Category: Privacy (Gossip & Shaming)

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Unequal Exposure

Towards the end of the breathless and impassioned tour through privacy, surveillance, carcerality, and desire that is Exposed, Bernard Harcourt writes that “the emphasis on what we must do as ethical selves, each and every one of us – us digital subjects – may be precisely what is necessary for us to begin to think of ourselves as we. Yes, as that we that has been haunting this book since page one” (283). The call for unity and solidarity is seductive: if “we” are all exposed and vulnerable, then “we” can all resist and demand change. But that “we” – that reassuring abstraction of humanity and human experience – is not in fact what haunts this book. That “we” – unquestioned, undifferentiated, unmarked – is taken for granted and treated as the universal subject in this book. What truly haunts this book is everything that this “we” obscures and represses. Harcourt’s “we” is remarkably undifferentiated. Nearly every point Harcourt makes about how “we” experience digital subjectivity, surveillance, and exposure would and should be contested by women, people of color, the poor, sexual minorities (and those who belong to more than one of the categories in this non-exhaustive list). It is unfair, of course, to expect any one book or any one author to capture the full complexity of human experience on any topic. One writes about what one knows, and nuance must sometimes be sacrificed for the sake of broad theory. But there is a difference between falling short of conveying the diversity of human experience and barely acknowledging the existence of differentiation. If one of Harcourt’s goals is to lead us to “think of ourselves as we,” it is vital to recognize that  “we” in the digital age are not equally represented, equally consenting or resisting, or equally exposed.

Let’s begin with Harcourt’s characterization of the digital age as a study in shallow positivity: “We do not sing hate, we sing praise. We ‘like,’ we ‘share,’ we ‘favorite.’ We ‘follow.’ We ‘connect.’ ‘We get LinkedIn.’ Ever more options to join and like and appreciate. Everything today is organized around friending, clicking, retweeting, and reposting. … We are appalled by mean comments – which are censored if they are too offensive”(41). This is a picture of the digital world that will be  unrecognizable to many people. There is no mention of online mobs, targeted harassment campaigns, career-destroying defamation, rape and death threats, doxxing, revenge porn, sex trafficking, child porn, online communities dedicated to promoting sexual violence against women, or white supremacist sites. No mention, in short, of the intense, destructive, unrelenting hatred that drives so much of the activity of our connected world. Harcourt’s vision of our digital existence as a sunny safe space where occasional “mean comments” are quickly swept from view is nothing short of extraordinary.

Next, consider Harcourt’s repeated insistence that there are no real distinctions between exposer and exposed, the watcher and the watched: “There is no clean division between those who expose and those who surveil; surveillance of others has become commonplace today, with nude pictures of celebrities circulating as ‘trading fodder’ on the more popular anonymous online message boards, users stalking other users, and videos constantly being posted about other people’s mistakes, accidents, rants, foibles, and prejudices. We tell stories about ourselves and others. We expose ourselves. We watch others” (129). There are, in fact, important divisions between exposers and the exposed. With regard to sexual exposure, it is overwhelmingly the case that women are the subjects and not the agents of exposure. The nude photos to which Harcourt refers weren’t of just any celebrities; they were with few exceptions female celebrities. The hacker in that case, as in nearly every other case of nude photo hacking, is male, as is nearly every revenge porn site owner and the majority of revenge porn consumers. The “revenge porn” phenomenon itself, more accurately described as “nonconsensual pornography,” is overwhelmingly driven by men exposing women, not the other way around. Many of Harcourt’s own examples of surveillance point to the gender imbalance at work in sexual exposure. The LOVEINT scandal, the CCTV cameras pointed into girls’ toilets and changing rooms in UK schools (229), and Edward Snowden’s revelations of how the NSA employees share naked pictures (230) primarily involve men doing the looking and women and girls being looked at. The consequences of sexual exposure are also not gender-neutral: while men and boys may suffer embarrassment and shame, girls and women suffer these and much more, including being expelled from school, fired from jobs, tormented by unwanted sexual propositions, and threatened with rape.

