On privacy: liberty in the digital revolution.

• Author: Gagnier, Christina M.

Cite as 11 J. High Tech. L. 229 (2011)

In the dorm room of some college freshman Political Science major at Any College U.S.A is a copy of John Stuart Mill's On Liberty shoved under the bed. (1) Mill's On Liberty, studied for its discussion of liberty at large in the American polis, makes the fine distinction that our own privacy law in the United States currently struggles to recognize:

"But there is a sphere of action in which society, as distinguished from the individual, has, if any, only an indirect interest; comprehending all that portion of a person's life and conduct which affects only himself, or if it also affects others, only with their free, voluntary, and undeceived consent and participation." (2)

Our own jurisprudence has recognized these "spheres," finding there to be a privacy interest in matters relating to women's health issues, familial matters, and other specifically identified areas. (3) Outside of these particular contexts, these spheres, especially in Fourth Amendment jurisprudence, are often based upon spatial distinctions. (4)

Where the "right to privacy" becomes less clear is when a person's intimate, seemingly obscure actions, in some way cross into the public domain. (5) Out of the house and into the world, the right to privacy seems to dissolve, especially for those whose careers demand they be in the public view. (6) in the visceral world, it is easier to make these distinctions as they are both temporal and spatial. (7) When we take these debates into the virtual world, the boundaries become much less clear. (8) "Opt in" and "opt out" schemes are not new or just online. (9) Privacy rules, especially the tort of Publicity Given to Private Life in the Restatement Second of Torts [section] 652D, make it clear that once you enter into the public domain it is up to the public to decide what is of "legitimate concern to the public." (10)

Even Mill qualified his statement about the spheres of privacy:

"When I say only himself, I mean directly, and in the first instance: for whatever affects himself, may affect others through himself, and the objection which may be grounded on this contingency, will receive consideration in the sequel. This, then, is the appropriate region of human liberty." (11)

Mill lived in simpler times, as did we, less than fifteen years ago. (12) We had a better idea of when we were "opting in" or "opting out" of our privacy and to whom we were exposing ourselves. (13) Our demands for privacy were based on the tangible, and much of our jurisprudence has stopped at the doorstep of the digital revolution, refusing to open the door and preemptively deal with the proliferation of exposure that can result from the mass dissemination of technology. (14) So what happens ...

* When we move out of the age of newsprint, geographically-restricted, and media outlet-driven information dispersion to the age of the "Celebreality," where with the click of a button, average citizens, celebrities, and public figures alike thrust themselves and others into a worldwide public domain that is read-write, user-created, and perpetually-fed through cowboy journalistic tactics, or perhaps the field of citizen journalists? (15)

* When members of Generation X, the Millennial Generation, and even the youngest generational cohort, go public with their private lives, attempt to create online communities and fail to realize that in any small online "town," your business is not just the business of everyone in that community but also that of the entire world? (16)

... when the right to privacy starts being trumped by the emergence of a new "right," the right not just to "know," but the "right to know everything?" (17)

We, as a society, are faced with the incompatibility of our demands. (18) Within the virtual world, we open ourselves to the public in platforms like Facebook but we demand privacy for some of the same personal information when we participate in the online marketplace. (19) This is even further complicated by the anger we express when these same social network platforms change their terms of use and their "rules of the game" to deal with user privacy. (20) in the battle to coalesce the tension between the virtual and the visceral world, we face the distinct reality that what we do online is eroding the concept of the "reasonable expectation of privacy" both on and offline. (21)

A balance must be struck. Alan Westin writes that, "each individual must, within the larger context of his culture, status, and his personal situation, make a continuous adjustment between his needs for solitude and companionship; for intimacy and general social intercourse; for anonymity and responsible participation in society; for reserve and disclosure." (22) Balancing our demands for transparency in some spheres with our demand for privacy in others, essentially where does the "right to know" begin and end? Two questions will drive this analysis:

