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Woodrow Hartzog, The Life, Death, and Revival of Implied Confidentiality

Woodrow Hartzog, The Life, Death, and Revival of Implied Confidentiality

Comment by: Patricia Abril

PLSC 2012

Workshop draft abstract:

Confidence is implied in many of our face-to-face relationships. Those seeking to disclose in confidence can close doors, speak in hushed tones, and rely on context and other signals to convey a trust in the recipient that has not been explicitly articulated. Yet, according to courts, the same usually cannot be said for our relationships on the Internet. Online relationships are frequently perceived by courts as missing the same implicit cues of confidentiality that are present in face-to-face relationships. Indeed, implied confidentiality is absent in the judicial analysis of Internet-related cases except in the most obvious scenarios. Yet it is clear that Internet users often have implicitly shared expectations of confidentiality. This article posits that the diminished legal relevance of implied confidentiality on the Internet is not solely attributable to the inherent differences between online and offline interaction. Rather, this article argues that implied confidentiality has not been refined enough to be a workable concept in online disputes. The absence of online implied confidentiality as a legal concept is a problem because courts are tasked with ascertaining the actual agreement or relationship between Internet users. Although courts have regularly found implied confidences between parties offline, their analyses have left insufficient direction for future courts to consistently apply doctrine across the myriad of factual scenarios. As a result, the concept of implied confidentiality has, as a practical matter, been rendered too flimsy to play a significant role in Internet jurisprudence. The purpose of this article is to mine the rich history of implied confidentiality doctrine in an attempt to refine the concept with a unifying decision-making framework. This article proposes a technology-neutral framework based on a review of case law to help courts ascertain the two most common and important judicial considerations in implied obligations of confidentiality – party perception and party inequality. A more nuanced framework will better enable the application of implied confidentiality in online disputes than the currently vague articulation of the concept. This framework is offered to demonstrate that the Internet  need not spell the end of implied agreements and relationships of trust.

Jacqueline Lipton, “We, the Paparazzi”: Developing a Privacy Paradigm for Digital Video

Jacqueline Lipton, “We, the Paparazzi”: Developing a Privacy Paradigm for Digital Video

Comment by: Patricia Sanchez Abril

PLSC 2009

Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1367314

Workshop draft abstract:

Digital age privacy law focuses mostly on text files containing personal data.  Little attention has been paid to privacy interests in video files that may portray individuals in an unflattering or embarrassing light.  As digital video technology, including inexpensive cellphone cameras, is now becoming widespread in the hands of the public, this focus needs to shift. Once a small percentage of online content, digital video is now appearing online at an exponential rate.  This is largely due to the growth of online social networking services such as YouTube, MySpace, Flickr, and Facebook.

The sharing of video online has become a global phenomenon.  At the same time, the lack of effective privacy protection for these images has become a global problem.  Digital video poses four distinct problems for privacy arising from:  de-contextualization, dissemination, aggregation, and permanency of online video information.  While video shares some of these attributes with text-based records, this article argues that the unique qualities of video and multi-media files necessitate a place of their own in online privacy discourse.  This article both identifies a rationale for, and critiques potential approaches to, digital video privacy.  It suggests that legal regulation, without more, is unlikely to provide the solutions we need to protect privacy in digital video.  Instead, it advocates a new, more nuanced multi-modal regulatory approach consisting of a matrix of legal rules, social norms, system architecture, market forces, public education, and non-profit institutions.