There are also important distinctions to be made between those who voluntarily expose themselves and those who are exposed against their will. In the passage above, Harcourt puts nude photos in the same list as videos of people’s “rants, foibles, and prejudices.” The footnote to that sentence provides two specific examples: Jennifer Lawrence’s hacked photos and video of Michael Richards (Seinfeld’s Kramer) launching into a racist tirade as he performed at a comedy club (311). That is a disturbing false equivalence. The theft of private information is very different from a public, voluntary display of racist hatred. In addition to the fact that naked photos are in no way comparable to casual references to lynching and the repeated use of racial slurs, it should matter that Jennifer Lawrence was exposed against her will and Michael Richards exposed himself.

It’s not the only time in the book that Harcourt plays a bit fast and loose with the concepts of consent and voluntariness. In many places he criticizes “us” for freely contributing to our own destruction: “There is hardy any need for illicit or surreptitious searches, and there is little need to compel, to pressure, to strong-arm, or to intimidate, because so many of us are giving all our most intimate information and whereabouts so willingly and passionately – so voluntarily” (17).  And yet Harcourt also notes that in many cases, people do not know that they are being surveilled or do not feel that they have any practical means of resistance. “The truth is,” Harcourt tells us with regard to the first, “expository power functions best when those who are seen are not entirely conscious of it, or do not always remember. The marketing works best when the targets do not know that they are being watched” (124). On the second point, Harcourt observes that “when we flinch at the disclosure, most of us nevertheless proceed, feeling that we have no choice, not knowing how not to give our information, whom we would talk to, how to get the task done without the exposure. We feel we have no other option but to disclose” (181-2). But surely if people are unaware of a practice or feel they cannot resist it, they can hardly be considered to have voluntarily consented to it.

Also, if people often do not know that they are under surveillance, this undermines one of the more compelling concerns of the book, namely, that surveillance inhibits expression. It is difficult to see how surveillance could have an inhibiting effect if the subjects are not conscious of the fact that they are being watched. Surreptitious surveillance certainly creates its own harms, but if subjects are truly unaware that they are being watched – as opposed to not knowing exactly when or where surveillance is taking place but knowing that it is taking place somewhere somehow, which no doubt does create a chilling effect – then self-censorship is not likely to be one of them.

Harcourt suggests a different kind of harm when he tells us that “[i]nformation is more accessible when the subject forgets that she is being stalked” (124). That is, we are rendered more transparent to the watchers when we falsely believe they are not watching us. That seems right. But what exactly is the harm inflicted by this transparency? Harcourt warns that we are becoming “marketized subjects – or rather subject-objects who are nothing more than watched, tracked, followed, profiled at will, and who in turn do nothing more than watch and observe others” (26). While concerns about Big Data are certainly legitimate (and have been voiced by many scholars, lawyers, policymakers, and activists), Harcourt never paints a clear picture of what he thinks the actual harm of data brokers and targeted Target advertisements really is. In one of the few personal and specific examples he offers of the harms of surveillance, Harcourt describes the experience of being photographed by a security guard before a speaking engagement. Harcourt is clearly unsettled by the experience: “I could not resist. I did not resist. I could not challenge the security protocol. I was embarrassed to challenge it, so I gave in without any resistance. But it still bothers me today. Why? Because I had no control over the dissemination of my own identity, of my face. Because I felt like I had no power to challenge, to assert myself” (222). While one sympathizes with Harcourt’s sense of disempowerment, it is hard to know what to think of it in relation to the sea of other surveillance stories: women forced to flee their homes because of death threats, parents living in fear because the names of their children and the schools they attend have been published online, or teenaged girls committing suicide because the photo of their rape is being circulated on the Internet as a form of entertainment.

Harcourt uses the term “stalk” at least eight times in this book, and none of these references are to actual stalking, the kind that involves being followed by a particular individual who knows where you live and work and means you harm, the kind that one in six women in the U.S. will experience in her lifetime, the kind that is encouraged and facilitated by an ever-expanding industry of software, gadgets, and apps that openly market themselves to angry men as tools of control over the women who have slipped their grasp. What a privilege it is to be able to treat stalking not as a fact of daily existence, but as a metaphor.

