The Internet Has Diminished Privacy Expectations and Torts

By allowing people historically unparalleled opportunities to publish and to find anonymous postings, the Internet has, naturally and logically enough, reduced societal expectations of individual privacy.

Blogs, social networking sites (Facebook, Twitter) and news sites, when accessible via search engines (Google) and other Internet data-mining applications, afford the public astounding access to previously inaccessible information about other people, with unprecedented speed and accuracy.

By doing so, the Internet is changing society's expectation of privacy and, as a result, reducing the prevalence of what is perceived to be an actionable privacy violation, and actions about and awards for these.

Privacy Expectations

As the legal concept of privacy in the United States evolves, so does the set of transactions that give rise to actionable privacy violations. The implementation of technology to improve Americans' standard of living by improving access to information has created a series of records related to nearly every facet of a person's life.

In particular, Americans have come to expect that they can avoid disclosure of private information, such as the value of their home, and private decisions, such as to which politician they donated money, but these expectations have diminished significantly. In some cases, these diminished expectations have shaped people's attitudes toward Internet use, including how, when and why they engage in e-commerce.

Fortunately for e-commerce enterprises, state and federal regulations regarding how and for how long businesses must protect people's personal information regarding details, such as credit-card and other financial data, are in place, and ' in most cases ' address a separate realm of “transactions” regarding and requiring privacy.

State Actors

The prime source of legal protection and redress for privacy violations by state actors, i.e., persons who act on behalf of a governmental body, is the Fourth Amendment (U.S. Const. amend. IV). It identifies the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. This has been interpreted to include first, protection for situations in which a person has exhibited an actual (subjective) expectation of privacy, and second, the view that the expectation be one that society is prepared to recognize as reasonable. See, Katz v. United States, 389 US 347 (1967).

Non-state Actors

On the other hand, the prime source of legal protection and redress for privacy violations by non-state actors is state law. In particular, 10 state constitutions unequivocally recognize a citizen's right to privacy: Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina and Washington. Other states have derived a right to privacy from the text of their constitutions, such as Arkansas and Kentucky. See, Jegley v. Picado, 80 S.W.3d 332 (2002), and Commonwealth v. Wasson, 842 S.W.2d 487 (1992).

Most states give common-law or statutory recognition of four Internet-based privacy causes of action:

1. A person's name or likeness when used in advertising without consent;
2. An unauthorized electronic intrusion into another's private space (this is an information-gathering, not a publication, tort);
3. Information about another is published and such information is highly offensive to a reasonable person; and
4. Publication of information that portrays another in a false and highly offensive manner, but is not necessarily defamatory.

Reasonableness Is a Key Factor

As in the case of protection against state actors, protection against non-state actors is limited to expectations that society is prepared to recognize as reasonable. That means that societal expectations regarding content that may reasonably be kept private have changed what is actionable against public and private actors.

Although there is not a single all-inclusive privacy statute or constitutional provision in the United States, statutes have been passed to address specific privacy concerns. Additionally, a number of courts have found and addressed specific privacy matters.

Net Rights Arrive Aboard CDA '230

Prior to the Communications Decency Act (“CDA”), 47 U.S.C. Section 230(c) (2006), courts applied traditional publisher liability to online content. The Oakmont Court (Stratton Oakmont v. Prodigy Services, 1995 WL 323710) ruled that an Internet service provider acted as a publisher by actively editing the content of its computer bulletin boards.

Subsequent to the CDA, the courts found a distinction between a distributor of information and an online publisher. In Blumenthal v. Drudge, 992 F. Supp. 44 (1998), the courts eliminated the legal responsibility of the electronic publisher for editing content. By doing so, the court allowed the publication of content previously barred for fear of privacy-violation litigation.

In addition to providing immunity for Internet publishers, the courts have provided immunity for anonymous Internet posters. The U.S. Supreme Court, in McIntyre v. Ohio Election Commission, 514 U.S. 334 1995, found that the interest in having anonymous Internet speech generally outweighs any public interest in requiring disclosure of the speaker. The court in Doe v. Cahill, 884 A.2d 451 2005, found that anonymous speech helps to level the playing field for expressive purposes, and so, limited the use of court subpoenas to force the identification of Internet speakers.

