QUESTION OF THE WEEK NO. 3

When reporting on allegations of sexual assault against women, most news organizations will identify the alleged perpetrator but will not identify the name of the alleged victim.  Some argue this policy is unfair to the accused and allows women to make false accusations without any accountability.  Others argue that identifying the victim is too privacy-invasive, will discourage women from coming forward, and will essentially victimize the woman a second time.  Do you agree with the policy?

TAKEAWAYS FOR WEEK 3

Protections for rights of publicity

-          38 states recognize common law protection of one’s name or likeness

-          22 states have adopted statutory protections for names and images

-          NY, CA, and TN illustrate the differing approaches

o   In NY, the right terminates upon one’s death

o   In CA, the right survives death for 70 years, against commercial purposes, and the rights only pass to your immediate family

o   In TN, name and image rights pass to any heir, and the right can be transferred

EU vs US Privacy Protections

-          The EU views personal protection as akin to a property right that is owned by the subject; the US does not.

-          Europe generally values privacy interests over free speech interests; it is the opposite in the US.

-          Europe requires express, affirmative consent before personal data may be collected by others; the US allows implied consent and often requires “opting out” of default sharing.

-          Europe addresses privacy globally; the US addresses in specific contexts (industry to industry: medical records are dealt with HIPA, student records are protected by FIRPA).

-          Europe recognizes a general “right to forget”; the US has done so only in very narrow and limited circumstances (in CA, the Internet Eraser Law allows someone who posted something as a minor to request that the post be removed). The Right to Forget hides links in search engines, while the Internet Eraser Law removes the post itself. One removes the card from the card catalog; the other removes the book.

-          Forgetting that one bad night

o   Suppose you were charged with a misdemeanor a long time ago, for reckless driving, or you were arrested for some reason.

o   In Europe, you may request the search engine remove links to a news article if it is, “inaccurate, inadequate, irrelevant, or excessive.” The article remains on the newspaper website, but it would be, “practically obscure.” It wouldn’t be searchable under your name.

o   In the United States, the First Amendment protects freedom to speak and publish. No comprehensive law that allows deletion; California has the Internet Eraser Law, and many states have expungement laws. Expungement laws allow that after a certain period of good behavior, you can ask the court to expunge a conviction from your public record; does not change any potential news articles about the event.

-          Surprise! Your bank has been hacked.

o   In Europe, any company with data breach must notify a central authority and the subject of the breach within 3 days or face fines.

o   In the United States, breach notification laws vary from state to state and do not cover all types of personal data. HIPA has its own laws for medical records.

-          Monitoring your online activities

o   In Europe, companies must have express permission to collect data about you. You can request that the company send you details about what info has been collected and how it is used.

o   In the United States, breach notification laws vary from state to state and do not cover all types of personal data. No single law allows access to information about data use.

-          Data collected on children

o   In Europe, digital services must obtain parental consent before collecting data on anyone under 16.

o   In the US, COPPA requires web sites and apps targeted to children to obtain parental consent before collecting data on anyone under the age of 13.

The Star Wars Kid

-          How would the invasion of Raza’s privacy have been addressed in Europe or the United States?

-          We discussed Jessica Craig and Simon’s comments on the post (Last line of Jessica’s post, and the part of Simon’s post about the insecurity of things that exist outside [his] mind).

“Should the US Congress statutorily recognize a ‘right to be forgotten’?” 14 said yes, 4 said no.

-          The search engine balances the individual’s right to privacy against the public’s right to information, freedom of speech, etc.

-          From May 2014 to January 2016, Google received 678,593 requests, and have evaluated 1,874,609 URLs for removal. Of those, 43.2% of URLs were removed, while 56.8% were not. Google claims to have expended millions of dollars to comply with this directive.

-          Google’s Content Removal Policies: they voluntarily remove four types of content from search engine results:

o   Child sexual abuse imagery

o   Nude or sexually explicit images posted without consent of person (“revenge porn”). “Revenge porn” is illegal in most states; in some states, it depends on whether the person knew the images were being created, while in others the distribution itself is illegal (Utah is the better version)

o   Violations of copyright (mostly to follow federal copyright laws)

o   Certain sensitive personal information (SSNs, credit card numbers, bank account numbers, images of signatures)

Should the “right to forget” apply here:

-          Joe Young pled guilty to child sexual abuse when 18 years old for inappropriately touching the buttocks of a young girl while working at his mother’s day care center. As a result, he had to register on the state’s online sex offender registry. 25 years pass and Joe has no more problems with the law. His mother wants him to take over her day care center. Before he assumes the business, which he intends to rename Young’s Daycare, he seeks to delink his name from the registry when people search his name.

o   Simon and Valerie said yes, arguing that the passage of time and mildness of the crime make the register excessive and/or irrelevant. They believe that his privacy outweighs the public interest.

o   Kate said that she believes the public availability of the information outweighs Joe’s privacy, and that him having a different career other than owning a day care would change her mind.

o   The two that said they would apply the “right to forget” changed their mind when it was changed to only happening 5 years ago.

