Volume 1, Issue 2

Chair’s Welcome

Practice Edge

• Attain a Bar Association Leadership Role Quickly

• Intangible Business Assets: Value in Unregistered IP

• The Reasonable Expectation of Invasion

• Recent Legislative Proposals Aimed at the Perceived Problem of Gene Patents

• What’s next for Artificial Intelligence and Robotics?

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Introduction to Adult and Embryonic Stem Cell Technology
CLE Teleconference
Tuesday, November 18, 2008
Registration Details to Follow Soon

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Tuesday, January 27, 2008
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2009 ABA Mid Year Meeting
February 12-14, 2009
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April 1-4, 2009
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April 2-4, 2009
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 This book provides you with a legal and practical approach to the new world of digital information. It has been described as a must have  for litigation lawyers, corporate counsel and records managers who want to understand how to appropriately handle the digital information of an enterprise. Learn more.

The SciTech Lawyer

 The Section’s quarterly magazine features practical and timely articles on a diverse range of science and technology law issues. This issue focuses on the impact of bioinformatics.

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The SciTech e-Merging News is published quarterly as a Section member benefit. Click here to join the Section. The material published reflects the views of the authors and has not been approved by the Section of Science & Technology Law, the House of Delegates or the Board of Governors of the ABA. © 2008 American Bar Association. All rights reserved.

PRACTICE EDGE

The Reasonable Expectation of Invasion
BYJustin Lee

Introduction

With endless advancements in technology the law must adapt to new possibilities made available by innovation, and we must be able to recognize when a re-evaluation of standards is necessary.  This is especially true in the protection of individual privacy rights.  The internet has enabled instant communication between individuals worldwide and has revolutionized the way we collect and disseminate information.  Our concept of human interaction is almost unrecognizable from the standards of just ten or twenty years ago, and entirely new privacy concerns have surfaced.  As a result, these traditional legal concepts of privacy protection now seem ill-equipped to adequately handle the issues presented by new forms of communication made available by the innovative technology of the internet age. 

For consideration are the privacy issues presented by new internet communication tools such as networking sites and web logs (“blogs”), the traditional concepts of privacy invasion, and why these concepts of individual privacy are unsuited to adequately protect the individual’s sense of privacy in the digital age of the internet. 

New World of Privacy Issues

Traditionally, an individual’s concept of privacy has been easy to identify.  Each person has an innate sense of what should, and must remain private in their lives, and the feeling of privacy violattion is familiar to many.  Eavesdropping on a whispered conversation, rummaging through personal belongings, or peeking through the window of a home are all activities that we can easily identify as flagrant invasions of privacy.  Unfortunately, these types of privacy invasions  do not translate well into the internet age.

With the introduction of easy-to-use services such as Myspace.com (“MySpace”) and Facebook.com (“Facebook”), creating blogs and personal networking websites is quickly becoming a mainstream phenomenon utilized by all generations.  Many people use their sites and blogs to discuss their political views, share insights on specific areas of interest, or to tell personal stories and post pictures.  As more people join the personal networking and blogging community, even more people are accessing these sites and viewing their posted information.  For those who only intend or expect the information to be viewed by certain groups of people, the uninvited attention can leave the author feeling as if a traditional invasion of their privacy has taken place.  With the added possibility of underage teenagers and children creating pages using applications such as MySpace and Facebook, the importance of protecting the individual’s privacy rights online is undeniable.  In some cases, people are left with the uneasiness of knowing that complete strangers are able to view their private information and photographs.  Additionally, in other instances, this posted private information can be used for commercial purposes. 

Examples of intrusions are not difficult to find.  The Facebook Beacon application allows companies to utilize internet browsing habits of Facebook users in addition to their Facebook network of friends to advertise their products on the networking site.

  Another questionable practice that is now being widely used is the monitoring by employers of employees or potential employees through these employees’ networking websites or personal blogs.  Many of the social networking websites or blogs require proactive measures to ensure that profiles remain private and unavailable to users outside of the individual’s network.  Not all users realize the public nature of their websites and inadvertently leave themselves open to the entire internet, especially if the user is not familiar with internet security. 

