The Left of Privacy

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.

33 thoughts on “The Left of Privacy

  1. mb

    Even their principled stands on tough issues are transparently disingenuous. I don’t even need to read whatever proposed changes to the law they are advocating anymore. When I see a mainstream article that includes the argument that “you wouldn’t do x therefore it should be illegal” I automatically know they’re trying to replace an element of a crime with women’s feelings.

      1. mb

        Maybe we’re being too hard on them. Maybe saying that illegal hacking is bad for adulterous cretins while, as far as I can tell, not embracing any specific, additional remedy for said cretins is the limit of their moral courage.

  2. Mark W. Bennett

    Joseph Mathew gets a half-million-dollar verdict for revenge porn, and Carrie Goldberg (who has not, judging from the rhetoric on her website, ever actually done anything) is the “expert.”


  3. Phil R.

    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.

    A propos of the above: Mr. Greenfield, would you mind clarifying your, so to speak, ethico-philosophical position on revenge porn? I find your previous posts on the subject cogent: it is now clear to me that the specific legislative proposals we’ve seen to criminalize it are Constitutionally dubious and may have unintended consequences, but do you agree in principle that it constitutes sucky behavior, even if there may be good reasons not to pass laws against it?

    Let’s contemplate, if you will, the paradigm case that anti-R.P. folks want us all thinking about; I know this is dangerous, and believe me I’m not asking for us all to get swept up in there-oughta-be-a-law outrage, but let’s give ’em the benefit of the doubt and think about it: Suzy Kneestogether gets swept off her feet by Donovan D. Bag and, being unwise in the ways of the world, decides to show him what a daring free spirit she is by snapping a nude selfie and sending it to ol’ Donnie. Next thing Suzy knows, her snapshot is on the bulletin board at the frat-house, which she only notices on the way out of catching Donnie in bed with another girl, who may or may not be named Ashley and/or Madison.

    Now, I’m not a lawyer, so I don’t know if Suzy would have any legal recourse in the specific scenario I’ve described, but I’m going to assume that the substance of the material I’ve quoted from you above applies: Suzy’s selfie came out of the clear blue sky, Donovan didn’t specifically ask for it, and there was no message attached, so clearly there can’t be any provable conditions on the gift. By all means correct me if the law would work differently here.

    What would you say to a law saying that naked pics taken or exchanged privately within the context of a sexual/romantic relationship between two parties are deemed in the absence of a specific agreement to the contrary to be a bailment, such that property rights in the material rest with the subject, and the other party has custody of them only at the subject’s pleasure, such pleasure being automatically deemed to end when the relationship does? It seems to me that such a law would harmonize the legal situation with the relevant community norm, namely that posting your ex’s nudes or sex tapes or whatnot on the Internet to get back at them makes you, not to put too fine a point on it, an asshole.

    OK, so, long comment is long; I’m sorry about that, but not over-sorry: I’ve enjoyed thinking this through to the extent of putting it in words. Long story short: would you be in favor of an anti-revenge-porn law that was more carefully tailored to the specific revenge porn scenario than anything we’ve seen so far? And if not, is that because you think naked selfies ought not to be encouraged even to such an extent (which is a position I could understand, though I’m not sure I agree), or because you fear the proliferation of crimes on the statute books (which I do too — I figure on

    1. SHG Post author

      My god, you are a fascinating individual.

      1. I think there are too many crimes, but that doesn’t mean that, when needed, a new crime should not be created.
      2. I think people shouldn’t take naked pics and pass them around. I think people who do are morons. But being a moron isn’t a crime, per se, and what I think about such conduct is irrelevant. I am also not a fan of tattoos. That’s me. YMMV.
      3. If an anti-revenge porn law could be crafted that was constitutional, meaning did not violate the First Amendment, was not vague and overbroad, and suffered from no other infirmities, I might well support it. I can’t speculate until someone has come up with something to read.
      4. Revenge porn, at least the stuff used in the ever-ready anecdotes, is disgusting trash, and people who post nonconsensual nude images to hurt other people are garbage. But even people who disgust you have rights, and those are the same as everyone else’s.
      5. Nothing I’m saying here hasn’t already been said. Yet, I had to read your ridiculously long comment (which was not particularly interesting) and, because I’m a swell guy, write this response. Never do this again.

