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Privacy in social media – is it really an oxymoron?

Mark Sableman November 25, 2013

Yes, privacy in social media is pretty close to an oxymoron. At least in U.S. privacy law, the key issue for determining whether one has a privacy right is whether there was a “reasonable expectation of privacy” in the circumstances. And the circumstances of social media, for the most part, suggest no such reasonable expectation, for the simple reason that social media posts (a) are initially made available to multiple persons (b) on a medium which facilitates and even encourages their dissemination to many more.

A recent court decision, Chaney v. Fayette County Public School District, involving very sympathetic facts on the side of the young woman asserting the privacy claim, demonstrates the problem. The case involved a high school student in Fayette County, Georgia. She had posted on her Facebook page a photo of herself, taken on a family vacation, showing her in a bikini next to a life-size cutout of the rapper Snoop Dog.

The 17-year-old student, Chelsea Chaney, set her Facebook page to a semi-private setting, allowing only her Facebook friends and friends of friends to view the page. The court characterized the setting as “inclusive” because it was the broadest setting allowed for a minor. But many Facebook users might view this as a fairly restrictive setting, because it limits viewership only to friends and their connections.

But Chelsea’s photo became accessible to her school’s technology director. The court decision doesn’t say how, but presumably the technology director was a Facebook friend of one of Chelsea’s Facebook friends. It’s not surprising – if six degrees of separation connect us to people around the world, two degrees will pick up a lot of people within a high school.

The technology director then used Chelsea’s bikini photo in a manner she felt was embarrassing and disparaging. In a presentation on “Internet Safety,” he used a cartoon to depict a woman who, in younger days, had openly portrayed herself as promiscuous and an alcohol abuser – an obvious illustration of what students should not do. The very next slide, headlined “Once It’s There – It’s There to Stay” used Chelsea’s bikini photo and her full name. Chelsea felt the use of her photo, in that context, falsely suggested that she was a sexually promiscuous abuser of alcohol who should be more careful about her Internet postings.

Chelsea sued on various grounds, and the school district moved to dismiss her civil rights claims, including her claim that the collection and use of photo was an illegal search and seizure, in violation of the Fourth Amendment. The Court addressed that issue by applying the “reasonable expectation of privacy” standard.

The court rejected Chelsea’s argument that her “semi-private” (only friends and friends of friends) setting protected her privacy. “While Chaney may select her Facebook friends, she cannot select her Facebook friends’ friends,” the Court wrote. “By intentionally selecting the broadest privacy setting available to her at that time, Chaney made her page available to potentially hundreds, if not thousands, of people whom she did not know (i.e., the friends of her Facebook friends.” The court cited precedents holding that one has no reasonable expectation of privacy “in information he voluntarily turns over to third parties.”

Other court decisions have looked skeptically on privacy claims based on information shared on Facebook. The court noted in particular another Fourth Amendment privacy case in which the government used information from one of the defendant’s Facebook friends to obtain a search warrant. There, the court noted, the defendant had limited his privacy settings to only friends, and still was found to have had no reasonable expectation that those friends would keep his information private. There is even less of a reasonable expectation, the court noted, where Chelsea had opened her page not just to her friends, but their friends as well.

The court also found no privacy expectation arising from the circumstances, including Chelsea’s age or the fact that she appeared in a bikini.

The decision addresses only the Fourth Amendment privacy argument, and any civil tort claims in the case, such as claims under the privacy tort generally known as “public disclosure of private facts” remain to be addressed later. But the decision illustrates how most courts are viewing privacy claims arising from material posted on social media.

Like the court here, most judges don’t view your Facebook friends, or your Facebook friends of friends, as an intimate private circle. Particularly considering how easy it is for a friend or other user to copy and disseminate others’ posts, they view most Facebook postings as the equivalent of public postings. There is still room for some exceptions, but for the most part, courts do indeed view “privacy on social media” as an oxymoron.

Mark Sableman is a partner in Thompson Coburn’s Intellectual Property group. He is the editorial director of Internet Law Twists & Turns. You can find Mark on Twitter, and reach him at (314) 552-6103 or msableman@thompsoncoburn.com.