the majority that privacy is an integral part of our humanity because at the heart of our liberty is [the right to choose] which parts of our lives shall be public and which we shall hold close.2 Scholar Beate Rossler also elevated the right to privacy in her book, The Value of Privacy, in which she claimed that privacy is essential for the preservation of freedom and democracy because it permit[s] and protect[s] an autonomous lifestyle.3 However, the right to privacy remains one of the most elusive concepts in United States common law, and for this reason American essayist Jonathan Franzen called the right to privacy the Cheshire cat of values: not much substance, but a very winning smile.4 Perhaps that this has been such an abstract issue in the past can be attributed to the fact that the legal conception emerged with almost no guidelines whatsoever as to what the right to privacy entailed. The common law recognition of privacy as a natural right emerged in the early twentieth century, after technology had advanced to the point where it posed a threat to individual privacy. In the early cases, privacy was understood to be protection from unnecessary intrusion by the media, private companies and the government. The right to privacy is rooted in English common law and recognized only physical interference with life and property,5 according to Justices Samuel D. Warren and Louis D. Brandeis, in their 1890 essay, The Right to Privacy, published in the Harvard Law Review. According to the Warren-Brandeis theory of privacy, as there came to be a general recognition of mans spiritual nature, or his feelings and intellect6 in society, the scope of those privacy rights expanded accordingly. Now, they wrote, the right to life has come to mean the right to enjoy life, the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term property has grown to comprise every form of possession intangible, as well as tangible.7 This essay, a response to the gossipy reporting of sensational journalists, is one of the most widely referenced articles of all time.
1

Olmstead v. United States , The Right of Privacy: Historical Definitions, http://faculty.ncwc.edu/mstevens/410/410lect16.htm. Elli Lake v. Wal-Mart Stores, Inc., http://www.ucs.louisiana.edu/~ras2777/judpol/lake.html. Beate Rossler, The Value of Privacy (New York: Aspen Publishers, 2006), 1. Jonathan Franzen, How to be Alone: Essays (New York: Picador, 2003), 42. Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, Harvard Law Review: 1890, 1. Ibid. Ibid.

In 1905, fifteen years after Warren and Brandeis published The Right to Privacy, the Georgia Supreme Court reviewed Pavesich v. New England Life Ins. Co., which involved an incident in which a mans likeness was used to endorse a company without the permission of the man a tort we would now call misappropriation or an invasion of the right to publicity. The majority ruled on the side of the plaintiff, and Georgia became the first state to validate a common law of privacy: the right to privacy has its foundation in the instincts of nature.8 The opinion also emphasized that this decision did not introduce a new idea but appli[ed] recognized principles.9 In Olmstead v. United States, 1920, the Supreme Court discussed whether the Fourth and Fifth Amendment rights of a man had been violated by federal agents who had obtained information by wiretapping the mans telephone and then used the recorded conversation as evidence against him. Writing for the majority, Chief Justice William Howard Taft wrote the conversation was not protected by the Fourth and Fifth Amendment because, firstly, there was no physical invasion of privacy and, secondly, there was no physical search or seizure.10 However, in the defense of mans right to privacy, Justice Brandeis famously dissented, writing in a separate opinion that the principle underlying the Fourth and Fifth Amendments is protection against invasion of the sanctities of mans home and privacies of life. This is recognition of the significance of mans spiritual nature, his feelings, and his intellect. Every violation of the right to privacy must be deemed a violation of the Fourth Amendment.11 In the 1940 case, Sidis v. New Yorker, the New York federal appeals court reviewed a situation in which the New Yorker had published a Where Are They Now? piece about a mathematical genius who had graduated from Harvard University at the age of sixteen. The follow-up piece revealed that, twenty years later, the former-child-prodigy William James Sidis was working as a clerk. Sidis sued for invasion of privacy, but the court ruled that in the name of newsworthiness and public interest, a person who had become a celebrity, even involuntarily, could not avoid publicity later on in life.12 Decades later, in Katz v. United States (1967), the United States Supreme Court reexamined the nature of the right to privacy and reevaluated prior understandings of the Fourth Amendments protection against unreasonable search and seizure, taking into account that technology had provided the government new means of surveillance. The case involved a man named Charles Katz, who had used a public phone booth to facilitate illegal gambling. The phone had been tapped by the FBI, and

Wayne Overbeck, Major Principles of Media Law (Wadsworth Cengage Learning: 2011), 182. Ibid. Olmstead v. US. Ibid. Overbeck, 183.

