1
Expiration Dates and Contextualization: An Answer to the Online Privacy Conundrum
In the 18th century, British philosopher Jeremy Bentham envisaged the Panopticon, a
circular prison design in which the warden could see every jail cell without the prisoners'
knowledge, forcing the inmates to assume they were always being
watched. Many contemporary scholars now accept that with the
ubiquity of Internet data indexing and the advent of the
Information Age, we all currently live in a "Digital Panopticon."
In this prison-like "dystopia latent in modernity," (Gill 2) we are
Fig. 1. Balkan, Aral. "Digital
Panopticon"
forced to revise and self-censor before putting information online
— or we face the punishment of the watchful warden.
The case of Stacy Snyder, a 25-year-old single mother who dreamed of becoming a
teacher, is one which elucidates the chilling power of this reality. During a student-teacher
internship for her degree at Millersville University in 2006,
Snyder posted a photo of herself in a pirate hat, drinking from a
plastic cup, with the caption "drunken pirate" on her private
MySpace account (Krebs). The University found the post by
searching Snyder's name on the Internet and subsequently chose
to expel her just days before her graduation, for her "errors in
judgment that relate to Pennsylvania's Code of [...] Conduct for
Educators" by promoting drinking (Press). With her four years
Fig. 2. Sanchez, Julian. "Court
rejects appeal."
of study invalidated and her career derailed, Snyder tried to delete the photo, but to no avail, as
her MySpace data had already been "catalogued by search engines" and "archived by
webcrawlers," leaving her no control over her privacy online (Mayer-Schönberger 1). Snyder
2
then attempted to sue the University based on a First Amendment claim, but the District Court of
Pennsylvania finally decided in December 2008 — almost two years after the incident — that
her photo failed to qualify as protected speech because it wasn't "relate[d] to matters of public
concern" ("Snyder v. Millersville "). With her attempt at legal recourse proving unsuccessful, she
was eventually forced to relinquish her hopes of a career in education.
Snyder's self-inflicted damage to her career through her own seemingly-innocuous
MySpace post is disquieting, but due to the omnipresence of data contributors on the modern
World Wide Web, we must not only be wary about what we personally post on the Internet, but
also what others post about us. An illustrative case is the one of Lorraine Martin, a 52-year-old
mother of two and former nurse in Greenwich, Connecticut who now cannot find a job because
of misleading and outdated local news articles about her that prominently appear via a simple
Google search of her name (Fig. 3). In August 2010, Martin and her sons were accused of drug
possession, but Martin was deemed
innocent in January 2012 (Keller).
However, at the time of her arrest in
2010, The Connecticut Post, The
Stamford Advocate, and The Greenwich
Fig. 3. Friedman, Debra. Noncontextualized headlines
about Martin.
Time, published stories on the case—and
only one of three news outlets amended the articles post-publication, even though the court
officially "deemed [Martin] never to have been arrested" ("Martin v. Hearst").
These cases are not exceptions. According to Jeffrey Rosen, a prominent professor of law
at George Washington University, U.S. HR recruiters who research candidates online reject 70%
of applicants due to information they find about them on the Internet (Rosen, "Web"). But with
3
the rise of cloud computing, social media, and the public's increased eagerness to share more
data in the Information Age, the answer to data security online will have to contend with a fierce
technological obstacle — the growing data indexing and archiving power of the Web (Hilbert 1).
Regulation of information online, moreover, will likely face economic opposition from powerful
corporate entities which are internationally invested in maintaining the robustness of a modern
"Big Data"-based global Internet economy which "vie[s] to monetize, trade, and capture the
value of" users' personal information online (Anderson 5).
With these limitations in mind, the European Union implemented a legal solution in May
2014 which gives citizens the right to ask data controllers to delete links with personal
information online that is "inaccurate, inadequate, irrelevant, or excessive" ("Factsheet"). This
"Right to be Forgotten" law makes companies such as Google liable for up to two percent of
their global income if they fail to comply — a sum of over 1.3 billion dollars ("Proposed Data"
92).
