The Privacy Lie

When Dan Solove wrote The Future of Reputation, it was a warning.  If you want to maintain your privacy, then keep your information private. But that’s hard work. It means not being able to do anything you want to do, because we’re entitled to do so. It means we don’t get to display our lives on Facebook and Twitter, gather up our likes and followers, then scream about how others have invaded our privacy for taking notice.

After all, don’t we have the right, the entitlement, to be fabulous in public while simultaneously controlling our public personas and denying its use when it’s not to our liking?  Why no. No we don’t.

So why does an op-ed by Robert Levine appear in the New York Times arguing that we can have it both ways?

What we really need are more nuanced laws that can safeguard privacy in the digital age. Courts in the United States have held that public figures are less entitled to privacy than the rest of us. But the Hogan case became less about who’s a public figure and more about the ways in which the Internet has allowed our private information to be made public in ways we didn’t intend.

Much is made about “ways we didn’t intend,” as if the world revolves around what makes us happy.  Let’s come clean: we intend to be brilliant, wonderful, interesting and fabulous. We intend to have other people love, adore, respect and appreciate us. That’s what we intend.  Except we then do incredibly stupid things that make people feel slightly differently about us. NO FAIR!

Gawker defended the news value of the video, claiming that Mr. Hogan had lost his right to privacy because he was a celebrity and had already boasted for years about his sex life “on talk radio and shows like Howard Stern,” Nick Denton, Gawker’s founder, wrote on the company’s website after the verdict. Mr. Hogan, whose real name is Terry Bollea, countered that there was a firm line between the man and the alter ego he plays.

One of the more bizarre moment of the Hulk/Gawker trial was when Bollea testified as if Hogan was a different, separate person. Hogan was a public figure. Bollea was just a regular guy. Hogan was subject to the limited protections of a public figure. Bollea was entitled to have his feelings shielded from exposure. This is borderline psychotic.

“Terry Bollea’s a normal person,” he said, while Hulk Hogan is a crude character who bragged about his sex life — truthfully and otherwise — in ways Mr. Bollea never would. That response evoked snickers on social media, but the idea that a person may divulge some information in one context but not another is at the heart of modern privacy theory.

What is this “modern privacy theory” that Levine mentions? It’s a flight of narcissim and entitlement going back well before the internet age.

In his landmark 1967 book “Privacy and Freedom,” Alan Westin defined privacy as “the claim of individuals, groups or institutions to determine for themselves when, how and to what extent information about them is communicated to others.”

See something, say something?  Nope. See something, than ask permission as to whether whoever got caught doing something wrong, or stupid, or dangerous, or foolish, wants you to say something. After all, shouldn’t they control their public persona?  Shouldn’t they have a say in whether the world should know what they’ve done.

And before you note the absurdity of Levine’s contention, realize that there are a lot of people saying, “oh, yes, yes, he’s so right.”  They do so because they want to control their world. They want to be public, and they want to shut down anyone or anything that might embarrass or humiliate them for being public.

Levine wants “nuanced laws” to protect privacy. Sounds legit, because who doesn’t want nuanced laws?  After all, how else can one enjoy the bounty of freedom if there isn’t a nuanced law dictating how others are allowed to do it? But, of course, Levine offers no clue how such a law could exist.

Law is a bludgeon, not a scalpel.  But when writing about all the hurt and pain of being exposed for one’s public conduct, there is no need to explain how fantasies are to be accomplished. Don’t you feel the pain? Don’t you understand how something must be done? Something must be done. What that something is isn’t Levine’s problem. He’s just the gusher of feelz, and that’s good enough to spew in the New York Times.

“Westin’s vision of privacy is that you could control your information as it left you,” says J. Trevor Hughes, chief executive of the International Association of Privacy Professionals. “But now, on the Internet, that control is increasingly out of our hands.”

Putting aside the possible agenda that the chief exec of the International Association of Privacy Professionals might have, making his observation slightly biased, Hughes is wrong. We have control. If you don’t want a bad picture of you on the internet, don’t put it on the internet.  If you don’t want Bubba the Love Sponge giving Gawker video of Hulk Hogan having sex with his wife on the internet, don’t have sex with Bubba the Love Sponge’s wife, even if he tells you it’s good with him.

Yes, this means your entitlement to have sex with another man’s wife is lost. This means your entitlement to enjoy the income one gets from being Hulk Hogan, public clown, comes with a price.  But then, regular folks like you and me don’t make our fortune by screaming to the public to look at me, listen to my sexual exploits. What about us?

