Recasting privacy torts in a spaceless world.

• Author: Abril, Patricia Sanchez

TABLE OF CONTENTS I. INTRODUCTION II. PUBLIC DISCLOSURE, PRIVATE FACTS, AND PERSONAL SPACE III MYSPACE AS AN EXPERIMENT IN PUBLIC DISCLOSURE A. The History and Mechanics of OSNs B. The MySpace Generation IV. PRIVACY TORTS' SPATIAL LINCHPINS A. Physical Space B. Subject Matter C. Secrecy D. Solitude and Seclusion V. THE NEW PRIVACY: A FACTOR-BASED APPROACH TO THE PUBLIC DISCLOSURE TORT A. The Information Disclosed B. The Disclosure C. The Aggrieved VI. CONCEPTUALIZING THE TORT OF PUBLIC DISCLOSURE BEYOND OSNS VII. CONCLUSION I. INTRODUCTION

SOME THIRTY INCHES FROM MY NOSE THE FRONTIER OF MY PERSON GOES, AND ALL THE UNTILLED AIR BETWEEN IS PRIVATE PAGUS OR DEMESNE. STRANGER, UNLESS WITH BEDROOM EYES I BECKON YOU TO FRATERNIZE, BEWARE OF RUDELY CROSSING IT: I HAVE NO GUN, BUT I CAN SPIT. (1) Consider the following three scenarios: First, James, an otherwise upstanding citizen, got uncharacteristically drunk at an office party. His drunken behavior, witnessed by all, quickly became fuel for the office rumor mill. Second, imagine that, instead of at the office party, James got very drunk with total strangers at a foreign airport bar and later confessed his drunken shenanigans to Pete, a loose-lipped friend. Upon Pete's disclosure, stories of James's rowdy night soon spread. Finally, imagine that after a hard day, James drank heavily while alone in his bedroom. His neighbor, Sandra, observed his activities through the window of her home and then publicized his solitary intoxication to the world.

Each of these hypotheticals evokes a clear sense of its requisite privacy entitlement. Although James's behavior (getting drunk) is unchanged, the degree to which privacy is socially and legally ascribed to each situation is quite different. As these scenarios suggest, privacy is usually a function of the physical space in which the purportedly private activity occurred, its subject matter, whether it was veiled in secrecy, and whether others were present.

Now imagine that James told his best friends of his drinking via a private message on an online social networking ("OSN") or video-sharing website like MySpace, (2) Facebook, (3) or YouTube. (4) What if he posted pictures or a video documenting his drunkenness on his "private" page, to which only his close friends had access, and the incriminating material still ended up in the hands of potential employers or other unintended audiences? (5) What if James divulged this information on a web page or blog to which members of the general public had access? (6) What if someone else maliciously posted the information? (7) What if a photographer took a picture of James stumbling out of a bar and published it online for all to search and see?

This second set of hypotheticals raises further questions: What is privacy today? Can privacy exist where there is no physical space or inherently private subject matter, secrecy, or seclusion? More specifically, does the half-century-old conception of the tort of public disclosure of private facts in the Restatement of Torts (8) apply in social cyberspace today? This Article posits that the public disclosure tort and OSNs are strange yet productive bedfellows. Attempts to apply traditional public disclosure jurisprudence to online social networking demonstrate the incoherence of this jurisprudence and can inform a new conception of the tort that transcends technology and physical space.

Traditionally, privacy has been inextricably linked to physical space. In turn, space often defines our notions of personhood and identity. Consider, for example, the social stature ascribed to sitting in a corner office. Spatial concepts are interrelated with cultural norms prescribing social organization and human behavior, interaction, and expectations. The classic conceptions of privacy rely on spatial experiences, such as a room of one's own (9) or a secluded hermitage. Henry David Thoreau, as famous for his isolation as for the works of literature that the isolation inspired, exalted the relationship between physical space, seclusion, and personal freedom in Walden, writing: "Individuals, like nations, must have suitable broad and natural boundaries, even a considerable neutral ground, between them." (10)

