Public and Private Spheres in Social Media

Chapter Fifteen
The Realm of the Expected: Redefining the Public
and Private Spheres in Social Media
Jasmine E. McNealy
In the United States the definition of privacy is the source of much contention. Definitions are
diverse and at times disparate, prompting one scholar to call the large number of conceptions
of privacy embarrassing (Gerety, 1977, p. 234). Privacy has been called secrecy (Posner,
1998), intimacy (Inness, 1992), and information control (Westin, 1967). Privacy has also been
related to total fulfillment as a person (Craven, Jr., 1976) and the right to be let alone (Warren
& Brandeis, 1890). These conceptions of privacy appear to be based on what the theorists
believe is most important with regard to the kinds of information or relationships the law
should protect.
In privacy law related to both government prosecutions and civil proceedings, privacy
depends upon the circumstances surrounding the disclosurewhat is called the expectation of
privacy. For example, in Katz v. United States (1967), the U.S. Supreme Court found the act of
closing a telephone booths door created a temporary zone of privacy for the booths occupant,
and that an individual did not relinquish the right to exclude others from his conversation just
because he used a public facility. Yet, in more than 40 years since the Katz decision, with
Justice Potter Stewart famously stating, The Fourth Amendment protects peopleand not
simply areasagainst unreasonable searches and seizures (p. 351), private places have
not been defined concretely.
Social media like Facebook, MySpace, and Twitter can be considered both public and thirdparty, designations that have historically vitiated an individuals privacy claims. Under
traditional privacy law, one could argue, for example, that in making their tweets public and
using social media, Twitter users have no expectation that the 140 characters they place in their
status boxes are private. But new media and new methods of communication may require
rethinking what information is protected as private. A growing number of individuals use
social media to communicate and connect with others. This may involve placing otherwise
private information online.
But is it truly reasonable for an individual using social media to expect that the information
they provide to these media platforms will remain private? This chapter examined what is now
considered public and private with respect to personal information and social media. To do
this, the chapter considers traditional as well as modern privacy theory, and legal opinions
regarding privacy as they relate to social media.
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THE REASONABLE EXPECTATION OFPRIVACY
The Katz (1967) case arose after FBI agents, who were investigating organized gambling,
secretly recorded a mans calls to a bookie made from a telephone booth. Although the
majority of the Katz Court ruled the mans conversations were private and the agents violated
his Fourth Amendment right to privacy when they recorded him, it is Justice Harlans brief
concurrence that has helped to shape many of the rulings with regard to what is private. In his
concurrence, Justice Harlan annunciated a concept later called the reasonable expectation of
privacy (p. 9). Harlan wrote, My understanding of the rule that has emerged from prior
decisions is that there is a twofold requirement, first that a person have exhibited an actual
(subjective) expectation of privacy and, second, that the expectation be one that society is
prepared to recognize as reasonable (Katz v. United States, 1967, p. 361). For Harlan, this
meant that a persons home was the place with the greatest expectation of privacy. The same
could not be said for anything an individual said or did in public.
Post-Katz, the Court has delivered rulings detailing when and where individuals do not have
a reasonable expectation of privacy. Therefore, individuals do not have a reasonable
expectation of privacy in the telephone numbers that they have dialed because in pressing the
buttons on their telephones, they have provided the information to a third party (Smith v.
Maryland, 1979). Nor do people have a reasonable expectation of privacy in the trash that
they leave on the curb for removal because it is exposed and available to the public
(California v. Greenwood, 1988). Whats more, the Supreme Court ruled that a man did not
have a reasonable expectation of privacy in the contents of his greenhouse, which the police
were able to observe while flying over in a small aircraft because the officers were able to
view the contents from public airspace (Florida v. Riley, 1989). The aggregate rule from these
court decisions and others defining reasonable privacy expectations is that although
reasonableness will depend upon the situation there is no reasonable expectation of privacy in
information exposed to others. The lack of a formal definition of a reasonable expectation of
privacy, however, provoked Justice Scalia to assert, reasonable expectations of privacy bear
an uncanny resemblance to those expectations of privacy that this Court considers reasonable
(Minnesota v. Carter, 1998, p. 477).