Harcourt’s criticism of what he considers to be the Supreme Court’s lack of concern for privacy adds a fascinating gloss to all of this. Harcourt takes particular aim at Justice Scalia, asserting that even when Scalia seems to be protecting privacy, he is actually disparaging it: “Even in Kyllo v. United States…. where the Court finds that the use of heat-seeking technology constitutes a search because it infringes on the intimacies of the home, Justice Scalia mocks the humanist conception of privacy and autonomy.” The proof of this assertion supposedly comes from Scalia’s observation that the technology used in that case “might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath – a detail that many would consider ‘intimate.’” Harcourt assumes that Scalia’s reference to the “lady of the house” is an ironic expression of contempt. But Scalia is not being ironic. Elsewhere in the opinion, he emphatically states that “[i]n the home… all details are intimate details,” and many of his other opinions reinforce this view. Scalia and many members of the Court are very concerned about privacy precisely when it involves the lady of the house, or the homeowner subjected to the uninvited drug-sniffing dog on the porch (Florida v. Jardines, 2013), or the federal official subjected to the indignity of a drug test (Treasury Employees v. Von Raab, 1989 (dissent)). These same members of the Court, however, are remarkably unconcerned about privacy when it involves a wrongfully arrested man subjected to a humiliating “squat and cough” cavity search (Florence v. Burlington, 2012), or a driver searched after being racially profiled (Whren v. US, 1996), a pregnant woman tricked into a drug test while seeking prenatal care (Ferguson v. Charleston, 2001 (dissent)). In other words, the problem with the Supreme Court’s views on privacy and surveillance is not that it does not care about it; it’s that it tends to care about it only when it affects interests they share or people they resemble.

The world is full of people who do not have the luxury of worrying about a growing addiction to Candy Crush or whether Target knows they need diapers before they do. They are too busy worrying that their ex-husband will hunt them down and kill them, or that they will be stopped and subjected to a humiliating pat down for the fourth time that day, or that the most private and intimate details of their life will be put on public display by strangers looking to make a buck. These people are not driven by a desire to expose themselves. Rather, they are being driven into hiding, into obscurity, into an inhibited and chilled existence, by people who are trying to expose them. If “we” want to challenge surveillance and fight for privacy, “they” must be included.

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5 Great Novels About Privacy and Security

I am a lover of literature (I teach a class in law and literature), and I also love privacy and security, so I thought I’d list some of my favorite novels about privacy and security.

I’m also trying to compile a more comprehensive list of literary works about privacy and security, and I welcome your suggestions.

Without further ado, my list:

Franz Kafka, The Trial

Kafka’s The Trial begins with a man being arrested but not told why. In typical Kafka fashion, the novel begins badly for the protagonist . . . and then it gets worse! A clandestine court system has compiled a dossier about him and officials are making decisions about him, but he is left in the dark. This is akin to how Big Data can operate today. The Trial captures the sense of helplessness, frustration, and powerlessness when large institutions with inscrutable purposes use personal data and deny people the right to participate. I wrote more extensively about how Kafka is an apt metaphor for privacy in our times in a book called The Digital Person about 10 years ago.

Franz Kafka The Trial

 

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Does Scholarship Really Have an Impact? The Article that Revolutionized Privacy Law

Does scholarship really have an impact? For a long time, naysayers have attacked scholarship, especially scholarship about law. U.S. Supreme Court Chief Justice Roberts once remarked: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.” He noted that when the academy addresses legal issues at “a particularly abstract, philosophical level . . . they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.” Judge Harry Edwards also has attacked legal scholarship as largely irrelevant.

Critics are quick to point out that much legal scholarship is not cited much — and many articles are never even cited by anyone other than the authors themselves in subsequent works.

But I think that a lot can be learned from the story of one of the most influential law articles of all. That article was Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harvard Law Review 193 (1890).