But just as the Internet has made it easier to become a publisher, it has also become much easier for ordinary people to suddenly become public figures. Mr. Denton himself said, talking about people who posted on Facebook, “to the extent that they are published and they are viewed, they become some sort of public figure.” That makes public figures of more than 1.5 billion people, who might be shocked to find themselves described that way.

That’s right. We do things, and we are responsible for what we do. Post a picture on Facebook of you committing a crime, and get busted for it. Write a law blog and suffer the slings and arrows of anyone who disagrees with you. That, kids, is the deal.  If you don’t want anyone ridiculing, mocking, hating you for what you have chosen to make public, then don’t make it public.

Do you have a right to make any damn thing you want public?  You bet. This is America, and we have a right to be as stupid in public as we want to be. What we do not have is a right to censor the world, to control what others will say or do with the things we’ve chosen to expose about ourselves, the poor choices we make.  Don’t want people to call you stupid? Don’t be stupid. But you have no right to privacy to scream stupid things in public, then demand that no one notice.

However unusual Mr. Hogan’s circumstances, his essential complaint is one that many of us share in and one that our laws haven’t addressed: How do we control our information in the digital age?

The solution that eludes Levine and his ilk is that law isn’t magic and can’t cure all hurt feelings. The way we control our information in the digital age is the same way we control our information in any other age. You want privacy? Keep it private. You don’t want the world to see it? Don’t put it in the internet. You don’t want anyone to know about that nasty thing you did? Don’t do it. Don’t be an entitled, whiny, narcissistic idiot. Problem solved.

But one issue remains unresolved.  The New York Times feeds its readers a steady diet of opinion designed to influence views of personal privacy and political offense,* while starving its readers of any thought reflecting the alternative view, that we are responsible for our actions.  If L.B. Sullivan went after the Times today, would it fight for a malice standard of defamation for the media, or would it feel his pain and cry for its lies and violation of the Montgomery Public Safety Commissioner’s privacy?

Much as Levine can’t have it both ways, neither can the New York Times. It may hold itself aloof today, secure that it would never wallow in the gutter like Gawker, but when the Pentagon Papers were published, stolen papers, it was filled with the sanctimony of the free press.  But back then, free speech and press were progressive ideals, since replaced by protecting fragile feelings from hurt and the death of personal responsibility.

*This is not about privacy from governmental intrusion, which is limited by the Fourth Amendment to the Constitution. None of this involves the government, from which our reasonable expectation of privacy is theoretically protected.

37 thoughts on “The Privacy Lie

  1. Peter Orlowicz

    “If you want to keep it private, don’t put it on the Internet” is too simplistic a formulation to withstand scrutiny. Short of living in a Unabomber-style shack in Montana, it’s impossible to keep information completely private and off the Internet. My employer requires that I get paid by electronic funds transfer, so they transmit my banking information over the Internet. Does that mean I have no privacy interest in my bank account number, because by virtue of having a job I have “chosen” to make that information available on the Internet? (Let’s put aside for the moment that I’m a government employee, so stuff like my actual salary is public record anyway, which IS a choice I make intentionally by entering public service.)

    It’s one thing when somebody voluntarily discloses something about themselves (public pictures on Facebook, for example, or comments on a blog post), but suggesting that there’s no privacy implications in the difference between writing a blog for public consumption and writing a personal e-mail to your accountant just because they both use the Internet is borderline disingenuous. It’s not just about people’s feelz and need to control a narrative about them, different actions and different contexts should require different analyses about what a reasonable expectation of privacy is. For example, I should be able to expect that I can fill a prescription at my local pharmacy and not have to worry that one of the employees will take a picture of my prescription label and publish it on the Internet. I should also be able to expect that the person behind me in line won’t be carrying a telephoto lens and an SLR camera for the purposes of snapping a picture of my prescription label as it sits behind the desk, even though those are essentially public places, and it’s not ridiculous to think that people would justifiably feel that their privacy was intruded upon if that happened. In that circumstance, I didn’t intentionally expose my prescription information to the public any more than was required by the act of getting the script filled at all. Nor should it make a difference that the doctor’s office transmitted the prescription to the pharmacy via the Internet. Your solution, apparently, is that I have no privacy in these things because I needed medication and theoretically consented to having my script filled at a pharmacy that uses the Internet? That’s not the state of the world we should be trying to create.