The idea of a reasonable expectation of privacy is not solely found in Fourth Amendment
related jurisprudence, but it is also found in tort privacy law. In the United States, tort privacy
has its foundation in an 1890 Harvard Law Review article appropriately titled The Right to
Privacy, which called for the recognition of a right to be let alone (Warren & Brandeis,
1890). Legislatures and courts began recognizing privacy torts soon after the articles
publication. Prosser (1960) fleshed out Warren and Brandeis new tort by evaluating the
privacy cases that had arisen after the 1890 articles publication, and found that, The law of
privacy comprises four distinct kinds of invasion four different interests of the plaintiff (p.
389). In two of these invasions, intrusion upon seclusion and publication of private facts, the
courts examine reasonableness with respect to the plaintiffs claim of invasion of privacy.
Intrusion is the intentional and highly offensive invasion of a zone of privacy created by
another individual (Restatement of Torts, 1965, sec. 652B). This invasion can be physical or
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electronic so long as a person enters an otherwise private place or the affairs that another has
taken the effort to keep private (Restatement of Torts, 1965, sec. 652B comment (c)).
Therefore, just as in Fourth Amendment jurisprudence, a person has the greatest expectation of
privacy in his home. Although ones home is a major sphere of privacy, information found in
public records or observed in areas open to the public are not the subject of intrusion liability
(Desnick v. ABC, Inc., 1995; Nader v. General Motors Corp., 1970). Concomitantly, the
courts have recognized that certain information observable in public may provide a cause of
action for intrusion.
In intrusion cases, a reasonable expectation of privacy is an objective standard to be judged
by a jury. This standard is evaluated based on what society would consider reasonable. The
justification for this standard is address[ing] the problem of idiosyncratic individual
preferences, in relation to privacy Some individuals may have an unusually strong desire for
privacy and may make impossible demands for privacy (Solove, 2008, p. 71). In place of a
variable standard of privacy, the courts use a standard that comports most with public policy.
Individuals have no expectation of privacy in what they say or do in public, therefore, because
society would not consider it reasonable for an individual to claim privacy in actions that are
readily observable.
Public disclosure of private facts also makes use of a reasonableness expectation rooted in
societal norms. This category of invasion of privacy asks whether the defendant has publicized
private information about the plaintiff (Restatement of Torts, 1965, sec. 652D). The focus is
not so much on whether or not the information was private, but whether the publication of the
information was highly offensive to a reasonable person (Restatement of Torts, 1965, sec.
652D comment (c)). This highly offensive requirement, like the reasonable expectation
requirement, takes into account societal views of offensiveness. It is, for example, highly
offensive to a reasonable person to publish the photograph of a woman whose skirt has blown
up above her head in public (Daily Times Democrat v. Graham, 1964), or reporting that
someone suffered from a rare disease (Barber v. Time, Inc., 1942). At the same time it is not
highly offensive to publish a picture of a young couple kissing at a restaurant (Gill v. Hearst
Publishing Co., 1953), or of a young woman exposing her breasts at a rock concert (Mayhall
v. Dennis, 2002).
A final consideration in evaluating publication of private facts is newsworthiness. The
question here is whether there is a public interest in the disclosed information. Although there
is no established rule with respect to newsworthiness, the courts have used at least three
different tests in analyzing whether there is a legitimate public interest in certain information
(Dendy, 1997). These tests are aimed at avoiding a confrontation with the First Amendment for
punishing the publication of information. One such test was excerpted from Virgil v. Time
(1975), and the Restatement of Torts later adopted it. It requires the courts to evaluate the
customs and conventions of the community when deciding newsworthiness (p. 1129).
Another key test is found in the well-known case of Sipple v. Chronicle Publishing Co.
(1984). In that case, Oliver Sipple, the man who had thwarted an assassination attempt on
President Gerald Ford, sued a newspaper for disclosing that he was gay, but the Court found
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that the customs and conventions of the community dictated that Sipple had become news.
