Peter Swire, Social Networks, Privacy, and Freedom of Association
Comment by: Harry Surden
PLSC 2011
Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1989516
Workshop draft abstract:
This article introduces a topic that has not drawn attention to date but will undoubtedly become important to the legal treatment of social networks. Many people have written insightfully about the individual’s right to privacy, and how that can be threatened when “friends” or others use social networks to spread information about you without your consent. Other people have written about how social networks are powerful tools for political mobilization, fostering the freedom of association. Strangely enough, my research has not found any analysis of how the two fit together — how freedom of association interacts with privacy protection.
This discussion draft highlights the profound connection between social networking and freedom of association. At the most basic level, linguistically, “networks” and “associations” are close synonyms. They both depend on “links” and “relationships.” If there is a tool for lots and lots of networking, that is also a tool for how we do lots and lots of associations.
I stumbled into this topic due to a happenstance of work history. I have long worked and written on privacy and related information technology issues, including as the Chief Counselor for Privacy under President Clinton. Then, during the Obama transition, I was asked to be counsel to the New Media team. These were the people who had done such a good job at grassroots organizing during the campaign. During the transition, the team was building New Media tools for the transition website and into the overhaul of whitehouse.gov.
My experience historically had been that people on the progressive side of politics often intuitively support privacy protection. They often believe that “they” — big corporations or law enforcement — will grab our personal data and put “us” at risk. The Obama New Media folks, by contrast, often had a different intuition. They saw personal information as something that “we” use. Modern grassroots organizing seeks to go viral, to galvanize one energetic individual who then gets his or her friends and contacts excited, and so on. In this New Media paradigm, “we” the personally motivated use emails, texts, and other outreach tools to tell our friends and associates about the campaign and remind them to vote. We may reach out to people we don’t know or barely know but who have a shared interest — the same college club, rock band, religious group, or whatever. In this way, “our” energy and commitment can achieve scale and effectiveness. The tools provide “data empowerment” — ordinary people can do things with personal data that only large organizations used to be able to do.
This shift from only “them” using the data to “us” being able to use the data tracks the changes in information technology since the 1970s, when the privacy fair information practices were articulated and the U.S. passed the Privacy Act. In the 1970s, personal data resided in mainframe computers. These were operated by big government agencies and the largest corporations. Today, by contrast, my personal computer has more processing power than an IBM mainframe from thirty years ago. My home has a fiber optic connection, so bandwidth is rarely a limitation. Today, “we” own mainframes and use the Internet as a global distribution system.
To explain the interaction between privacy and freedom of association, this paper has three sections. The first section explains how privacy debates to date have often featured the “right to privacy” on one side and utilitarian arguments in favor of data use on the other. This section provides more detail about how social networks are major enablers of the right of freedom of association. This means that rules about information flows involve individual rights on both sides, so advocates for either sort of right need to address how to take account of the opposing right. The second section shows step-by-step how U.S. law will address the multiple claims of right to privacy and freedom of association. The outcome of litigation will depend on the facts in a particular case, but the legal claims arising from freedom of expression appear relevant to a significant range of possible privacy rules that would apply to social networks. Based on precedent, strict scrutiny may apply to material infringements on freedom of association. The third section explains how the interesting arguments by Professor Katherine Strandburg fit into the overall analysis. She has written about a somewhat different interaction between privacy and freedom of association, where the right of freedom of association is a limit on the power of government to require an association to reveal its members.