When news broke of the Ashley Madison hack, I ignored it. The name sounded like a women’s clothing line made for those cheap mall stores catering to the under-21 crowd, and worn by the over-40 crowd who refuses to accept their fate. I was deeply disinterested.
Of course, I was totally wrong. That I was unaware that it was a site for married people cheating on their spouses was embarrassing. I like to think I have my finger on the pulse of the ugly underbelly of the internet, and this only proved that there is much about which I know nothing.
But then, there are a few things with which I have some familiarity, and the backlash to the disclosure of emails of cheating scum (yes, I am not fond or forgiving of people who cheat on their spouse) served as a platform to raise a hoary lie: Don’t cheaters have a right to privacy too?
“I suggest we stay out of other people’s bedrooms, even when the lurid details of those bedrooms are on a platter for us on the Internet,” writes lawyer Carrie Goldberg. “[Do we] really condone the idea that the right to privacy should be on a continuum based on a person’s moral turpitude?”
See that? Tricky, very tricky. This from a newish Brooklyn lawyer who practiced in some pedestrian law niche, trusts and estates or divorce, I can’t remember, but I also can’t find it anymore as she has totally revamped her website to reflect that she is now the world’s foremost defender of women wronged by revenge porn and sexual assault. The internet can do that for a lawyer with only a few keystrokes and a button. It’s a miracle.
While she’s up to her neck deep in other people’s bedrooms when it serves her purposes, as in the government criminalizing what happens there, she’s against it when it serves an opportunity to extol the “right of privacy.” The author of the quoted Fusion post, Kash Hill, quotes this “right” without question.
Because we have a right of privacy, don’t we? Don’t we?!?
With regard to the government, you bet we do. I know this because the Fourth Amendment tells me so. And then there are specific statutes that protect our privacy under specific circumstances. But there is no free-floating right to privacy from all other folks in the world.
And that’s what some advocates are trying to manufacture out of the ether. They repeat this legal fallacy, get others who should know better to repeat it for them, and if you repeat a lie enough, it becomes real. Especially when it involves law, is uttered by a lawyer or lawprof, to the public who is functionally clueless. Especially when the public would like such a right to exist.
But who, save me, would connect these dots of trickery? Glad you asked.
Hackers that gleefully disseminate private personal information entrusted to a third party are causing significant harm. It may be easy to smirk and hard to find pity for victims of this particular hack, but consider some other invasions of privacy:
Victims of revenge porn similarly entrust private personal information — an intimate “selfie” texted to a then-romantic partner — to another only to have that data posted on websites that extort money, endanger lives, and ruin reputations. Danielle Keats Citron and Mary Anne Franks have spoken eloquently on the need for criminal revenge porn statutes as well as the very real emotional, physical, and professional damage caused by nonconsensual pornography.
Revenge porn? Oh wait, where have I seen that before. Oh yes, that would be Carrie Goldberg’s crusade. Whoa. How weird that Ari Ezra Waldman, lawprof, went to a place wholly unconnected to Ashley Madison to come up with a way to bootstrap the argument to support revenge porn criminalization. What are the chances?
And like Goldberg, he plays a trick of his own here: “Victims of revenge porn similarly entrust private personal information . . . ” Entrust, like right, is a word with meaning, and that meaning bears no connection with revenge porn, but if they slip it in well enough, maybe readers won’t notice and, if done enough, will internalize the fraud.
If a person gives something to another person without conditions, it’s a gift. If it’s a bottle of booze, they didn’t entrust that booze to someone, and if the person to whom the booze is given decides to share it with some friends, they have no cause to complain. If you don’t want someone sharing the booze you gave them with another person, make that a condition of the gift. Otherwise, they can do whatever they want with it. That’s what a gift means.
But those who demand the government, the college administrators, the busy-bodies who believe their righteousness entitles them to tell others how to live their lives, keep a permanent nose in other people’s bedrooms, justify their cause by constructing a mythical free-floating right to privacy.
It’s unlikely that these passionate advocates are supporters of cheating spouses, and have a deep concern that a man should be able to conceal his philandering. It’s that they see any story, particularly involving online shame, as one to be usurped for their own purposes.
What is disappointing is that putative academics will lose their tweeds for shiny satin hot pants to strut their cause, selling whatever academic integrity they have for their progressive illiberal greater good. But hey, Waldman is a piker when it comes to intellectual dishonesty, that being owned by the primary promoters of the cause.
That leaves the guardians of truth, the writers on soapboxes that put them a little higher than they may deserve, to repeat their dogma as if that’s the law. And when it comes to show whose “reputations are ruined” by the Ashley Madison revelations, it offers them a new universe of potential adherents to their religion who suddenly revel in their “right to privacy.” Very tricky, except that there is no right, but that won’t stop the left.