If Internet users could be stripped of that anonymity by the courts that enforced civil subpoena, then a significant chilling effect on Internet speech would follow. Thus, discovery requests seeking to identify anonymous Internet users are typically subjected to careful court scrutiny.

By carving out immunity for service providers, the court in Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), and Congress in the CDA, provided the vast majority of Internet publishers the ability to publish private information concerning individuals, with the action unfettered by federal or state regulation. By finding that the right to speak anonymously extends to speech via the Internet, the courts provided Internet posters with a buffer against casual tort litigation. Together, these actions reduced the threat that tort-based lawsuits pose to freedom of speech via the Internet, and, thus, simultaneously reduced societal expectations of individual privacy. Postings to so-called gripe sites, for traditional bricks-and-mortar and primarily or exclusively online businesses, also have enjoyed the latitude allowed by rulings of this nature.

Identification Threshold

Dendrite International v. Doe, 775 A.2d 756 (N.J. Super. Ct. 2001), is often cited when analysts or attorneys balance the pros and cons of anonymous Internet speech and actionable conduct. The court in that case found that an anonymous Internet speaker's identity should be protected until three findings are made:

1. The plaintiff has produced sufficient evidence to support each element of its cause of action;
2. A prima facie basis for the strength of the prima facie case has been presented; and
3. The necessity for the disclosure of the anonymous defendant's identity has been proven.

Other courts, such as Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001), have adopted a similar balancing approach.

The courts in these cases have found that the privacy of the speaker should be protected because of societal expectations that Internet speakers should be anonymous because anonymity promotes discussion in the free marketplace of ideas.

At the same time, these courts have found that a good portion of Internet content revealing private information should not be protected from public scrutiny, excepting when such protection is mandated for legitimate purposes by statute, due to societal expectations that Internet content should be made available to the public.

Conclusion

The Internet has dramatically diminished people's expectations of privacy and, by doing so, has simultaneously reduced overall privacy rights.

As Internet content grows in volume and scope, privacy rights in personal data also will diminish, presenting, perhaps, a boon to general access to information for society at large, and a foundation on which e-commerce conducted ethically will continue to rise.

By allowing people historically unparalleled opportunities to publish and to find anonymous postings, the Internet has, naturally and logically enough, reduced societal expectations of individual privacy.

Blogs, social networking sites (Facebook, Twitter) and news sites, when accessible via search engines (Google) and other Internet data-mining applications, afford the public astounding access to previously inaccessible information about other people, with unprecedented speed and accuracy.

By doing so, the Internet is changing society's expectation of privacy and, as a result, reducing the prevalence of what is perceived to be an actionable privacy violation, and actions about and awards for these.

Privacy Expectations

As the legal concept of privacy in the United States evolves, so does the set of transactions that give rise to actionable privacy violations. The implementation of technology to improve Americans' standard of living by improving access to information has created a series of records related to nearly every facet of a person's life.

In particular, Americans have come to expect that they can avoid disclosure of private information, such as the value of their home, and private decisions, such as to which politician they donated money, but these expectations have diminished significantly. In some cases, these diminished expectations have shaped people's attitudes toward Internet use, including how, when and why they engage in e-commerce.

Fortunately for e-commerce enterprises, state and federal regulations regarding how and for how long businesses must protect people's personal information regarding details, such as credit-card and other financial data, are in place, and ' in most cases ' address a separate realm of “transactions” regarding and requiring privacy.

State Actors

The prime source of legal protection and redress for privacy violations by state actors, i.e., persons who act on behalf of a governmental body, is the Fourth Amendment (U.S. Const. amend. IV). It identifies the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. This has been interpreted to include first, protection for situations in which a person has exhibited an actual (subjective) expectation of privacy, and second, the view that the expectation be one that society is prepared to recognize as reasonable. See , Katz v. United States , 389 US 347 (1967).

Non-state Actors

On the other hand, the prime source of legal protection and redress for privacy violations by non-state actors is state law. In particular, 10 state constitutions unequivocally recognize a citizen's right to privacy: Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina and Washington. Other states have derived a right to privacy from the text of their constitutions, such as Arkansas and Kentucky. See , Jegley v. Picado , 80 S.W.3d 332 (2002), and Commonwealth v. Wasson , 842 S.W.2d 487 (1992).

