Privacy Expectations in Online Social Media - An Emerging Generational Divide
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ommunicalions
Publication of the Forum
on Communications Law
American Bar Association
Volume 28, Number 3, November 2011
I * po a e- * o *Ag A
In this issue
COVER STORY
Privacy and Digital Natives...........1
Many digital natives, i.e., frequent users
of social media, expect that the informa-
ion they have posted will be public only
within their circle of friends. But the
question for the courts, and ultimately for
society, is whether such an expectation is
objectively reasonable.
DMG! RU 4 Real?..........................2
rhe forum's chair speculates on legal
practice in the Digital Age. Are the courts
ready for tweet briefs? Do we need any
more than 140 characters to get a cohesive
Legal thought across? Can we capture the
essence of case law in a pithy SMS text?
DK, he concludes.
Moral Panics and Free Speech ........4
In Brown v. EMA, the Supreme Court
reaffirmed the bedrock First Amendment
-oncept that new communications tech-
riologies, even those as morally offensive
as violent video games, are constitution-
ally protected.
Trademark Law Online................10
N recent Ninth Circuit case injected some
order into what so far have been unsettled
jnline business practices and, in doing so,
Jelineated several boundaries of Internet
advertising.
Are Bloggers Protected? ............16
4 recent decision in New Jersey, which has
what most consider to be one of the na-
ion's most expansive shield laws, may be
nstructive for counsel representing blog-
gers and other new media practitioners.
Dilemma of Defamation Law..........19
rhe author contends that the law of defa-
mation is haunted by ancient common law
principles, as well as more contemporary
loctrines, that provide multiple opportu-
3ities for frequent misunderstandings.
1st Amendment Goes to China......23
China Reports interviewed a senior mem-
:er of the American media law bar on
xow lawyers could convince judges to use
:he First Amendment to protect newspa-
Ders from the government, particularly in
-ases with high political stakes.
Privacy Expectations in Online
Social Media-An Emerging
Generational Divide?
STEVEN D. ZANSBERG AND JANNA K. FISCHER
Does one have a reasonable expecta-
tion of privacy in the contents of a
postcard, discussing highly personal
medical information that is dropped
into a U.S. postal box for mailing?
Years ago, this question was posed to
attendees at the Media Law Resource
Center's London Conference at
Stationer's Hall. All of the American
attorneys in the audience raised their
hands expressing the belief that there
is no such expectation of privacy in
the postcard's contents because it was
open to viewing by anyone who came
in contact with it. In contrast, the
European (indeed, all non-American)
practitioners in attendance expressed
their belief that the contents of the
postcard enjoyed privacy protection
because it contained highly personal
and intimate information, not intend-
ed for a mass audience. This concrete
example starkly demonstrates how
different cultural norms shape the
view of what is a reasonable expecta-
tion of privacy.
The postcard example was not a
purely theoretical exercise; the point
it illuminated is firmly grounded in
American privacy law. After all, the
Constitution prohibits the govern-
ment from conducting an unreason-
able search or seizure of information,
which has been judicially limited to
information as to which an individu-
al has both a subjective expectation
of privacy and an objectively reason-
able one. In order for an expectation
of privacy to be reasonable, it must
be one that society is prepared to
recognize as 'reasonable. Similarly,
for information to be subject to a
privacy expectation that is protect-
able in civil tort law,2 the defendant's
intrusion into one's sphere of per-
sonal privacy must be a substantial
one, of a kind that would be highly
offensive to the ordinary reason-
able [person],' and must interfere
with a privacy expectation that is
objectively reasonable.' Expressly
recognizing the degree to which such
determinations are governed by the
social norms of the relevant com-
munity, the Restatement declares
that [t]he protection afforded to the
plaintiff's interest in his privacy must
be relative to the customs of the
time and place, to the occupation of
the plaintiff and to the habits of his
neighbors and fellow citizens.'
Precisely what type of privacy ex-
pectation society is prepared to recog-
nize as reasonable varies not only by
geography or nationality, as between
individuals living in the United States
and those living across the pond, but
also by age. Today's younger users
of social media (tweeters, bloggers,
and other so-called netizens) have
decidedly different notions of what it
(Continued on page 26)
Steven D. Zansberg is a partner in the
Denver office of Levine, Sullivan, Koch
& Schulz, L.L.P Janna Fischer, currently
serving as a law clerk in that office, is a
1D. candidate (2012) at the University
of Colorado School of Law.
November 2011 E Communications Lawyer l 1](ViewImageLocal?handle=hein.journals/comlaw28&div=23&collection=&method=preview&ext=.png&size=3)
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Privacy Expectations in Online Social Media - An Emerging Generational Divide
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