Therefore, the disclosure about his private life did not invade his privacy.
The jurisprudence of intrusion, public disclosure of private facts, and Fourth Amendment
related privacy has been easily applied to offline privacy infractions. When the medium has
shifted online, however, the application of has been
difficult. This difficulty, at least with respect to the privacy torts, is a result of privacy
traditionally being a function of physical space and location (Abril, 2007, p. 12; Solove, 2008,
p. 1131) demonstrated by the idea that ones home is where he has the greatest expectation of
privacy. But the dependence on spatial determinations is detrimental to the application of
privacy torts on the Internet, more specifically social media, because the web transcends space
(Abril, 2007, p. 19). Further, this social media space has created expectations about privacy
that differ from what traditionally has been considered acceptable. These expectations are
based on the anonymity of the multitude, and assumptions about the presence of their intended
audiences, which Abril (2008) calls a complex conception of privacy rooted in the
perceived entitlement of selective anonymity (p. 77). Taking this view into account, the
expanse of the social media network is such that it gives users the illusion that the private
information they provide on these sites is protected from invasions.
PRIVACYAND SOCIAL MEDIA
The use of social media by both young people and adults in the United States continues to
grow. In fact, the number of adults using social networking sites increased by almost 600% in
the four years between February 2005 and September 2009 (Lenhart, Purcell, Smith & Zickuhr,
2010, p. 17). With data demonstrating increased social media usage, the question remains as to
what, exactly, constitutes social media. According to Correa, Hinsley, and de Zniga (2010),
social media are digital and Internet tools that have little to do with traditional media. Instead
it provides a mechanism for the audience to connect, communicate, and interact with each
other and their mutual friends (Correa et al., 2010, p. 248). Other scholars define social
media more broadly than just networking sites, to include blogs, wikis, user-generated media,
and forums (Schrock, 2009). Researchers Boyd and Ellison (2008) provide a more complex
three-prong definition of social media:
We define social network sites as web-based services that allow individuals to (1) construct a public or semi-public profile
within a bounded system, (2) articulate a list of other users with whom they share a connection, and (3) view and traverse
their list of connections and those made by others within the system. The nature and nomenclature of these connections may
vary from site to site. (p. 211)
However broadly or narrowly defined, social media are about interaction or the ability of
users to form networks and otherwise mingle with others they know or have just met. Boyd and
Ellison (2008) assert, What makes social network sites unique is not that they allow
individuals to meet strangers, but rather they enable users to articulate and make visible their
social networks (p. 211).
Not only have social networking sites enabled users to communicate with others, but these
media have blurred the boundaries between what is a reasonable expectation of privacy and
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what is not (Abril, 2007; Cohen, 2008; Gelman, 2009; Sprague, 2008). Inherent in social
media is the display of connections and communication. Social media like Facebook, Twitter,
and LinkedIn require users to create profiles and input identifying information. This
information may be as benign as a name or username, to more specific information like
geographic coordinates. For the most part, users are able to choose the type of information, and
the accuracy of the information they provide. Individuals are then able to connect with
friends both real and imagined, or follow others whose status updates, or tweets, they find
interesting. Users may then send messages, chat, , and otherwise
interact using the Web site as a medium. This display of information, be it in the form of a
Facebook wall, Twitter feed, or a connection on LinkedIn are, for the most part, open to public
viewing. Of course, each of these sites has privacy settings by which a user can restrict access
to their information. The default setting, however, is to allow public viewing of this
information. And yet, Internet users continue to flock to these Web sites and disclose their
private information.
Studies of information disclosure on social media sites have found that users appear
unconcerned about the amount of information they disclose (Gross & Acquisti, 2005; Young &
Quan-Haase, 2009). Gross and Acquisti (2005), for example, found the majority of the college
student respondents to their survey displayed personal information on their Facebook profile
including their birthdate and address, and an image that made them identifiable. Young and
Quan-Haase (2009) found that although Facebook users disclosed the personal information as
indicated above, they were concerned about privacy. To express their concern, the majority of
users in the study had changed the privacy settings on their Facebook profile to friends only
(p. 268).
