Co-evolution: The Relationship Between Digital Communication and Privacy Law Honors Thesis 2010



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Co-evolution: The Relationship Between Digital Communication and Privacy Law

Honors Thesis 2010

Lauren Ramirez






An Introduction to Digital Communication

Communication systems have evolved along with society, from messengers sent of horseback to the modern Internet. On the journey of social development and industrialization advances in technology have transformed the way humans communicate with one another. In modern society communication has gone digital, transmitted using electronic systems. Messages are reduced to a series of digits that can be transmitted and manipulated electronically.

This relatively new method of communication has resulted in a series of difficult to answer legal questions. When the Founding Fathers wrote the Constitution of the United States they could not image the complications that would arise with the advent of digital communication networks. The protection of individual privacy in particular is an area that is often in jeopardy as a result of the use of digital communication forms. It is easier than ever before for personal information to be collected, stored and intercepted as it is transmitted electronically.

The purpose of this thesis is to examine how privacy law has been shaped and has evolved as a direct result of the progression of digital communication technology. Technology has evolved so rapidly that privacy laws must often be established in response to new technology. The right to privacy is not expressly granted to citizens by the Constitution of the United States. However, the courts at all levels have ruled that the Constitution includes an implied right to privacy, evident based on the content of the Bill of Rights.



The Development of Digital Communication Methods

To fully understand the relationship between digital communication and privacy law one must first understand the historical background of digital communication systems. Dating as far back as the19th century many inventive individuals saw the potential in creating systems of communication free from geographic limitations. At that point in history effective communication was often difficult especially because of the relatively large size of the United States. However, with the advent of early digital communication systems the world “became smaller,” making the task of communicating across great distances no longer as formidable.



Telegraph Lines

New telegraph technology completed revolutionized digital communication at the time of its creation. Messages could be sent over great expanses of geographic space in a relatively short amount of time. For the first time messages could be sent more easily and more quickly than they could be carried on foot. This was the first major step into the “Information Age,” for society, with digital communication radically altering personal and professional communication systems.

Technology for the telegraph used for regular commercial use in the United States was based on previous scientific discovery. “Systems based on dynamic electricity were proposed in the first decade of the nineteenth century but these too required a discrete circuit for each letter of the alphabet” (Winston, 22). Several different systems of early telegraph communication were proposed, but the true power of telegraph technology was not realized until wireless communication was available. In 1896, Guglielmo Marconi, an Italian scientist, successful sent and received a radio signal 6 kilometers. Marconi’s work would pave the way for modern telegraph technology. (Coe).

In the United States, in 1837, inventor Samuel Morse developed an electrical telegraph and accompanying transmission system. For the successful execution of this system Morse also created a coding system to allow signals to be translated into readable text. Early telegraphs were sent using a communication system Morse created--Morse code—from select stations using a telegraph operator. At the receiving end of the message a different telegraph operator would receive the message, again using Morse code, and translate the message for the recipient. (Winston).

The telegraph had significant implications for the business world. It allowed business owners to communicate with employees across the country much more quickly than traditional mail allowed. Business plans, legal documents and important business alerts could reach recipients quickly, allowing for rapid commercial expansion across large geographic areas. In addition, the telegraph allowed news to travel quickly thus changing journalism forever. Telegraph use was also relatively inexpensive making it an accessible mode of communication. (Coe).

The Development of the Telephone

Another message system that completely transformed modern communication is the telephone. Much like the telegraph, the telephone transformed both social and professional interactions. Communication across great distance became even easier, especially as telephones become more accessible to the general public. In addition, telephone technology was unique because the actual sounds of voices rather than coded messages could be transmitted great distances.

Several different scientists and inventors sought to improve upon the strengths of the telegraph system, thus pioneering telephone technology. Innocenzo Manzetti, Antonio Meucci, Johann Phillpp Reis, Elisha Gray, Thomas Edison and Alexander Graham Bell are all credited with conducting research significant to the field of telephone technology. However, Alexander Graham Bell is often credited with the invention of what is known as the modern telephone because he was the first to be awarded the first patent by the United States Patent Office for electric telephone technology in 1876. (Fischer).

