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Privacy Strikes Back

How to stop cyber-bullies.

In the era of Facebook and YouTube, it’s often said that privacy is dead. The recent suicide of Tyler Clementi seemed only to reinforce this conclusion. Clementi, an 18-year-old Rutgers student, killed himself after his roommate secretly webcast his dorm-room intimacies and publicized the livestream on Twitter. (“I went into molly’s room and turned on my webcam. I saw him making out with a dude. Yay.”) Indeed, the entire tragedy was transmitted via social media: On September 22, Clementi posted a note on his Facebook page: “Jumping off the gw bridge sorry.”

Clementi’s death was only one of several recent cases involving extreme invasions of privacy that were made possible by the ubiquity of webcams and online social networks. In Pennsylvania, a school district gave free MacBook laptops to students and then allegedly used the built-in webcams to spy on some students at home. At Duke University, a former student named Karen Owen composed a mock thesis detailing her sexual encounters with 13 athletes, complete with a PowerPoint slideshow of names, photographs, and graphic descriptions of their performances. Owen e-mailed her narrative to a few friends, who forwarded it to their friends, after which it went viral and was published by the snarky sports website Deadspin. The media swiftly latched onto Clementi’s death, in particular, as evidence that personal surveillance technologies have spun so far out of control that nothing can reign them in.

What is fascinating about these cases, however, is how quickly a legal response emerged. Within days, New Jersey prosecutors announced that Clementi’s roommate, Dharun Ravi, and a friend had been charged with criminal invasion of privacy, carrying a potential jail sentence of up to five years. The Pennsylvania school district paid more than $600,000 to settle two lawsuits. And Karen Owen and Deadspin could be sued for invasion of privacy as well.

The responses to the first two cases are the good news. They show that even in the age of Facebook, there is legal recourse available for the most offensive incursions on our private lives. But the Duke case is more complicated, because it suggests that remedies for invasions of privacy can also threaten free speech. With our understandable desire to protect privacy online, do we risk going too far?

One country that the United States should not use as a model in balancing privacy and free expression is Argentina. Last year, an Argentinian judge held Google and Yahoo liable for causing “moral harm” and violating the privacy of Virginia Da Cunha, a pop star, actress, and lead singer of a band called the Virgin Pancakes. The judge ordered Google and Yahoo to pay 50,000 pesos each in damages simply because their search results had included pictures of Da Cunha that were linked to erotic content. The ruling was overturned on appeal in August, but there are at least 130 similar cases pending in Argentina to force search engines to remove or block offensive content, according to The New York Times. In the United States, search engines are protected by the Communications Decency Act, which immunizes Internet service providers from being held liable for content posted by third parties. But, as liability against search engines expands abroad, it will seriously curtail free speech: Yahoo says that the only way to comply with injunctions is to block all sites that refer to a particular plaintiff.

In the United States, courts and legislatures have generally struck a better balance by limiting liability for invasions of privacy to egregious cases of sexual surveillance. Under New Jersey law, for example, it’s a crime if someone “photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person’s consent and under circumstances in which a reasonable person would not expect to be observed.” That’s what Tyler Clementi’s roommate, Dharun Ravi, did with his webcam, although he certainly didn’t intend the suicide that followed. Rutgers students may be debating whether the five-year jail sentence that Ravi faces is too harsh, but there’s widespread agreement that he deserves to be punished. Similarly, the Pennsylvania school district that used a webcam on a school-issued MacBook to spy on a student in his bedroom quickly settled the lawsuits. Everyone agrees that secretly filming students in various states of undress at home isn’t a reasonable way of locating lost or stolen laptops.

