Privacy? What's That?

We sometimes assume that our bank records, our telephone conversations, our Tweets and our Facebook postings are only shared with our permission to our circle of friends and followers. Not so.
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Recently, Twitter released a "transparency report" which explained in some detail the extent to which this tremendous social medium complies with requests for information from government agencies around the world. The report contains the usual assortment of good news and not-so-good news about the state of personal privacy in the post-9/11 era. As such, it serves as a reminder to all of us that social media are really public platforms, not private venues.

It is easy to forget that our utterances on Facebook and Twitter, or the pins we set on Pinterest, can be discovered by just about anyone. Sure, some digging is necessary to uncover the good stuff -- or should I say, the bad stuff -- but everything we do on social media is public information, even the alleged private messages that we share. This sort of renders the notion of gossip irrelevant, because gossip is supposed to be the sharing of dirty secrets and it's impossible to have any secrets in social media. Just ask former Congressman Anthony Wiener of New York.

But let's go back to Twitter's attempts at transparency. According to data from the report, Twitter was asked for information in 2011 from 948 accounts and handed over at least some information from 679 of them. In other words, Twitter's lawyers were compliant with government requests 75 percent of the time. Perhaps the most prominent of these was Malcolm Harris of Occupy Wall Street, who was required to have his Tweets handed over to the New York State Attorney General's office.

In its defense, Twitter's Jeremy Kessel, manager for legal policy, noted that the site has a "long-standing policy to proactively notify users of requests for their account information unless we're prohibited by law." That may be okay for Twitter, but it may be problematic for some of us. Twitter seems to be operating under something that I call the "barn door principle," as in "closing the barn door after the horse has escaped." Twitter will let you know when a government agency has requested information and will also tell you whether that information has been handed over. Notice that this information will be worded in the past tense. So, roughly 679 people were told last year, "Hey, the authorities asked for your Tweets and we had to give them up. You might need a lawyer now. Have a nice day." In short, Twitter is attempting to protect you, but is really succeeding only 25 percent of the time.

About a year ago, Facebook went through the same trials on privacy, though on a much smaller scale. A report in Reuters from last year noted that federal judges authorized the serving of more than two dozen warrants to search individual Facebook accounts. "Many of the warrants requested a laundry list of personal data such as messages, status updates, links to videos and photographs, calendars of future and past events, 'Wall postings' and 'rejected Friend requests.'" These warrants were obtained by the FBI, DEA and US Customs. The charges ranged from arson to rape to terrorism.

The Facebook warrants were significant because they had the potential to challenge our traditional notions of privacy, a vestige of the Fourth Amendment prohibition of "unreasonable search and seizure." The key to this case is the amount of information about us that is actually held by third parties. And that affects all of us.

We sometimes assume that our bank records, our telephone conversations, our Tweets and our Facebook postings are only shared with our permission to our circle of friends and followers. Not so. They really belong to the companies that enable the communication or which hold the data for us. In 1976, the Supreme Court in United States versus Miller ruled that a bank did not have to tell a customer that his financial records had been sent to a government agency, in this case the Bureau of Alcohol, Tobacco and Firearms. The Supreme Court ruled that the customer did not have to be informed that his records had been turned over to the government, because the records were the property of the bank and, therefore, the customer had no reasonable expectation of privacy.

So Facebook had to comply with the warrants.

This leads me to conclude that privacy is another quaint vestige of the 20th Century, and something that the ensuing generations may come to know as a charming artifact of another time. In an era when the places we visit and the people with whom we choose to associate -- and even our most intimate thoughts and desires -- are made available to everyone with our permission through the "third parties" of social media, we may wonder what is left to protect.
Of course, the vast majority of us have little to fear from the government because we don't commit any crimes. But what if we are sued for divorce, or harm, or some perceived breach of contract? What then? Quite frankly, the precedents cited above mean that, in a court of law, our lives can become an open book. (Or should I say, tablet?)

Tweet at your own risk, I say. De-friend with care. As I advise my clients, "Never Tweet anything that you would regret being made public at a Congressional hearing!"

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