A Few Thoughts on Digital Privacy

Shannon Kelley's thoughtful and personal look at why we shouldn't rush to judge the next guy whose leaked emails make him look like the worst person in the world prompted an idea that I thought that I would share with my blog audience. 

This won't be a well researched piece on the current state of internet privacy laws. Indeed, I wasn't even planning to post a blog today. But, since I had an idea, I thought I'd throw it out there for others to consider. 

In light of the massive trove of leaked Sony emails (this story provides some details on the mechanics of the leaks), maybe it is time for a law banning the release of emails and other private digital communications without the express consent of at least one of the parties, and also banning reporters, bloggers, and social media users from revealing the content of such emails without similar consent. 

Such a law would be tricky (especially the second part, which is my main focus), and would have to be extremely narrowly tailored in order to prevent reporters from facing legal consequences for doing their jobs. We couldn't have a situation where a congressional staffer shared the gist of information in an email with a reporter, who then paraphrased or quoted that source, and ended up facing jail time or a civil suit. 

Nonetheless, as digital communication constitutes an ever increasing percentage of our interaction with friends, family, and colleagues, shouldn't we have the same expectation to privacy that we have with more traditional forms of communication?

It's illegal to record the contents of a phone conversation without the consent of at least one party in the conversation. In eleven states, it's illegal to record a phone conversation without the consent of all parties. Indeed, when I do phone interviews, I ask the subject if it would be okay if I record the conversation in case I miss something. In fact, as Representative Jim McDermott (D-WA) found out, it's even illegal to accept a recording of a phone conversation where the parties do not know that they've been recorded. 

So why should a gchat or iMessage conversation be any different? People should have the right to vent privately to friends, family, or colleagues and to make comments that the recipient might understand and interpret in one way, but someone who knows you and the context less well might interpret in a far less charitable way. 

People certainly have to exercise judgment when communicating regardless of the means—venting about your boss to your new BFF, who you only met two weeks ago, could turn out to be a bad idea when you get fired because that BFF turned out to be the boss' niece. But a person *(even a celebrity, political figure, or high ranking executive) deserves to be able to email openly without worrying that some hacker might release what he/she said, thereby costing him/her his/her job because his/her boss decided that the contents of an email message sent at 3:31 AM Saturday morning after a night out, when the person probably shouldn't have been emailing, reflected poorly on his/her company, movie studio, etc. 

As Kelley notes, we all say and do things that, when ripped out of context, or examined closely by someone who does not know us, look pretty bad. 

This is why companies should not be allowed to ask potential employees to turn over their Facebook login information during the hiring process. Just because we've moved into the digital age, does not mean that people should lose their freedom to express themselves privately without facing work and reputation ramifications. 

My premise fits somewhat with yesterday's blog on talk radio host Chris Stigall. My concern about judging people on one bad remark, one leaked email, or even one Facebook photo from 10 years ago that you forgot existed, is that it creates a culture in which people are less open and more hesitant to be themselves and to express themselves openly. 

This type of culture stifles dialogue, and might actually lead people to maintain mistaken impressions because they never air them, and never find out that they are mistaken. 

People also ought to have the right to some sort of privacy in their lives. For example, if a public figure came out to close friends, or shared that he/she had cancer, should a hacker be able to leak that private communication to a reporter, who, in turn, reported it as news?  

We know that the hacker has committed a crime, but should the reporter be allowed to take advantage of that crime to invade someone's privacy? 

Nothing I'm saying is designed to excuse people who make misogynistic, racist, or otherwise bigoted or hateful remarks. Additionally, an expectation of privacy is most certainly not an excuse for bullying, or harassment, nor should it prevent reporting on such inappropriate behaviors. Indeed, I'm shocked by some of the misogynistic comments that female reporters and media personalities face on social media. I'm a big believer that we, as a society, have a responsibility to call such behavior out. 

Nonetheless, for anyone who thinks well, gee, I get what you're saying in principle, but if people just avoid bigoted or controversial remarks they have little to fear, my question is this—if a hacker broke into your email, iMessage, twitter direct messages, and snapchats tomorrow, would you be comfortable that there was nothing that he/she could find that would make you look bad or put your job at risk?