Brandon Evenson is a 2010 JD Candidate at Osgoode Hall Law School.
Last Thursday, IP Osgoode hosted Dr. Jacqueline Lipton, Professor of Law at Case Western Reserve University, to give a talk on privacy and the challenges of the new Web 2.0 culture.
Professor Lipton began her talk characterizing the differences between Web 1.0 and Web 2.0 and outlining the respective privacy concerns. In the early nineteen-nineties, the privacy concerns with Web 1.0 were limited to massive text-based aggregation of personal data. Despite attempts to make privacy laws technology neutral and broad enough to cover any new unanticipated privacy harm, early privacy laws, such as the E.U. Data Protection Directive, were still based on risks associated with text-based information.
Lipton emphasized that the paradigm reflected in the privacy laws of the Web 1.0 time period are consistent with the limits of the technology at that time. Most end-users accessed the Internet through low-bandwidth dial-up connections. A user’s Internet experience consisted of text with a few pictures, some real-time chatting, and an absence of audio and video content. The Internet was not ready for other forms of media-rich information, and the technology to harvest that type of information was not available. Home audio and video technology such as compression algorithms, digital cameras and digital video equipment were in their infancy.
Professor Lipton went on to discuss the transition to Web 2.0 in recent years and the new privacy concerns stating that there is an “increased potential for legally unclassified and unrecognized privacy harms in Web 2.0.” Though conceding “Web 2.0” to be a convenient, unconstrained term to help describe the internet in its current form, she did identify certain characteristics of a Web 2.0 culture that have an impact on privacy.
Web 2.0 has a participatory culture and convergence culture. There is many-to-many communication where users generate content in wikis, blogs, and online social networks. The line between consumers and producers has become blurred. The Internet has also converged with other institutions and media. Businesses crowd-source the design of their products, political candidates use the internet as a springboard for their campaigns, and traditional, one-way media (e.g. television broadcasters) leverage the internet to allow their audience to participate.
Professor Lipton provided several anecdotes of recent cases that illustrate the inability of privacy laws to provide a remedy for Web 2.0 harms.
In Chang v. Virgin Mobile USA, a photo of a 15-year old girl from Dallas was posted on Flickr by her pastor. An ad agency in Australia found the photo on Flickr and, without permission, used it throughout Australia in a Virgin Mobile billboard advertisement campaign. Chang brought an action in the U.S. but a Texas court dismissed it on account that the harm occurred outside of the U.S.. Because of the differences in privacy laws, an action could not be brought in Australia effectively leaving Chang without a remedy.
In another case a high school student from Quebec, using school video equipment, videotaped himself wielding a golf ball retriever as a Star Wars light saber. Fellow students from his school found the video, encoded it and distributed it to the Internet through a P2P file sharing application. It is believed that as of 2006 the video has been viewed over 900 million times. It was reported that the "Star Wars kid" suffered significant psychological damage and was forced to quit school. A lawsuit was filed by the boy’s parents and a confidential settlement was reached.
In an attempt to address the new privacy risks caused by Web 2.0, scholars have tried to develop a general theory of privacy. Some writers on privacy law, such as Professor Solove, have rejected the idea that privacy can be articulated clearly as a unitary concept with a uniform value. Professor Solove has instead turned to grouping privacy violations by the harms they cause. He has described his approach as a “taxonomy of privacy”.
In her presentation, however, Professor Lipton emphasized the value of a meta-theory of privacy that looks at the issues from a higher level of abstraction. Such a meta-theory, she said, would need to map out privacy at its outer-limits. Professor Lipton’s map consists of six dimensions. The first four are what she calls the mechanics of privacy incursions. They are the actors / relationships, the conduct the actors undertake, the actors’ motivations for the conduct, the harms that result, and the remedies that should be pursued. The last two dimensions are information specific: what is the substance of the information, and what format is the information communicated in?
Professor Lipton focused the remainder of her talk on exploring these six dimensions of privacy.
1. Actors / Relationships
There may be different expectations of privacy depending on the relationship or actor. For example, the privacy expectations from government may be greater than from business which may be greater still than that expected from individuals. Even amongst members of a group there may be a spectrum of different privacy expectations. The privacy expectations of a friend may be less than the privacy expectations from an acquaintance, stranger, or “fan”. Similarly, the privacy expectations from Facebook may be different than those imposed on a financial institution.
The conduct of actors is also a consideration. Are actors gathering data on an individual? Is information being aggregated? What information is being disseminated?
An actor may have a number of motivations for disclosing private information. They may wish to inflict harm, increase profits, or seek election. Some motivations are innocent while others may be negligent. Some conduct may be motivated by public interest (such as politics) – which should be differentiated from conduct motivated by information that is simply interesting to the public (e.g. tabloid coverage of Hollywood stars).
4. Harms / remedies
Even if a motivation is innocent, harm can still result to an individual when private information is disclosed. The harm could be something tangible such as economic loss or refusal of health insurance, or something slightly less tangible such as shame, embarrassment, or ridicule. The harm could also be general in nature such as a culture of “unease”. Classifying the harms can facilitate identifying remedies and how the remedies can be achieved. Should remedies by compensatory or something else? Should remedies be sought through litigation, or some other process?
5. Substance of information
The substance of the information disclosed is also an important dimension as it factors directly into the harm. The spectrum of information ranges from innocuous personal details (such as a picture of an individual entering a store) to sensitive health, financial or criminal records.
6. Format of information
Professor Lipton’s final dimension is the format of the information that is disclosed. The harm caused by text-based information is different than that caused by audio, still image, video, or multi-media. For example, the harm that resulted from disclosure of the video of the Star Wars Kid would not have occurred had it not been a video. Another example Professor Lipton discussed was an image of a woman who refused to cleanup her dog’s business while on a Seoul subway car. Another passenger took pictures of the incident and posted the image on a popular Seoul website. Internet bloggers became a type of cyber-posse and within days the woman’s identity was revealed. Public humiliation escalated to the point that she was forced to quit her job. The detail rich, imagery of a picture achieved what a text-based description could not.
As the U.S. continues its efforts to reform privacy laws, and consumers seek to protect their amorphous privacy rights (see Facebook’s Beacon lawsuit), it is easy to see how a meta-theory of privacy, defining the boundaries of potential rights, would be a beneficial tool.
Full video coverage of Professor Lipton’s talk, including the questions and answer period, can be accessed on IP Osgoode's Events Archive page (along with Professor Lipton's powerpoint presentation).