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Katz was convicted based off of the recorded. The court was forced to consider, in the light of new technology, whether the right to privacy extended to public places and whether a search necessitated physical intrusion. Justice Potter Stewart, writing for the majority, stated that the Governments activities in electronically listening to and recording the petitioners words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a search and seizure within the meaning of the Fourth Amendment. Thus, overruling the decision in Olmstead v. United States, the Court ruled that Fourth Amendment protection should be extended whenever a person has a reasonable expectation of privacy. The Court also established that a search can occur without physical intrusion. In Understanding Privacy author Daniel K. Solove examines the numerous twentieth-century judicial decisions regarding the right to privacy and breaks them down into categories. He identifies six conceptions of privacy which the Court has recognized: [1] the right to be let alone; [2] limited access to self (the ability to shield ones self from unwanted access by others); [3] secrecy (concealment of certain matters from others); [4] control over personal information; [5] personhood; and [6] intimacy (control over ones intimate relations of aspects of life).13 In modern times, Solove further explains, privacy is a sweeping concept, encompassing (among other things) freedom of thought, control over ones body, solitude in ones home, control over personal information, freedom from surveillance, protection of ones reputation, and protection from searches and interrogations.14 However, as technology continues to forge ahead, the courts are forced to face privacys elastic nature. As mentioned above, the right to privacy became a legal conception when technology gave the media, private businesses and the government the power to threaten individual privacy. But since the development of the Internet, that power has been extended to innumerable parties, both public and private. Social media in particular, Facebook, which currently boasts over 500 million users have given individual Internet users unprecedented access to information. Networking websites allow individuals to navigate freely in a world where every citizen has the ability and right to capture and share information. Clearly, technology has changed the context in which privacy has been previously defined. The unprecedented level of access to information in the digital era has revived the discussion about privacy, challenging the courts to reevaluate the definition of privacy and the scope of its legal protection. The call of many for the courts to reexamine the right to privacy has yielded two competing legal philosophies. On the one hand is Supreme Court Justice Antonin Scalia, who was appointed by

13

Daniel J. Solove, Understanding Privacy (Cambridge: President and Fellows of Harvard College, 2008), 13. Ibid, 1.

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President Ronald Reagan in 1986. In The Forward, J.J. Goldberg describes Scalia as the intellectual anchor of the courts conservative majority.15 Scalia is a stout advocate of originalism, an approach which focuses on interpreting the words of the Constitution as they were meant when they were written. According to originalist philosophy, the Constitution should not be regarded as a living document that adapts to changing values.16 In November 2010, Scalia debated his legal philosophy against that of Justice Stephen Breyer, in a forum at the Texas Tech University Law School. Breyer, whose views sharply contrast with those of Scalia, argues that modern conditions like the development of the social-networking site [Facebook] should inform justices when interpreting a Constitution written in the eighteenth century.17 The MSNBC coverage of the debate quotes Breyer: If Im applying the First Amendment, I have to apply it to a world where theres an Internet, and theres Facebook, and there are movies like The Social Network, which I couldnt even understand.18 Breyer also admitted that because the digital revolution has drawn lines between generations, the Court sometimes has a limited grasp of the role certain technologies play in human interaction. In response to those who share Scalias originialist views, Breyer said, If you want to have history solve everything, lets get nine historians and not nine judges.19 With new technology has come new ways for privacy to be violated. Law professor Jeffery Rosen describes the digital age as a world where computers track every move and every online photo, status update, Twitter post and blog entry by and about us can be stored forever.20 The changed circumstances of the highly-technological era of social media calls for a reassessment of what information should be regarded as private. Should trivial data, such as ones music and movie preferences, be protected under the right to privacy? How about behavioral data, such as ones activities and social connections data that users regularly post on Facebook without thinking twice? It is generally accepted that ones credit card information and social security number should be kept confidential; but where do private emails fall? Or web history, or chat logs, or location? Social media is a particularly fascinating aspect of law because there are few precedents. As Rosen described, everything in the digital age is recorded. The development of large information systems, which track how users interact with technology in order to inform business

15

Goldberg, J.J., "Antonin Scalia's uncivil religion" (2003). Antonin Scalia, as quoted by Leslie Stahl, Justice Scalia On The Record, cbsnews.com, April 29, 2008. Stephen Beyer, as quoted by Erik Schelzig in Supreme Court justices must adapt to Facebook world, says Breyer, msnbc.com, N ovember 16, 2010. Ibid. Ibid. Jeffrey Rosen, The Web Means the End of Forgetting, The New York Times: July 21, 2010. http://www.nytimes.com/2010/07/25/magazine/25privacy-t2.html.

