Lauren Gelman, Privacy, Free Speech, and “Blurry Edged” Social Networks

Lauren Gelman, Privacy, Free Speech, and “Blurry Edged” Social Networks

Comment by: Lauren Gelman

PLSC 2008

Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520111

Workshop draft abstract:

Much of the Internet related scholarship over the past ten years has focused on the enormous benefits that come from eliminating intermediaries and allowing user generated one-to-many communications.  Many have noted the tension created between the positive benefits for free speech and the negative effects on user privacy.  This tension has been exacerbated by Web 2.0 technologies that permit users to create social networks with “blurry edges”-where they post information generally intended for a small network of friends and family, but left available to the whole world to access with the thought that someone they cannot identify a priori might find the information interesting or useful. This paper identifies the origin of the binary choice between public and private information as rooted in the social role of news intermediaries, and asks whether there is a legal, technical, or normative framework to permit users to maintain networks with blurry edges while still appropriately balancing speech and privacy concerns.

Part I addresses the legal and normative role news organizations play as balancers of privacy and free speech interests.  It then examines how the institutional capability of the publishing entity differs in the specific cases of citizen journalists, Bloggers, Google Maps, YouTube, Flickr, and Facebook.  Part II examines the binary choice users have to make between posting to the world or password protecting their information and identifies the phenomenon of what I call, “blurry edged” social networks.  Part III looks at the current legal framework for analyzing privacy in the binary world, including the Computer Fraud and Abuse Act, the privacy torts, and copyright and describes the analogy to the Third Party Disclosure rule in the Fourth Amendment context.  Part IV asks whether a legal framework is possible to address the privacy concerns while maintaining protections for free speech and the “generativity” benefits of the Internet. I also describe some technologies under development that might constitute an appropriate solution.