    1. SHG Post author

      If you parsed each of your examples, you would immediately see the flaw in your argument. Putting aside the legal distinction between a public figure and you, is your physician transmitting a prescription electronically the same as you putting it on the internet? On the other hand, if you posted your prescription to Facebook, where there is no professional licensure limitation on free speech, then it would be. That would be your choice.

      Each of your examples fails for fairly obvious reasons. But when the call is for some vague, overarching claim of privacy for volitionally publicly exposed information or embarrassing conduct in which someone has chosen to engage, it gets no more complex a response than it deserves.

      1. Peter Orlowicz

        In the instant case, Hulk Hogan alleges that he had no knowledge of the recording in this case being made. He certainly didn’t voluntarily publicly expose that information on the Internet, that was done by someone else who had access to the tape. Assuming for the purpose of the argument that he didn’t actually know he was being recorded, how did he voluntarily disclose anything? (There’s certainly an argument that Gawker isn’t the right party to sue for tort damages, but you seem to be saying there’s no privacy right to be violated at all.) Or because he chose to engage in “embarrassing conduct”, even in private, that he loses all privacy interest in that conduct?

        You’re right that there is (or should be) a distinction between a public figure and me in my private capacity. But Levine’s op-ed argues, and you seem to agree (“That’s right. We do things, and we are responsible for what we do.”) that everyone is a “public figure” if their information is on the Internet, which makes that distinction meaningless.

        1. SHG Post author

          Glad you shifted gears from those horrible examples to Hulk. Now to that fact pattern. His sexual escapade was in the bed of his bestie, Bubba the Love Sponge, with Bubba’s wife. Bubba set up the recording, and said that Bollea knew damn well it was being recorded. He later changed his story for being dropped from the case.

          In any event, Bollea had sex in someone else’s house, in someone else’s bed, with someone else’s wife, where someone else had a video recorder set up and someone else recorded the sex. That someone else gave it to Gawker and Gawker published it. And that doesn’t raise the part where Hulk ranted about his daughter being involved with blacks, whom he referred to with an epithet. Where in this do you find Bollea’s protected privacy interest?

          1. Peter Orlowicz

            I refer you to my earlier statement: “Assuming for the purpose of the argument that he didn’t actually know he was being recorded…”

            If you reject that assumption as a factual matter, then we’re arguing about two very different things. If I have sex in a hotel room and someone else records it without my knowledge, do I have a privacy interest there? Did Erin Andrews have a privacy interest in her hotel room?

            If you assume that Hogan actually knew he was being recorded, then I would agree that any expectation of privacy is seriously weakened, if not eliminated. I would argue he might have a cause of action against Bubba for disclosing the video, if he could show a clear agreement that the tape would stay private, but not against the media outlet that published the leaked video.

            1. SHG Post author

              No. Even if he had no clue Bubba was recording him, he had no right to privacy shtupping another guy’s wife in another guy’s house. In his own house, yes. In another guy’s house, no.

              Erin Andrews presents completely different facts, interests and legal concepts. Her hotel room was, de jure, her house. I find it unfathomable that you mix such totally unrelated concepts. It’s impossible for me to believe that a lawyer would write such crap.

            2. David

              Peter,

              While your examples may not be sound, I’m sure someone could devise a hypo that suggests a troubling gap in the law. But that’s not the point. To the extent Levine has a thesis, it’s that a person’s intent to keep something private should prevail, regardless of his conduct, and the law should magically enforce his intent. It’s absurd.

              The law can’t possibly cover every aspect of conduct human beings can devise. It can’t be based solely upon outcome, even if it’s objectively discernible (which would not be the case for Levine).

              Yet what Levine, and you, fail to recognize is that when we do things that give rise to our own problems, it’s not because the law is bad, but we act foolishly. It’s just not a hard concept.

    2. Sgt. Schultz

      This reminds me of the nonsense args Franks makes to claim for her revenge porn law, that there’s HIPAA and privilege, so it proves the First Amendment doesn’t exist whenever she doesn’t want it to exist. While you aren’t writing about 1st A, you fall into the same toilet of examples. If you’re a lawyer, you really should know better. This is one of those “make people stupider” comments.

      1. SHG Post author

        I figured somebody might raise this silliness, but I didn’t expect it to come from a lawyer.

        Interesting aside: the linked post included a twit by Mary Anne Franks. Notice it’s not there? She deleted it so it wouldn’t appear here and she could pretend she never wrote anything so mind-numbingly stupid. Lies of omission.

