Anupam Chander and Uyen P. Le, The Free Speech Foundations of Cyberlaw

Anupam Chander and Uyen P. Le, The Free Speech Foundations of Cyberlaw

Comment by: Vince Polley

PLSC 2013

Published version available here:

Workshop draft abstract:

A First Amendment-infused legal culture that prizes speech offered an ideal environment on which to build the speech platforms that make up Web 2.0. Executive, congressional and judicial interventions during the first decade of the World Wide Web manifested a clear desire to protect the speech potential of a media platform that allowed individuals to speak directly to each other outside the confines of newspapers or broadcasters. While interest group pressures were certainly relevant to the legislative process, the First Amendment provided normative force to the arguments of Silicon Valley enterprises, both in the halls of Congress and in the courtroom. A commitment to free speech also helped ward off strict privacy obligations like those imposed in Europe and Asia. Free speech thus establishes the normative foundation of American cyberlaw.

Mark MacCarthy, Social Networks: Privacy Externalities and Public Policy

Mark MacCarthy, Social Networks: Privacy Externalities and Public Policy

Comment by: Anupam Chander

PLSC 2011

Workshop draft abstract:

In the apocryphal Fitzgerald – Hemingway anecdote, Fitzgerald says the rich are very different from you and me; Hemmingway responds that the rich have more money. The exchange is relevant to social networks and privacy. Are social networks a disruptive technology that challenges existing thinking on privacy, or just more of the same?  The frame of this paper is that social networks are something radically new that this difference should prompt us to rethink the framework we use to structure public policy toward privacy.

From this perspective, social networks represent another example of the connection between technical development and the evolution of privacy policy.  Warren and Brandeis reacted to the widespread use of the snap camera in journalism to develop a tort-based right of privacy as the right to be left alone.  The widespread use of mainframe computers in the 1960s by large private and public institutions to compile and process information about individuals led to the ex ante rules embodied in the fair information practices framework.

Social networks present a similar technological breakthrough that forces us to rethink privacy assumptions.  Unlike the Internet they create and thrive upon a culture of identified sharing of information.  People who use social network sites want to be known by others.  Providing personal information on an ongoing basis to a limited group of other people is the whole point of a social network.  The privacy challenge is this: a technology that depends for its highest and best uses on the exchange of information is ill-suited to a privacy norm of standardized before-the- fact limitations on information exchange.

This paper sets the stage for a discussion of public policy on privacy toward social networks by examining several accounts in the literature of privacy in social networks. Nissenbaum’s contextualist theory holds that privacy is the right to the appropriate flow of information, where appropriate is defined by the context in which the information is created and exchanged.  One way to apply this approach to new contexts where information norms are not yet well developed is to assimilate new contexts to old ones.  This is the tack Nissenbaum takes when she denies that social networks are genuinely new phenomena, and tries to model them as a medium of information exchange like the telephone system.  Entrenched norms from this context of ordinary life apply, she says, and this explains the sense of outrage when information meant for a network of friends is used by recruiters to evaluate job candidates or by aggregation services such as Rapleaf that generate profiles from social network information and make them available in the context of marketing or eligibility decisions for insurance, credit or employment.

Strahilevitz approaches the public – private question in privacy tort with the apparatus of the sociological theory of social networks, which studies how information flows among groups of loosely or tightly connected individuals.  He concludes that a person should have a reasonable expectation of privacy when there is a low probability that information will flow beyond a limited subset of his friends.  If someone causes information to move beyond this group, Strahilevitz contends, then he should be liable for the privacy tort of public disclosure of private information.  This attempt to put some structure into the idea of privacy in public can be applied to social networks as new technologically-based institutions.  To the extent that there is a low probability that information disclosed by a social network user will travel beyond the network of friends for whom it was intended, then these users have a legitimate expectation that others will not cause the information to cross these boundaries. Under this approach, uses of social network information in employment or data aggregation contexts would be surprising and would violate these legitimate expectations of privacy.

Lipford and Hull et al. focus on the need for users to have a sense of how visible their information really is on social network sites.  Once they can see, using a tool such as Audience View, how others see their information they would then be in a position to determine how much information they would like to share.  Empowering user control in this way is the key to keeping information flows within the contextual norms for social networks, without users having to assume that all information they post will be public to everyone and can be used for every purpose.

