In our age of smartphones, social networks, and search engines, privacy has become
a highly contested topic. Though people complain about the lack of privacy online,
at the same time, they compulsively post their latest thoughts, photos, and locations
for a swath of friends, acquaintances - or perhaps even the entire Internet - to see.
And other people "like," comment on, or critique what they post - creating anything
from dynamic conversation to a heap of abuse, insults, and threats.
Two new books -
Privacy in the New Media Age by Jon L. Mills and
Intellectual Privacy by Neil Richards - explore the challenges of balancing privacy and free speech in American
society, especially in recent decades. Privacy as an American value has had a fraught
history, and it has really only entered jurisprudence as a right to be protected in
the last century or so. Both Mills and Richards, law professors at the University
of Florida and Washington University in St. Louis, respectively, trace the origins
of privacy rights from Samuel Warren and Louis Brandeis's seminal article "The Right
to Privacy" (4 HARV. L. REV. 193 (1890)), which was inspired by the technology of
early photography. As Mills notes, "At the time of its publication, the Warren-Brandeis
article was unique not only for its discussion of media privacy invasions but also
for its novel treatment of the overall concept of a legal right to privacy."
Subsequent decisions finding tort remedies for privacy violations drew heavily upon
Warren and Brandeis's reasoning; the U.S. Supreme Court decision in
Katz v. United States (389 U.S. 347 (1967)) found a "reasonable expectation of privacy" test to be the
method of determining the bounds of the Fourth Amendment's ban on unreasonable searches
and seizures. But unlike freedom of expression, which is clearly enshrined in the
First Amendment, privacy is not explicitly mentioned in the U.S. Constitution. (Note
that in California there is a state constitutional right to privacy (see Cal. Const.
Art. I, § 1).) The first Supreme Court case to find a right to privacy,
Griswold v. Connecticut (381 U.S. 479 (1965)), has been criticized for its reliance on "penumbras and emanations"
from other constitutional rights. And subsequent cases have not fully dispelled these
criticisms that privacy, when in conflict with free speech, will often not win the
battle.
It's into this fray that both Mills and Richards step, attempting to reconcile these
two rights in the modern era. Mills, who is also counsel at Boies, Schiller & Flexner,
is particularly focused on how individual privacy can be threatened by online content.
As a litigator who has represented a range of individuals whose private lives have
become part of public discourse, Mills approaches these questions with a specific
answer: Freedom of expression is important, but unregulated online "media" can invade
privacy without sufficiently strong justifications. The challenge, of course, is in
balancing the right to report objectively true information against the privacy rights
of individuals who don't want suspect content about them disseminated online, where
it may reside in perpetuity.
Mills seems especially skeptical of nontraditional media. These are the citizen journalists,
whom he idiosyncratically refers to as "iReporters," those who lack traditional training
and may run the gamut from prurient gossip hounds to concerned individuals documenting
events that escape the notice of the mainstream media. To ferret out spurious motives
on the part of online speakers, Mills crafts a balancing test with eight discrete
questions to determine how a conflict between media and privacy should be resolved,
including who owns or controls the relevant information, how it was obtained, whether
it is private and intrusive, and what was the intent of the media in publishing it.
Multipronged balancing tests are appealing - as they can encompass a range of concerns
in arriving at a conclusion - but they are notoriously difficult to apply in any systematic
or objective way. The weakness of Mills's argument is that he does not sufficiently
grapple with how discerning minds may answer each of his questions in radically different
ways, instead assuming that questions of intent, truth, and control can be answered
in unequivocal ways. Given the ascension of the First Amendment in recent jurisprudence,
it seems unlikely that a rubric of open-ended questions would do much to tip the scales
back in the direction of privacy.
In
Intellectual Privacy, Richards is far more successful in his efforts to reconcile free speech and privacy
concerns, largely due to a more holistic view of how these two rights are intertwined
rather than conflicting. Richards argues that privacy is necessary to the development
of speech, as it provides a kind of safe space for individuals to create ideas. This
concept of intellectual privacy, as he frames it, is "protection from surveillance
or interference when we are engaged in the processes of generating ideas - thinking,
reading, and speaking with confidants before our ideas are ready for public consumption."
Only in promoting intellectual privacy can we promote speech in the way that serves
the purposes of the First Amendment.
Richards provides two specific solutions on how to promote privacy for an age in which
speech proliferates rapidly. In the first, he expands the suite of privacy torts first
described by Warren and Brandeis to a suite of "information torts." Unlike Mills's
framework, which relies on a new set of questions to resolve the privacy and speech
conflict, Richards uses existing legal doctrines to promote privacy while balancing
speech rights. However, the real success of his book is in encouraging the development
of extralegal norms-codes of conduct for information professionals; guidelines for
platforms such as Google, Facebook and Twitter; and a suite of information ethical
guidelines - to promote intellectual privacy.
Though extralegal norms don't have the scope or power of regulatory regimes, they
can be far more responsive to the new challenges of digital media. And, as the work
of copyright scholars such as Aaron Perzanowski, Kal Raustiala, and Christopher Jon
Sprigman has shown, social norms can be effective in protecting creators without using
the blunt club of intellectual property law to pursue perceived wrongdoers. Richards's
suggestions demonstrate his nuanced understanding that the answers to balancing privacy
and free speech may not be found solely in the law.
Of course, these questions are not confined to the legal system in the United States,
and they can vary drastically depending on where a possible privacy violation occurs.
And this means that lasting solutions to the conflict will almost certainly not be
found in traditional legal scholarship. But to the extent that both authors attempt
to grapple with a rapidly changing online landscape, they ultimately deserve commendation
for recognizing the pragmatic difficulties of addressing the challenges in the first
place.
G. S. Hans is policy counsel and director in the San Francisco office of the Center
for Democracy & Technology.
Donna Mallard
Daily Journal Staff Writer