Real Identities vs. The Internet's Ring of Gyges

            Glaucon, an associate of Socrates, once used a parable, the “ring of Gyges,” to illustrate how accountability controls human behavior.  He proposed that if a man were given a ring that would make him invisible, he would commit a plethora of misdeeds that he would not otherwise do, simply because no one would know who he was.  

            Internet users today have a sort of ring of Gyges – anonymous user names.  To combat the foul and sometimes merciless online content of such “invisible” users, several websites are adopting “real name” policies.  Facebook, Google, and Huffington Post are a few of these sites that encourage, and in some cases, require users to make their identity known when posting online.

Safety – the main concern behind real name policies

            Who here remembers Rebecca Black’s 2011 song, “Friday”?  Say what you want about it, but it’s no question that the pop song went viral in a matter of days.  With her instant fame came a downpour of mean-spirited jibes, criticism, and even anonymous death threats from online viewers.  I checked out the music video just today (see the link above) and even still, 6 years later, spite litters the comments section.  Some of these commenters have first and last names listed (presumably their real names); some do not.  The point is that then and now, anyone can pose death threats to a teenage girl for something as trivial as disliking Black’s “partying, partying, yeah!” and mask their identity while doing it!  The right to remain anonymous certainly falls under the concept of privacy, but several websites are attempting to combat the abuse of this right – e.g. threatening someone’s life for the sake of some silly song. 

            That is why Facebook asks its users to identify themselves by “the name they go by in their everyday life” and why Huffington Post requires readers to link their comments to a Facebook profile – to promote “safety” and “civility.”  The intent of these real name policies are noble; we’re trying to protect the Rebecca Black’s of tomorrow, aren’t we?

But is identification really going to guarantee a safer online community?

            Unfortunately, it’s not that simple.  Domenick Scudera wrote a scathing criticism about Facebook’s authentic name policy**, including its requirement to submit documents verifying the identity.  Scudera posed an argument that pokes a hole in the safety-conscious aspect of Facebook’s real name policy.

“Facebook is filled with fake names. But because most of these names sound authentic, the profiles are not flagged. If you are an online predator, use “Bob Smith” as your name. Facebook will most likely ignore you. If this is how Facebook is keeping “our community safe,” we are all in trouble.”

            I’m sure most of us can think of a Facebook persona that is not who they claim to be, but their Facebook profile exists anyway.  I became “friends” with my cousin’s cat a few years ago before I became friends with my actual cousin on Facebook.  So, while we can appreciate Facebook’s efforts to keep the online community safe, it seems that requiring real names may be too simplistic of an approach.

“Incivility” – the other downside of anynomyity

            Not surprisingly, many newspapers have grown impatient with anonymous readers word-vomiting hostility all over their articles. One psychologist points out that anonymous comments are more than twice as likely to be uncivil than identified ones.  They also are more likely to be one-sided and not as well thought-out, because an anonymous commenter may not feel as obligated to thoroughly consider his/her point of view. 

            Washington Post even conducted an informal experiment on how anonymous comments impacted other readers’ attitudes about the news piece.  They found that anonymous comments, whether they were negative or positive, decreased the audience’s opinion of the article.  So, it looks like anonymity is a source of annoyance for reporters and readers alike. 

            But would a real names policy stop the hateful comments online?  Facebook’s attempt to filter out online predators through a real name policy has proven to be flawed, so how can we be sure dissolving anonymity would remedy the negativity online?  As the LA Times put it:

“The problem is, requiring people to comment under their real names is no guarantee that they'll behave less like trolls.”  

Too little, too late

            It is evident all over the Internet that too many users are taking advantage of the Internet’s “ring of Gyges.”  But enforcing a real name policy is not going to stop dangerous individuals or derogatory content.  It has its benefits, but it is inadequate to cover this large of an issue.  Individual entities, such as Huffington Post, are certainly within their rights to require identification of users if they deem that to best for their company.  But enforcing identification all over the web would create more disturbances than it would solve.  