Predictors of those who will make changes to their profiles privacy settings include having a
large number of friends with private profiles, making frequent changes to a profile, as well as
having more mainstream tastes with respect to cultural items such as favorite books, music, and
television shows (Lewis, Kaufman, & Christakis, 2008). But changes to privacy settings may
also be a result of a users understanding of threats to their privacy, as well as the users
familiarity with the sites privacy settings (Debatin, Lovejoy, Horn & Hughes, 2009;
Grimmelmann, 2009). Those more familiar with a sites privacy settings are more likely to use
them (Debatin et al., 2009; Tuunainen, Pitkanen & Hovi, 2009).
But the reason for the failure to change ones privacy settings on a social networking site may
be as simple as laziness. Krishnamurthy and Wills (2008), for example, found that 99% of
Twitter users kept the default privacy settings, which allow their name, followers, location
URL, and biographical information to be public. Even when Twitter users took measures to
protect their information by setting their profiles to private, their communications may still be
disclosed (Meeder, Tam, Kelley & Cranor, 2010). Meeder et al. (2010) investigated the leaked
tweets of over 5 million Twitter users with their profiles set to private. Their study found that
4.68% of users with protected accounts had at least one tweet that was retweeted, and thereby
exposed to others outside the users control (p. 6). These users may have been unaware that
their tweets were retweeted because instead of using the Retweet function on Twitter, many reNoor, A. H. S., & Hendricks, J. A. (2011). Social media : Usage and impact. Retrieved from http://ebookcentral.proquest.com
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tweeters would simply cut and paste the tweet. Despite the lack of privacy, Twitter continues
to grow.
Grimmelmann (2009) provides three reasons for social media users continued interest in and
posting on these sites in spite of the threat to their privacy. First, social media users perceive
safety in the large number of other people online (p. 1161). Social media usage has continued
to grow (Lenhart, 2009). As of September 2010, Twitter, for example, boasted 175 million
registered users, and 95 million tweets written per day (Twitter, 2010). Facebook tallied
500 million active users (Statistics | Facebook, 2010). The sheer number of those on social
media could influence a user to believe that someone looking for them would be searching for
the needle in the haystack.
Secondly, the design of social media sites is such that they make users believe that they are in
a private space (Grimmelmann, 2009, p. 1162). According to Cohen (2008), networked
spaces, like those in social media, can be analogized to home, where the individual has the
freedom of movement. Home is where we can move from room to room, we can speak our
minds and read whatever interests us, we can pursue intimacy in relationships (p. 195).
Similarly, in social media spaces, users create a profile, invite friends over, communicate with
others, and do things typical for the home setting. Moreover, users can personalize their
profiles, adding images, video and other applications.
Finally, the connections made on social media sites create the belief in users that they are in a
community of similar people, all of whom they know (Grimmelmann, 2009, p. 1162).
According to Gelman (2009), social media users do not protect their privacy more because
they view their social network as still undefined. Users may expect their networks to grow as
they add friends and connect with more people. This is one of the incentives created by social
media: that users will be able to connect with offline friends and associates. Debatin et al.
(2009) found that the majority of social media users saw the benefits of using social media as
outweighing the risks to their privacy. The perceived benefit is that in disclosing more
information, users may attain more connections.
According to Lewis et al. (2008), online privacy and the disclosure of information can be
characterized as following a familiar pattern. First, the boundary between what is public and
what is private is undefined and there are debates over appropriate boundaries. The next stage
is perhaps important to understanding the current state of privacy law with respect to social
media. Abril (2008) views the social media privacy debate as being between digital natives
and digital immigrants. The divide between these two camps emerged in the work of Palfrey
(2007) and was published in the Harvard Business Review. Digital natives are those who have
always used the Internet and Web capabilities to communicate. Digital immigrants are those of
an older generation who have had to become accustomed to using digital media. Digital
natives view of privacy is complex and based on the idea that they should be protected, at
times, from the unintended consequences of their information disclosures (Abril, p. 77). The
digital immigrants conception of privacy, on the other hand, is rooted in the knowledge that the
Internet is open to anyone. Therefore, Internet users should take more control over their
personal information, although that is difficult in a place where an individuals personal
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information may be disclosed by another entity (pp. 7778).