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Warren and Brandeis discussed how journalism was becoming more sensationalistic: “Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.” And they expressed concern about a new technology they called “instantaneous photograph[y.]” — the new smaller and cheaper cameras being marketed by the Eastman Kodak Company that made it possible for candid photos to be taken.

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Dispatches from Durham: Sexual Double Standards, Victim Blaming, and Online Abuse

In a series of recent pieces, the Duke Chronicle documented the experience of female students who were shamed for their expressing their sexuality. In one case, a young woman sent an e-mail to her sorority sisters saying that she had sex with a well-known performer who visited campus. The e-mail was leaked to multiple fraternity listservs, the site Betches Love This, and anonymous gossip site Collegiate ACB. On the site, the student was called a “whore, cum dumpster, and swamp monkey.” The various posts received hundreds of similar comments. The student deactivated her Facebook profile, deleted her Instagram, and disabled her Twitter account. Duke freshman “Lauren” was working in the porn industry to earn money to defray some of her college expenses. Lauren had not told anyone about her porn work, until a male classmate confronted her after watching her in a porn film. The student shared his discovery at a fraternity rush event. The story of the “freshman pornstar” went viral. The day after the student talked to his friends, Lauren received more than 230 friend requests on Facebook. Within days, the topic “Freshman Pornstar” was trending on Collegiate ACB. As Lauren confided to the school newspaper, the torment on Duke’s fourth campus–the online campus of the “towering chapel of Facebook,” the “student center of Twitter,” and the “grungy alleyways of Collegiate ACB”–was unrelenting. In a month’s time, the “Freshman Pornstar” thread on Collegiate ACB had 136 comments. The post was the seventh-most-recently commented post on Duke’s page on the gossip site. Some of the now-188 comments were vile, urging readers to write in once they have “banged” her and claiming that she slept with specific individuals and members of fraternities. Some were dangerous, noting her name and address. Comments blamed her for the abuse she was getting: “we going to pretend like she was unaware of the social consequences of going into that business? she made a decision, now she needs to live with the consequences;” “There’s no way she’s going to become a lawyer being a porn star (no law school is going to accept her). Seriously, she needs to get over herself and face the consequences of being a slut. I’ll be surprised if Duke doesn’t kick her out;” “Congratulations, you’ve ruined your own life.” Others defended the student: “you’re seriously making fun of her for that? um.. yeah this is the epitome of bullying.. you guys have written on a public forum her full name and where she lives (leaving her open for stalking and harassment) . as well as calling her a slut and attacking her personal beliefs.” As Lauren told the Chronicle, she feels harassed, hated, and discriminated against. She questions her decision to go to Duke given the abuse.

The Duke Chronicle’s editorial board wrote that the elite university is an “embittered battleground and discussions about Lauren–a first-year porn actress–have extracted salacious and sexist commentary from Duke’s student community.” The board found two primary themes in the commentary: characterizations of Lauren as a morally bankrupt slut and comments expressing a lewd desire to have sex with her. A third, unexamined theme, however, was also apparent–that Lauren was to blame for anything bad coming her way. She chose to do porn, so she assumed the risk of online harassment, poor employment opportunities, social shunning, and the possibility of getting kicked out of school.

Blaming the victim is a typical response to individuals facing online harassment, individuals who are mostly female and who are mostly attacked in sexually demeaning and threatening ways, as my articles and forthcoming book Hate Crimes in Cyberspace explore. After tech blogger Kathy Sierra was threatened with rape and strangulation via e-mail and on her blog, the response was that she chose to blog, so if she could not handle the heat, she should get out of the kitchen. College students blogging about sex were told that they “asked for” rape threats, defamatory lies, and the non-consensual posting of their nude photos because they blogged about their sexuality. Lena Chen’s experience was typical. When Chen attended Harvard, she wrote Sex and the Ivy. Anonymous commenters attacked her not with substantive criticisms of her opinions, but rather with death threats, suggestions of sexualized violence, and racial slurs. On a gossip blog, someone posted her sexually explicit photos, taken by her ex-boyfriend, without her consent. As Slate writer Amanda Hess reported (who would later face rape threats herself, see her recent article about her experience), Chen’s nude photos were reposted all over the Internet. The abuse continued even after she shut down the blog. Chen was accused of provoking the abuse by “making a blog about her personal sex life.” She was labeled an “attention whore” who deserved what she got. Commentators said that she leaked her own naked photos to get attention. Others said that she wrote about sex because she wanted posters to make sexual advances. We hear the same about victims of revenge porn.