      2. Peter Orlowicz

        I’m not arguing First Amendment applications, I’m arguing that there can be a privacy expectation in private acts that one does not intend to disclose to others, and that the extent of that disclosure can be limited under certain circumstances. It doesn’t seem to me that this is inherently inconsistent with, for example, the theories Marc Randazza has used to get civil judgments.

        1. SHG Post author

          Whoa. Where do you come off throwing around bullshit like “the theory Marc Randazza has used”? What you’ve already written is stupid enough, but don’t play that game. That’s total bullshit, and won’t be tolerated.

        2. Sgt. Schultz

          Wait. Let me guess. You’re really conducting a master class in how to totally destroy your credility as a lawyer in three comments or less, right?

          1. Peter Orlowicz

            Scott may vouch for you, but that doesn’t mean I know who you are, so what you think of my credibility matters less than you can possibly imagine.

            1. SHG Post author

              Peter’s a good guy and good lawyer. This hasn’t been one of his best arguments, but then, this isn’t his field of expertise. That said, it probably would have been wiser to be more circumspect. But hey, stercus accidit.

            2. Sgt. Schultz

              So which is it? Is he a good lawyer or is he bullshit? Not even you get to have it both ways. Well, maybe cause it’s your house. (Not really)

            3. SHG Post author

              Differentiate between the argument and the person. And let the lawyer who has never made a bullshit argument cast the first ad hominem stone.

  2. Bruce Coulson

    The term ‘global village’ gets used a lot, but mostly by people who never lived in a real one. In a small town/village, there is no privacy, and there are no real secrets. Anything you do involving someone(s) else is (or can be) known to anyone/everyone else, if they’re interested. (Sex, stupidity, and crime always generate interest.) As noted, the only way for something to stay private is to keep it private. The law can’t stop gossip, or its modern equivalent the internet.

  3. losingtrader

    “Westin’s vision of privacy is that you could control your information as it left you”

    This is the reason why I stay at Starwood hotels.

      1. losingtrader

        Eh, Best use is to transfer them to an airline (30 choices) before the merger is complete so they can be devalued further.
        As to this “shtupping” legal term, I guess it’s some legal construct I don’t understand. Do you have any case law? I searched Lexis/Nexus and came up empty..

  4. John Barleycorn

    $20 bucks donated to the charity of one’s choice to whomever can tell me of 1960’s origin of this Yiddish word “Shtupping” and an additional  $20 for a full briefing on the evolution of its usage.

      1. John Barleycorn

        A fine example of the layered nuances of “weariness”. However….

        The orgin and evolution of the usage of  “shtupping” remains strangely elusive.

        I up the ante to $50 and $75 respectively.

          1. John Barleycorn

            Either that or you have scared away all your Yiddish Yodas over the years (Bad move).

            Google isn’t up to challenge. Which is an extra added bonus and a feather in the cap for whomever comes through on this.

            There are a few easily had literary, play, and movie references but nothing definitive.

            That all being said there is a red carpet comedy Yiddish “interview qiiz” clip 2000ish, of those who ought to know, and everyone did know what shtupping means. Other Yiddish words and phrases not so much.

            There definitely is some New York something-or-another going on with the rise in its usage other than that my efforts have proved to be rather limp.

            1. SHG Post author

              Or you didn’t put enough on the table to make it worth my Yiddish Yodas’ while. Maybe we should put it in escrow so they are assured of payment? They’re not the most trusting group.

        1. Patrick Maupin

          How much for showing it originated before the 1960s?

          In the Fall 1947 Antioch Review, Volume 7, Nobody Dies in This Ward by Sam Elkin has the following passage, according to Google Books:

          “Like they say in French, sonny,” Pete said, “a — nice — good — shtup.”

          Now, you might still be unsure whether or not this matches the modern usage, at least until you read the next sentence and a half (all that google showed me):

          His eyes played over the back of the nurse’s head, ran down her hips, fastened on her buttocks which were outlined under her seersucker skirt, then down to her legs and ankles. He sighed again and shook his head…

          Also, in Band of Brothers by Ernest Frankel in 1958, google books shows the following sentence: “Smuck, puhtz, momser, shtup — I keep learnin’, Mel, I’ll be talkin’ Jewish right good.”

          I also found one possible reference from the English magazine “The Sketch”, December 22, 1915, but the snippet I saw wasn’t dispositive.