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processes and decision-making, has raised major questions about privacy. For instance, on January 14, 2011, Facebook platform developer Jeff Bowen quietly posted on Facebooks Developers Blog that the company would provide third parties with access to users address and mobile phone numbers as part of the User Graph project.21 In the blog post, Facebook recognized that the information in question was of a sensitive nature and addressed this by implementing new privacy options that would allow users to make their personal information private, if they so wished. However, Facebook did not widely publicize its decision to share users information, nor did it sufficiently notify users of the new privacy options. Facebook, in response to concerns, noted that it is considering implementing controls that would more explicitly highlight the personal nature of the information being transmitted to applications22 and explained that it was actively considering whether to restrict users under 18 years old from sharing their contact information with third-party developers.23 The problem is, when users post information to their Facebook profiles, they are largely unaware of how that information is used or who has access to it. This action is the latest in a long string of controversies that Facebook has incited. Many of Facebooks controversial actions aim to create transparency among its users by urging them to share information and data about themselves on the network. Prior decisions and definitions involving the reasonable expectation of privacy have been also outstripped by the pace of technology. When users post information on Facebook, is the assumption that the information is public? Facebook may have implemented policies that allow users to control which aspects of their profiles are viewable to whom, but when it comes down to it, Facebooks success depends on users sharing of information. Because individual Facebook pages are somewhat public and somewhat private, and because the entire system centers on the sharing of information, the reasonable expectation of privacy is a gray area in social media and law. The idea of a reasonable expectation of privacy has been brought up in a question involving employment: can employers use information that an employee candidate has posted on Facebook as criteria for not hiring him or her? According to Microsoft, seventy-five percent of recruiters and human resources professionals in the United States research their potential employees background online, often using social-networking sites and personal blogs. The study also reveals that seventy percent of hiring teams have rejected candidates based on information found on the internet.24
21

Jeff Bowen, Platform Updates: New User Object fields, Edge.remove Event and More, January 14, 2011, developers.facebook.com /blog/post/446.

22

Bianca Bosker, Facebook To Share Users Home Addresses, Phone Numbers With External Sites, The Huffington Post: February 28, 2011, http://www.huffingtonpost.com/2011/02/28/facebook-home-addresses-phone-numbers_n_829459.html.
23

Ibid.

24

iKeepSafe Coalition: Promoting Internet Safety Security and Ethics, Microsoft Study Shows Real Impact Online Reputation Has on Job Opportunities, January 27, 2010, http://www.facebook.com/note.php?note_id=321952803012.

On October 27, 2010, the National Labor Relations Board (NLRB) filed a complaint against the American Medical Response of Connecticut for firing an employee without legal basis. According to the employee, she had been fired for criticizing her supervisor via Facebook post a post that got a lot of support from her co-workers. The National Labor Relations Act states that employees have the right to discuss their working conditions, and that the act protects criticism of a supervisor in a discussion with co-workers even when the discussion takes place on Facebook.25 Another NLRB case in January 2011 involved a waitress who worked at a sports bar in Pittsburgh. In this case, the female employee, Audra Harris, claimed that the managers of the establishment did nothing in response to her sexual harassment claims. Harris quit after finding that the sports bars owner had posted threatening comments on Facebook that, she believed, were aimed towards her. Pittsburg labor law attorney Claudia Davidson said, The fact that it happened on Facebook doesnt change the substance of it. I think the law is going to have to recognize this is a new means of communications.26 In both NLRB cases, the two parties have settled, but undoubtedly similar issues will make it to the courts in the near future. Another issue raised by the prevalence of social media has to do with copyright and privacy. Because social-networking sites depend on user interaction and the sharing of information, it is not always clear who has the right to the information uploaded onto the network. For instance, Twitter has more than 100 million registered users. An individuals tweets are instantly broadcasted on the users personal feed as soon as the he or she clicks tweet. The post also appears in the news feeds of those who subscribe to the users posts. The re-tweet feature on the site, which allows users to forward another users post, means that control over the information is lost quite easily. In the United States, Twitter posts are considered public information. Journalists may publish information gathered from Twitter. The Library of Congress has even announced that it will be permanently storing the entire archive of public Twitter posts since 2006.27 Twitter became involved with the legal issues surrounding WikiLeaks when, in December 2010, the United States Department of Justice subpoenaed Twitter, demanding that the company provide information for accounts associated with WikiLeaks. Twitter responded by alerting its users, stating, Its our policy to notify users about law enforcement and governmental requests for their information, unless we are prevented by law from doing so.28
25

Michelman & Robinson LLP, Groundbreaking Lawsuit: Company Accused of Illegally Firing Employee over Facebook Post, California Employment Attorney Blog, November 11, 2010, http://www.californiaemploymentattorneyblog.com/2010/11/as-social-media-usage-continues.html.
26

Debra Erdley, Employers Facebook posts part of bar workers lawsuit, Pittsburgh Tribune-Review, January 10, 2011, http://www.pittsburghlive.com/x/pittsburghtrib/news/s_717409.html#ixzz1JJ8fJxFSEmployer's Facebook posts part of bar worker's lawsuitRead more: Employer's Facebook posts part of bar worker's lawsuit - Pittsburgh Tribune-Review http://www.pittsburghlive.com/x/pittsburghtrib/news/s_717409.html#ixzz1JJ8e5gow.
27

Rosen, NYT. Ibid.

