Emerging Privacy Concerns in Today’s Facebook Era
January 7, 2011 | By Vela Wood
Would you mind if I looked through your files at your office or home? How about if I scrolled through your iPhone or made copies of your web viewing history? Do you mind if a marketing company views your Facebook page, Myspace page, and/or LinkedIn page, and then targets you for ads? Do we now live in a world where someone is always watching or tracking our physical and electronic moves? Has modern man lost his right to be left alone?
Very, very, few of us say “my life’s a complete and utter open book”, as we all have things or issues we find private. But where is that line, who gets to decide where it is set, and who gets to decide who can cross it, are important questions we need to focus on in these modern times. These factors and considerations need to be examined when there is a non-stop tug of war between today’s evolving technology landscape and a person’s individual privacy rights and privileges.
In any discussion on modern privacy rights, we must first look to the Fourth Amendment of the United States Constitution. It grants “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Fourth Amendment has been construed in case law as a fundamental “right to privacy” against, in general, government action. It is possible, but very difficult, to assert this constitutional right against a spouse, friend, stranger, or non-government entity. It is safe to state that the Fourth Amendment prevents the government, federal or state, from coming into your house without probable cause and/or a warrant and raiding your house looking for whatever they want. But, in today’s electronic age, how does this “right to privacy” pertain to a small “cookie” or web crawler that follows your movements on the internet?
The Supreme Court has articulated several tests to determine what is “protected” from unreasonable searches and seizures. One of these tests is whether the party that is searched has a “reasonable expectation of privacy.” An individual’s reasonable expectation of privacy will undoubtedly be used to analyze the developing issues relating to “privacy rights” when applied to modern technology. In other words, what is your reasonable expectation of privacy when you are texting, emailing, browsing the web, or simply walking down the street with your GPS in your pocket, i.e. your phone?
How can you assert your “privacy rights”? How can you keep your Facebook page or other social site private? What is your legal remedy if your privacy is breached?
Great questions…and not easily answered.
Your current shield is to assert your right of privacy via the U.S. Constitution, your State Constitution, or a civil tort action. A constitutional argument, U.S. and State, is more theory driven and is better examined in law school treaties than a 500 word blog. So, what I will focus on, for our next several blogs, is the civil tort action of “Invasion of Privacy” in Texas and a closer look at what Texas courts have recognized as an “invasion” of an individual’s privacy. Ultimately, I’ll shape this issue in the context of today’s new privacy boundaries and discuss how social media sites like Facebook impact your privacy.