These perspectives have limitations.  Nissenbaum misses the extent to which the new technology of sharing creates a genuinely new context, and that the simple extrapolation of old norms into the new context is insufficient to respond to its novelty.  Norms for information flow in social networks are under construction; they are contested terrain, not areas where privacy norms are completely specified and generally accepted.  What the information rules should be for social networks cannot be resolved by appeal to widely-shared intuitions about social norms; these questions require further normative debate.

Strahilevitz has an answer to the question of what rules should apply, but it misses a key dimension.  By focusing solely on the factual question of the actual probability of information flowing out of a social network context to other contexts, he mistakenly allows the normative privacy question to be decided by those who can create facts on the ground by appropriating social network information.  People might believe and expect that their information will stay in the social network context, but, despite what they think, the probability is really quite high that information made available on a social network site will migrate far beyond its original context. Under Strahilevitz’s theory, this fact would make the privacy expectations of social network users unreasonable. The normative dispute about privacy rules for social networks cannot be resolved by appeal to the facts of information flow.

The attempt by Lipford and Hull et al. to provide greater user control avoids the mistakes of appealing to old norms in a new context and the reduction of the normative question to a manipulable factual one.  It reaffirms the idea that consent is at the heart of privacy and urges the development of more visible and transparent user controls.  If people don’t want their information spreading beyond their immediate social network of friends, they should set their privacy controls to implement this preference.

This approach is probably the dominant public policy approach to privacy on social networks. Increased user control is often recommended as a way to address privacy issues on social networks.  Public policy demands from regulators, legislators and privacy advocates have focused primarily on giving users adequate control over social network information.

The limitations of individual user control as the primacy regulator of privacy have been widely discussed.  As applied to social networks, these concerns can be summarized as follows.  A blizzard of privacy choices in a social network context simply encourages passivity.  The number and type of choices will inevitably be too granular for those who care only to adopt the most restrictive or the most open of controls.  Alternatively, the choices will not be granular enough for others – preventing them from selectively revealing information to some, while withholding it from others. Moreover, an extraordinary level of knowledge is needed to evaluate what information is available to whom.  App developers, aggregations services, and data brokers can obtain supposedly concealed social network information in ways that surprise both users and operators of social network sites.  The use of this information is opaque as well, so there is little guidance available to individuals as to whether it is a good idea or a bad idea to share this information. Inevitably, some discretion is retained by the social network operator over what information cannot be controlled by users.  Finally, users cannot expect to keep information hidden when they are under suspicion of activities that are of public concern such as national security or cyber bulling, or impersonation.  Surveillance of social network activity for these purposes has to taken as a given.  These factors all mean that user control can never be complete, or completely effective at preventing privacy harms.

I approach the question of privacy in social networks through the lens of privacy externalities, and from this angle it is clear that social networks present a substantial challenge to the informed consent ideal of privacy regulation.  Information one person reveals often reveals information about others.  This is clearest in eligibility contexts, where, for instance, non-smokers can reveal the status of smokers by voluntarily answering optional insurance company questions on their smoking habits. Social networks are a major source of privacy externalities because networks of friends tend to have certain features in common.  People with similar sexual orientation, credit worthiness, political beliefs, racial identities tend to group together.  As a result, researchers, marketers and others can predict some characteristics of people based on characteristics of their network friends.  If your social network friends are gay, you probably are too.  If they are deadbeats, likely you are as well.  These indirect inferences about people can then be used for a variety of purposes, most of them, so far, unregulated.  These externalities can sometimes help people and sometimes hurt them, but they have to be taken into account when assessing privacy in a social network context.

Privacy externalities provide an additional reason why a focus on individual user control is misplaced.  Even when one person is perfectly willing to release information about himself, his decision has implications for others that, individualistically, he is not taking into account when deciding what is in his best interest to reveal. External privacy harms can be inflicted on people whose identity or essential information is revealed by the action of others.  In these cases, too much information has been released. Alternatively, external privacy benefits can be conferred on people who free ride on the information revealed by others.  In this case, too little information has been released.

