Note the Role of the Social Network Site

From Doe v. California Lutheran High School Assn., E0444811 (Ct. App. Cal. 4th App. Dist., Jan. 26, 2009):

In early September 2005, a student at the School reported to a teacher that one unnamed female student had said that she loved another unnamed female student. The reporting student added that, if the teacher looked at these female students’ MySpace pages, he would be able to find out who they were and how they felt about each other.

The teacher then reviewed the MySpace pages of all female students on the class roster, including plaintiffs’ MySpace pages. Mary Roe went by the screen name, “Scandalous love!” Jane Doe went by the screen name, “Truely [sic] in [love, represented as a heart in source]. with You.” On their MySpace pages, plaintiffs referred to being in love with each other. In addition, Mary Roe’s MySpace page listed her sexual orientation as “bi.” Jane Doe’s listed hers as “not sure.”

Expulsions followed. There are some familiar themes here:

  • Doe and Roe misunderstood the privacy risks of their declarations of love.
  • MySpace’s search-by-school feature makes large-scale privacy violations much easier—but also facilitates social interaction and community formation.
  • Without the untrustworthy “friend” who tattled on them, Doe and Roe wouldn’t have been noticed by the school. (It’s also fascinating that the friend said enough to identify them but wasn’t willing to use their names.)

As for the holding that a private school that charges tuition is not a “business enterprise,” don’t get me started.

Just a little nit: is it really a privacy violation if the students specified their own schools?

Yes. See the paper. There’s a context-shifting problem. They listed their school, I’d guess, as a way of being in touch with classmates and as a part of their identity. That fact was then turned around and used as a component of surveillance directed against them. They almost certainly didn’t mean for that to happen when they listed their school. I classify this thwarting of their expectations about privacy as a privacy violation.

Perhaps, you may say, they “consented” to the surveillance by listing their school. Even if true (and ask how knowing and informed their “consent” was), that doesn’t eliminate the privacy violation. It just pushes responsibility for it back onto the students.

Also and perhaps more fundamentally, this is a problem of “decisional” privacy as well as “informational” privacy. Even if you don’t hide a fact from the world, you have an interest in not being punished for private behavior. Think of Lawrence v. Texas.

No employer would ask me which magazines I subscribe to, or what I have in the shoebox under my bed. They would never know what posters I have on the walls, or what conversations I have with my family on the telephone. It is polite that I not force this knowledge on them and polite that they not kick down my door and rifle through my possessions.

Our lives are naturally compartmentalized. I know that certain things have no place at work or on my resume: I have no interest in reading those magazines at work at my desk, and in an interview I wouldn’t ever waste the time talking about my favorite rock bands. There are things I tell my parents, and things they don’t want to know.

The problem is that we have not yet developed widely accepted ways to compartmentalize our internet lives.

And it is scary to think that justice is so blind to all this…