Blaming the victim is a recurring theme. Society once blamed female employees for provoking their employers’ sexual advances. Wives were once told that they provoked domestic abuse. Just as society now recognizes sexual harassment at work and domestic abuse as serious social problems that victims did not bring on themselves, female college students are not to blame for online abuse if they have sex or make porn. Bloggers who write about sex are not to blame for online attacks. Revenge porn victims should not be blamed when harassers violate their trust and vindictively post their nude photos. Sexual double standards are at the heart of this response. Would we, for instance, say the same to men writing about sex? Tucker Max earned millions from writing books and a blog about his drunken sexual experiences with hundreds of women. By contrast, female sex bloggers have been attacked and told that they “asked for it.” As the Duke chronicle insightfully noted, the wildly different responses to the sexual escapades of Duke graduates Tucker Max and Karen Owen confirm that a sexual double standard is alive and well.


 

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Could Revenge Porn Victims Seek Civil Liability Against Hunter Moore?

Suppose that former revenge porn operator Hunter Moore is convicted of federal crimes of conspiracy to engage in computer hacking. Could individuals whose nude photos appeared on his site next to their home addresses and screenshots of their Facebook profiles sue Moore for intentional infliction of emotional distress and public disclosure of private fact? Probably not, but it’s worth exploring the issue.

The closest case law involves civil penalties provided for under federal criminal law. In M.A. v. Village Voice, a federal district court judge found that Backpage.com enjoyed Section 230 immunity for civil penalties under the child trafficking statute, 18 U.S.C. 2255. Section 2255 allows victims of child trafficking to recover damages from those who had committed or profited from the crimes against them. provides that, “[a]ny person who, while a minor, was a victim of a violation of [criminal statutes concerning child trafficking] and who suffers personal injury as a result of such violation may sue” and “recover actual damages such person sustained.” The representatives of a victim of child trafficking argued that Section 230 immunity was inapplicable because Backpage.com had profited from the plaintiff’s victimization in violation of Section 2255. As the court held, however, Section 2255 was a “civil damages” provision of Title 18, not federal criminal law.

The only remaining question is whether Moore materially contributed to the contested content–nude photos and Facebook screen shots. If so, he could be found liable as a co-developer of the content that often was tantamount to cyber stalking. Of course, the question of liability would remain. Just because a site operator does not enjoy immunity from liability does not mean he would be strictly liable for torts of intentional infliction of emotional distress, for instance. The question would be whether he intentionally inflict emotional distress on particular individuals? Recall that Moore boasted to the press that the more embarrassing and destructive the material, the more money he made. When a reporter told him that revenge porn had driven people to commit suicide, Moore said that he did not want anybody to die, but if it happened, he would be grateful for the publicity and advertising revenue it would generate; “Thank you for the money . . . from all of the traffic, Googling, redirects, and press.” Earlier this year, Moore told Betabeat’s Jessica Roy that he was relaunching his site including not just of people’s Facebook accounts, but their home addresses. “We’re gonna introduce the mapping stuff so you can stalk people,” he told Roy. When talking to Forbes’s Kashmir Hill, Moore backed off his statement, claiming to be drunk, but had tweeted, “I’m putting people’s house info with google earth directions. Life will be amazing.”

