The Right to Privacy in a Digital Age: Reinterpreting the Concept of Personal Privacy

By Alyssa M. Brumis
2016, Vol. 8 No. 09 | pg. 2/2 |

Public Relations Analysis

As the field of public relations becomes increasing technology-driven, the right to privacy across digital platforms will continue to be an important concern for both organizations and individual clients. Public relations practitioners must steer clear of crises, and privacy violations can certainly turn into a crisis situation if an organization allows consumer information to get into the wrong hands, or fails to protect employees from digital data breaches. As more organizations are interacting with stakeholders through the Internet and platforms, public relations practitioners must take into account the legal aspects of privacy, and how to interpret it in a digital environment. The inadequate legal standards that currently exist for digital privacy has led to privacy policies that protect both consumers and organizations as user information is collected. However, these policies are not consistent across all social media platforms, nor consistent among all organizations. Therefore, public relations practitioners must be well informed in order to avoid privacy violations and in order to protect clients and organizations from digital privacy breaches or government intrusion.

“The current legal landscape of privacy, contracts, and social media is fraught with uncertainty” (Hartzog, 2013, pg. 51). With the law lagging behind our current , public relations practitioners must be knowledgeable as legal changes are imminent. Practitioners must also be well versed in privacy policies as it relates to websites and social media platforms, as “increases in legislation requiring such disclosure, and as a voluntary measure by websites to appeal to consumers by emphasizing the care with which they treat consumer information” (Hartzog, 2013, p. 58). Public relations practitioners must stay abreast of the current legal standards used in digital privacy cases, while also ensuring organizations and consumers are protected from privacy violations government entities. Public relations practitioners must protect individual clients and client organizations from lawsuits related to privacy violations, which may become increasingly difficult to ensure, as privacy laws fail to account for the vast landscape of the Internet and social media.

Privacy policies not only protect users, they also protect organizations from any liability as a result of each individual company’s policies. “No law prevents a website operator from sharing or selling personal information it has lawfully been given, although a website can be held liable for failing to notify its customers of its practice of selling or sharing such information. As long as they comply with the disclosure requirement, websites are free to state in their privacy policies that they will treat a visitor’s personal information virtually any way they wish, arguably immunizing themselves from liability for such treatment” (Hartzog, 2013, p. 59). Public relations practitioners must be knowledgeable about how privacy policies are enforced and regulated, while also ensuring they are transparent in their disclosure to consumers and stakeholders to be in compliance with the FTC. At a minimum, public relations practitioners should encourage clients and organizations to follow the FTC and FCC’s volunteer guidelines for tracking online behavior.

Public relations practitioners may also be tasked with protecting an organization or client from government intrusion of digital privacy. “Government involvement in surveillance activities is an increasingly contentious issue, with the National Security Agency’s surveillance program representing one particularly hot area” (Weckerle, 2013, p. 251). For example, a lawsuit was filed claiming Facebook illegally scanned private messages of users, and although this sounds like a violation of privacy, it remains unclear if the company violated any laws as the situation is still unfolding. As Hartzog reminded: “Courts have struggled in trying to determine whether and to what degree personal information disclosed on social media is private under common law, administrative regulations, and statutes. However, the weaknesses inherent in the privacy torts, regulations, and statutes might not remain a problem for very long, because privacy disputes are increasingly governed by contracts between the user and the website” (Hartzog, 2013, pg. 50).

Issues Not Addressed

This paper intentionally does not go into detail in addressing the legal standards or legal inadequacies relating to other technological advancements besides the Internet and social media, like GPS tracking or cell phone location data or unlocking.

While Jones v. United States (2012) illustrated the importance of obtaining a warrant to access GPS vehicle tracking information, it also illustrated how changes in technology impact personal privacy. The government invaded Jones’ privacy to obtain information, but reasoned that the Fourth Amendment goes beyond trespassing onto property. Supreme Court Justice Sotomayor argued that a Fourth Amendment search is whenever “the government violates a subjective expectation of privacy that society recognizes” (Jones v. United States, 2012).

Cell phone location privacy and data privacy have also been called into question. A recent ruling by the US Court of Appeals for the Fourth Circuit in Virginia determined that “police do not need a warrant to obtain mobile phone location data for a criminal investigation,” which has serious implications for digital privacy (Phys.org, 2016). Similarly, the Justice Department was involved in a battle with Apple, Inc. for failing to unlock a cell phone used by a suspect in a mass shooting. This fueled a firestorm debate over personal privacy and national security, and the responsibility on technology firms to aid in law enforcement investigations.

Limitations & Recommendations for Future Research

There are two main limitations to this research: time constraints and a lack of formal, legal and training. Additional time to further research privacy and the Internet from its inception, as well as a background in law would assist in navigating the different aspects of privacy law.

Recommendations for future research include: exploring the overall implications of advancing technology on our personal privacy and right to privacy, exploring the differences in terms and use across social media platforms to see what impact these have on privacy expectations, exploring how self-disclosure throughout an Internet landscape impacts an individual’s right to privacy, and exploring how government plays a role in digital privacy laws. For example, Apple, Inc. went up against the Justice Department in refusing to unlock the phone of a user involved in a mass shooting (Stern, 2016). These would be areas worth exploration, as each relates to the future of digital privacy.