  4. Phil R.

    Ack, I didn’t mean to hit ‘post comment’! Ah well, it was too durned long a comment anyway; I figure you get the gist. If you want to edit in the rest, it should be something like

    …I figure on a civil cause of action rather than a criminal one, but that might have its problems too), or for some other reason?

    Of course, if you want to say “you clearly have too much time on your hands” and delete the whole thing, I’d understand that too…

      1. Phil R.

        Yeah, mea culpa: if I hadn’t fat-fingered it, I probably would have edited drastically for length and come out with something like “You know, if you wanted to do a blog post titled something like ‘here’s how an anti-revenge-porn statute would have to be drafted to be constitutional’, I would very much enjoy reading it.”

        1. SHG Post author

          Just so you know, there is no reason in the world why I would ever want to write that post. First, because I don’t have an answer, and second, because I don’t put people into jail. It is not something I would have any interest, ever, doing.

        2. mb

          I’ve given this a fair bit of thought, zero research, and zero discussion with opponents of my view (they deserve to be made fun of, not argued with) and I’ve concluded that “revenge porn” means simply “true information, lawfully obtained” whose publication results in “bad feelz to a woman”.

          To ban this, and be consistent with the Constitution, I want, at minimum, specific intent to harass, intimidate, or defame, that the pics were given or consented to due to an intimate relationship, that the violator was the intimate partner of the complainant, that publication of the pics was made through use of a medium available to the general public, and that the pics are “indecent” as determined by prevailing community standards, as elements of the crime. And that’s not to mention all the exemptions I want for third parties or the special evidentiary standards I want. And I’ll still call bullshit. Because girl-feelz is still an unwritten element of a crime, and that invites selective enforcement.

          And that only addresses approximately 0% of what they’re concerned with. They envision a world where no woman can experience bad feelz without a man going to prison over it. Their entire coalition of the stupid, the evil, and the crazy can all go to hell. In my comment exchange with Scott above, I called them transparent, and he pointed out that to them, there isn’t anything transparent about it. That’s because we look in and see naked imbeciles while they look out and see reality slapping them in the face, and try to imagine it isn’t.

  5. anonymous coward

    If you care enough about Carrie Goldberg’s previous specialty to do some digging, the Wayback Machine at is a great tool for finding pages supposedly sent down the memory hole.

  6. Ted Folkman

    “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” Restatement (Second) of the Law of Torts, s. 652.

    The law varies across states, the Restatement doesn’t always accurately reflect the common law, it’s unclear what the law is in the particular case you’re discussing, etc., but I think it’s wrong to say that there is no right to privacy except for the Fourth Amendment and except in special statutory contexts. Where there’s a tort there’s a right, if you remember your Hohfeld.

    1. SHG Post author

      Sigh. This is not a free-floating right of privacy. It’s a common law tort, pretty much universally replaced by statute, and more significantly, includes an element, “highly offensive to a reasonable person,” that is precludes any possibility whatsoever of their being a free-floating right of privacy, as I wrote in the first place.

      So when I wrote, “except in special statutory contexts,” I should have included that there may still be a jurisdiction somewhere, though I’m unaware of any (maybe you know?), that still relies on the old common law tort which applied in extremely limited situations. Or it may be completely gone, but Ted decided to pull it out to show how smart he is. That certainly changes everything.

      1. Ted Folkman

        You’re welcome.

        Also, if any part of my comment was meant to show how smart I am, it’s the Hohfeld reference. Duncan Kennedy, this one’s for you.

        1. SHG Post author

          You know that kid who’s got something that really isn’t something but is just barely enough of a something to put an itty-bitty ding in the thing? Don’t be that kid. And Hohfeld went to Berkeley. So there.