More broadly, sites that principally host revenge porn are making a mockery of Section 230. As Citizen Media Law Project’s Sam Bayard explains, a site operator can enjoy the protection of Section 230 while “building a whole business around people saying nasty things about others, and . . . affirmatively choosing not to track user information that would make it possible for an injured person to go after the person directly responsible.” In my book Hate Crimes in Cyberspace, I explore the possibility of Section 230 reform to ensure that the worst actors don’t enjoy immunity. It’s certainly a perverse result that the “Good Samaritan” provision of the Communications Decency Act immunizes from liability sites that solicit and principally host revenge porn and other forms of cyber stalking. More to come in August, when Harvard University Press publishes the book.

 

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Why Some Risk Sending Intimate Pictures to “Strangers” and What It Says About Privacy

It is, as always, an honor and a pleasure to speak with the Co-Op community. Thank you to Danielle for inviting me back and thank yous all around for inviting me onto your desks, into your laps, or into your hands.

My name is Ari and I teach at New York Law School. In fact, I am honored to have been appointed Associate Professor of Law and Director of the Institute for Information Law and Policy this year at NYLS, an appointment about which I am super excited and will begin this summer. I am also finishing my doctoral dissertation in sociology at Columbia University. My scholarship focuses on the law and policy of Internet social life, and I am particularly focused on online privacy, the injustices and inequalities in unregulated online social spaces, and the digital implications for our cultural creations.

Today, and for most of this month, I want to talk a little bit about the relationship between strangers, intimacy, and privacy.

Over the last 2 years, I have conducted quantitative surveys and qualitative interviews with almost 1,000 users of any of the several gay-oriented geolocation platforms, the most famous of which is “Grindr.” These apps are described (or, derided, if you prefer) as “hook up apps,” or tools that allow gay men to meet each other for sex. That does happen. But the apps also allow members of a tightly identified and discriminated group to meet each other when they move to a knew town and don’t know anyone, to make friends, and to fall in love. Grindr, my survey respondents report, has created more than its fair share of long term relationships and, in equality states, marriages.

But Grindr and its cousins are, at least in part, about sex, which is why the app is one good place to study the prevalence of sharing intimate photographs and the sharers’ rationales. My sample is a random sample of a single population: gay men. Ages range from 18 to 59 (I declined to include anyone who self-reported as underage); locations span the globe. My online survey asked gay men who have used the app for more than one week at any time in the previous 2 years. This allowed me to focus on actual users rather than those just curious. Approximately 68 % of active users reported having sent an intimate picture of themselves to someone they were chatting with. I believe the real number is much higher. Although some of those users anonymized their initial photo, i.e., cropped out their head or something similar, nearly 89 % of users who admitted sending intimates photos to a “stranger” they met online also admitted to ultimately sending an identifiable photo, as well. And, yet, not one respondent reported being victimized, to their knowledge, by recipient misuse of an intimate photograph. Indeed, only a small percentage (1.9) reported being concerned about it or letting it enter into their decision about whether to send the photo in the first place.

I put the word “stranger” in quotes because I contend that the recipients are not really strangers as we traditionally understand the term. And this matters: You can’t share something with a stranger and expect it to remain private. Some people argue you can’t even do that with a close friend: you assume the risk of dissemination when you tell anyone anything, some say. But, at least, the risk is so much higher with strangers such that it is difficult for some to imagine a viable expectation of privacy argument when you chose to share intimate information with a stranger. I disagree. Sharing something with a “stranger” need not always extinguish your expectation of privacy and your right to sue under an applicable privacy tort if the intimate information is shared further.

A sociologist would say that a “stranger” is a person that is unknown or with whom you are not acquainted. The law accepts this definition in at least some respects: sometimes we say that individuals are “strangers in the eyes of the law,” like a legally married same-sex couple when they travel from New Jersey to Mississippi. I argue that the person on the other end of a Grindr chat is not necessarily a stranger because nonverbal social cues of trustworthiness, which can be seen anywhere, are heightened by the social group affinity of an all-gay male environment.

Over the next few weeks, I will tease out the rest of this argument: that trust, and, therefore, expectations of privacy, can exist among strangers. Admittedly, I’m still working it out and I would be grateful for any and all comments in future posts.