The article draws together existing literature on these externalities in the social network contexts with a view toward demonstrating that they are frequent and pervasive in this context.  Together with other concerns that have been expressed regarding an overreliance on user controls they warrant a revision in the public policy perspective that privileges user control over other more effective ways to protect privacy in the context of social networks.

One implication of this approach is that standardized limitations on the collection of information through company policies, industry self-regulatory codes or legislation is the wrong way to go.  In the social network context, more information sharing often means greater benefits.  Many of these benefits are externalities in the sense that people benefit from information disclosure other than the individuals who have revealed the information.  Collection restrictions in the social network context mean default rules on the sharing of information that might unnecessarily restrict the growth of new innovative functions and benefits of social networks.


For example, sharing price and quality information of various goods and services among similarly situated network friends is a benefit to them. This information could be aggregated, analyzed combined with other information and made available to other network users.  The value of this service to its consumers increases more than linearly as the information on which it is based increases. The problem with leaving the decision on sharing this information entirely to individuals is that the amount of available information will be too small.  People will not factor in the benefits to others of having their information available to outside parties for analysis, and so they will chose to withhold when the socially optimal choice would be for sharing.

This focus on the beneficial uses of information sharing in a social network context has to be balanced by an assessment of the harmful uses of information exchanged on social networks.  If these harmful uses are not recognized and controlled, then network users will refuse to share information as a way to protect themselves from these possible harms.  The quality and quantity of information traded in this context will shrink and the full value of these new innovative tools will not be realized.

The focus has to be on the use of the information, not on what information is collected. Public policy in the form of legislation or regulation could develop prohibitions or restrictions on the harmful use of social network information.  We need an open debate and consideration of the question of whether social network information should be used, for example,  for eligibility decisions involving credit, employment, and insurance, or for setting individualized prices, terms or conditions for products or services.  This need not apply just to operators of social networks; scraping social networks by outside parties or disclosure by applications developers of information used for these purposes might be prohibited or restricted. Legislation of this type is already under consideration in Germany and California in the form of bills that would prohibit the use of Facebook information for employment screening.  Public policy might also develop the concept of publicly beneficial uses of information and restrict or prohibit user control for these uses.


As a background to this public policy approach to social network privacy, the paper develops and applies an unfairness model of privacy regulation under which uses of information fall into one of three categories: unfair, publicly beneficial and intermediate.  The unfair uses can be prohibited or subjected to strong opt-in defaults that disfavor them; the publicly beneficial uses should not be subject to easy to use user controls because the external benefits from sharing are so substantial and individual failure to participate would dissipate these benefits. The intermediate uses can be subjected to appropriate and well-tailored user controls.  The paper provides examples of each of these categories in a social network context.

In Part I, I review the literature on privacy and social networks, including discussions by Nissenbaum, Strahilevitz and Lipford and Hull et al and explore the limitations in their approaches.  Part II sets out the concept of privacy externalities in the social network context, exploring the ways in which information revealed by some people can reveal information about others.  It then discusses examples of positive and negative privacy externalities, where in some cases indirect inferences about people can help them and in other cases where it can hurt them.  Part III sets out the unfairness framework for regulating privacy and suggests various specific prohibitions and restrictions that might be considered by privacy legislation.  It also discusses how user controls can fit into this framework as a way to approach intermediate uses that are neither unfair, nor publicly beneficial. Part IV summarizes the discussion and concludes with specific suggestions for further research in this area.

Anupam Chander, Youthful Indiscretion in an Internet Age

Anupam Chander, Youthful Indiscretion in an Internet Age

Comment by: Ian Kerr

PLSC 2009

Workshop draft abstract:

Youth are allowed mistakes in greater measure than adults.  Today, however, because of the digital medium, youthful exuberance and  experiment, intellectual curiosity, and teenage rebellion may be subject to the prying eyes of authorities, both governmental and private, both contemporaneously and far into the future.  The disciplinary effects of such possible future ramifications may be graver today than ever before. The consequences may be particularly severe for women, given societal practices related to sexuality. What might the law do to protect youthfulness in youth?