Traditional Privacy Laws

The law is a natural place to seek protection.  Traditionally, there are a number of torts dealing with the invasion of an individual’s privacy: intrusion upon seclusion; public disclosure of private facts; publicity of false light; and appropriation.

Although an appropriation tort analysis may be appropriate for the previously mentioned Beacon Facebook application because it uses Facebook members as quasi-sponsors of products, the torts of false light and appropriation will not be considered when discussing blogs and social networking.  However, the intrusion upon seclusion and public disclosure of private facts may have closer relevance.

The intrusion upon seclusion tort has three requirements: 1) an intentional intrusion into the plaintiff’s seclusion; 2) the intrusion is upon a matter which the plaintiff had a right to keep private; and 3) the intrusion would be highly offensive to a reasonable person.   This tort may apply to instances where an author objects to an unwelcomed user reading their personal blogs or social networking website, such as employers viewing their employees’ websites and blogs.

The public disclosure of private facts tort has three requirements: 1) there must be a public disclosure concerning the private life of another; 2) the facts disclosed must not be of legitimate concern of the public; and 3) the disclosure would be highly offensive to a reasonable person.   The public disclosure tort may be applicable in cases where information or private details are taken from personal websites or blogs and used in a very public way, such as for commercial use or publication.  An example of this arose in 2007 when students at a high school were surprised by the use of their personal Facebook photographs in a very public school related yearbook.   Another example of a possible application of this tort is a recent exposure of a MySpace security flaw which allowed anyone to view photographs of MySpace users, even if their profiles had been set to “private”.  Soon after, many paid advertisement websites were set up to take advantage of the security flaw, offering users free access to any MySpace member’s photographs.

The Reasonable Expectation of Invasion

Traditional invasion of privacy torts rely on a common requirement: the reasonable expectation of privacy.  This expectation of privacy is relative to the customs of the time and place, and is determined by the norm of the ordinary person.   However, one of the main reasons the traditional concepts of protection of individual privacy are so ill-fitted to the issues presented by blogs and social networking websites is that this expectation no longer exists.

The reasonable expectation of privacy requirement is a way for the courts to ensure that a privacy invasion claim is not frivolous, and that the courts are not subjected to the whims of a hypersensitive plaintiff.  This reasonableness filter is effective in gauging the invasiveness of the alleged action.  The more reasonable the expectation of privacy, the less justifiable any invasion of that privacy becomes.  However, this standard does not provide the same protection in the online internet world.  The internet is a forum of endless information at a user’s fingertips.  Any information sought regarding any subject (as well as any individual) imaginable can be located within just a few seconds using a powerful search engine such as Google.  The internet has created a generation that expects instant gratification of information, and this has effectively obliterated any expectation of privacy one may hope to have on the internet.

The absence of an expectation of privacy on the internet is also evident in studying the security and privacy policies of popular blogging and social networking websites.  The privacy policies of Facebook , MySpace , Blogger.com (Google’s blog engine), and Xanga.com (a popular blogging service) all show that the default settings for blogs and personal sites are automatically set to “public”, and thus viewable by everyone on the web.  The user by default has no expectations of privacy from the public on the internet, and must take proactive steps in order to ensure that their personal postings and photographs are not accessible by everyone.  Since the default networking profile page or blog is set to “public”, the viewer-- not the author-- is granted an expectation.  The expectation is not one of privacy, but rather an expectation of the ability to invade privacy, and one browsing for personal profiles or blogs would be surprised if they came across one that could not be accessed.

Where the traditional concepts of privacy granted each individual in society a certain amount of reasonable privacy given the customs of the time and place, the internet affords no such expectations.  If a reasonable and ordinary internet user cannot expect privacy on blogs or social networking sites, the traditional concepts of privacy can offer little protection when the individual feels their personal privacy is invaded.