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10 Reasons Why Privacy Matters

Why does privacy matter? Often courts and commentators struggle to articulate why privacy is valuable. They see privacy violations as often slight annoyances. But privacy matters a lot more than that. Here are 10 reasons why privacy matters.

1. Limit on Power

Privacy is a limit on government power, as well as the power of private sector companies. The more someone knows about us, the more power they can have over us. Personal data is used to make very important decisions in our lives. Personal data can be used to affect our reputations; and it can be used to influence our decisions and shape our behavior. It can be used as a tool to exercise control over us. And in the wrong hands, personal data can be used to cause us great harm.

2. Respect for Individuals

Privacy is about respecting individuals. If a person has a reasonable desire to keep something private, it is disrespectful to ignore that person’s wishes without a compelling reason to do so. Of course, the desire for privacy can conflict with important values, so privacy may not always win out in the balance. Sometimes people’s desires for privacy are just brushed aside because of a view that the harm in doing so is trivial. Even if this doesn’t cause major injury, it demonstrates a lack of respect for that person. In a sense it is saying: “I care about my interests, but I don’t care about yours.”

3. Reputation Management

Privacy enables people to manage their reputations. How we are judged by others affects our opportunities, friendships, and overall well-being. Although we can’t have complete control over our reputations, we must have some ability to protect our reputations from being unfairly harmed. Protecting reputation depends on protecting against not only falsehoods but also certain truths. Knowing private details about people’s lives doesn’t necessarily lead to more accurate judgment about people. People judge badly, they judge in haste, they judge out of context, they judge without hearing the whole story, and they judge with hypocrisy. Privacy helps people protect themselves from these troublesome judgments.

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Glass Houses

Google Glass has been a mere gleam in the eye of tech savants for the past several months, but the company began distributing the wearable internet device to a hand-picked group of “Explorers” in June.  A fascinating pair of articles from the New York Times Bits columnist, Nick Bilton, recently highlighted the tensions between speech and privacy that are likely to play out as the device is integrated into everyday use.  The articles compared Glass to Kodak cameras, which were controversial when introduced in the late 1800s but ultimately accepted after Americans figured out how and when the cameras should be used.  It’s not clear, however, that the Glass experience will duplicate the Kodak pattern.  Kodaks came on the market when tort law could respond nimbly to camera invasions of privacy, while Glass is debuting in a world where tort law is increasingly subject to constitutional constraints.

Bilton teed up the Glass privacy issue nicely in May, when he described his visit to the Google I/O developers’ conference.  There, hundreds of attendees were sporting the eyeglass-mounted computers, which can take a snapshot or video with a wink of the wearer’s eye.  Bilton — a self-professed tech nerd — reported being rattled by the swarms of Glass wearers; after trying to “duck [his] head and move out of the way” of the wearable cameras, he retreated to the men’s room, only to find the urinals on either side of him occupied by Glass wearers.  “My world,” he wrote, “came screeching to a halt.”  In an article appearing a week later, however, Bilton appeared to have calmed down.  He had interviewed CUNY journalism professor Jeff Jarvis, who predicted that unwilling stars in Glass pictures and videos would eventually realize that being recorded is simply a hazard of appearing in public.  Jarvis likened the anti-Glass complaints to the furor that erupted when Kodak cameras were introduced in the 1890s.  So-called Kodak fiends, who trained their lenses primarily on uncooperative females, initially encountered threats and violence.  Ultimately, Jarvis said, amateur photographers began to behave better and society accepted cameras as a new feature of daily life.

But Bilton and Jarvis may have overlooked a crucial difference between the legal environment when pocket cameras were introduced and the legal environment today.  Tort law was instrumental in developing norms about acceptable camera use in the early Twentieth Century.  The Kodak fiends did not become more respectful overnight, and Americans did not become easily inured to having their pictures taken by strangers.  Instead, Samuel Warren and Louis Brandeis protested the abuse of cameras in what has been called the most famous law review article ever published, The Right to Privacy.  That piece advocated the creation of a new tort that would give victims of stealth photography (and other dubious news practices) a legal remedy against their aggressors.  State courts began recognizing privacy torts in 1905 and by 1960 they were a standard part of the tort toolbox.  In short, tort law established a background scheme of legal liability for the abuse of camera technology, and social norms about acceptable camera use followed.

