Privacy in the Social Media Age

Happy New Year!

Professor Kay Elliott of Texas A & M School of Law has asked that I examine privacy laws pursuant to this semester's dispute resolution program. What I've read so far is both amazing and somewhat terrifying.

The average person likely never thinks about privacy or the use of their personal information. When I joined my first ship after high school, mobile telephones were still the work of science fiction. If you had stated that people would voluntarily carry a device that would track their movements 24 hours a day, seven days a week, as well as record all of their interests and passing thoughts -- intellectual, reverent, irreverent, and even prurient -- and provide that information to a "data collector" who would aggregate the information and sell it to advertisers and others. . .  Well, we would have accused you of living in an Orwellian fantasy. Nevertheless, here we are.

Technology and privacy have been at odds since the close of the nineteenth century. The advent of "instant" photography, mechanical sound recording devices, and wireless communication all had impact upon our expectation to be alone when we desire. Today, the pace of erosion related to privacy has increased exponentially due to the rise of social media. The privacy we took for granted in the 1980's is long since dead and buried.

Historically, the law has been concerned with the usurpation of privacy, rather than its voluntary surrender. Generally, at law there is no expectation 0f privacy once information is voluntarily provided to a third party. Examples may surprise the average person. They can include texts, private chat communications, and video sent through "third party" social media providers (such as Facebook, Snapchat, Instagram, &c.).

Additionally, I would suggest that everyone (or their parents) review how social media and other web sites use their information. There are actually no "free" services. If you aren't paying for a service, you're not the customer. You’re the product.

         Many people have noticed the dearth of actual news being reported, especially during the recent election cycle. The decline of critical reporting in favor of "info-tainment" has been a long time coming. To close, I'll insert a long quote from one of the first law review articles concerning privacy. Although this concerns newspaper reporting during the Edwardian era, the concerns voiced are still valid.

Of the desirability -- indeed of the necessity -- of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. 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. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more  essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.

Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 196 (1890).