Shortcomings of the Court’s Analogies

In addition to the lack of any reasonable expectation of privacy on the internet, another contributing factor to the lack of privacy is the rapid speed at which new technologies are developed and incorporated into forms of communication.  The majority of laws today are based on more traditional forms of invasions of privacy, and do not lend themselves to easy application in the internet age.  This forces courts to resort to judicial interpretation, making unclear and ill-fitting analogies between new technologies and traditional forms of communication in order to apply traditional law.  A clear example of this is the comparison between e-mail and traditional postal mail.  The similarities are so apparent that courts often analogize to laws and rules governing traditional mail when interpreting cases involving electronic mail communications.

Although analogies between traditional postal mail and e-mail can easily facilitate interpretations of law because of their undeniable similarities, the same cannot be said for blogs or social networking websites.  What is the traditional analog of a personal blog?  They may be compared to a private personal journal, but this would lack the publicity element, as well as the interactions with others in the community that is so fundamental to the blogging experience.  Social networking profiles may be compared to old fashioned “personals” sections of a newspaper, but important aspects such as searchable networks of friends, or interactive messaging would be lost in the translation.

Of course, laws and statutes cannot be expected to have the dynamic flexibility to be literally applicable to every new technology that is introduced.  Lawmakers therefore rely on courts to interpret these static statutes to give them the ability to adapt to changes in society and human interactions.  However, in cases such as these where technological developments are far outpacing the law by leaps and bounds, courts are left with no choice but to relate novel concepts to old designs.  This will inevitably result in outdated laws being ill-fittingly applied to situations, and the privacy rights of the individual will consequently suffer.

Volunteering as a Public Figure

Where traditional concepts are nevertheless applied to new forms of communication, laws may be rendered useless.  In response to a tort claim for invasion of privacy, the courts have recognized a defense where the plaintiff alleging the invasion of privacy is a public figure.   Once a person voluntarily places him- or herself in the public eye, that person cannot complain when he or she is given publicity that they have sought, even if the publicity is unfavorable.   Courts essentially view public figures as having no right of privacy since their personal details are no longer private affairs.   The purpose of this defense is to prevent public figures from picking and choosing which type of publicity and exposure is acceptable to them.  Once the individual has satisfied the “public figure” status, the court regards the person’s life and personal details as matters of public concern.

As previously mentioned, there can be various reasons why an individual chooses to create or contribute to a personal blog or social networking profile page.  However, it can be strongly argued that publicizing one’s ideas, thoughts, and personal life is one of the common results, if not motivations, of the typical blog or networking website user.  Although the blog author may intend for the audience to be a small specific group of people, the posted information is available to everyone on the internet, hence published and released to the public, the author is then a public figure.  As public figures, these authors have no right of privacy regarding their personal affairs they published on the internet, and they will find little or no protection from the law. 

In an age where television programming is full of average people cast in reality shows, and home users on Youtube.com providing a substantial amount of the online video content, the focus of entertainment and information is shifting from news media corporations to normal individuals and the reality of their personal lives.  While user-created blogs have yet to surpass traditional news media, the landscape of information media has dramatically shifted toward centralizing on the individual.  With this in mind, it is not hard to imagine that bloggers or users of social networking websites have become public figures in their own right, within their own public arena of the internet. 

Conclusion

In 1890, Samuel D. Warren and later-to-be Supreme Court Justice Louis D. Brandeis wrote, “that the individual shall have full protection in person and in property is a principle as old as the common law; but it has been necessary from time to time to define anew the exact nature and extent of such protection.”   Warren and Brandeis recognized that the protection of individual privacy rights required not only effective laws, but the wisdom to recognize when those laws were no longer effective given the changing social landscape.  As technology continues to advance rapidly, our society must be willing to recognize that it is not only the technology around us that is changing, but the individual’s role in society as well.  Innovation has put a spotlight on the individual, and while the individual’s privacy rights have endured over time, the approach to protecting those rights must not remain equally traditional if the law is to be effective.



Justin Lee is a third year at Loyola Law School, Los Angeles. He received Honorable Mention in the 2008 ABA Section of Science & Technology Law Student Writing Contest. He may be contacted at Justin.d.lee@lls.edu.