 Footnote:

** In response to Scudera and others’ criticism, Facebook made the statement that it does not require users to post their legally given name, but the name they go by on an everyday basis.  See also this news update on Facebook’s name policy. 

QUESTION OF THE WEEK NO. 2

Should the U.S. Congress statutorily recognize a “right to be forgotten” similar to the right recognized in the European Union? 

A Jedi's Tragedy

How it happened

There are a painful number of embarrassing videos on the internet today. But there was a time not too long ago when Star Wars Kid (<- Watch this before reading) was among only a few. More than 30 million views since then, the video survives, and its lifespan has brought numerous parodies, as well as considerable pain for the sole star, Ghyslian Raza. Raza’s lightsaber twirling home video landed him in the center of the internet’s all pervasive gaze, sparking a lawsuit, a campaign against cyberbullying, and—as I’m sure you’ve guessed—a continuing debate about our privacy.

The video was discreetly recorded over the middle of a homemade basketball video in the Raza family’s basement when some of Ghyslian’s school mates found it. The Raza family sued the families of those children for publishing the video online without permission, on the grounds that they had invaded Raza’s privacy.  The Katz test tells us that Raza has a right to privacy because Ghyslian showed an expectation of privacy by hiding the video, and I’m pretty sure we’ve all hidden some photos that we wouldn’t want shared around, so his expectation seems reasonable to me. Hence, Raza’s privacy was obviously infringed—but the Raza family didn’t even recuperate their own expenses from the settlement of that lawsuit, and the video has haunted Ghyslian ever since.

Who’s to blame?

A camera shot the video, then the VHS was converted into a digital format with some sort of software, then the internet did the rest, sharing non-discriminately around the globe. So, when exactly was Raza’s privacy harmed? It obviously wasn’t the camera that invaded Raza’s privacy, as he captured the video intentionally, for himself. Digitizing software was just becoming popular in 2003, as DVD’s stole the market from VHS, and converting the video to a digital format was instrumental in the defeat of Raza’s privacy. Between the digital format which was easy to share, and the internet which made sharing trivial, Raza’s “friends” made quick work of their sabotage. Today there are thousands of embarrassing home videos scattered about the web—in 2003 there were only a handful. Today, these sorts of videos appear and disappear in a day, for Raza however, the timing was impeccably bad, and even now his story is revived by special effects, and university discussions.

I have a hard time pointing a finger at the video technologies, and the internet that made the breach in Raza’s privacy possible. Ghyslian’s anxiety was at the hands of bullies and cyberbullies who made fun of him for the video—and if I’m entirely honest, it’s funny, not hilarious, but worth a chuckle. That said, the internet is full of all types of people—but the most memorable are always the rudest, and that’s just part of being a member of the internet village. Trying to regulate the internet with legislation is fraught with difficulties, and typically only succeeds at making people mad, and regulating video conversion is downright impossible when anyone with a VHS-DVD player can do it from home.

Are privacy breaches like Raza’s simply a part of this internet age? I hesitate to say yes, because we can see from Raza’s plight what that could mean for the rest of us. On the other hand, it’s very difficult to implement useful legislation when it’s not clear how to solve the problem, and any solution is bound to be met by vehement resistance. The internet is largely free, and exceptionally useful; perhaps our privacy is the price we pay for its power and convenience.

Can we forget?

The EU, has a policy known as the “Right to be Forgotten” which enables citizens to ask their search engines to remove links to personal information about them when that information is “inaccurate, inadequate, irrelevant or excessive.” On paper, it seems like a great rule to have. It’s exactly the kind of thing that Ghyslian would have used to deal with Star Wars Kid. One court case, and then nobody would be able to search for Raza’s video, right? Wrong. With sites like Internet Archive backing up every video, sound clip, and page that’s ever existed, there will always be ways to find content that has been “forgotten.” I remember an incident not long ago where UC Davis tried to cover up a video in which some students were pepper sprayed for protesting. Trying to hide the video backfired on UC Davis—their actions generated considerable interest and caused the video to go viral. While Raza could have tried to invoke a right to be forgotten, doing so could have caused the video to blow up just as much as it did, or even more, on social media websites, blogs and forums.

What does it mean?

Despite all his strife, I have a hard time feeling bad for Raza. I’m reminded of a similar YouTube video that aired a couple years after Star Wars Kid. The video featured a Live Action Role Playing (LARP) battle, where one player hilariously shouts “Lightning Bolt” as he pelts the other contestants with bean bags. The electric mage, Brandon Boucher, received the same sort of criticisms that hit Raza so hard, as well as opportunities to appear on late night shows or in comedy central skits. Where Raza declined all the television spotlights he was offered, Boucher stood up for himself and appeared in one of Tosh.0’s web redemption skits—a move that I think worked really well for Boucher. The conviction that he would not be embarrassed by something he enjoyed doing saved Brandon Boucher’s image from perpetual mockery.