          1. John Barleycorn

            To be hamish, you will get an honary mention when I convince the Girl Scouts to start selling frozen blintzs Patrick or a dozen bagels donated to the administrative assistants of charity of your choice, as you are correct, but no gelt, chocolate or otherwise, for you just yet as this discovery does not constitute the sort of  megillah the back pages of SJ are worthy of. But mazal tov nonetheless you are a mensch.

            Via your pre ’60’s discovery…

            shtup: vulgar slang, to have sexual intercourse (from Yiddish שטופּ “shtoop” ‘push,’ ‘poke,’ or ‘intercourse’; cf. Germanstupsen ‘poke’).

            Call me meshugge but to “have a poke” was definitely around the north americian territories long before a minyan of Yiddish Yoda mavens set about changing the lexicon.

            I think they  hatched a plan, way back when, to schlep along and when the time was right take all the credit for weaving “shtupping” into the definitive urban lexicon forever and sometime in the ’60″s the oppertunity had arrived to make a definitive play and plotz shtupping on the big stage.

            This mishegoss must carry on…

            P.S. A very wise suggestion esteemed one. But you would think the  kvell and naches of bringing such an insightful lesson to the mishpocha of the back pages would be enough?

            Nu?

            I still got $125 that someone will summons their schvitzing golem via this conundrum and potch it!

            P.S.S. I think the answers will be found within the alleyways of the greater and figurative shtetls of New York’s Off Broadway beatnik scene just as things were coming together.

            Oh yeah, this is yet another reason you to get your shamus on and get out of the house and attend the after hours parties more often esteemed one…you should already have this shtupping orgin and evolution folklore sewed up.

            1. Patrick Maupin

              Oh, no. I’m not taking the blame if you decide to poison the admins at austinfoodbank.org with glutenous bagels.

            2. John Barleycorn

              If you insist Patrick. Bagels would have been better though!

              I am a bit bummed out there was no donate directly to the admin assistants tab. But here you go. Hank and Grace send their thanks for your consolation prize donation for the definitive usage origins. The other hundred is still in play until high noon on Sunday, but definitive usage origins have been chopped down to $25.
              _______________________________________________________________________
              Dear Patrick

              Grace works as a pediatric medical assistant for Community Care in Austin. She has seen many families in her clinic who benefit from the nearby Fresh Food for Families program run by the Food Bank. So when times are hard for her family, she knows she can get help there, too.

              Grace’s husband owns a drywall company, but the work is often sporadic. When his work is slow, Grace visits the Fresh Food for Families distribution at the East Austin Neighborhood Center. She loves the Fresh Food program for all the benefits it provides: “It’s more healthy, it’s organic. It teaches us how to eat healthy, and everything is very nutritious.”

              Grace knows it’s important to eat nourishing, healthy meals and does her best to put the best foods on her family’s table. When times are hard, she is incredibly thankful that she can use the money she saves on groceries to get through the month.

              Thank you for your generous gift of $25.00, received on 4/6/16, which helps families like Grace’s across Central Texas.
              Grace says “Thank you very much! A lot of people are benefiting from this program.”

              With sincere gratitude,

              Hank Perret,
              President & CEO

              P.S. The Internal Revenue Service requires that we state that no goods or services were provided to you in consideration of this gift. Please keep this letter for your tax records.
              P.P.S. Can your employer match your contributions? Visit our site to find out.
              Privacy Note: We value and respect your privacy. The Capital Area Food Bank will never rent, sell, or trade your information.
              Please print the following for your records:
              Transaction Summary
              Transaction Date: 4/6/16
              Amount: $25.00
              Check this option if this is an honor or memorial gift. If this box is checked, additional fields will appear to enter honor or memorial information. Yes
              Honor Gift Type: No type selected
              Country: United States
              Anonymous Donation: Yes

            3. Patrick Maupin

              Thanks for the donation, and for filling me in about Grace, Barleycorn.

              I don’t know her, but if you knew Hank, you’d certainly enjoy his company. He’s the only CEO of a $70 million food bank I know who rides a Harley.

              Not that I know any other food bank CEOs, but still…

            4. John Barleycorn

              You are welcome and thank you Patrick.

              And I think you are right about Hank and I getting along.

  5. elhunde

    Shoot, why quote Westin at all? Prosser did the heavy lifting for the 2nd Restatement of Torts on Privacy Torts. (William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960).)

    Best quote: The law of privacy is not intended for the protection of any shrinking soul who is abnormally sensitive about such publicity.

    1. SHG Post author

      Good times, when the reasonable person was expressly not the fragile teacup. Of course, it’s harder to say what’s “abnormally” sensitive these days than it used to be.

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