The potential success and viability of such a legal solution in U.S. has been a point of
contention, with many intellectuals attacking the law as a pathway to censorship, and others
lauding it as a well-intentioned victory for privacy (Nemitz). Google's executive chairman, Eric
Schmidt, argues that the budgetary implementation of the law is not practical (Vincent).
Nonetheless, most scholars agree that any legal solution in the U.S. would conflict with the First
Amendment — a significant barrier in passing privacy law (Rosen, "Web").
Although there is much controversy, the online privacy conundrum in the U.S urgently
requires a solution. How can we balance the legitimate interests of citizens seeking to control
their online privacy, the free speech rights of data controllers, and the public's right to access
information?
4
The optimal solution appears to lie in technological strategies that have no legal hurdles
to overcome and can, therefore, address the issue at its source in the most direct, timely manner.
Major data controllers such as Facebook should enable expiration date tools that allow users to
have personal data — such as Stacy Snyder's pirate photo — eradicated from web archives after
a chosen period time. Such tools can increase profit margins for data controllers by fulfilling
their users' desire for proactive control over their online privacy. However, the more nuanced
problem of others posting compromising personal information about us, as in the case of
Lorraine Martin, introduces a more serious free speech concern and should, therefore, be
addressed with regulation of speech rather than deletion. This regulation can be implemented in
the form of "data contextualization" that is overseen by the judicial system, which will use
established governmental guidelines to ensure a fair contest between conflicting First
Amendment rights and privacy interests.
Tracing the history of privacy rights and free speech in the U.S. can help shed light on the
viability of this solution. The ideal of privacy first gained a secure foothold in American
democratic ideology in 1890 when U.S. Supreme Court Justices Samuel Warren and Louis
Brandeis published a seminal article advocating for a robust "right to be let alone" in response to
"distress-causing modern enterprise and invention" (Warren)1. This unprecedented sentiment was
positively received and led to early successes for privacy cases (Bennett 169), culminating in
Briscoe v. Reader's Digest Association (1961), which established that "an unfettered press may at
times be outweighed by [...] privacy." In 1965, moreover, a constitutional right to privacy citing
the "due process clause" of Fourteenth Amendment was established via Griswold v. Connecticut.
1
Inventions such as the 19th century telephone and Kodak camera.
5
The landmark Griswold case, however, protected against primarily governmental privacy
intrusions without addressing private privacy concerns, which had to be solved by common tort
law (Ambrose, "It's About Time" 376). Drawing upon Warren and Brandeis' guidelines, William
Prosser, thereafter, organized the storied "right to be let alone" for private citizens into four
distinct privacy torts in 1960, one of which addressed "public disclosure of embarrassing private
facts" (Prosser). A distinguished professor of law at UC Berkeley, Prosser was able to officially
codify his divisions in the Second Restatement of Torts, which is now regarded as the principle
authority in tort law (Richards 1890).
Despite Prosser's foundational achievements, however, most contemporary scholars agree
that privacy torts have been universally unsuccessful in implementation, largely due to conflicts
with the First Amendment. Perhaps the most fatal blow to tort utility occurred in Time, Inc vs.
Hill (1967) when the U.S. Supreme Court recognized "newsworthy" information as unrestricted
speech in a contemporary society "which places a primary value on freedom [...] of press" over
privacy. Preeminent law professor Harry Kalven has noted that this application of
"newsworthiness" has become "so overpowering as to virtually swallow the [privacy] torts"
(336)2.
Privacy tort law, moreover, has not been able to evolve to address the modern breed of
privacy cases associated with troublesome personal information online in the "Big Data" era.
Law professors Neil Richards and Daniel Solove articulate that "today, the chorus of opinion" is
that Prosser's rigid codification of his torts in the Second Restatement of Torts led to the
unintentional stagnation of privacy law and "stunted its development in ways that have limited
2
The Supreme Court did, however, acknowledge a "privacy interest" outside the realm of "newsworthy stories" in
the 1989 U.S. Dep't of Justice v. Reporters case, but this hasn't helped much due to the ease with which information
is classified as "newsworthy" (Kalven 336).