In the second stage of the Lewis et al. (2008) pattern, the users of online technology began to
feel the consequences of the blurred boundaries of public and private information. Users
venture too far into public space with private details, and the consequence is a crashed party, a
lost job opportunity, orat the extremesexual assault or identity theft (p. 96). Recent legal
decisions demonstrate that the privacy in social media may now be at a consequential stage.
The courts are now deciding whether social media users should expect privacy in the
information they post online.
APPLYING THE REASONABLE EXPECTATION TO SOCIAL MEDIA
According to Sprague (2008), new forms of communication require a shift in attitudes to
accepting the idea that just because few people could access information does not mean it is no
longer private even on the Internet (p. 408). Such a shift would seem to run contrary to
traditional privacy jurisprudence, which provides the greatest protection to activities and
information that an individual took affirmative steps to keep safe. To evaluate whether the
courts are shifting attitudes toward expectations of privacy with respect to social media it is
instructive to examine their decisions.
In many of the cases found, a party to a lawsuit has requested access to the social media
profile, or documents connected to the profile, of the opposing party to the lawsuit. In Dexter v.
Dexter (2007), the court used a womans MySpace posting, which indicated she used drugs in
her home while her child was present to decide the best interest of the child in a custody case.
In Ledbetter v. Wal-Mart Stores (2009) the federal court granted a subpoena for the Facebook
and MySpace profiles of two people claiming to have been injured at a Wal-Mart store.
Similarly, in McMillen v. Hummingbird Speedway (2010), a Pennsylvania trial court ordered
the plaintiff in a personal injury case to produce the login and passwords to his Facebook and
MySpace accounts. Bill McMillen sued Hummingbird Speedway after he was injured during a
stock car race. McMillen claimed he was injured after being rear-ended by another driver on
the Hummingbird track. Hummingbird requested discovery of McMillens Facebook and
MySpace profiles to investigate McMillens claim that his injuries caused him to lose the
ability to enjoy life. In particular, Hummingbird wanted information on a trip that McMillen
had made to the Daytona 500 and a fishing trip (p. 2).
The court granted Hummingbirds motion for discovery, finding that McMillens
communications on the social networking sites were not confidential communications for
which there was a privilege against disclosure (p. 6). In its opinion, the court noted the terms
of service for both Facebook and MySpace warn the user that any information provided to the
sites may be disclosed if requested by law, as well as for other reasons (pp. 78). According
to the court, this is evidence that communications on these sites are not considered private.
Further, any information provided or communicated through these social networking sites is
information delivered to a third party. Individuals have no expectation of confidentiality with
respect to information disclosed in the presence of a third party (p. 9). Meaning, social media
users should not expect to keep the information that they post on these sites private.
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More recently, in Romano v. Steelecase (2010), another personal injury case, a New York
appellate court ruled that the postings on a plaintiffs social networking profiles were not
privileged, and therefore available for discovery. To make its decision, the court examined
cases decided outside its jurisdiction including Ledbetter v. Wal-Mart Stores, Inc. (2009).
These cases led the court to decide that the material included on Romanos social media
profiles was discoverable in spite of the privacy controls she had configured to restrict access
to her page. Further, the court found that any risk to privacy was outweighed by the benefits of
allowing a defendant ample evidence by which to defend themselves (p. 655).
The parties in the cases above sought protection for information they posted on various social
media sites. The courts in all of the cases found no violation of privacy in allowing an adverse
party to access the social media postings. In the cases involving physical injuries the courts
used the rules of evidence as a basis for ruling the individuals social media communications
were not privileged. In evidence law, certain relationships, such as doctor-patient or attorneyclient, are privileged, and therefore the parties to those relationships are not required to
disclose that information except under certain circumstances. The relationship between an
individual and a social media site does not rise to the level of that between a doctor and her
patient. The disclosure of information to a third party for which there is no privilege vitiated
both McMillens and Romanos claim of privacy in their social media posts.