      2. JW

        What do you mean when you say that common-law privacy torts have been “pretty much universally replaced by statute”? Can you give some examples? As far as I can tell, the Restatement (2d) 652 privacy torts have been adopted by courts in the vast majority of states and, if anything, the complaint among privacy scholars is that these torts haven’t been updated by statute to reflect more contemporary concerns.

        Reference: Josh Blackman, Omniveillance, Google, Privacy in Public, and the Right to Your Digital Identity: A Tort for Recording and Disseminating an Individual’s Image over the Internet, 49 Santa Clara L. Rev. 313, 321 & n.44 (2009).

        1. SHG Post author

          I think you’ve misunderstood what Josh was saying. Prosser’s influence gave rise to states accepting his codification and adopting his version in their statutes and caselaw to create well defined torts based on something written long before the internet age. To the extent they worked decades ago, they are no longer aligned with the needs today.

          But you’re off on a sliver of a tangent. The point is that there is no free-floating right to privacy, and Ted’s comment does nothing to change that statement. Ted’s comment would have been valuable if this was a 523 page law review article where there is a footnote or ten for every itty-bitty, barely quasi-relevant theoretical exception, but we don’t parse every potential penumbra in blog posts. Lawyers are assumed smart enough to understand that there are tiny, partially-relevant, exceptions that do not affect or alter the rule. So this is as far as I’m interested in going.

          1. JW

            I understood Josh’s article just fine, thanks. What I didn’t understand — because it appears to something might’ve just made up — is the claim that the Restatement privacy torts have been have been “pretty much universally replaced by statute.” As Josh says in the article, “Prosser’s torts have become the most widely accepted conception of American privacy interests, as most states have accepted these torts via the adoption of Prosser’s Restatement (Second) of Torts.”

            1. SHG Post author

              Well, if you feel so compelled, you can always survey the privacy torts of all jurisdictions, ascertain if they’ve been codified or remain common law, and let me know if I’ve overstated it when I write that it has been “pretty much universally replaced by statute.”

              As for Josh’s article that you understood just fine, it doesn’t say that. So, if you care enough about it, feel free. And if I’m wrong, then I will certainly correct myself.

  7. Pingback: Dating Site Hackers Reveal Private Data | Valerie's Blog

  8. ScarletA

    “the disclosure of emails of cheating scum (yes, I am not fond or forgiving of people who cheat on their spouse)”

    When Kathleen Rice posts 104 pictures of men with the fine-print disclaimer that “All are presumed innocent until proven guilty” you properly characterized that as a lie. But when hackers post 33 MILLION email addresses – far easier to search and trace than photos, many with names, addresses, and credit card information, they are cheating scum.

    At least some of those 33 million had second thoughts, and agreed to Ashely Madison demands for payment of $19.99 in exchange for the unfulfilled promise to permanently delete their profiles and personal data.

    There was no email verification required. Someone could have submitted your email address. Maybe someone did.

    Glen Greenwald already said it better than I can:
    “It’s hard to overstate the devastation to some people’s lives from having their names published as part of this hack: not only to their relationships with their spouses and children but to their careers, reputations, and — depending on where they live — possibly their liberty or even life. What appears on the Internet is permanent and inescapable. All of the people whose names appear in this database will now be permanently branded with a digital “A.” Whether they actually did what they are accused of will be irrelevant: Digital lynch mobs offer no due process or appeals. And it seems certain that many of the people whose lives are harmed, or ruined, by this hack will have been guilty of nothing.”

    We don’t need to know how many of those 33 million scum used AM as porn, or for journalism, or to explore the idea of adultery without actually doing it, or with the permission of their spouses, or really did want an affair but chickened out, or couldn’t find a partner because the site was a scam. They’re all scum.

    Adultery is after all a criminal offense in 21 states, and the great lawprof Wikipedia informs me that it is felony in five. But whether it’s the $10 fine imposed in Maryland or the 4 years prison threatened by Michigan, there is lip service to presumption of innocence, due process, and all that other legal stuff.