Sexual surveillance cases become trickier—and potentially a greater threat to free expression—when they involve written descriptions of intimate activities, as in the Duke case. Most state courts consider it a civil offense to publish details about someone’s private life if the material would be highly offensive to a reasonable person and is not of legitimate concern to the public. Because details of their sexual performances would certainly qualify under that standard, the Duke athletes could plausibly sue both Karen Owen and Deadspin for invading their privacy. Judges might disagree, however, about whether Owen’s e-mail distribution to a few friends should qualify as a form of publication and whether Deadspin was the first platform to make the material widely available—both requirements for liability. It’s hard to say whether Owen should be held liable, since she didn’t intend to circulate her narrative to a mass audience, but the mere threat of lawsuits could deter less careless authors from publishing explicit memoirs in the future.

The Duke case in many ways resembles the lawsuits sparked by Jessica Cutler, a former staffer for Ohio Republican Senator Mike DeWine who blogged as the Washingtonienne. In 2004, Cutler chronicled her sexual experiences with six men whom she identified by their initials, including details of their performances and proclivities. One of the men, Robert Steinbuch, a fellow DeWine staffer, sued Cutler—as well as Hyperion, which published Cutler’s tell-all book—for invasion of privacy. In 2006, a district judge in D.C. refused to dismiss the lawsuit against Cutler, who went bankrupt, and, after the U.S. Court of Appeals for the Eighth Circuit refused to dismiss the lawsuit against Hyperion two years later, the publisher settled with Steinbuch. I asked Steinbuch, now a law professor at the University of Arkansas, whether he was glad he brought the lawsuits. “Absolutely,” he told me. “What these courts did was wonderful, and absolutely it was a vindication, although it was a long time coming.”

The outrage over the Clementi suicide, and the attendant anxieties about protecting our private lives from the march of technology, comes just as the Supreme Court is considering two important privacy cases that could expand liability for invasions of privacy beyond sexual surveillance—and seriously threaten free speech in the process. The Court recently heard a case involving an invasion of privacy suit against the Westboro Baptist Church, which picketed the funerals of American soldiers with offensive signs, such as “GOD HATES THE U.S.A.” (The church views the deaths of soldiers as God’s punishment of the United States for tolerating homosexuality.) A lower court properly dismissed the suit on the grounds that the privacy rights of the soldier’s family were trumped by the free-speech rights of the protesters, who were kept about 1,000 feet away from the funeral—so far away that the family wasn’t aware of them until after the ceremony. If the Supreme Court disagrees, it would become too easy for people who are offended by protests—either online or off—to sue for invasion of privacy, even when they’re not being stalked or threatened.

In another case, the Supreme Court will decide whether a California law that restricts violent video games violates the First Amendment. The law provides civil penalties of up to $1,000 for selling or renting video games to minors if the games depict “killing, maiming, dismembering, or sexually assaulting an image of a human being” in a manner that appeals to the minors’ “deviant or morbid interest.” It makes sense to try to limit the access of minors to depictions of extreme violence, but the issue is complicated by the obvious threats to free speech. The dangers of giving governments the power to ban violent video games or videos were foreshadowed in a recent Italian case where three Google executives were convicted of breaking Italian privacy laws after a video of a disabled boy being bullied was posted on Google. Italian prosecutors successfully argued that the boy’s privacy was violated and that Google should have taken the videos down more quickly. Once the category of videos that can be banned expands beyond the narrow category of sexual voyeurism, governments have too much discretion to censor any videos that someone finds offensive.

At a time of rapid technological change, citizens are understandably concerned about whether the law is moving fast enough to keep up with new devices capable of recording or publicizing private activities. But the law will always have to react to incursions after the fact, prohibiting only the most shocking invasions while tolerating the rest. As it turns out, the balance between privacy and free speech that the United States has struck in the past is a sensible model for the future. People should be able to sue for invasions of privacy when they’re victimized by extreme sexual surveillance, but almost nothing else. That’s a bright line that the rest of the world has been reluctant to embrace; now it’s up to the Supreme Court to preserve it.

Jeffrey Rosen is the legal editor for The New Republic. This article ran in the November 11, 2010, issue of the magazine.

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