The telephone was first used exclusively for commercial purposes and only slowly moved to the realm of household use. “Although we accept the telephone as a basic component of US households, it was primarily a business tool during the first 50 years of growth. It was not until after World War II that most households leased telephones” (Winston 53). In addition, telephones were very common for use in news reporting as a way for reporters to cover stories and transmit the information quickly to waiting editors. The stock market was also quick to embrace telephone technology. (Winston).

The telephone operates on the basic principle of transmitting the sound of a human voice by wire using a telephone network. The microphone portion of the telephone converts the sound waves generated by the voice to electrical signals. The signals are then transmitted via telephone lines to another phone where they are converted back to sounds waves. The system is based on a connecting network of telephone lines, fiber optic cables, microwaves, cellular networks, satellites and cables. The telephone network has also been adapted to send text information, rather than voice information, such as fax messages and dial-up Internet transmissions. (Fischer).

Traditional telephone technology or “landlines” have given rise to a number of different forms of telephone technology including cellular telephones and Internet Protocol (IP) telephony or Voice over Internet Protocol (VoIP). As Internet service continues to grow in accessibility this system of telephone communication is gaining in popularity. IP technology uses the power of the Internet to transmit phone conversations via encoded data packets. VoIP technology is steadily growing in popularity partly because of its low cost and partly because of its wide accessibility. However, unlike traditional landline phones, IP telephone technology will not work in the case of a power outage and an IP phone does not have a fixed line meaning there may be confusion placing a physical address with a specific phone line. (Fischer).

Mobile phone technology arose from traditional telephone technology as well. Based on the principles of landline telephone networks cellular networks were created to allow telephone users to make and receive calls by connecting to a cellular network owned by a mobile network operator. This system allows universal movement within the network. Mobile phones also support additional communication systems such as short message service (SMS), allowing text messages to be sent using cellular phones. Cellular phones, which have gained steadily in popularity since they were released, have continued to make communication easy on the go. Cellular phones have become increasingly commonly used both personally and professionally. However, numerous issues have arisen dealing with the relationship between mobile phones and privacy.

The Rise of the Internet

The Internet, a system of interconnected computer networks, has forever transformed digital communication technology. “The networking of the world’s personal computers in the 1990s was heralded as creating a virtual new dimension of human experience (Winston 243). The idea for a linked system of computers dates back to the Cold War—a time when scientists and military personnel were afraid of losing data in the case of a bombings. As a result of this fear a system for sharing information between networks in both the private and public sector was developed. The early system, developed in 1958 by private sector scientists from the Massachusetts Institute of Technology and the United States Department of Defense, was called the Advanced Research Projects Agency Network. This system provided the framework for the modern Internet allowing for packet switching—enabling information to be “bundled” into independent packages that can be sent to multiple locations. (Moschovitis).

Gradually early forms of Internet networks continued to grow and merge, eventually reaching a commercial audience. No single general agency or government has control over the Internet, although many countries have laws regulating the proper use of the Internet including in some cases appropriate content. Today the Internet is used in some capacity in virtually every aspect of life—personal, professional and educational life. However, a great deal of ambiguity exists in terms of who “owns” online materials—the message creator, receiver, Internet provider etc.

The Internet has also resulted in social networking sites, online platforms that focus on building social networks or relationships among people. Social networking sites allow users to interact and communicate with one another like never before. Facebook.com, which debuted in 2004, is currently the most commonly used social networking site in the world with 500 million active users—meaning approximately one out of every 14 Internet users in the world is a Facebook user. Facebook, and other social networking sites, allow users to create online personal profiles. Users can then use their profiles to share videos, pictures, comments and messages with online “friends.” However, Facebook and other social networking sites have faced a great deal of controversy related to protecting the private information of users posted online, many resulting in legal action being taken. (Kirkpatrick).