Most states give common-law or statutory recognition of four Internet-based privacy causes of action:

1. A person's name or likeness when used in advertising without consent;
2. An unauthorized electronic intrusion into another's private space (this is an information-gathering, not a publication, tort);
3. Information about another is published and such information is highly offensive to a reasonable person; and
4. Publication of information that portrays another in a false and highly offensive manner, but is not necessarily defamatory.

Reasonableness Is a Key Factor

As in the case of protection against state actors, protection against non-state actors is limited to expectations that society is prepared to recognize as reasonable. That means that societal expectations regarding content that may reasonably be kept private have changed what is actionable against public and private actors.

Although there is not a single all-inclusive privacy statute or constitutional provision in the United States, statutes have been passed to address specific privacy concerns. Additionally, a number of courts have found and addressed specific privacy matters.

Net Rights Arrive Aboard CDA '230

Prior to the Communications Decency Act (“CDA”), 47 U.S.C. Section 230(c) (2006), courts applied traditional publisher liability to online content. The Oakmont Court (Stratton Oakmont v. Prodigy Services, 1995 WL 323710) ruled that an Internet service provider acted as a publisher by actively editing the content of its computer bulletin boards.

Subsequent to the CDA, the courts found a distinction between a distributor of information and an online publisher. In Blumenthal v. Drudge , 992 F. Supp. 44 (1998), the courts eliminated the legal responsibility of the electronic publisher for editing content. By doing so, the court allowed the publication of content previously barred for fear of privacy-violation litigation.

In addition to providing immunity for Internet publishers, the courts have provided immunity for anonymous Internet posters. The U.S. Supreme Court, in McIntyre v. Ohio Election Commission , 514 U.S. 334 1995, found that the interest in having anonymous Internet speech generally outweighs any public interest in requiring disclosure of the speaker. The court in Doe v. Cahill , 884 A.2d 451 2005, found that anonymous speech helps to level the playing field for expressive purposes, and so, limited the use of court subpoenas to force the identification of Internet speakers.

If Internet users could be stripped of that anonymity by the courts that enforced civil subpoena, then a significant chilling effect on Internet speech would follow. Thus, discovery requests seeking to identify anonymous Internet users are typically subjected to careful court scrutiny.

By carving out immunity for service providers, the court in Zeran v. America Online, Inc. , 129 F.3d 327 (4th Cir. 1997), and Congress in the CDA, provided the vast majority of Internet publishers the ability to publish private information concerning individuals, with the action unfettered by federal or state regulation. By finding that the right to speak anonymously extends to speech via the Internet, the courts provided Internet posters with a buffer against casual tort litigation. Together, these actions reduced the threat that tort-based lawsuits pose to freedom of speech via the Internet, and, thus, simultaneously reduced societal expectations of individual privacy. Postings to so-called gripe sites, for traditional bricks-and-mortar and primarily or exclusively online businesses, also have enjoyed the latitude allowed by rulings of this nature.

Identification Threshold

Dendrite International v. Doe , 775 A.2d 756 (N.J. Super. Ct. 2001), is often cited when analysts or attorneys balance the pros and cons of anonymous Internet speech and actionable conduct. The court in that case found that an anonymous Internet speaker's identity should be protected until three findings are made:

1. The plaintiff has produced sufficient evidence to support each element of its cause of action;
2. A prima facie basis for the strength of the prima facie case has been presented; and
3. The necessity for the disclosure of the anonymous defendant's identity has been proven.

Other courts, such as Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001), have adopted a similar balancing approach.

The courts in these cases have found that the privacy of the speaker should be protected because of societal expectations that Internet speakers should be anonymous because anonymity promotes discussion in the free marketplace of ideas.

At the same time, these courts have found that a good portion of Internet content revealing private information should not be protected from public scrutiny, excepting when such protection is mandated for legitimate purposes by statute, due to societal expectations that Internet content should be made available to the public.

Conclusion

The Internet has dramatically diminished people's expectations of privacy and, by doing so, has simultaneously reduced overall privacy rights.

As Internet content grows in volume and scope, privacy rights in personal data also will diminish, presenting, perhaps, a boon to general access to information for society at large, and a foundation on which e-commerce conducted ethically will continue to rise.