    The penalty for having ones email address show up in a hacked database is swift and certain, and fantastically out of proportion to any “crime.” But our protestant ethics condemns the sale of sex and vilifies those engaged in it, regardless of whether it fits within the paradigm of loose, evil women or victims of evil sex trafficking.* Or adulterers.

    Your point that there is no free-floating right to privacy from all other folks in the world is certainly true. The people whose lives are destroyed by AM’s shitty business practices and incompetence had a reasonable expectation of privacy, maybe even an enforceable contract. It’s unlikely they will ever get any compensation from AM, and even if they do, it won’t feel like a win.

    But maybe, just maybe, the evidence of some bytes in a stolen database isn’t really sufficient to judge a man, hang him, and separate him from his children, home, job, and prospects for a happy life. Maybe they aren’t all scum, just mutts slogging along, hoping to be left alone, and failing.

    *A wise man wrote that last sentence, but I think he’s forgotten about it.

    1. SHG Post author

      Edit: The comment below by Suzie gave me pause to reread and reconsider your comment, and upon doing so, I think I misread your comment and was both wrong and unduly harsh in my response. I apologize. I’ve let the comment up because I’m just as responsible for my stupidity as anyone else, and I shouldn’t sanitize my errors to avoid being told that I was the asshole this time. This time, I was wrong, both in my reading and my response to you. Mea culpa. But your comment was still too long.

      Aside from the length of your comment, it’s nearly impossible to describe how mind-numbingly stupid it is. The “reasonable expectation of privacy” is a line from Katz v. United States, a decision establishing the basis for standing to move to suppress evidenced seized by the government. It has no application, none, to individuals. Kathleen Rice was a prosecutor. It applies to her. You, me or any other person not acting in an official government capacity, no. Not at all.

      That’s life. If someone is included in the hacked material who has done nothing wrong, then they have the ability to say what their email is doing in there (or to say that someone else must have put it in there, because they did not). But they do not have a right to privacy from other individuals.

      You can wring your hands over the horror of the internets all you want, but you cannot fabricate non-existent rights because you really, really feel that’s how it should be. Greenwald is a journalist. not a lawyer. His views on law are worthless and meaningless. Yours are totally moronic.

      Don’t use my soapbox to make people stupider. You can be as much of a moron as you want to be, but you can’t do it here.

      1. Suzie

        But if she concedes that there is no right to privacy from other individuals, isn’t she just saying that it’s morally wrong to out the people whose emails have been hacked and not that they have a legal right to privacy?

        1. SHG Post author

          That may well have been her (don’t know if it’s a man or woman, since it’s a nym, but I’m using the feminine anyway) point, and perhaps I misread her comment to assert that this violated the right to privacy of these people.

          Your comment has give me cause to reread her comment, and after more thought, you may well be right about her point and I was unduly harsh because of my own misreading of her point.

          But then, I didn’t assert that everyone whose email was in the database was scum, but that those engaged in adultery were scum. I said I am not fond of people who cheat on their spouses, and I’m not. For those few who are in there who didn’t, this sucks. But I’m not writing about moralism, but about legal rights.

    2. Myles

      What makes this (very, very) long comment particularly insidious is that upon a superficial reading, it seems as fairly reasonable and thoughtful. But as SHG explains, it is absolutely wrong. This is the most dangerous sort of comment, as shallow people might believe it without realizing just how grossly misguided it is.

      Edit: Note that I have amended my comment to recognize that I misread ScarletA’s and responded poorly. You accepted my position. Since I was wrong in the first place, accept that as well. Be as critical of me as anyone else.

      1. SHG Post author

        My initial reaction to the comment was to use the Billy Madison video, but upon further reflection, I realize that some, perhaps many, would fail to realize why the comment is so wrong, and that it required me to explain. Not for ScarletA’s sake, since I don’t give a damn, but for the sake of those who might bother to read it and not understand why it was garbage.

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