Now’s the time for a Web 3.0 right to privacy

Privacy license

As social-media sites become more prevalent and individuals share more and more details of their personal lives online, I think we need to rethink the bounds of our right to privacy. Not to regulate technology or industries — I actually think government should tread cautiously on that front — or to limit how authorities can access our information, but to protect us from each other.

Existing remedies have arguably worked well over the last century or so, but they don’t stand up very well in today’s web-centric world. By tomorrow — as I explain in a recent Long View on GigaOM Pro (sub req’d) — they’ll be obsolete.

What we call a right to privacy

Although the Constitution doesn’t expressly grant a right to privacy, court decisions and statutes have effectively created one over the years. Now there are somewhat clear limitations on how much the government can interfere with our personal lives, or where the 4th Amendment begins and ends. There are also criminal statutes that protect us against privacy violations by private citizens, such as cybercrime or actual physical intrusions of our personal space.

Often times, though, invasions of privacy merely hurt our feelings. In this case, we’re left with a collection of common law or what are called “tort” claims: intrusion upon solitude, publicity given to private life, appropriation of name or likeness, and publicity placing a person in a false light. They’re defined generally in Section 652 of the Restatement (Second) of Torts (excerpted here), although every state that recognizes them probably has slightly different interpretations.

Publicity given to private life is probably the most interesting because, unlike libel or slander, truth isn’t a defense. And if you’re upset about someone publishing your private details online, that claim is probably your best bet for redress. But in the Web 3.0 era and beyond, it’s probably not enough.

The web changes everything

Our invasion of privacy tort claims were spurred in large part by an influential 1890 Harvard Law Review article by Samuel Warren and future Supreme Court Justice Louis Brandeis. They were concerned that the invention of the camera, as well as more-invasive journalistic techniques, would result in undue damage to our “right to be let alone.” Newspapers represented an ideal channel for spreading idle gossip about just about anybody and publishing photos that put names and potentially embarrassing details to otherwise anonymous faces in the crowd.

The publicity-given-to-private-life claim has withstood the last century’s technological innovations, such as the television and instant cameras, but it’s antiquated in the face of the web and social media. For one, it carves out an exception for newsworthiness that’s potentially problematic in an age of citizen journalism. It also requires that the information “would be highly offensive to a reasonable person.” Finally, its requirement of publicity instead of mere publication is very limiting and written for a traditional media world. Here’s how the Restatement describes the difference:

“Publication[]” … is a word of art, which includes any communication by the defendant to a third person. “Publicity,” on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.

However, in a world where there’s the potential for even a seemingly innocuous photo to go viral, these distinctions make for some very difficult line-drawing, for example:

  • If a celebrity’s friend tweets a photo of that celebrity smoking pot in his own house, is that information protected because it’s newsworthy?
  • If I’m an individual who simply wants to keep to myself — no Facebook, no Twitter, not even an email address — is writing about me on a personal blog or Facebook page, or uploading (and/or tagging) photos of me, “highly offensive to a reasonable person?”
  • Even if a disclosure is highly offensive, does publication via social media constitute publicity? What if the publisher only has 3 friends? Or 100? Or 2,000?
  • Does something going viral change a publication among friends into publicity?
  • What if a Flickr photo from an intimate dinner with friends, not highly offensive, but potentially embarrassing just because someone is ugly, goes viral and the subject becomes a laughing-stock? What’s the recourse?

But it doesn’t stop there. As I discuss in more detail in my GigaOM Pro piece, the confluence of facial-recognition technology, cloud computing and big-data processing could soon make it possible to determine a person’s name and any publicly accessible information about them via a mobile app. Nefarious types with some data-science skills could predict your Social Security number knowing just your name, age and hometown. And it all starts with a single photo on Facebook.

For someone who has intentionally kept a low profile online to avoid sharing personal information, the advent of such technologies completely undermines that personal decision. Far from being just a face in the crowd or a guy at the end of the bar, anyone with a mobile phone and $4.99 app could know more personal information than that person would ever share willingly. All because his friends are sharing the details of their own lives online.

I don’t know how exactly judges and legal scholars might create a new tort claim to balance individuals’ interests in privacy against other individuals’ freedom of speech and technological progression, but it seems like the time is right — more than 120 years after Warren & Brandeis — to rethink our right to be let alone. In an era of viral video and social graphs, information travels faster and further than ever before, making it more important than ever to determine whose right it is to tell their own story.

Feature image courtesy of Flickr user striatic.

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