There has always been conflict between the idea of our right to privacy and the First Amendment guarantee of free speech. But Jon Mills argues that the ‘new media age,’ that is the widespread use of the internet as a source of information, has come upon us with new privacy issues. There are, he argues, solutions already in place that deal with the rights of privacy relative to the press and broadcast media, but we need to think through this matrix of controls and regulations to see what might apply to the issue of privacy and the internet.
A lawyer, Mills is professor and past dean of the University of Florida’s law school. He was once Speaker of the Florida House of Representatives. He is not an alarmist about the growth of the internet medium. He can see advantages of having citizen journalists, or “iReporters”, recording and “publishing” what they have observed. He points out, for example, that police interactions with the street and vice versa have had an impact on our views about the relationship between law-and-order and both civil rights and privacy.
But he is concerned. There are no “editors” and “gatekeepers” checking content of videos posted on web sites by thousands of bloggers and read by millions both here and abroad. We are getting used to hyperbole these days coming from candidates for the U.S. Presidency. We agree that political speech is allowed to wander from the truth. Those same allowances can be made for postings on the internet. They can be evaluated in much the same way that we view those ‘tell-all” magazines at grocery checkout counters. So should we just give up on the internet? To Professor Mills’ credit, he isn’t giving up.
He builds his argument by beginning with the contention that bloggers should have the same rights and obligations that newspaper reporters have always had. Journalists are, for the most part, shielded from litigation over their reporting. We would perhaps agree that we want that to continue to be the case with reporters. But bloggers?
Mills reminds us that there are also limits to reporters’ immunity from lawsuits. Property rights come in to play; there are, for example, laws against trespassing. Mills agrees that someone using concealed video cameras to record what is going on inside your house is “intrusion upon seclusion” and should be illegal. Another building block: you cannot legally violate an individual’s privacy when it comes to his or her cell phone without a court order. And anyone who addresses the judge on the matter must have good reason for the request. But the internet makes all of this seem a bit quaint. Bloggers don’t bother. For example, they readily post crime scene photographs and autopsy photos, hence clearly invading privacy.
Community Standards? Back when I had a bookstore and a newsstand, I argued that it was impossible to ascertain “community standards.” I argued that community standards were the creation of their “spokespersons”, and in any case not a tangible code. That is certainly true of the internet these days.
Those who use the internet enjoy considerable anonymity. Still we know from Edward Snowden’s revelations that electronic snooping can provide the opportunity and a temptation for governments to “listen in” on millions of internet conversations.
I found interesting Mills’ discussion of the distinction between obtaining information that should be considered private and publishing that material. Once the information is available to or in possession of the press, prohibiting publication is viewed as prior restraint or censorship, an intrusion upon seclusion. The acquisition of material has been much more frequently contested than the subsequent publishing of it. The courts are divided on maintaining this distinction.
Curiously the longer information about a person’s private life is stored the more it becomes protected by privacy rights. Drudging up information that is several decades old is considered more of an offense to privacy than an immediate revelation!
Mills also points out that journalism generally is not a licensed profession. Nor has the category ‘reporter’ even been defined. Perhaps, at the very least, those in newspaper and broadcast journalism, but also those individuals posting on the internet, might be asked to read and sign a document outlining what is expected of them by way of intent and accuracy. In the meantime, one should assess the expectations one has of privacy in the new media and adjust one’s participation accordingly.