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Mug Shot Blackmail?

A recent article from the Associated Press describes a troubling new website that posts people’s mug shots and then charges people to have them taken down:

After more than seven years and a move 2,800 miles across the country, Christopher Jones thought he’d left behind reminders of the arrest that capped a bitter break-up. That was, until he searched the Internet last month and came face-to-face with his 2006 police mug shot.

The information below the photo, one of millions posted on commercial website mugshots.com, did not mention that the apartment Jones was arrested for burglarizing was the one he’d recently moved out of, or that Florida prosecutors decided shortly afterward to drop the case. But, otherwise, the digital media artist’s run-in with the law was there for anyone, anywhere, to see. And if he wanted to erase the evidence, says Jones, now a resident of Livermore, Calif., the site’s operator told him it would cost $399.

The practice seems outrageous, but is there any way the law can address it? The First Amendment protects people in publishing any information they glean from public records. See Cox Broadcasting Corp. v. Cohn, 420 US 469 (1975).

But this practice might run afoul of the blackmails statutes in many states. For example, here’s Kansas’s blackmail statute:

Blackmail is gaining or attempting to gain anything of value or compelling another to act against such person’s will, by threatening to communicate accusations or statements about any person that would subject such person or any other person to public ridicule, contempt or degradation.

There are several interesting issues here.

First, does the practice of this site and others like it violate some blackmail statutes? The statute I quoted above appears to focus on the threat to divulge information, but it is unclear as to whether the information must previously be unknown. The site has already revealed the information; the money is demanded to stop doing so. Blackmail is a relatively rare legal issue these days, and I don’t know offhand how this practice would fit into many blackmail laws. But there definitely seems to be a decent argument that the site’s practices might be quite close to blackmail.

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Employers and Schools that Demand Account Passwords and the Future of Cloud Privacy

Passwords 01In 2012, the media erupted with news about employers demanding employees provide them with their social media passwords so the employers could access their accounts. This news took many people by surprise, and it set off a firestorm of public outrage. It even sparked a significant legislative response in the states.

I thought that the practice of demanding passwords was so outrageous that it couldn’t be very common. What kind of company or organization would actually do this? I thought it was a fringe practice done by a few small companies without much awareness of privacy law.

But Bradley Shear, an attorney who has focused extensively on the issue, opened my eyes to the fact that the practice is much more prevalent than I had imagined, and it is an issue that has very important implications as we move more of our personal data to the Cloud.

The Widespread Hunger for Access

Employers are not the only ones demanding social media passwords – schools are doing so too, especially athletic departments in higher education, many of which engage in extensive monitoring of the online activities of student athletes. Some require students to turn over passwords, install special software and apps, or friend coaches on Facebook and other sites. According to an article in USA Today: “As a condition of participating in sports, the schools require athletes to agree to monitoring software being placed on their social media accounts. This software emails alerts to coaches whenever athletes use a word that could embarrass the student, the university or tarnish their images on services such as Twitter, Facebook, YouTube and MySpace.”

Not only are colleges and universities engaging in the practice, but K-12 schools are doing so as well. A MSNBC article discusses the case of a parent’s outrage over school officials demanding access to a 13-year old girl’s Facebook account. According to the mother, “The whole family is exposed in this. . . . Some families communicate through Facebook. What if her aunt was going through a divorce or had an illness? And now there’s these anonymous people reading through this information.”

In addition to private sector employers and schools, public sector employers such as state government agencies are demanding access to online accounts. According to another MSNBC article: “In Maryland, job seekers applying to the state’s Department of Corrections have been asked during interviews to log into their accounts and let an interviewer watch while the potential employee clicks through posts, friends, photos and anything else that might be found behind the privacy wall.”

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