Social Networks, Privacy and Freedom of Association

8/2/2019 Social Networks, Privacy and Freedom of Association

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Social Networks, Privacy and

Freedom of Association

Professor Peter Swire

Ohio State University

Privacy Working Group

April 25, 2012


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Overview

1. Linguistics: network and association1. Social networks as platforms for association

2. Cyber conferences

1. One panel on political mobilization celebrate sharing ofpersonal information

2. One panel on privacy concern about sharing of personalinformation

3. Towards an integrated view spotting the issues, intellectualstructure

3. Doctrine on possible state action1. Privacy by design; Do Not Track

2. Do Not Track, even for political parties and non-profits

4. Data empowerment v. data protection


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Network & Association

1. Linguistics: network and association

1. Also, links, relationships2. Circles form groups and associations

2. Social networks as locus of political mobilization

1. Egypt, Tunisia, Arab spring

2. Obama campaign: New Media, and get friends to get friends toknock on doors

1.A different progressive view of privacy

3. Tea Party

1. Senator Brown; not a left/right split

3. Social media central to associational activity

1. Already by 2009, 97% of charities in the U.S. used some form ofsocial media

2. 2011 Pew study: majority of online users in the US have beeninvited via Internet to join a group; 38% have used the Internet

to invite others to join a group


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1st Amendment Doctrine

1. Possible state action to govern associations in social networks2. Expressive association, not intimate

3. Strict scrutiny thus far test for association, ok if:

1. Compelling state interest

2. Unrelated to the suppression of ideas

3. That cannot be achieved through means significantly lessrestrictive of associational freedom

4. Perhaps commercial association

1. Social network challenges its ability to supply association

5. Perhaps time, place, and manner association1. Some aspects of social networks are regulated, while allowing

ample alternative channels for association


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Previously on Privacy & Association

1. NAACP v. Alabama: state wanted membership list of NAACPmembers

2. Alabama lost:

1. Privacy interest of members, chilling effect if their associationlinks revealed

2. Chilling as well of the NAACPs associational rights

3. Limit on data flow supported freedom of association

3. Applied to social networks:

1. Freedom of association (to protect privacy) can be a state

interest justifying privacy limits2. As applied in a case, look at privacy rules restrictions on

freedom of association (limit on data flows) and also itsadvancement of freedom of association (protect individuals fromrevealing their memberships)


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Example 1: Privacy by Design

1. Issue: legal mandate of privacy by design

1. Plaintiff can be a political campaign or non-profit, and wantsoutreach by design

2. Plaintiff can be the social network, claiming commercial

association rights violated by limits on the platform3. Facts matter effects on association, other alternatives

4. Doctrine matters strict, commercial, or TPM scrutiny


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Example 2: Do Not Track

1. Do Not Track still in dispute:1. May limit display of targeted ads (industry view)

2. May limit collection of information across multiple sites (Brill)

2. For display-only version of DNT

1. This is the outreach by the organization to find people likely tobe interested in joining the association or its activity

2. May be strong argument for exception for political campaignsand non-profits, as with Do Not Call

3. For collection limits version of DNT

1. Goes deeper into architecture of what data created & shared2. May be harder for challengers to say need accommodation

specifically for political campaigns and non-profits


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Data Empowerment v. Data Protection

1. Usual statement, in E.U. and more broadly1. Fundamental/human right to privacy protection

2. Rights of the data subject against the controller

2. Form of the argument: the individuals rights should outweigh utility

(cost/benefit) arguments, and privacy should win

3. Data Protection

1. Data is fundamentally risky

2. Protective principle is appropriate


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From Data Protection to DataEmpowerment


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Data Empowerment v. Data Protection

1. Data Empowerment1. Technology and social networks empower creation

of associations

2. Rights (association) vs. rights (privacy)

3. Similar to Volokhsright to speak truthfully aboutanother person, and individuals can be the press


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Conclusion

Towards integrated intellectual structure for social networks as: Platforms for association (share data)

Platforms for privacy invasion (limit sharing)

Individuals ourselves (and our non-profits and political groups)

Split within our psychology data empowerment & protection

Legal doctrine

Will need development of FOA law for association platforms

Practical politics

This is how politicians do their outreach, so may be hard to enact

limits on association (NPR story) Philosophy

When is data protection over-protective?

When is data empowerment an overstatement, given

continuing power of huge organizations?

Documents

Social Networks, Privacy and Freedom of Association