I put some serious thought into the idea of emailing Raza some questions, but undoubtedly he just wants to move on. Now a law school graduate, Raza speaks out against cyberbullying, talking about how painful it was for him. Had Raza stood his ground, and embraced his Star Wars alter ego, I think the incident would have blown over quickly—but trying to hide from his internet footprint, ironically, just made things worse. Wrong was done to Raza, without a doubt, but at some point, you’ve just got to roll with the punches. Raza's story reminds us about what our privacy is worth, and the price we might pay for abiding in this internet age.

TAKEAWAYS FOR WEEK TWO

• In class and in the readings, we learned about the "Nothing to Hide" argument
• The argument says that law-abiding citizens have nothing to hide, so should not protest government surveilance
• This argument does not hold up to intense scrutiny:
• Just because I have "Nothing to Hide" (I have done nothing illegal) doesn't mean I have anything I want to show you
• Surveilance creates a "chilling effect" because people behave differently when they know they are being watched. This stifles creativity and innovation
• Constant government surveillance is a requirement of a police state. Social dissidents need some privacy to operate to avoid being targeted by an overreaching government.
• Aggregated meta-information, such as phone numbers dialed and total value of online purchases, could reveal more sensitive information, so even high-level dragnet surveillance of all citizens should be a concern.
• As we saw in the TED talk, even information people publicly reveal about themselves can be aggregated to astonishing results!
• We had a vibrant discussion about the question of the week
• Some students that privacy was contextual:
• Privacy interests of an individual may differ from the privacy interests of a corporation
• Leaders (of government, corporations, etc.) should allow some degree of transparency to generate trust and prove they are acting in the interest of the group they claim to represent
• In some cases, an individual's privacy rights are subservient to the greater good
• The justice system allows lawsuits to be filed under a pseudonym, provided the need can be justified
• We got into a discussion about anonymity
• Knowing a speaker's identity is important to establish the credibility of information presented
• Posting anonymously on the Internet could protect someone from future enemies using their words against them. Since the Internet never forgets, the only protection is to ensure your identity cannot be connected to damaging thoughts (Related Comic - be sure to mouse over the image)
• The pressure is on our anonymous classmate to talk to Professor Dryer about why they prefers to remain anonymous (or not)!
• Many students talked about privacy in context of disclosure and access to personal information. But are there other facets?
• Information once revealed cannot be retracted. If friends turn into enemies, one could find oneself being blackmailed or having private photos posted on the internet as a form of revenge
• So, the way information is used is important to privacy

QUESTION OF THE WEEK NO. 1

Do you agree with the following statement?: 

“Privacy depends on context; there are no common core characteristics of privacy.”

TAKEAWAYS FOR WEEK ONE

1.  The word privacy does not appear anywhere in the U.S. Constitution.  However, a right of privacy has been inferred from the First, Third and Fourth Amendments.

2.  The right of privacy is difficult to conceptualize and has been defined in many different ways.  It is a flexible right and not an absolute right.  A right of privacy may be legally recognized and protected under constitutional law, statutory enactment, common law and by contract.

3.  The legal touchstone of a right of privacy in the U.S. is whether there is a "reasonable expectation of privacy."  To be recognized the person claiming the right of privacy must exhibit a subjective expectation of privacy and that expectation must be deemed reasonable by society.  This test was formulated in the 1967 U.S. Supreme Court decision of U.S. v. Katz.

4. There are four common law privacy torts: intrusion upon seclusion, casting someone in a false light, misappropriation of name or likeness and disclosure of private facts.  Utah recognizes all four torts.

5. Technology is having a profound impact on privacy.  Some new technologies protect privacy while others threaten privacy.

6. The third-party doctrine was established by the U.S. Supreme Court in the 1970’s and stands for the principle that if you voluntarily provide information to a third-party you have no reasonable expectation of privacy in that information and thus the government does not need a search warrant to access the information. 

7. The third-party doctrine has been criticized as being outmoded because much has changed since the 1970’s.  In today’s digital world people pass enormous amounts of personal and confidential information through the hands of third parties when using the internet, cloud services and mobile phones.  Critics of the doctrine argue it is no longer reasonable to believe that when using these services and devices that people abandon any expectation their information will remain private.

8.  One’s digital footprints and posts are often everlasting due to internet archiving and databases.