E-mail is another example of a digital communication system made possible by the rise of the Internet. E-mail can be an extremely powerful digital communication tool, but the laws surrounding the privacy of e-mail communications is still rather vague. There are also a number of technological features related to e-mail that are often discussed in relation to privacy law. Often private sector companies, primarily marketing firms, can collect information gathered by tracing an individual’s online habits. The information is then stored using computer databases. Computer databases allow digital data related to financial information, shopping records, hobbies, comments, site visited etc. to be stored online. Digital tools are also accessible that allow companies to analyze the data they collect, using the information to determine patterns and generate models for users. This practice is called data mining. (Solove & Rotenberg).

Web sites may also install small text files onto a users computer, storing code that can be read by the site. These files are referred to as cookies, and allow Web sites to gather information about site visitors. Small data collection tools, called web bugs, can be used to monitor e-mail messages and may be as small as a single pixel. Without the users knowledge keystroke loggers may also be installed on computers, greatly jeopardizing the privacy of the user. Keystroke loggers literally keep a record of all of the keystrokes a user takes. Keystroke logging programs may in some cases be sent vie e-mail with a virus implanting the program, as demonstrated by the Magic Lantern program created by the Federal Bureau of Investigation (FBI). (Solove & Rotenberg).

While many different technological advances have been made allowing personal information to be gathered without consent, technological advances have also been created to allow users to protect their personal information. For example, encryption systems allow communications to be translated into a secure code form while the message is transmitted. The message is then translated back to its original form for the message recipient to read. This system reduces the likelihood that the message will be intercepted by hackers, while at the same time providing authentication of the message. Anonymizing technologies allow users to safely cruise the Internet without leaving a digital trail of information. A similar system also allows e-mail messages to be sent anonymously, without a digital trace. However, while all these systems can be very useful for protecting individual privacy online they complicate the realm of digital privacy law where technology advances more quickly the regulation. (Solove & Rotenberg).
Digital Communication Regulation

When the Founding Fathers first developed the ideas and principles that now comprise the United States Constitution they lived in a very different time and had no way of knowing how far technological advancements would take society. Therefore, there was no way to draft laws into the Constitution that would directly regulate digital communication, which as a result has largely fallen to the courts to decide as issues have arisen. In general, the courts have been a driving force in shaping the regulation of digital communications industry. “From rulings on the First Amendment to intellectual property rights, the U.S. Supreme Court, federal courts, and even state courts have helped define the nature of public and private communication in an era of advanced information technology” (Pavlik, 255). The laws and regulations that govern digital communication have, and continue to evolve as technology itself continues to evolve. (Pavlik).

Policy regulation of digital communication was born out of necessity as the radio boom took hold. With no regulation of the airwaves several people would broadcast on the same frequencies jamming the channels or overlapping. “This stage formally began with the 1934 Communications Act, establishing among other things the Federal Communication Commission…” (Pavlik, 259). This also laid the groundwork for “common carriage,” meaning nondiscriminatory access and fair pricing for all especially educational and nonprofit organizations.

The Federal Communications Commission was given the task of regulating the public airwaves, which included giving stations call letters and assigning frequencies to avoid confusion. “Its mission was to ensure that every broadcaster serve ‘in the public interest, convenience, and necessity’” (Pavlik, 261). This task was especially important because of the limited amount of public spectrum available. “Digital technology, however, has made spectrum, or channel scarcity little more than a quaint relic of the past. Compression, broadband telecommunications, and advanced techniques for using the radio spectrum more efficiently have transformed the communication environment into one of channel abundance” (Pavlik, 261).

The Federal Communications Commission was created in order to regulate and oversee the functioning of various forms of digital technology, but has evolved over time in relation to the evolution of technology. The group is comprised of five commissioners and a chairperson, all appointed on an alternate basis by the President of the United States for five year terms, pending congressional approval. While originally created to regulate early forms of communication such as radio, today the FCC is more concerned with mergers, pricing, cable television, wireless technology and monitoring of radio and television content. The modern goals of the FCC include promoting, “…the economic development of new media technologies while insuring equitable access, both to the end user and to a diverse array of content and information service providers” (Pavlik, 262). The FCC is charged with operating and regulating in the public interest, which requires the careful monitoring of digital technology. (Pavlik).

