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. It offers both many new opportunities but also quandaries. And there are, he argues, solutions already in place that deal with the rights of privacy relative to the press and broadcast media. 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 some advantages of having citizen journalists, or “iReporters”, recording and “publishing” what they have observed. For example, the recent incidents of police interactions with the street have had an impact on our views about the relationship of law and order to both civil rights and privacy.
But he is concerned. There are no “editors” and “gatekeepers” auditing the content of videos posted on web sites by thousands of bloggers and read by millions 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. Perhaps they are to be evaluated in much the same way that we view those ‘tell-all” magazines in grocery checkout counters.
The author builds his argument by beginning with the contention that bloggers should have the same rights and obligations as newspaper reporters have always had. Journalists are, for the most part, shielded from litigation over their reportage. We would perhaps agree that we want that to continue to be the case with reporters. But for bloggers?
Mills reminds us that there are, in fact, limits to that immunity of reporters from lawsuits. Property rights come in to play; for example, laws against trespass. Mills agrees that someone using concealed video cameras to record what is going on inside your house is an “intrusion upon seclusion.” 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 that request. But the internet makes all this concern for property rights seem a bit quaint. Bloggers don’t bother.
Community Standards? Back when I had a bookstore and a newsstand, I was asked to subject their content to community standards. I argued that it was impossible to ascertain “community standards.” They were the creation of self-appointed “spokespersons”, and never a tangible code. That is certainly true of any notion of community standards applied to the internet.
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” to 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 publican 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 in the interests of privacy. Drudging up information that is several decades old is considered more of an offense to privacy than their immediate revelation!
Jon 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.