“People have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people.”
— Mark Zuckerberg, founder of Facebook
“Mark doesn’t believe in privacy that much, or at least believes in privacy as a stepping stone.”
—Charlie Cheever, former Facebook programmer
“You have zero privacy anyway. Get over it.”
—Scott McNealy, founder Sun Microsystems.
If Facebook were a nation, it would be the third largest nation on the planet, with over 750 million citizens. But what kind of nation would it be? This is the question that is posed by legal scholar Lori Andrews in her new book I Know Who You Are and I Saw What You Did, as she examines the increasingly blurry boundaries between our online identities and our actual lives in the age of social media. What she finds is that, in the nation of Facebook, many of the rights and protections that are provided in democratic societies simply do not exist.
The Facebook nation, so to speak, is a nation in which self appointed rulers wield vast and unchecked powers, a nation without any constitution in place to protect the rights of its citizens, where the governing principles have nothing to do with liberty and justice, and everything to do with transforming your personal data into profits. And although social media platforms such as Facebook, Twitter and Youtube have been used as powerful tools to democratize news and information, and even to build revolutionary movements across the planet, these advances in freedom have come only through the sacrifice of one of the most fundamental human rights in any democratic society — the right to privacy.
For over 100 years, the US legal system has upheld an individual’s Constitutional right to privacy. In an 1890 article in The Harvard Law Review, Boston lawyers Samuel Warren and Louis Brandeis wrote: “The protection afforded to thoughts, sentiments, and emotions … is merely an instance of the enforcement of the more general right of the individual to be left alone. It is like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed.”
Their article The Right to Privacy, was a reaction to the threat of an unprecedented new technology — Kodak’s portable camera — to this Constitutionally protected “right to be left alone.” And their ideas have been subsequently incorporated into laws that protect individuals from unwanted intrusions, the public disclosure of embarrassing facts, and the appropriation of someone’s name or likeness for commercial use. These laws have also been applied more broadly to protect a person’s right to make their own personal decisions, and to prevent the dissemination of personal information without consent.
Throughout the years, the Constitutional right to privacy has been applied to a number of new technologies, and it has been upheld through numerous and variegated situations in which there is proven to be “a reasonable expectation of privacy”. Such situations have included law enforcement’s wiretapping of phone booths in the ’60s and more recently, the use of thermal imaging technology to detect home marijuana growing operations in California. Privacy laws have protected an individuals right to refuse life extending medical technologies, they have prevented doctors, researchers and employers from performing genetic tests without their subjects’ consent, and they have prevented public disclosure of video rentals and library records.
However, in the case of the internet and social media technology, the US courts have repeatedly failed to uphold the right to privacy, with one New York judge famously ruling: “In this day of wide dissemination of thoughts and messages through transmissions which are vulnerable to interception and readable by unintended parties, armed with software, spyware, viruses and cookies spreading capacity; the concept of internet privacy is a fallacy upon which no one should rely. It is today’s reality that a reasonable expectation of privacy is lost, upon your affirmative keystroke.”
This failure of the courts to apply existing legal precedent to emerging forms of online communication has lead to a staggering betrayal of many of the rights and protections that would normally be upheld for the citizens of a democratic society. Andrews provides a number of unsettling examples of such infringements in her book. She describes the practice of weblining, in which personal online information is collected and distributed by data aggregators and behavioral marketing departments in often invasive and discriminatory ways. This information is sold for massive profits, not only for use in targeted advertisements, but also by credit card companies, lenders and insurance companies in discriminatory ways that harken back to the redlining practices of the ’60s and ’70s. Such personal information might include everything from your credit score, social security number, and criminal history to your home address, your age, race, gender, income level and what items you recently bought from the grocery stores or pharmacy.
This data is used to create digital profiles of individuals that can exert a powerful influence over real life opportunities: “You might be shown a credit card with a lower limit, not because of your credit history but because of your race, sex, zip code and the types of websites you visit. As a consequence of weblining, the information collected by data aggregators is often sold to the public at large and might later hamper your efforts to get a job, qualify for a loan, adopt a child, or fight for your rights in a criminal trial.” Particularly nefarious examples of behavioral advertising include pop-up ads for pills, poisons and chemicals on websites devoted to suicide, and the predatory marketing of high interest subprime mortgages within low income communities of color.
As a result of the court system’s failure to uphold an individual’s right to internet privacy, many other Constitutionally protected rights have been violated through the use of online information by private companies, schools, law enforcement and other citizens. Countless employees and students have been disciplined, terminated or expelled because of private information posted on social media websites. Law enforcement agencies routinely use social networks in criminal investigations, even in direct violation of Fourth Amendment protections against unreasonable searches and the discriminatory enforcement of laws. And personal information posted by defendants on social networks is used throughout the court system in ways that often reflect judges, lawyers and juries personal biases and prejudices.
In response to this growing threat that the rapidly expanding reach of social media technology presents to some of the most fundamental values of a democratic society, Andrews has drafted a proposed Social Network Constitution. This document provides a legal framework for the online protection of such fundamental civil liberties as the right to privacy, the right to due process, freedom from discrimination, as well as freedom of speech, expression and association.
As our lives become increasingly intertwined with the digital realm of data and the boundless flow of instant information, it’s crucial that we maintain the same values of liberty and justice upon which our democratic societies are founded. If we cede our most fundamental human rights to the whims of the CEOs, marketers and programmers whose sole purpose in developing and maintaining our online environment is to transform our personal information into profits, our rights will exist only insofar as they do not impede upon their profits.
Andrews’ work provides a clear and compelling argument for the importance of protecting these rights and liberties from the threat that is posed by the erosion of privacy and other Constitutional protections within the realm of social networks. Her entire Social Network Constitution can be viewed online here.