1) Whose privacy are we willing easily to surrender, whose privacy should we be willing to surrender, and what matter is "of legitimate concern" (23) to the public?; and

2) Have we compromised our right to privacy with online activity, narrowing the spheres in which there is a "reasonable expectation of privacy?" (24)

A third looming question is whether people like Facebook founder, Mark Zuckerberg, are correct when they assert that the social norm is no longer privacy. (25)

Part I, Celebreality, discusses how the public's obsession with public figures and the creation of their own "celebrity" is working to destroy privacy protections afforded under already weak torts such as the tort of Publicity Given to Private Life. Part II, R.I.P. to the REP, explores how the utilization of social networking sites like Facebook, under the guise of corporate-created legal regimes for privacy, is working to erode the reasonable expectation of privacy for individuals on and offline. Part III, A Naked Truth, argues the need for revival of tort protection for individual privacy and the need for Congressional action to preserve the privacy of individual users online. Concluding, No Such Thing as a Free Lunch, reflects on how the societal demand for the "right to know" will only be won at great cost to individual privacy rights.

1. Part I: Celebreality

   With the click of a button, one enters into the world of Celebreality. (26) Not the world fashioned by the cable network VH1, which coined the term to represent its programming that purports to track the life of former and aspiring A-List celebrities (and B-List, C-List, D-List, or "No-List" celebrities), but the real world where every movement, clothing choice, cigarette lighting, car exit, restaurant entrance and grocery shopping trip is accounted for. (27) This is the world of TheSuperficial.com. (28)

   "OJ Simpson arrested." (29) The article on this particular TheSuperficial.com entry displayed the picture taken upon his arrest, and explained that Simpson "was charged with two counts of robbery with a deadly weapon, two counts of assault with a deadly weapon, and conspiracy to commit a crime and burglary with a firearm, and the fact that he was currently being held without bail." (30)

   "Pamela Anderson ages 50 years before your eyes." (31) Upon appearances in the photograph accompanying this TheSuperficial.com entry, Pamela Anderson is picking up poster board at a local drugstore, likely for one of her two children, but having a particularly unbecoming hair and makeup day. (32)

   One of these articles appeared in major news sources, concerning the arrest of someone for violent crimes that has consistently been a public figure and who had previously been on trial for murder. (33) The other is someone whose career puts that person in the public spotlight, having somewhat of a haggardly day, picking up some art supplies for one of her children. (34) Is this second scenario "of legitimate concern to the public?" (35)

   The first example obviously rises to the level of public concern, without even addressing the legal arguments; it is a crime that violates our laws as well as our societal notions of public safety and welfare. (36) The second example, even though mundane, would still be considered acceptable, since the legal fiction of the "reasonable person" would likely not find it "offensive." (37) Has Ms. Anderson put herself in the public view? Yes. (38) But because you put yourself into the purview of the public in a professional capacity, are you subject to the tracking of your every move? (39) This is the question that remains unanswered in the world of "celebrity," a status that society has more willingly given to those who might have been considered merely private citizens in the past. (40)

   Pushing the envelope much further, a third example is the "crotch shot" phenomenon, where members of the paparazzi wait for a female celebrity to exit a car, see if her legs are spread wide enough apart to snap a shot of the female celebrity's vaginal area, and take a photograph that exposes that area to the rest of the world. (41) A woman's private parts are called that for a reason: they are meant to be private. (42) These pictures display content that would still be considered to be highly offensive to the reasonable person. (43) Nonetheless, are these pictures of "legitimate concern to the public?" (44) is a celebrity, who wears revealing clothing to a club and decides to "go commando," subjecting herself to the public purview as cameras specifically wait for that particular money shot? (45)

   This discussion of the "reasonable person" and "the legitimate concern of the public" has a point, relating to the privacy redress one can gain from torts such as the Publicity Given to Private Life, found in the Restatement (Second) of Torts [section] 652D, which states:

   One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is...