Richards, Intellectual Privacy, chapters 4 & 5

  • Richards, N. (2015). Intellectual privacy : rethinking civil liberties in the digital age.

Richards is like me in that he describes things with specific examples. The past couple of chapters have describe situations that illustrate his point.

I’ve been having trouble with his explanation that Privacy and First Amendment freedom of speech are incompatible. He gives multiple examples of where privacy violations are nullified by free speech.  He’s focusing primarily on the “disclosure tort” privacy violations.

I think I’ve finally got it. My argument against it was the idea that privacy protections protect publication of things that are not of the public interest or concern. I was going in the direction that in the examples he gave that seemed to violate privacy principles were things that, after all, were in the public interest. This first chapter breaks through that roadblock in my head. Richards emphasizes the issue of censorship as central to affecting the disclosure of information of the public interest.

He describes how the courts, for the most part, define what is of the public interest in a circular fashion. If it’s published in the mass media, then it’s of public concern so it’s ok to publish it in the mass media.

In this first chapter, he centers his discussion about the situation of Tyler Clementi who had intimate relations with another gay student in the dorm. His roommate surreptitiously recorded the events twice and publicized it through streaming media. Not long after that, Tyler had committed suicide. The roommate was convicted of multiple charges in state court.

Richards breaks down the statement of the rules about publishing information. The gist of his discussion is that the initial issue that the roommate was illegally collecting the information. He became liable for disclosure because of the content of what he collected and how he collected it.

Richards makes an analogy with another case to claim that if the New York Times later obtained legally content of the video, it would have probably would not have been guilty of invasion even though the original content was from an invasion.

In comparison with the case in the UK from the previous chapter, the U.S. courts are not very supportive of any forms of censorship. There are some exceptions, but censorship is broadly prohibited by the first amendment.

So, what I get from this first chapter is that it is more problematic to gather information illegally than it is to publish that information if you aren’t criminally connected with the retrieval of it. Then, the second point he makes is that one needs to define what are private spaces where gathering information is disallowed.

Consider the tapes taken at the Planned Parenthood site from earlier. The conflicting issues are * the information was taken surreptitiously (did the person being interviewed have a reasonable expectation that what he was saying was not going to be disclosed) * the released video was widely reported as edited to be the most damaging (so the video was putting things in a false light) * the public is interested in what happens at planned parenthood (so the material is of general interest and concern)

In the second chapter, he goes into some issues of is data a form of speech that should be protected by the first amendment. Generally, Richards thinks not. The rules that cover that kind of information is more contract law than tort law.

The principles he’s emphasizing are that laws that are affect only certain forms of speech or for certain speakers/publishers are suspect and need a strong justification to pass court challenges. When a law is being challenged, if there isn’t a strong interest in applying it, the restriction probably won’t stand.

However, Richards demonstrates that if the free speech argument is taken too far, it is very impractical. When data is speech, then it’s hard to distinguish one form of data from the next. Confidential relationships such as between a physician and their patient or an attorney and the client need to be kinds of data that free speech expansions don’t affect.

Of the 16 different privacy problems discussed in Solove’s analysis, chapter 4 deals with breach of confidentiality, disclosure, exposure and increased accessibility. Richards focuses on one aspect of the liability–becoming liable for disclosure.  The courts primarily apply these situations to the person with 1 degree of separation. If the information goes further than that, it usually isn’t protected by the disclosure tort. Other limitations may cause liability, but it’s not that one.

Chapter five deals more with Solove’s aggregation and secondary use. The issue at the time of Richard’s publication was not very clearly settled. He points out that the Supreme Court prefers to handle exploratory areas like this in a piecemeal fashion. Give them a situation and they’ll try to figure out. Be as narrow as you can is their approach.

One thing from Richards’ book that I find interesting is the effect that dissenting opinions in Supreme Court decisions have. The media makes it appear that they aren’t meaningful, but sometimes they become relevant to other issues in the future.

One aspect of the issues in Richards’ book that is left out is the issues of what’s ethical and morally defensible. If it can’t make you a defendant in a lawsuit, it isn’t relevant to Ricards. With a background in law, that might not be too surprising.

He talks about how disclosure can affect norms… Norms have the capability of pushing back.

As a librarian, what is ok is based more in ethics and principle and not what the law says is ok. I can have a book in my library that homeland security or the FBI might denigrate. However, I don’t have the duty to tell them that you borrowed it or what your address is. Confidentiality laws can give me a layer of protection to support the ethic but I don’t want to do something to hurt a patron regardless. Hurt is not a legal term but it can be understood easily enough.




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