Is Your Privacy Harmed If You Believe Others May Have Seen Private Info... Even If They Haven't?

from the privacy-questions dept

We've noted, repeatedly, that in various data breach cases, courts have consistently found that if the data was exposed but then not actually used for nefarious purposes, there's really no legal recourse. The standard argument is that, in such cases, there's no actual harm to be remedied. I can definitely see the reasoning there, though I do worry if that creates bad incentives concerning data protection. However, in a totally different (and much more tragic) situation, you can see how the "no one saw it" line of thinking doesn't make much sense at all. Ryan Calo discusses the story of Tyler Clementi, the Rutgers student who committed suicide a few months back, after his roommate supposedly broadcast his sexual encounters over the internet. The roommate is apparently now saying that no one, other than himself and a friend, ever saw the video, but Calo suggests that this is still a privacy violation:
The question of whether the defendants recorded or broadcast the web cam is highly relevant to whether there has been a privacy violation. Yet it is hardly relevant at all to the question of whether there has been a privacy harm.

What matters is what Clementi believed. If it turns out that Clementi killed himself because he believed the entire campus watched him have gay sex, then he suffered a severe subjective privacy harm. This is true whether or not the belief was accurate. Just as likely is that Clementi had no idea one way or another who saw the footage. The uncertainty could have been nearly as horrible to this desperate, mortified young man as an affirmative belief.
Calo is making an interesting, yet important, distinction here, between a privacy harm and a legal privacy violation. But it also highlights how the "harm" can come from a few different ways as well, including just the feeling of a loss of control, even if the information is not actually used negatively:
Clementi’s suicide forces us to confront the dual nature of privacy harm. Privacy harm is the objective consequences that flow from the loss of control over personal information. But it is also the subjective experience of that loss of control. This is so not only in the terrible case of Clementi, but in the everyday experiences of the consumer who is worried she will suffer identity theft following a data breach or the citizen who avoids making jokes about terrorism for fear that the NSA is reading his emails.


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    Jason, Nov 9th, 2010 @ 3:51pm

    not really the issue is it?

    Whether he believed everyone had seen video of him having sex, he had every reason to believe everyone soon would. So, really the use of the internet here is somewhat peripheral, although not completely irrelevant. It's not like he already had made a video and had the content hacked into and posted online. The breach of privacy did not occur via th'internet, but via the camera. He would have likely been mortified without the video having even been published. Anyway, not really a relevant case for data privacy.

     

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    Fentex, Nov 9th, 2010 @ 4:36pm

    This makes no sense to me.

    There was a violation of privacy; a persons private intimate action (that reasonable care was taken to keep private in a place intended for privacy) was surreptitiously videotaped by someone not meant to view let alone record it.

    There is no subjective element to the violation of privacy here. It was violated.

    That the offended party may have over-estimated the harm done by the violation is a different matter from the fact of their privacy being violated.

    Any contention that there was no violation of privacy because it was restricted to two people is a category error.

     

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    ChurchHatesTucker (profile), Nov 9th, 2010 @ 4:43pm

    Equity

    "We've noted, repeatedly, that in various data breach cases, courts have consistently found that if the data was exposed but then not actually used for nefarious purposes, there's really no legal recourse. The standard argument is that, in such cases, there's no actual harm to be remedied"

    Yeah. Strange how that logic isn't applied to file sharing cases.

     

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    out_of_the_blue, Nov 9th, 2010 @ 5:57pm

    Yes, making someone believe harm was / is going to be done, *is* harm.

    It's at least a threat, and since actually was a video, possible. Many forms of fraud threatening a criminal action *are* actionable. It certainly meets the standard for your title question.

    However, I don't get the point of your juxtaposing "data breaches" and a surreptitious video. This young guy *was* harmed, AND the NSA *is* reading your emails. Two harms don't cancel out.

     

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    Jesse, Nov 9th, 2010 @ 6:40pm

    Wasn't it a privacy violation to make the video in the first place, whether it was shared or not????

     

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      Mike Masnick (profile), Nov 9th, 2010 @ 11:13pm

      Re:

      Wasn't it a privacy violation to make the video in the first place, whether it was shared or not????

      Right. And by the same token, isn't it a privacy violation when your data is exposed?

      Point is: the courts, so far, say no.

       

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        Jason, Nov 10th, 2010 @ 6:48am

        Re: Re:

        I totally appreciate your reasoning, Mike, but it's definitely a different body of law, and so different rules are applied for good reason.

        Consider a scenario that blends the issues of the Gap case and this one:

        Say that instead of a willful violation, somehow, someone in custody of Clementi's laptop by not excercising reasonable and due care lost that laptop, which in turn had Clementi's private video on there. No one ever saw the video, but based on the knowledge of it's potential release, he then commits suicide.

        Would we really want the court to make a wrongful death suicide finding due to negligence on that basis? I can't see it.

        There's a reason stricter rules are applied to determining negligence.

         

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    bdhoro (profile), Nov 9th, 2010 @ 10:43pm

    Dangerous

    Now I don't know the case or the law... and I do pretty much agree from what I've read here that this is a case of privacy violation, the way this argument was made seems like a pretty dangerous way to establish law. It should be based on the facts of what happened, not what the violated party believed happened.

    What if there was no video at all but he was led to believe there was a video broadcast? Whats the difference if there was a broadcast nobody saw that he believed many saw, of if there was no video and he was convinced there was?

    So personally I don't think "What matters is what Clementi believed"

     

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    Andreas (profile), Nov 13th, 2010 @ 10:41am

    fits just fine with the line of reasoning of that company that put a video-stream online and sued users who linked to the video-stream.

    can we please get more information about countries with sane laws and judges and lawyers and companies? they must be out there somewhere, the whole world can't be _that_ stupid.

     

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