As a result of the rapid growth of global communication technology the need for international regulatory agencies has arisen. Several countries have united to create a uniform system of communications standards that apply to foreign and domestic communications. Outside the United States the Post Telegraph and Telephone agency regulates telecommunications systems. The International Telecommunications Union (ITU) is responsible for the international radio spectrum, distribution of satellite space and basic telecommunications agreements between nations. To protect intellectual property on an international scale that World Intellectual Property Organization (WIPO) was created, ensuring that the creators of a particular work are granted by member nations the same copyright protections they receive in their home nation. (Pavlik).


Digital Communication Networks

The idea of a network is one that has completely transformed the communications industry. “Bell’s vision of the network was beginning to affect how people thought about telephony—not paired stations but subscribers networking through a central exchange” (Winston 248). In the 1840s, Morse and his partners set out to established a network of telegraphs that they envisioned would reach across the United States. The set about securing funding for the construction of telegraph lines as well as offices to send and receive messages. They envisioned a unified system of lines. In 1878 the New England Telephone Company was born using the same basic principles as the telegraph network.

Gradually several competitors emerged in the race to establish a unified national telephone network. In 1884, American Bell was able to successful conduct what was at the time deemed a long distance call. The American Telephone & Telegraph Company (AT&T) also invested a great deal of money in long distance technology, with the goal of creating a national telephone network. National radio network technology also functioned based on ideas very similar to the telegraph and telephone networks. Radio networks are based on single points of distribution and the linking of transmission masts. Additionally, in radio affiliate stations are linked together, as was the practice of RCA, which founded the National Broadcasting Corporation (NBC). The competing Columbia Broadcasting System (CBS) was founded in 1927, further altering the notion of radio “networks.” (Winston).

The growth of radio networks was also fueled by the growth of telephone networks. “Linking (radio) stations was far more obviously ‘a telephone job’ since it required high-quality long, or, even better, landlines; moreover it avoided responsibility for content, a stance much more in accord with the phone company’s common-carrier status than station ownership” (Winston 262). This trend also proved true in the establishment of a national television network, which developed in much the same way.

An international broadcasting system later developed from the domestic network framework, again with television following in the footsteps of the radio network based on a long wave system developed originally for military purposes. (Winston). All of theses systems of communication, telegraph, telephone, radio, television and the Internet developed networks very rapidly. As a result many issues, including regulatory issues and privacy concerns developed after the initial networks were developed.

As digital communication technology developed a unified system of regulation was needed to control first radio waves, then telephone systems and eventually Internet traffic. In the early 1990s Congress sought to develop a system of regulations for the emerging information highway including: let private industry build the infrastructure, remove most regulatory barriers blocking development of the information highway, insure universal access and create a level playing field that allows firms to compete equally. Government intervention was perceived as necessary a way to prevent the flow of digital communication from becoming totally controlled by a single elite group. Government regulation of the information highway was also seen as necessary to allow digital communication to positively contribute to the fields of education and benefit the national economy. In 1991, former Vice President Al Gore, as a way to connect research sites, introduced the High-Performance Computing Act. The legislation linked many universities, providing a structure for an early form of the Internet. (Pavlik).


What is Privacy?

To full understand the co-evolution of digital communication and privacy law, privacy as a term must first be defined and examined. It is also important for the study of the foundation of constitutional privacy law to examine the difference between privacy as a concept and the right to privacy. The law does not directly define privacy, and by extension all the ways that it may be protected. Rather the law determines “what situations of privacy will be afforded legal protection”(Solove & Rotenberg 25). Privacy as a concept deals with determining what the essential components of privacy are, as well as the value placed on privacy. The notion of privacy as a right deals with how privacy is or should be protected under the law. “Over the past four decades, academics have defined privacy as a right of personhood, intimacy, secrecy, limited access to self, and control over information” (Solove & Rotenberg 27). The right to privacy has been particularly difficult to define, and often must be weighed against other values. (Solove & Rotenberg).


Why Do We Need Privacy Law?