6
its ability to adapt to problems of the Information Age" (Richards 1890). However, while legal
solutions have proven to be dormant, straightforward technological innovations have recently
fared quite well in creating consensus regarding Web privacy concerns before having to involve
the law (Zittrain 224)3.
With the advent of modern technologies and a multifaceted legal history, the balancing
act between privacy and free speech is, indeed, complex. However, the moral case for bolstering
users' online privacy is clear; citizens' identities are being perverted in the thorny context of the
modern "Big Data" web. Numerous scholars agree that this results in an unjust infringement
upon their pursuits of professional and personal happiness, as seen in the cases of Stacy Snyder
and Lorraine Martin. Therefore, law professor Eric Posner asserts that we must "give people
back the privacy that technology has taken away."
The equally unfortunate fates of Snyder and Martin, however, represent two unique
categories of privacy concerns that must be addressed distinctly. As seen in figure 4, technology
law professors Meg Ambrose and Jeff Ausloos classify privacy claims regarding Internet data
and content as either "internal" — information produced by the individual themselves, like
Snyder's pirate photo — or "external" — information produced about the individual by someone
else, like the news articles about Martin (15). Justin Brookman, director of the Center for
Democracy and Technology, agrees that this type of "bifurcation" of online privacy is essential
for a successful solution.
3
A prominent example is Martijn Koster's 2007 invention of "robots.txt," a standard file type now universally
accepted by the Internet community which addresses basic web browsing privacy concerns by allowing "site owners
[to] indicate preferences about what parts of the site ought to be crawled" by web crawlers (Zittrain 223).
7
Fig. 4. See Ambose and Ausloos 15 for more information on
"clickstream," "initial," and "downstream."
Upon analyzing the ineffectual history of privacy law, many scholars agree that the most
potent solution will bypass the legal obstacles of stagnant tort laws and the First Amendment by
addressing privacy issues in a novel way. Law professor Daniel Solove asserts that the law "will
have great difficulty in stopping people from exposing details about themselves" (13). Ambrose
and Ausloos agree that the legal implementation specifics will "cause a great deal of dispute and
inefficiency" (16). The solution to both internal and external privacy issues should, therefore,
strive to be divorced from legal policy.
With this context, it appears that internal privacy cases have minimal free speech
concerns, and are therefore, approachable via direct extra-legal solutions. Because the
troublesome data in internal cases is posted and owned by the individual himself, Ambrose and
Ausloos argue that retraction of this information "creates minimal additional burdens, implicates
fewer fundamental rights, and does little to alter the nature of Internet communication" (19)4.
4
The deletion does not infringe the free speech or property rights of the data controller which hosted the
information, such as Facebook, because the data controller does not legally own users' data and agreeably deletes the
data if requested "in a manner similar to emptying the recycle bin on a computer" ("Terms of Service").
8
In an intriguing proposal utilizing this idea, Viktor Mayer-Schönberger, Professor of
Internet Governance at Oxford, suggests that data controllers implement an innovative tool that
mimics the natural phenomenon of human forgetting over time: built-in expiration dates for
online data. Such a tool would prompt users to set a data lifespan, if desired, before posting any
information to a data controller, such as a photo or video on Facebook. After the preset
expiration date, the data would be shattered and effectively deleted so that it couldn't be indexed,
linked, or archived anymore. This gives the user the opportunity for future redemption and the
freedom to anticipate potential misgivings and take proactive action to address the concern
before any consequences are incurred. In this way, Mayer-Schönberger asserts that, with the
power of technology, we can encourage "awareness and human action" by "asking humans to
reflect—if only for a few moments—on how long the information they want to store may remain
valuable and useful" (188).
The technology for such a tool, moreover, is potent and readily implementable. MayerSchönberger explains that expiration dates can be easily encoded into "meta-information," the
type which "our digital devices already manage and store" (188)5. Meta-information refers to
"structured information that describes [...] an information resource," such as a file's creation or
modification date ("Understanding Metadata"). These techniques effectively neutralize the
Internet's data indexing power through "data tethering," a technology which links the source's
meta-information to all of the file's copies on the networked web, resulting in a change that is
"reflected through the entire food chain" (Jonas). Professor Jeffrey Rosen, who endorses MayerSchönberger' solution, describes that applications which use such technology have been already
5
For example, DRM software already uses metadata to successfully enforce usage rights. Expiration dates would be
similar (Mayer-Schönberger 188).