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Facebook has also given rise to questions about who owns information shared on the site. According to Facebooks press page, the network has more than 500 million active users, and more than 30 billion pieces of content web links, news stories, blog posts, notes, photo albums, etc. are uploaded every month. Social media has changed the way information is spread, and the courts must interpret the laws in this context. A recent appellate case, Lalonde v. Lalonde (February 2011), involved the decision by a lower court to award custody of a girl to her father. The mother whose psychologist had testified that alcohol would not mix well with the medication she was taking for her bipolar disorder argued that the lower court should not have considered her tagged Facebook photos, which showed her drinking alcohol, as evidence against her because she never gave her permission for the photographs to be published or to be identified through the tagging feature. However, the court validated Facebook tagging: There is nothing within the law that requires [ones] permission when someone takes a picture and posts it on a Facebook page. There is nothing that requires [ones] permission when she is tagged or identified as a person in those pictures.29 The development of technology and the high level of access to information that define the post-digital-revolution world have changed the commonly upheld standards of privacy and disclosure. Some people are hyper-concerned about protecting privacy and call for new legal measures that address these new ways by which privacy can be violated. They claim that current laws have failed to keep up with the pace of technology. For example, Professor Deborah Nelson argues that privacy is constantly under assault: Privacy, it seems, is not simply dead. It is dying over and over again. However, social sentiment also seems to be shifting. New ideas are emerging about what is appropriate to put in the public domain; generally, these lines are being drawn between generations. For example, Mark Zuckerberg, the creator and owner of the social media giant, Facebook, is not even thirty. The average age of employees on the Facebook team is twenty-eight. These young cultural leaders have very different perceptions from their predecessors about what should be private and what would better be public. In the name of social transparency, Zuckerberg pushes the boundaries in urging users to publicize their information and limiting their privacy controls; he embraces the idea of challenging users to present a single identity to the world in fact, he told the press that in his views, separating aspects of ones life between social groups indicates a lack of integrity. Zuckerberg has also expressed that he hopes social transparency will lead to acceptance. For instance, perhaps in the future stories of employers rejecting potential employees because they have drunken photos on their

29

LaLonde v. Lalonde, http://scholar.google.com/scholar_case?case=4254212742475142079&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

Facebook pages will be replaced by an acceptance that having drunken college photos in the public sphere is the norm. Especially in the younger generations, social media users are following Zuckerbergs lead and letting go of traditional notions regarding privacy. Many choose to post intimate details on their Facebook profiles, Twitter feeds and blogs, accepting that in exchange for the increased access to information they must adjust to living an increasingly public lifestyle. Social media is resetting the bar, with regard to privacy its a sign of the changing times, and young people dont necessarily consider it a bad one. This notion, however, is not restricted to the worlds youth population. Venerated legal scholars and law professors also support this idea of social transparency which the social media continually advances. For example, Justice Richard Posner, in his book, The Economics of Justice, wrote, [Privacy is simply] the power to conceal information about [ones self] that others might use to [his or her] disadvantage. Law professor Richard Epstein, in a 1994 article in the Boston Law Review, defined privacy as a plea for the right to misrepresent ones self to the rest of the world.30 Such sentiments are in line with the Facebook founders philosophy the community benefits from social transparency, from challenging individuals to present their true identity to the world. Facebooks European policy director Richard Allan believes that to categorize privacy as a natural state of man in the first place is an exaggeration. According to Allan, before mass transportation, members of a community knew every intimate detail of each others lives, and that the modern sense of privacy came much later, with the development of modern transportation.31 In truth, when employees began commuting to their jobs, there grew a separation a literal physical separation as well as a psychological separation between their life at work, their life at home, and perhaps their social life. Only after this separation did discretion become the rule. However, the development of the Internet and social media has rendered physical separation insignificant; a Facebook user can reach someone on the other side of the globe as easily as he or she can reach someone across the hall. In a way, can the development of communication technology perhaps be characterized as a return to the days when communities were small, and members knew the intimate details of each others lives? Is it fair to say that privacy is the natural state of man? The nature of privacy has been and continues to be a highly elusive concept, and as the world progresses in terms of technology, the right to privacy and the value of privacy as a right, weighed against other important values in society will be reassessed.
30

Deborah Nelson, Richard Posner, and Richard Epstein, as quoted by Solove in Understanding Privacy.

31

Richard Allen, as quoted in Does Technology Pose a Threat to our Private Lives? The Guardian, August 21, 2010, http://www.betatales.com/2010/08/21/doestechnology-pose-a-threat-to-our-private-life/.

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