Increasingly private information is transferred via digital information networks making all users traceable. “These new technologies, coupled with the increasing use of personal information by business and government, pose new challenges for the protection of privacy” (Solove & Rotenberg 1). Advances in digital technology, increased use and increased online sharing of personal information have given rise to information privacy law, which concerns the use and disclosure of personal information. By extension privacy law includes decisional privacy law—relating directly to individual freedom and an individuals ability to make decisions that impact one’s body and family. These types of decisions are generally referred to as substantive due process or the constitutional right to privacy. (Solove & Rotenberg).

In past court cases decisional privacy generally refers to contraception, procreation, abortion etc. However, privacy increasingly incorporates elements of decisional privacy as it relates to the rights of an individual to have autonomy over their digital information. Information that was previously not captured due to technological limitations can now be preserved. “We live in a world shaped by technology and fueled by information. Technological devices—such as telephones, video and audio recording devices, computers, and the Internet—have revolutionized our ability to capture information about the world and to communicate with each other” (Solove & Rotenberg 1). This relatively new system of communication has lead for the need to interpret long-standing legal precedents in new and inventive ways.

Issues of personal privacy are also very complex because they involve issues that have not previously been explored meaning that new laws, legislation and regulation must be defined to address privacy issues as they arise. In determining if privacy rights are in violation, specifically the electronic searched or seizures, which may violate rights protected by the Fourth Amendment the courts have uniformly held decisions based on the reasonable expectation of privacy test. This test, established by Katz v. United States holds that, “…the application of the Fourth Amendment depends. (Solove & Rotenberg).


The Constitutional Roots of Privacy Law

The Constitution of the United States does not specifically grant all citizens the right to privacy. However, the right to privacy is implied in several key passages within the document. The First Amendment, for example, protects the rights of citizens to speak anonymously. This has had significant implications in the field of privacy law. In addition, the First Amendment includes a freedom of association clause protecting individuals from being forced to disclose the groups to which they belong to or contribute. This has been tested in certain court cases such as NAACP v. Alabama, 357 U.S. 449 (1958) during which the courts decided that the forced disclosure of an organization’s members or addresses is unconstitutional. (Solove & Rotenberg).

The Third Amendment of the United States’ Constitution states, “No Soilder shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law” (Constitution of the United States). This amendment has been paramount in the development of certain types of privacy law, directly protecting the privacy of the home. The Fourth Amendment in turn provides people the right to be secure, “in their persons, houses, papers, and effects against unreasonable searches and seizures …”(Solove & Rotenberg 20). This has significantly impacted privacy law, specifically when addressing issues of both physical and intellectual trespass.

The Fifth Amendment also gives citizens of the United States implied rights to privacy. The Fifth Amendment states, “No person…shall be compelled in any criminal case to be a witness against himself…” (Solove & Rotenberg 21). This is also referred to as the right against self-incrimination, and is extended to the realm of privacy law as it restricts the ability of the government to force individuals to share information about themselves. Modern privacy law has been formed from the foundations of these Amendments, as well as subsequent court cases. For example Griswold v. Connecticut, 318 U.S. 479 (1965) established that by an “expansive interpretation of the Bill of Rights,” individuals are granted the right to privacy. However, in practice court rulings have gone back and forth on the specifics of privacy. (Solove & Rotenberg).

The evolution of digital communication technology created completely new systems to gather, distribute, collect and arrange personal information. As a result there has arisen a new need to determine what information is considered private and how to regulate privacy in an era when digital information is so readily available. While the right to privacy is not expressly granted or enumerated by the United States Constitution it has been interrupted by the United States Supreme Court that citizens have an implied right to privacy. As stipulated by Supreme Court Justice Louis Brandeis the Constitution places an emphasis on, “the right to be left alone—the most comprehensive of rights and the right most valued by civilized men” (Pavlik 277). This notion of privacy has laid the foundation for modern privacy law, which has become extremely necessary in the digital age. “New technologies require a new formation of privacy based on, ‘the right to maintain control over one’s own data’” (Pavlik 277). In addition, the protection of personal privacy is essential to the successful functioning of a democratic system. (Pavlik).