9
been successful6 and that "Facebook, if it wanted to, could implement expiration dates on its own
platform" ("Deciders").
Fig. 5. Example of metadata code set to expire the content on June 1st, 2010 ("What is the
meaning of the meta tag")
We must, however, convince data controllers, such as Facebook, of the true economic
benefits in protecting users' reputation online before they will be willing to implement expiration
dates. Media consultant BIA/Kelsey reports that celebrities and corporations spent about $3.5
billion managing online reputations with websites like ReputationDefender.com in 2014
(Frizell). Moreover, a survey done by U.C. Berkeley in 2011 shows that 84% of American 18 to
24-year-olds desire a right to erasure of personal information online (Connolly). Implementing
expiration dates, therefore, can certainly help increase user satisfaction, which is how data
controllers thrive. Thus, Rosen asserts that users must speak out and make their desires known to
data controllers, who will respond, in order to maximize profits ("Open Mind")7.
Erasure via expiration, however, is not an appropriate solution for external privacy
concerns, which can implicate another party's free speech. Alteration of another's speech can
clearly "curb freedom of expression" and "suppress legitimate journalism" (Toobin). But, as seen
in the Martin case, third-party speech can still be misleading and harmful to the data subject8.
Therefore, in a situation where democratic ideals are at stake, Harvard cyberlaw professor
Jonathan Zittrain suggests we use democratic methods to solve the issue: implement "more
6
See, e.g., the application called Vanish, designed by researchers at the University of Washington (Geambasu).
Facebook does, indeed, respond to user requests. Rosen gives the example of the July 2007 "Facebook Wall"
update, which was not well-received by users. The company subsequently updated the Wall layout to cater to user
interests ("The Open Mind").
8
Journalism professor Marie Shanahan argues that such "journalistic half-truths aren’t deserving of a perpetual life,"
and therefore these articles must be updated as Zittrain suggests.
7
10
speech" in the form of data "contextualization" by allowing data subjects to display a response or
update to the speech in question (229; Figure 6).
Fig. 6. Helhoski, Anna. Contextualization already occurs on a small scale.
Courts would simply have to enforce this process more strictly when privacy
interests are determined to outweigh free speech interests.
Furthermore, Danny O'Brien of the Electronic Frontier Foundation argues that the
legitimacy of such contextualization has to be "an even battle [that takes place] in the courts"
("Google discusses"). The judicial system should use a balancing test based on the established
Consumer Data Privacy in a Networked World white paper released by the White House in
2012, which describes how and when "consumers have a right to access and correct personal
data in usable formats" (19)9. Although a judicial route will not be as timely or direct as a
technological solution, it is a necessary step in ensuring the balancing of legitimate interests.
These solutions have been endorsed by numerous scholars, but a serious counterargument arises from free-speech absolutists, who fundamentally disagree with expiration or
contextualization of data on the moral basis that any alteration of true speech is censorship.
9
The balancing test described here determines the public value of the information in question "in a manner that is
appropriate to the sensitivity of the data and the risk of adverse consequences to consumers if the data is inaccurate,
[...] interpreted with full respect for First Amendment values" (19).
11
Andrew McLaughlin, CEO of Digg, argues that the "the right to remember" is a fundamental
societal right, and alteration of user's online data is the "suppression of true information." While
it is true that any regulation of speech over privacy can become a slippery slope, law professor
Eric Posner opposes McLaughlin, asserting that only with a certain degree of online privacy, can
citizens effectively and safely organize and exercise the freedoms that democracy entails
(Nemitz).
Perhaps if Stacy Snyder had set an expiration date for her picture, she could have
proactively avoided the lengthy lawsuit that cost her her livelihood and well-being. If the articles
about Martin had been updated and contextualized properly, perhaps she would be more
successful in seeking employment. While no solution can be flawless in such a complex debate,
these methods hold promise for leading us out of the Digital Panopticon and away from the
warden's watchful gaze.
12
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18
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