Gordon Hull / UNC Charlotte
Stories about oversharing on Facebook are commonplace – and of jobs, relationships, and the like lost as a result. For a reminder, do some searches on
- YourOpenBook.org – try “new number is” and “burned couch”
- Or look for people on Google, and note the frequent link to their FB page
I. The Fourth Amendment
The Fourth Amendment to the U.S. Constitution says:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”
- What values does the fourth amendment try to support?
- When is looking for something not a search?
- If you disclose a piece of information to someone, should you have any expectation of privacy regarding that information? If so, what should that expectation of privacy be (and why); if not, why not?
II. Two Scenarios
Consider the following scenarios:
Scenario I Defendant is a convicted sex offender, who has now finished his sentence and returned to his community. Mr. A, an undercover cop, obtains his name from a public sex offender registry and finds his FB account by Google-searching his name. Mr. A. sends a friend request to Defendant, saying that “he’s heard they share some interests.” Defendant agrees. They exchange some messages back and forth. Mr. A. cautiously asserts that they likely have shared interests that require that they be careful of the police; defendant encourages him to explain. Mr. A. explains that he thinks they both are “interested in Lolitas.” Defendant agrees. Mr. A. asks if that interest is current. Defendant volunteers to share some photos with Mr. A. Mr. A enthusiastically agrees. Defendant emails Mr. A some child pornography, and is promptly arrested.
Scenario II Defendant is a college student. He receives a friend request from “a pretty girl” who says she met him at a party the week before and thought he’d be fun to get to know better. He immediately agrees. Three days later, he’s charged with underage possession of alcohol – the pretty girl was an undercover agent, who obtained photos of him drinking from his FB page.
- Is what the police did in the sex-offender scenario legitimate? Why or why not?
- Is what the police did in the college student case legitimate? Why or why not?
- If your answer to these questions is the same, articulate a principle that justifies the answer.
- If your answer to these questions is different, come up with a principled difference between them – in other words, articulate a principle according to which the different results are justified.
- Should individuals be protected from misplaced trust in someone else? Does the internet change this at all?
- How should one draw a line between undercover policing and entrapment?
III. General Issues
- As a general matter of law, if someone leaves his FB settings public, he foregoes any legal expectation of privacy. FB’s privacy settings are hard to use, and change frequently. Does FB have an obligation to make its settings easier to use? Why or why not?
- Semitsu suggests that the law be amended to require that sites dealing with personal and other sensitive information encrypt it. This will have the effect of making it invisible to site employees, and thereby keeping the information “non-disclosed” to the company (and thus reasonably expected to be “private” by users). He writes: “While law enforcement agencies might argue that this will frustrate efforts to crack down on cybercrime (and all other crime), such encryption measures will also minimize the crime or cyberterrorism that results when others with more nefarious motives gain access to such information.” (375). Are his priorities correct?
IV. Fourth Amendment again
“Privacy” can mean a lot of things (and a lot of ink has been spilled trying to define it). Even in terms of constitutional law, there’s two completely distinct lines of cases, the Fourth Amendment ones, and a series beginning with Griswold v. Connecticut (and including Roe v. Wade) dealing with sexuality or intimate relations. Here’s three values that the Fourth Amendment might be trying to maximize:
- Utility: police searches are disruptive, and that’s bad
- Dignity: police searches are an offense to dignity
- Limiting Government Power: police searches make the government more powerful – limiting searches puts a check on tyranny.
- What was the Framers’ probable “paradigm case” of a search that they wanted to prohibit?
- Does their paradigm case help them to sort out these values?
- Which of these do you think the Framers of the Constitution should have had in mind (which is the most important)?
- Does technology change the situation?
There’s a lot written on Facebook. Here’s the paper cited here and a few others.
- Danah Boyd, “Facebook’s Privacy Trainwreck: Exposure, Invasion and Social Convergence” 14:1 (2008), 13-20. (for discussion of how FB’s policy shifts are jarring. Boyd has written extensively on social networking: see her home page.).
- Gordon Hull, Heather Lipford and Celine Latulipe, “Contextual Gaps: Privacy Problems on Facebook,” Ethics and Information Technology (2010) (this is shameless self-promotion, admittedly; we argue that Facebook’s privacy problems are largely problems of architecture and design, and use Helen Nissenbaum’s theory of privacy as a way to articulate these problems)
- Lawrence Lessig, Code and Other Laws of Cyberspace, version 2.0. New York: Basic Books, 2006 (see the chapter on privacy, from which I draw a lot of the inspiration for section 4 here).
- Junichi P. Semitsu, “From Facebook to Mug Shot: How the Dearth of Social Networking Privacy Rights Revolutionized Government Surveillance” Pace Law Review 31 (2011), 291-381.