INTERNET DIMINISHES PRIVACY EXPECTATIONS AND TORTS

by Jonathan Bick Bick is of counsel to Brach Eichler of Roseland and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of 101 Things You Need To Know About Internet Law [Random House 2000].

By allowing unparalleled opportunities to publish and find anonymous posting, the Internet has reduced societal expectations of individual privacy. Web logs (blogs), social networking sites (Facebook, Twitter) and news sites when accessible via search engines (Google) and other Internet data mining applications, affords the public astounding access to previously inaccessible information about others, with unprecedented speed and accuracy. By doing so, the Internet is changing society's expectation of privacy and thereby reducing what is an actionable privacy violation.

As the legal concept of privacy in the United States evolves, so does the set of transactions which give rise to actionable privacy violations. The implementation of technology to improve American's standard of living by improving access to information has created a series of records related to nearly every facet of a person's life. In particular, Americans have come to expect that both their ability to avoiding disclosure of private information, such as the current value of their home, and private decisions, such as to which politician they donated have diminished.

The prime source of legal protection and redress for privacy violations by state actors, i.e., persons who act on behalf of a governmental body, is the Fourth Amendment ( U.S. Const. amend. IV) . It identifies the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. This has been interpreted to include protection for situations in which a person has exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable. Katz v. United States, 389 US 347 (1967) .

On the other hand, the prime source of legal protection and redress for privacy violations by nonstate actors is state law. In particular, 10 state constitutions (Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina and Washington) unequivocally recognize a citizen's right to privacy. Other states have derived a right to privacy from the text of their constitutions, such as Arkansas and Kentucky. See Jegley v. Picado, 80 S.W.3d 332 (2002) , and Commonwealth v. Wasson, 842 S.W.2d 487 (1992)

Most states give common-law or statutory recognition of four Internet-based privacy causes of action: (1) a person's name or likeness when used in advertising without consent; (2) an unauthorized electronic intrusion into another's private space is perpetrated (this is an information-gathering, not a publication, tort); (3) information about another is published and such information is highly offensive to a reasonable person; and (4) the publication of information which portrays another in a false and highly offensive manner, but is not necessarily defamatory.

As in the case of protection against state actors, protection against nonstate actors is limited to expectations that society is prepared to recognize as reasonable. Thus, changes in societal expectations regarding content that may reasonably be kept private has changed what is actionable against public and private actors.

Although there is not a single all-inclusive privacy statute or constitutional provision in the United States, statutes have been passed to address specific privacy concerns. Additionally, a number of courts have found and addressed specific privacy matters.

Prior to the Communications Decency Act, 47 U.S.C. Section 230(c) (2006), courts applied traditional publisher liability to online content. The Oakmont Court ( Stratton Oakmont v. Prodigy Services, 1995 WL 323710) ruled that an Internet service provider acted as a publisher by actively editing the content of its computer bulletin boards.

Subsequent to the Communications Decency Act, the courts found a distinction between a distributor of information and an online publisher. In Blumenthal v. Drudge, 992 F. Supp. 44 (1998) , the courts eliminated the legal responsibility of the electronic publisher for editing content. By doing so, the court allowed the publication of content previously barred for fear of privacy violation litigation.

In addition to providing immunity for Internet publishers, the courts have provided immunity for anonymous Internet posters. The Supreme Court in McIntyre v. Ohio Election Commission, 514 U.S. 334 1995, found that the interest in having anonymous Internet speech generally outweighs any public interest in requiring disclosure of the speaker. The court in Doe v. Cahill, 884 A.2d 451 2005, found that anonymous speech helps to level the playing field for expressive purposes and limited the use of court subpoenas to identification of Internet speakers.

If Internet users could be stripped of that anonymity by the courts which enforced civil subpoena, then a significant chilling effect on Internet speech would follow. Thus, discovery requests seeking to identify anonymous Internet users are typically subjected to careful scrutiny by the courts.

By carving out immunity for service providers, the court in Zeran v. America Online, Inc. 129 F.3d 327 (4th Cir. 1997) , and Congress in the Communications Decency Act ( 47 U.S.C. Section 230(a)(2) (2006), provided the vast majority of Internet publishers the ability to publish private information concerning individuals unfettered by federal or state regulation. By finding that the right to speak anonymously extends to speech via the Internet, Internet posters are buffered from casual tort litigation. Together, these actions reduced the threat that tort-based lawsuits pose to freedom of speech via the Internet, simultaneously reduced societal expectations of individual privacy.

Dendrite International v. Doe, 775 A.2d 756 (N.J. Super. Ct. 2001) , is often cited when balancing anonymous Internet speech and actionable conduct. The court found that an anonymous Internet speaker's identity should be protected until three findings are mad: (1) the plaintiff has produces sufficient evidence to support each element of its cause of action; (2) a prima facie basis for the strength of the prima facie case has been presented; and (3) the necessity for the disclosure of the anonymous defendant's identity has been proven. Other courts, such as Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001) , have adopted a similar balancing approach.

The courts in these cases have found that the privacy of the speaker should be protected because of societal expectations that Internet speakers should be anonymous. Simultaneously, these courts have found that the Internet content revealing private information should not be protected from public scrutiny due to societal expectations that Internet content should be made available to the public.

The Internet has dramatically diminished people's expectations of privacy and by doing so has simultaneously reduced privacy rights. As Internet content continues to grow in size and scope, privacy rights in personal data will diminish.