The Need for Privacy Reform Online

It has become clear to me, as a result of the past two readings, that there does not exist any sufficient protection for the privacy of internet users.  The privacy torts, e.g. invasion of privacy, public disclosure of private facts, false light, and defamation, are of no use to most users who fear their browsing history or other personal information may be sold or given to other public companies.  This is because the user herself publishes the information to the ISP or private website. 

Moreover, the Electronic Communications Privacy Act, the ECPA, also fails to protect users, because of its exceptions based on consent.  Additionally, the ECPA only protects content.  

Private companies, websites, and ISP's will not self-regulate themselves in a manner that will adequately protect users.  There is an enormous market for private user information.  This is one particular instance where government regulation protecting user privacy would actually protect free speech and privacy interests. 

Value of Online Anonymity

My first post of the semester questioned the social value of the ability to remain anonymous online.  Pointing to the dangers of hate speech, defamation, and copyright violation, some argue that we should have as must anonymity on the world web as we have in the "real world."  In other words, by making a statement in class or on the street, I am also making my identity known.  It follows that the same result should occur online.  Previous to this week's reading, I actually found myself somewhat persuaded by this line of thinking.

However, I have since been converted to the other side.  American history in particular has shown that anonymous speech can be extremely important to the democratic process.  If we don't provide an avenue for the expression of ideas that may be unpopular, this may result in the "chilling" of speech that the Supreme Court has so disfavored.  In other words, it is important to be able to express feelings and viewpoints without fear of social alienation, or other similar repercussions. Recognizing the danger that this lack of accountability poses, we can balance the need for insulated speech against hate speech and defamation by permitting courts to compel identification of parties in limited circumstances.

End The Analogies: The Internet Is What We Make It

When a court is faced with a new set of facts, or a situation it has not encountered before, there is a logical tendency for the court to analogize the new scenario with previous ones.  Thus, after a court announces a rule concerning search and seizure of a person’s home, it may in its next case make an analogy that an automobile should have at least some sort of protection as well.

While analogizing and distinguishing from previous principles has been a method relied on since the emergence of the common law, this method of jurisprudence fails when it comes to addressing the Internet in almost every facet. 

Let’s face it:  the Internet is not a telegraph.  It’s not a telephone.  It’s not a newspaper.  The Internet as a medium is something completely unique, which humanity has never encountered before.  The Internet can be used in almost an infinite number of ways.  Yes, it can be used as a news source, but it can also be entertainment, or a means of transferring neutral content.

As such, I believe going forward, when addressed with the plethora of legal issues that arise with both the 1st Amendment and net neutrality, we simply have go forth with the notion that the Internet is what we make it.  If we want the Internet to continue to be an implicitly democratic medium, in which all participants are able to participate and interact, then we need to be prepared to oppose regulations and attempts by private actors that would chip away at this principle. 

Let’s stop pretending that ISP’s are “like” phone companies, or that a blogger is “like” a newspaper reporter. Let’s face the reality that it is up to us, as citizens, and as members of a community, to make the Internet an embodiment of liberal and democratic ideals, and to move forth with the notion that we can become better off because of it.