Because the U.S. Constitution does not directly protect privacy may state and federal laws have developed to deal with privacy issues on a case-by-case basis. Initially, a great deal of the laws created dealt with the protection of individuals by privacy infringement on the part of the government. However, in many cases the biggest threat has arisen from the private sector. Increasingly, as digital communication technology continues to become a daily part of normal employment, employers and employees alike are seeking to find a legal balance between protection of individual privacy and protection of productivity. “Although technologically enabled, much of the impetus from employer monitoring of employee communications comes from two sources: a desire to maximize work efficiency and minimize time spent on non-work related tasks….”(Pavlik 278). The development of privacy law is particularly difficult as a result of the need for a balance of protections for individuals, corporations and government, in keeping with the notions of free speech and private property outlined in the U.S. Constitution. (Solove & Rotenberg).

In 1890, Samuel Warren and Louis Brandeis wrote The Right to Privacy and completely changed the way privacy law was viewed. The article has since been cited in many court cases involving privacy issues, even at the Supreme Court level. The article was a result of the times, with several social factors contributing to the need for the creation and clarification of privacy laws. The first social fact was the wide distribution of newspapers and other publications that featured highly sensational content, often referred to as yellow journalism. Newspapers frequently contained stories featuring the personal details of the lives of prominent figures. (Solove & Rotenberg).

Another societal factor that contributed to the need for privacy laws was the technological development used to produce and distribute publications. For example photography, which at the time the article was published, had become accessible to the masses. In 1884, the Kodak company débuted a new product called the snap camera that was portable, inexpensive and available to the general public. This allowed for public photography. “Warren and Brandeis, however, astutely recognized the potential for the new technology of cameras to be used with sensationalistic press” (Solove & Rotenberg 4). Theses along with other societal factors cemented the need for the establishment or a clear set of guidelines involving privacy law. (Solove & Rotenberg).


To illustrate some of the key principles related to privacy law developed by Warren and Brandeis excerpts from The Right to Privacy are listed below:


  • “That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society” (Solove & Rotenberg 6).




  • “Gradually the scope of these legal rights broadened; and now the right to life (as defined in the U.S. Constitution) has come to mean the right to enjoy life,—the right to liberty secures the exercise of extensive civil passages; and the term ‘property’ has grown to comprise every form of possession—intangible, as well as tangible” (Solove & Rotenberg 6).

The ideas and notions that Warren and Brandeis put forth in this article gradually developed and gained support. The notions of privacy developed into the right to ‘be let alone,’ referring to a type of protection of individual privacy. Development of digital technology makes in increasingly difficult for individuals to protect their personal property, a legal extension of themselves. Their article also led to the development of the reasonable expectation of privacy test, which is often used to determine cases of privacy. The test states that when people are in environments in which a reasonable expectation of privacy exists such as in a private dwelling the space is protected. (Solove & Rotenberg).



The Right to Privacy opened the door for the development of privacy laws under the common law, recognized in some form by many states. This lead to the formation of four specific types of torts, or civil rights including a breach of contract that injures another and for which the injured party may receive compensation. The torts include: public disclosure of private facts, intrusion upon seclusion, false light and appropriation. Additional branches of law also protect privacy, which relate to, but did not directly result from The Right to Privacy. (Solove & Rotenberg).

One such type of law is defamation, which includes both libel and slander, and deals with false statements spoken or written about another that is harmful to that person’s reputation. Libel is written and slander is spoken. “The Supreme Court has held that the First Amendment places certain limits on defamation law” (Solove & Rotenberg 18). The idea of defamation relates to private property, meaning an individual’s reputation should be protected as it is directly related to their ability to do business in society. In fact, the idea of defamation can be traced to a form a church law—referring to a new for ecclesiastical court rulings on the topic. While not always the case in history, modern law dictates that true statements cannot be libel or slander. (Solove & Rotenberg).