As part of her argument against allowing discovery of her social network profiles, Romano
asserted protection under the Stored Communications Act (SCA), which prohibits third-party
Internet Service Providers from disclosing electronic communications. Buckley Crispin
asserted similar protection for his online communications that were subpoenaed during the
course of his lawsuit against Christian Audigier, Inc. (Crispin v. Christian Audigier, 2010).
Crispin sued Christian Audigier claiming the company had used and sold his artwork for use
without his permission. Unlike the Romano court, the Crispen court found the plaintiff had a
personal right to privacy in his stored communications on social networking sites (p. 22). But
the court distinguished between private messages sent on social networking sites, and postings
like those found on a users Facebook wall. Private messages were protected from review, but
the public postings could be available for subpoena depending on Crispens privacy settings
(p. 78).
Indeed, placing more restrictive settings on her MySpace profile could have saved Cynthia
Moreno and her family the pain of embarrassment and ostracism. Moreno v. Hanford Sentinel,
Inc. (2009) arose as a result of a local newspaper publishing a post the college student made
on her MySpace page. Moreno wrote and posted, An Ode to Coalinga, a rant about how
much she hated her hometown as well as negative comments about the city and some of the
people who live there. Although Moreno removed the post only six days after publishing it, the
principal at the high school that her sister attended obtained a copy and passed it along to the
local paper, which published it in the letters to the editor section along with Morenos full
name. This resulted in death threats to Moreno and her family, forcing the family to move out of
town and to close their 20-year-old business.
The Moreno (2009) court affirmed the trial courts ruling that Moreno failed to prove
Noor, A. H. S., & Hendricks, J. A. (2011). Social media : Usage and impact. Retrieved from http://ebookcentral.proquest.com
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invasion of privacy. The court asserted that in posting the ode to her MySpace profile, Moreno
engaged in an affirmative act [that] made her article available to any person with a computer
and thus opened it to the public eye (p. 1130). Morenos publication of her poem on the
Internet, therefore, excluded her from having any reasonable expectation of privacy in that
posting.
SOCIAL MEDIA PRIVACYUNDER THE LAW
Recall Justice Harlans two-part test for establishing whether an individual had a reasonable
expectation of privacy. First the court must examine whether the individual demonstrated that
they expected privacy in the information or activity in which they are engaged. Second, the
individuals expectation must be one that society would find reasonable (Katz v. United States,
1967). With the exception of Crispen, the courts in the cases above found no expectation of
privacy that would be acceptable to society. Therefore, although the social media users may
have that thought their postings were private, the courts have rejected their claims. Further,
even affirmative steps taken to protect privacy on social media, such as the placement of
restrictions on who can view an individuals profile, did not create a reasonable expectation of
privacy.
Sprague (2008) asserted the application of the law needs to change to reflect new modes of
communication, specifically, with regard to the idea that the possibility another person might
view Internet communications does not render those communications public. The cases
detailed above demonstrate that courts have not shifted their views on privacy in this manner.
In Moreno, for example, the court found that the womans MySpace postings were open for
public viewing; therefore, she had no expectation of privacy in that posting. It did not matter
that she, like the many people using social media, may have been speaking solely to her
friends.
Perhaps the courts ignorance of the culture of social media provides the rationale for a
decision like that in Moreno. Although it is well settled in offline situations that individuals
have no reasonable expectation of privacy in information and activities exposed to the public,
recall that in the digital world, the disclosure of information has benefits. In social media,
information disclosure is how people connect with friends and nurture those friendships.
This may demonstrate Abrils (2008) concept of the debate between digital natives and
digital immigrants with respect to privacy. In the cases above, the courts, populated by those
who would be in the generation of digital immigrants, have asserted their conception of
privacy. That is, information is only private when you control it. If McMillen (2010) wanted to
control his private information, according to the court, he would not have posted his pictures to
his MySpace and Facebook profiles. This disclosure of information to a third party vitiated his
claim of privacy because he was no longer really in control of his information. Likewise,
Romano (2010) had lost control of her information even when she seemingly asserted control
by restricting access to her profile.
