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Cyber-shaming, Limited Privacy, and Contextual Integrity

I’ve been meaning to blog about the discussion at Concurring Opinions regarding the rise of “cyber-shaming” – the act of posting online elements of seemingly private conversations or events that you happened to overhear or witness. Examples include the posting of details of annoying cellphone calls overheard, uploading of cellphone camera images of men who expose themselves on subways, or blogs dedicated to posting stories and images of men who harrass women in public. New York City has recently announced that it will equip 911 emergency centers to receive digital images and videos from cell phones and computers when New Yorkers see something suspicious happening as they walk the streets of our fine city.

The question is whether or not the subjects of these cyber-shaming activities have any expectation of privacy of their actions, no matter how annoying or harrassing they might be. Many argue posting such details & images is unproblematic since the person engaged in such activity in the open public – that they’ve waived any right to privacy. Kaimipono Wenger at Concurring Opinions, however, points to the notion of the “limited privacy doctrine,” quoting a court opinion described in a recent privacy article by Lior Strahilevitz:

This case squarely raises the question of an expectation of limited privacy… [P]rivacy for the purposes of the intrusion tort, is not a binary, all-or-nothing characteristic. There are degrees and nuances to societal recognition of our expectations of privacy: the fact that the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law…. “The mere fact that a person can be seen by someone does not automatically mean that he or she can legally be forced to be subject to being seen by everyone.”

This sounds an awful lot like the arguments presented within the theory of “privacy as contextual integrity” – a theory that ties adequate protection for privacy to norms of information flows within specific contexts, demanding that information gathering and dissemination be appropriate to that context and obey the governing norms of distribution within it.

There’s more to be said here to connect the limited privacy doctrine to contextual integrity, especially in the context of cyber-shaming. Another future project…

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