The rise of digital communication has completely altered the way that defamation is handled. In previous decades information could not be easily broadcast to a wide audience easily, it generally had to be distributed by a large media source such as a newspaper of televised news program. However, the rise in popularity and accessibility of the Internet means that everyone can “publish” information about others from the comfort of their homes. This means that defamation is often more difficult to prove because information can be submitted online anonymously making it difficult to locate culprits and more difficult still to hold them legally accountable.

The importance of protecting certain types of communications can also be classified as privacy law under evidentiary privilege. Evidentiary privilege accounts for communications that are considered privileged, and thus cannot be permitted during a trial. Communications covered by evidentiary privilege include certain communications between husband and wife, attorney and client, priest and penitent, doctor and patient etc. (Solove & Rotenberg).

Privacy law can also be covered by the tort of inflection of emotional distress. “This tort provides a remedy when one ‘by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another’” (Solove & Rotenberg 19). This however can only be applied to privacy cases that can be shown to be extreme. Property rights may also occasionally be invoked in relation to privacy law, although most often as a form of appropriation, suggesting personal information is a form of property.

Privacy may also fall under contract law or criminal law depending on the specific circumstances. For example, “Sometimes specific contractual provisions protect against the collection, use or disclosure of personal information” (Solove & Rotenberg 19). In some cases contract law has taken precedent over state and federal privacy laws. Criminal law protects against various forms of bodily harm or invasion including but not limited to: assault, rape, battery, trespass, stalking and harassment. This has been expanded to address issues of privacy that can be harmful such as blackmailing, identity theft and wiretapping. (Solove & Rotenberg).



Cases Involving the Co-evolution of Digital Communication & Privacy Law

There are many court cases that require the issue of privacy to be interrupted because of advances in communication law that have not previously been addressed. The United States v. Simons, for example, demonstrates how privacy law needed to be interrupted to determine if Internet use while at work is a protected form of communication or not. In this particular case Mark L. Simons, an employee at the Foreign Bureau of Information Services (FBIS), was charged with accessing pornographic pictures of minors from his office computer.

In 1998, FBIS instituted a policy stating that employees were only to use the Internet at work for government business. The policy informed employees that electronic audits would be randomly conducted to ensure employee compliance. FBIS employed a third party vendor, Science Applications International Corporation (SAIC), to handle its computer network including monitoring employee Internet usage. An SAIC employee, while testing the FBIS firewall, entered the keyword “sex” into a search and found that a large number of Internet “hits” originated from the office computer assigned to Simons. (Samson).

This discovery was reported to Simon’s FBIS supervisor. Based on SAIC discoveries it became clear that more than 1,000 pornographic picture files had been downloaded to Simons’ computer. When pornographic images of minors were found criminal investigators became involved. Simons was accused of one count of knowingly receiving child pornography and one count of knowingly possessing material containing images of child pornography. Simons argued that a warrantless search of his office computer violated his rights under the Fourth Amendment, which protects against unreasonable governmental search and seizures. Simons moved to suppress evidence from the trial, which ultimately was denied. Simons was sentenced to 18 months in prison. (Samson).

This case has had far reaching implications for the world of privacy law as it relates to digital communication. In this particular case, while the Fourth Amendment does protect against unreasonable searches and seizures, Simons was required to prove that he had a reasonable expectation of privacy where the items were searched or seized. In his case Simons could not prove that he had a reasonable expectation of privacy on his work computer. As a result of the policy mentioned above Simon could not have a reasonable expectation of privacy because he was aware of the possibility that his work computer could be monitored and also Internet searches and files downloaded would be fair game for inspection. This case was extremely important to the realm of privacy law because it effectively determined that digital communications including Internet searches and content pulled from the Web are not considered private information, and that the Fourth Amendment can not be used as a defense against illegal searches and seizures at a place of employment. (Samson).

Another case that has become important in the shaping of privacy laws is Zeran v. America Online, Inc. This case effectively established that, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (Solove & Rotenberg 682). This ruling has had a significant impact on the field of privacy law because it provides immunity to Internet service providers who, before this ruling, could potentially have been liable for information posted by a third-party user of the service.

