In our world, “intrusions into a person’s seclusion or private affairs” might describe someone’s hacking into your computer system. Consider the case of Patrick Connolly, a U.S. military contractor accused of victimizing more than 4,000 teenagers by breaking into their computers and threatening to make their pictures and videos public unless they sent him sexually explicit photos and videos of themselves. You can also be intruded upon in many lesser ways: when companies force advertisements onto your screen, for example, or make pop-ups appear that you need to close. It’s intrusive for a telemarketer to call you during dinner. That’s why programs that block Internet advertisements and the federal government’s “do not call” list are both rightly seen as privacy-protecting measures.
The desire to prevent the disclosure of embarrassing private facts, meanwhile, is one of the driving forces behind the privacy regulations of the Health Insurance Portability and Accountability Act (HIPAA). Because of this law and the regulations deriving from it, a health-care provider cannot disclose information in your medical records unless you give explicit permission. Another law, the Video Privacy Protection Act of 1988, makes it illegal for Netflix to disclose the movies you rent.
“False light” is a problem we still don’t know how to address online. It’s all too easy on today’s Internet to attack a person’s reputation with anonymously posted false statements. And even though free-speech advocates invariably say that the antidote to bad speech is more speech, experience has shown that this remedy is less effective in the age of Google. For example, two years ago AutoAdmit, an online message board for law students and lawyers, was sued by two female Yale Law students who said they’d been unable to obtain summer associate positions because vile and malicious sexual comments about them appeared whenever someone searched for their names.
Using a name or likeness without permission is at the heart of most “sexting” cases that reach the newspapers. Journalists often focus on the fact that teens are willingly sending sexy or downright pornographic photos of themselves to their boyfriends or girlfriends. But the real damage happens when a recipient forwards one of these photos to friends. That is, the damage is caused by the appropriation, not the receipt.
The fact that a dusty Harvard Law Review article corresponds so closely with the online privacy problems we face today suggests that even though technology is a driving factor in these privacy invasions, it’s not the root source. The source is what sits in front of the computer’s screen, not behind it.
For another example, consider electronic surveillance. Although e-mail and telephones give the appearance of privacy, sensitive electronic communications have always been an attractive target. Wiretapping was employed by both sides during the Civil War, prompting some states to pass laws against it. But it was the invention of the microphone and the telephone that brought the possibility of electronic surveillance into the homes of ordinary Americans. This shifted the action in U.S. privacy law from information to communication.
In 1928, in a case called Olmstead v. United States, the Supreme Court heard the appeal of a Seattle bootlegger whose phones had been tapped by federal agents. The agents had not trespassed or broken any laws to install the wiretaps, but they didn’t have a search warrant either, as would have been required for a physical search of Roy Olmstead’s property.
Brandeis, who had been appointed to the court by Woodrow Wilson in 1916, was appalled. “Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them upon any subject, and although proper, confidential and privileged, may be overheard,” he wrote in his opinion. Alas, it was a dissent. By a 5-4 majority, the court found in favor of the government: search warrants were not required for eavesdropping on electronic communications, because “there was no searching.” Olmstead went to prison, federal agents got the right to wiretap without a warrant, and that’s how the law stood for another 39 years, until the case was overturned by a more liberal court in 1967.
It’s comforting to know that U.S. law eventually gets things right with respect to privacy–that is the power of our republic, after all. But it’s also troubling how long it sometimes takes. A lot of injustice can happen while we wait for the law to accommodate advances in technology.
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