Law in the Internet Society
-- By BreeThompson - 10 Dec 2016

Should privacy protections adapt to protect preferred methods of communication?

“Three people can keep a secret if two of them are dead.” — Benjamin Franklin

At Marist High School, two young women were expelled when texts sent in private messages to a group that had started during a religious retreat.

Not a sentence. Self-editing should have picked this up in proofreading.

The retreat was meant to allow students to express themselves in a safe space. The students sent racist text messages to the thread which were then screenshotted and published to the school’s Facebook page. The students were subsequently expelled. As a result of this, their parents are now suing.

As the argument seems to go, the young women were merely engaging in a private conversation with (thirty-two) friends and said some unfortunately racist things that were then unfairly (and perhaps, illegally) taken out of the private conversation and published for all (the whole school is often seen as "all" for high schoolers) to see. One argument by the students’ lawyers states that the conversation was meant to be private and the young women who were expelled were not the students who published the conversation, and that since school policy requires conduct which damages the school’s reputation, the policy was not violated and so the students should be readmitted or reimbursed. While the school policy against tarnishing the school's reputation seems like it could be violated by widespread knowledge that large groups of their students have racist conversations in private, a more interesting question is to what extent people should expect privacy where smartphones are involved if they should have this expectation at all. Setting aside the tracking capabilities of phones or the data that can be un-anonymized, what protections should be afforded for text conversations that are conducted seemingly in private?

Conversations of any sort present their own complications with respect to maintaining the participants’ privacy. It seems obvious and almost unnecessary to point out that the only foolproof way to keep ideas and thoughts private is to not express them outside of one’s own head (at least for now, while mind-reading technology is still nonexistent). Obviously, this is unsatisfying and impractical to demand. As social beings and members of a nation that includes freedom of speech as one of its highest ideals, expressing ideas to other people through conversation seems to be a requisite act. But every form of conversation has its risks: speaking aloud in public runs the risk of eavesdroppers; writing a letter runs the risk of the papers being lost and read by anyone happens upon it, or the letter being intentionally passed around by the recipient in or out of the recipient’s presence; phone conversations can be recorded (where not prohibited by law)(see: Taylor Swift); emails can be read by employers or service providers, which inspired this tweet, and yet, to a certain extent, we still imagine that privacy surrounds these interactions. This illusion becomes harder to support when text messages and emails are sent to devices that can at any moment take a picture of what the user is seeing, including conversations that were thought to be private.

An easy, but unsatisfying solution is to avoid having written conversations through smartphones or laptops altogether which would bring other, but (arguably) easier to manage risks into play. However, 68% of American adults now own a smartphone, and facilitating quick conversation through standard messaging services and email is an important aspect of a phone’s utility. A majority of 18-24 year olds prefer texting to talking. There is no reason to expect that trend to change.

Why not? The "trend" is several hundred thousand years younger than human speech, after all.....

As in many things, calling for total abstinence will likely be ineffective at correcting the problem. Perhaps out of recognition of this fact, there are apps that can either disable screenshotting capabilities or make the screenshot useless through various techniques including high speed bands that will corrupt the image by blocking portions of it, but none of them have been applied protecting text messages. Developing this technology and encouraging individuals to be proactive in protecting their conversations seems a likely avenue for addressing this problem.

Additionally, it may be (albeit unlikely) valuable to expand privacy protections to penalize those who screenshot private conversations. The laws would likely be similar to those that prevent dissemination of recordings made without all parties' consent. The laws would likely be similar to those that prevent dissemination of recordings made without all parties consent. However, it remains to be seen whether this is a worthwhile endeavor. Should ideas, like those that are overtly racist, be protected even when expressed in “private” when exposing them is a click away? While one may be inclined to say no where the ideas are patently incompatible with a pluralistic society, there may be some ideas that could be expressed in private conversation that are embarrassing without being offensive or improper without being deplorable. It is unclear to what extent society should be willing to penalize those who expose people whose behavior is contrary to our shared values, and yet it seems like people should be allowed to hold whatever personal values they choose. Technology clearly exacerbates the issues surrounding private conversations, but it has yet to be determined whether the issue will be solved through the courts, legislation, or by encouraging personal responsibility.

The route to the improvement of the draft is to reduce radically the one anecdote providing the premise, which can be conveyed in two sentences and a link, and to concentrate on the analysis that leads to one specific idea that you can convey succinctly at the start of the essay, develop through the text, and leave the reader to carry further for herself that is sketched in the conclusion. In this draft, we are all at sea. The opening question appears to be a tautology: if we are to have laws protecting the privacy of communications, they must protect the forms of communication people actually use. But once one drains away the rhetoric, we seem to be dealing not with the question of privacy at all, but rather a dispute about the consequences of semi-public speech in a private school that is not required (as a public school would be) to observe the First Amendment's requirements. Whether this speech occurred on a platform or in a cafeteria, whether it came to the administrators' attention by direct hearing or through an intermediary, whether there was digital technology involved or only the movement of air molecules, must be shown to matter. So far as I can see, it does not.


Webs Webs

r2 - 13 Feb 2017 - 12:59:53 - EbenMoglen
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