This case originated in 1997 when an individual posted a message on an American Online (AOL) bulletin board. The message promoted “Naughty Oklahoma T-Shirts” with offensive statements related to the Oklahoma City bombing of the Alfred P. Murrah Federal Building. The message directed people to call Kenneth Zeran, a Seattle resident to purchase the shirts. This anonymous prank results in daily threats of bodily harm for Zeran. When Zeran contacted AOL he was informed that the message would be removed, but that no retraction could be posted per company policy. The next day another anonymous message with similar content appeared on the AOL bulletin board. At the time of the second posting Zeran was receiving threats approximately every two minutes. (Decisions and Litigation).

A radio personality on KRXO, a station in Oklahoma City, heard about the posting and encouraged listeners to call Zeran. When the story was brought to light KRXO issued an apology but the damage was already done as the hurtful calls to Zeran intensified. Zeran filed suit against AOL, moving to hold the company liable for defamatory speech initiated by a third party. “He argued to the district court that once he notified AOL of the unidentified third party’s hoax, AOL had a duty to remove the defamatory posting promptly, to notify its subscribers of the message’s false nature, and to effectively screen future defamatory material” (Solove & Rotenberg 141). AOL claimed that Congress, under the Communications Decency Act, provided computer service providers with immunity from claims posted by a third party. (Decisions and Litigation).

This particular piece of legislation, as affirmed by the courts, establishes that claims cannot be made placing an Internet service provider in the role of a publisher. This means that lawsuits that place Internet service providers in the role of publisher are not allowed.
Congress recognized the threat that tort-based lawsuits pose

to freedom of speech (and by extension privacy) in the new and

burgeoning Internet medium. The imposition of tort liability on service

providers for the communication of others represented, for Congress,

simply another form of intrusive government regulation of speech….It

would be impossible for service providers to screen each of their

millions of postings for possible problems. Faced with potential

liability for each message republished by their services, interactive

computer service providers might choose to severely restrict the

number and type of messages posted. (Solove & Rotenberg 141).

However, Internet service providers were encouraged to self-regulate. This case marks an important moment in the co-evolution of digital technology and privacy law because it clearly defines that Internet service providers bear no responsibility for the posted information. (Solove & Rotenberg).

Many social networking sites have faced legal battles involving privacy law. Facebook in particular has faced many legal challenges related to the protection of private user information. In the case of Finkel v. Facebook a high school student, Denise Finkel, sued four of her classmates, their parents and Facebook as a result of postings made on Facebook that were defamatory with “negative sexual and medical connotations.” Finkel sued Facebook as a publisher, but as seen with the AOL in the Zeran v. America Online, Inc. case Facebook was protected under the Communications Decency Act. Facebook filed a motion to dismiss the case. In opposition to Facebook’s motion Finkel argued that Facebook’s own Terms of Service granted it an “ownership” interest in the content of its site, which is not protected by the Communications Decency Act. (Ardia).

Her claim was determined to be meritless according to the courts. In this case it was also decided that “ownership” of content plays no role in “…the Act’s statutory scheme. The only issue is whether the party sought to be held liable is an ‘interactive computer service’ and if that hurdle is surmounted the immunity granted by (the Act) is triggered if the content was provided by another party” () This case is particularly important to the realm of privacy law because it affirms the notion that service providers, including social networking sites, are not liable for information taken from third-party sources. This case also shows that social networking sites have limited liability when it comes to the protection of individual private property content “published” online. (Ardia).

The cases and legal situations described above, as well as many other cases, have helped to cement the notion that citizens of the United States have been granted an inherent right to privacy, implied by the content of the Constitution of the United States. While the right to privacy is not expressly implied advances in society have resulted in a need for protection. Advances in digital communication specifically, while beneficial to society as a whole, have the potential to interfere with an individual’s right to privacy. Therefore, it is essential that digital communication and privacy law continue to evolve together to ensure that society can balance the benefits of new digital technology without sacrificing their rights to “be let alone.”



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Co-evolution: The Relationship Between Digital Communication and Privacy Law



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