By Tanata Tantasathien
Social networking sites such as Facebook and Google+ enable people to interact and develop relationships in a whole new way- deviated from traditional face-to-face communications and not envisioned by legislative, judiciary authorities or even scholars in the past. Despite their countless benefits, social networks have brought new threats to privacy. Aggravating the privacy infringement problems, disclosure of users’ information on the sites concerning their ‘everything’, i.e., identity, contacts, family, friends, acquaintances, educational background, work experience as well as all the ‘likes’, can facilitate criminals, identity thefts and other wrong-doers to abuse the victims. Government can also make use of such disclosure for the purpose of gathering people’s information.
According to the 4th Amendment, government lacks authority to conduct ‘search and seizure’ absent a specified warrant issued by courts. In practice, however, they sometimes have access to private sector records needless of warrant. Government also takes advantage from “the Third Party Doctrine” which Kerr Orin S. defines as “knowingly revealing information to a third party relinquishes 4th Amendment protection in that information.” By adopting this doctrine, social network users would have very limit or even no privacy protection because all the information are inevitably disclosed to internet service providers and social network sites in course of the normal use of the sites. The article Facebook and Interpersonal Privacy: Why the Third Party Doctrine Should Not Apply by Monu Bedi, which is available at http://lawdigitalcommons.bc.edu/bclr/vol54/iss1/2 responds to the issue: whether the information posted by users in social media sites still merits the 4th Amendment protection despite being disclosed to ISPs and some third parties; and suggests alternative protection under the doctrine of Interpersonal Privacy.
First the author points out how scholars have attempted to expand the 4th Amendment protection, but found the third party doctrine as an impediment. He doubts the efficiency and appropriateness of the doctrine in the context on internet communications; and argues that this context deserves some special consideration when applying the 4th Amendment reasonable expectation test. In particular, it must “recognize the unique role that internet communication play in creating and maintaining relationships.” Furthermore, the disclosure of information to the ISPs should not vitiate privacy protection because these entities serve no part in users’ relationships.
Then he introduces the “Interpersonal Privacy Doctrine” which courts have applied in cases relating to intimate, marital, and parent-child relationships. This doctrine holds that people have rights to make personal decisions and are entitled to the privacy in their intimate relationships, i.e., abortion, same sex relationship, contraception consumption, without government intrusion. It is grounded in the Due Process, Equal Protection, and the 1st Amendment. The author cites several ideas from Thomas Crocker, namely, the interplay between liberty interest and privacy in internet communications; the notion that privacy sometimes means undisclosed, but not always. Most importantly, Crocker asserts: “the three qualities—identity, relationship, and community—which are not unique to social networking sites; they are “basic elements of social interaction, offline and on.” Consequently, both the author and Crocker believe that the interpersonal privacy doctrine can be applied to safeguard internet communication, preferably at the same level of face-to-face communication.
Monu Bedi, Facebook and Interpersonal Privacy: Why the Third Party Doctrine Should Not Apply, 54 B.C.L. Rev. 1 (2013), http://lawdigitalcommons.bc.edu/bclr/vol54/iss1/2