I had heard some people talking about some Facebook “chain-letter” type status that was going around, but it took a few more weeks before I saw this on my news feed one morning.
This post made me feel a lot of things- anger, despair, and a deep sadness for my friend’s lack of understanding of how the world works. I could have just told him how wrong he was, but I applied the Munroe test and decided against it.
This type of posting reveals a sort of paradox in our culture today. Brad always says that in the future, everyone will have 15 minutes of privacy, as the evolution of this quote. The introduction of the Internet and social media sites like Facebook and Twitter make it easier to publish everything. And when I say everything, I mean everything.
TMI
So in a world where we are dishing our lives on Facebook and Twitter, from vague statements to admitting to crimes, can we really expect any privacy? Apparently my friend thinks he does.
This expectation might have a few bones to pick with Facebook’s Terms and Agreements, but I think that there’s an interesting question being put forth. Facebook is not necessarily the best option for privacy, but there are alternatives (even to Google now!) that offer a little more privacy. In the future, one of these types of sites may be more appealing/ dominant in the social media world (please?) and it might be more reasonable to expect privacy. This could be a way to protect people under the test formed from Katz v. United States, where Katz made a private telephone call in a phone booth (back in 1964) and was recorded by a bug placed on the ceiling of said booth. Naturally he sued, since it was an unwarranted search, as Katz should be able to expect privacy when entering a glass booth that blocks people from hearing him.
The movie interpretation of Katz v. US
As such, we now have a test, where if the person expected privacy (subjectively) and society accepts this expectation (objectively), then any search in that situation would need a warrant. So in theory, if there was a massive shift in thinking in our society, we could make the Internet a place where we expect privacy and it illegal for the government to access my sexy Spring Break photos.
Obviously there are some problems with this idea. The terms and agreements of these sites not being conducive to privacy, and therefore allow things like our e-mail to be open to search. However there is the bigger issue of the Internet being an open space where people can post and host content that is available everywhere. We have to start putting up walls before we can begin to expect privacy online. Whether that’s closed groups and message boards (with a host willing to give you privacy) or some other method, it seems as though if this type of Internet becomes popularized, we can finally expect privacy online.
Except not really.
So even if we construct these walls, it seems as though California v. Ciraolo sets some weird precedents. There are ways to get around walls (or in this case, fences) that might not be obvious to us at first glance but are pretty innocuous and won’t usually invade on our privacy (like a freaking airplane passenger) but, in my opinion, we manipulated to create an unlawful search. While I don’t have an immediate example, it seems as though this could be brought up as a precedent to protect some roundabout way to illegally search citizens on the Internet.
"Hey, does that look like weed to you?"
So where does that leave us? Katz’s law allows society to change and come to accept different norms of what is supposed to be private. That is why the test is so powerful and useful. At the same time, we have very strange precedents on what is a legal search that still have to be tested in the cyber arena. Even though the Internet isn’t a private place now, but there is the potential and this issue of privacy is still being worked out and has yet to come to a head. But when it does, I think that both Katz’s rule and the Ciraolo ruling will be very important to remember.
Yale Law Tech 