These court opinions seem to assert the only recourse for those wanting to protect their
privacy while using social media would be to either limit their interactions, or withdraw from
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using these media altogether. The choices seem extreme with regard to personal liberty. Such a
choice definitely appears to reject Cohens (2008) analogy of the networked space to home.
If home is the place where an individual is most free and, for the most part devoid of
consequences, the cases demonstrate the consequences of using social media and may give
people pause with respect to using this liberty. The courts appear to define social media as a
public space where individuals have less of an expectation of privacy than they do in their
physical homes.
CONCLUSION
Privacy in the age of social media remains as complex as privacy in the off-line world.
Although the U.S. Supreme Court has provided some guidance, no exact definition exists as to
what is public or private in the physical world. It is well settled, however, that no reasonable
expectation of privacy exists in information or activities observable in public. The term
public is, perhaps, the cause of the difficulty in applying offline privacy principles to online
situations. Although recognizing that some of their personal information is available to a large
number of people, social media users assert that the information shared on social networking
sites is private. The courts continue, however, to reject the idea that society is prepared to
recognize a privacy interest in information available to many others. Although an increasing
number of individuals are now making their homes online, recent court decisions demonstrate
that they will not receive the high level of privacy protection that they would within their own
four walls.
The third stage in Lewis, Kaufman, and Christakis (2008) pattern of privacy on the Internet is
awareness (Lewis et al., 2008, p. 96). In the awareness stage, users themselves make
affirmative steps to protect their privacy. As a result, a boundary forms that delineates the
public and private spaces. The court decisions above, and those that are sure to follow, should
raise awareness among social media users that although the normative expectation would be to
retain a privacy interest in some of the information they have posted on social media, the
current standard rejects this expectation. Awareness does not, however, necessarily make the
lines between the public and private clearer.
In the future, courts may continue to use the digital immigrant view of privacy, and only
extend the reasonable expectation of privacy protection to social media users who have
attempted to control their information. In the alternative, the courts may take the digital native
view of privacy, and extend the reasonable expectation of privacy protection to whatever
information that social media users believe to be private. The courts may also take a view of
online privacy that straddles the center between these two extremes. This would require the
courts to examine the context of the information disclosed, including the perceived benefits of
disclosing the information and the custom and usage of the information. Such an examination
recognizes that no clear line exists delineating the private from the public. Until the courts
begin to perform this kind of analysis in social media privacy cases, users should refrain from
posting information that, if disclosed, would harm their interests.
Noor, A. H. S., & Hendricks, J. A. (2011). Social media : Usage and impact. Retrieved from http://ebookcentral.proquest.com
Created from apus on 2020-01-14 07:51:08. Copyright 2011. Lexington Books. All rights reserved.
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Lenhart, A., Purcell, K., Smith, A., & Zickuhr, K. (2010). Pew Internet & American Life Project: Social Media & Mobile
Internet Use Among Teens and Young Adults. Pew Internet. Retrieved from
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14(1). Retrieved from http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/viewArticle/2242/2066
Sipple v. Chronicle Publishing Co. 201 Cal. Rptr. 665 (1984).
Noor, A. H. S., & Hendricks, J. A. (2011). Social media : Usage and impact. Retrieved from http://ebookcentral.proquest.com
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Westin, A. (1967). Privacy and Freedom. New York, NY: Antheneum.
Young, A. L., & Quan-Haase, A. (2009). Information revelation and Internet privacy concerns on social network sites: A case
study of Facebook. In Proceedings of the Fourth International Conference on Communities and Technologies (pp. 265
273). New York, NY: ACM Press.
Noor, A. H. S., & Hendricks, J. A. (2011). Social media : Usage and impact. Retrieved from http://ebookcentral.proquest.com
Created from apus on 2020-01-14 07:51:08. Copyright 2011. Lexington Books. All rights reserved.

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