Conclusion

“Privacy has always been an important issue in American society, and with the creation of the Internet and proliferation of online communications and social networking sites, it’s become a more complex legal issue as well” (Weckerle, 2013, p. 251). The concept of personal privacy has changed due to the Internet and social media. Unfortunately, our laws have not quite caught up with our advanced technology, and do not provide adequate protection across digital platforms. “Our current privacy protection regime is a patchwork of laws and remedies that are often muddled or in with other laws and evolving technology” (Hartzog, 2013, pg. 52).

The concept of personal privacy has evolved with the creation of the Internet and a vast array of social media platforms. “With the widespread deployment of GPS devices, digital networks and global satellites, our digital footprints are tracked and recorded to a degree we never anticipated and can’t completely understand” (Alben, 2015). Not only has this challenged the way we define public versus private figures, it has also opened the door to questions about self-disclosure and the impact that has on an expectation of privacy. “As public opinion changes regarding relationships and activities, and the boundaries of personal privacy change, largely due to social media and an atmosphere of "sharing," the definition of the right to privacy is ever-changing” (Sharp, 2013).

The inadequate laws as they stand do not account for the advanced technology in our current society. Current privacy laws and privacy torts are outdated and insufficient for tackling the privacy violations that can and do occur across the Internet and social media. Consistent, thorough digital privacy laws are necessary as technology continues to advance. Some states, like California, have passed laws to protect users digitally. American Civil Liberties Union’s technology and civil liberties director, Nicole Ozer, called the state’s Electronic Communications Privacy Act “a landmark win for digital privacy,” and “a comprehensive update for the modern digital age” (Zetter, 2015). But this is only the beginning. Protecting digital communication is essential, but self-disclosed data across digital platforms requires protection as well. Moreover, all states need to follow suit in order for protection to exist across the country, as less than twenty states currently have privacy laws related to the Internet, and the Internet knows no boundaries (NCSL, 2016). Digital privacy laws must be both thorough and consistent in order to be enforceable and provide the upmost protection for users and organizations.

As public relations practice infiltrates the online environment created by the Internet and social media as a means for connecting with consumers and engaging in dialogue among stakeholders, digital privacy laws will become more critical. To protect both clients and organizations, public relations practitioners must be educated in privacy policies and disclosures, privacy violations, and how to best protect consumers and clients from government intrusion or data misusage. Until specific digital privacy laws are enacted, it will be difficult for public relations practitioners to use pre-existing privacy laws and torts to make informed legal decisions, as these fail to address privacy across digital platforms.

“It is time to reassess the balance between privacy and security in our laws and our and give the public a powerful new legal tool to protect personal data, especially with respect to the communication devices and digital networks that we have come to rely upon” (Alben, 2015). As author and technology expert, Alex Alben concluded, current laws are inadequate, and it is time for a constitutional amendment to protect digital privacy.


References

Alben, Alex. (14 April 2015). “How to protect privacy in the digital age: a constitutional amendment.” Retrieved from: http://www.seattletimes.com/opinion/how-to-protect-privacy-in-the-digital-age-a-constitutional-amendment/

Brandeis, L.D. (1890). “The Right to Privacy.” IV Harvard Law Review, no. 5.

Hartzog, Woodrow. (2013). “Privacy and Terms of Use.” In D.R. Stewart (Ed.), Social Media and the Law (pgs. 50-74).

Lat, David, Shemtob, Zach. (2011). “Public Figurehood in the Digital Age.” Journal on Telecommunication and High Technology Law.

NCSL (National Conference of State Legislatures). (5 January 2016). “State Laws Related to Internet Privacy.” Retrieved from: http://www.ncsl.org/research/telecommunications-and-information-technology/state-laws-related-to-internet-privacy.aspx

Phys.org. (31 May 2016). “No warrant needed to get cell phone location: US court.” Retrieved from: http://phys.org/news/2016-05-warrant-cell-court.html

Sharp, Tim. (12 June 2013). “Right to Privacy: Constitutional Rights & Privacy Laws.” Retrieved from: http://www.livescience.com/37398-right-to-privacy.html

Stern, Rachel. (19 February 2016). “When it comes to Apple Vs. FBI, Congress Likely to Step in and Lay Down the Law, UB Cyberlaw Expert Says Privacy Vs. Security Clash Also a Public Relations Battle for Apple.” States News Service. Retrieved from: http://www.lexisnexis.com/hottopics/lnacademic/?verb=sr&csi=8058

United States v. Jones, 132 S. Ct. 945 (2012). Retrieved from: http://www2.bloomberglaw.com/public/desktop/document/United_States_v_Jones_No_101259_2012_BL_14420_US_Jan_23_2012_Cour

Weckerle, Andrea. (2013). Civility in the Digital Age. Indianapolis, IN: Que.

Zetter, Kim. (8 October 2015). “California Now Has the Nation’s Best Digital Privacy Law.” Retrieved from: https://www.wired.com/2015/10/california-now-nations-best-digital-privacy-law/

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