Researchers in the field of proxemics, the study of personal space, examine these "suitable broad and natural boundaries" and their close association to human behavior. (11) Based on extensive studies of the behavior and expectations of American subjects, Edward T. Hall, the discipline's founder, categorized an individual's spatial needs, including the needs associated with social propriety, comfort, intimacy, and privacy, based on distance from the body. (12) Proxemics reveals the circular relationship between humans and space, and indicates that human expectations define space as much as physical space defines human expectations. Thus, behavioral science has succeeded in distilling and gauging the highly variable and relative nature of the human perception of spatial needs. (13)

While the behavioral sciences have enjoyed great success in characterizing the use of space and its relationship to different expectations, the law has struggled to definitively articulate human expectations of privacy. In particular, the tort law of privacy is a convoluted area of law. (14) Its incoherent and haphazard methodology has engendered confusion and sparked extensive debate. (15) The Restatement (Second) of Torts, (16) which reflects the general state of privacy tort law in the United States, (17) has been a poor guide and is now outdated. (18) As a result, there is no systematic framework for untangling the public disclosure tort in American courts.

In the absence of clear and relevant guidance, courts have resorted to intellectual shortcuts in their use of concepts of space, subject matter, secrecy, and seclusion as necessary benchmarks for privacy protection. (19) What were once mere indicators of privacy have become, in some instances, the extent of judicial inquiry. Problematically, these entrenched constructs are all related in one form or another to a pervasive consciousness of physical space, a concept that is no longer relevant in analyzing many modern online privacy harms. (20) Because of their reliance on physical space, these constructs will be referred to as the spatial linchpins of public disclosure torts. Despite judicial attempts to find a universal conceptual hook on which to hang the public disclosure tort, there is simply no such common denominator in legal privacy analysis. (21)

Against the already tangled backdrop of privacy law, the Internet age--with its chat rooms, webcasting, blogs, e-mail, instant messaging, text messaging, camera phones, and OSNs--has further complicated the definition of privacy. New technologies have enabled novel social situations that generate privacy harms and concerns that were unforeseeable by the Restatement's authors. For example, OSNs such as MySpace and Facebook host billions of interactions a day and facilitate the dissemination of personal information via combinations of audio, video, and text. Uninhibited users of these social technologies, sometimes referred to as digital natives (22) or the MySpace generation, routinely post online titillating videos and photographs, disclose their personal information (and that of others), and document their daily lives and thoughts.

Much of the legal debate about privacy on the Internet has previously centered on personally identifiable data, like a person's address, social security number, spending habits, and financial information. (23) Interestingly, although the unwarranted acquisition or dissemination of this data can result in tangible injuries like identity theft, fraud, or sexual predation, most of these personal "facts" have been held to be public matters, the disclosure of which is not embarrassing or offensive enough to sue in tort. (24) This Article focuses on truthful, but nonetheless embarrassing, disclosures that are endemic to OSNs; such disclosures may include one's innermost thoughts, visual material not meant for public audiences, and details about one's sexual history. Without the ability to easily conceptualize location, boundaries, or even norms in cyberspace, (25) the traditional legal boundary between "public" and "private" have become blurred. As a result, expectations of privacy are unstable and harder than ever to ascertain.

Somewhat surprisingly, extensive research reveals virtually no public disclosure cases involving harms on OSNs. This may reflect the tort's inapplicability or obsolescence in this context. After all, courts have generally held that anything capable of being viewed from a "public place" does not fall within the privacy torts' protective umbrella. (26) Another possibility is that the privacy loss predicted by some early Internet commentators has occurred. (27) A third view is that the unrealistic privacy expectations of those individuals exposing the information are to blame for any ensuing harm.

Rejecting these arguments as pessimistic, extreme, and detrimental to the development of future technologies and applicable law, this Article argues that applying the public disclosure tort in the context of OSNs can help transition the tort to the next stage of the tort's jurisprudential existence. This spaceless context exposes weaknesses of the traditional conception of the tort and the law's reliance on spatial linchpins. By reconceptualizing the tort without reference to space, this Article aims to articulate and support a practicable, factor-driven approach to the public disclosure tort that is capable of withstanding the tests of time and technology.

Some scholars have identified the need for a precise, factor-based approach to the public disclosure tort as the solution to the present ambiguity; however, to date, no specific solution has been proposed. (28) This Article provides a factor-based approach, which...