“Social Networks, Privacy and Freedom of Association”

1. “Social Networks, Privacy and Freedom of Association” Professor Peter Swire Ohio State University Social Media & the Law UNC Chapel Hill November 18, 2011

2. Overview • Linguistics: “network” and “association” • Social networks as platforms for association • Cyber conferences • One panel on political mobilization – celebrate sharing of personal information • One panel on privacy – concern about sharing of personal information • Towards an integrated view – spotting the issues, intellectual structure • Doctrine on possible state action • “Privacy by design”; Do Not Track • Do Not Track, even for political parties and non-profits • Data empowerment v. data protection

3. “Network” & “Association” • Linguistics: “network” and “association” • Also, “links”, “relationships” • “Circles” form “groups” and “associations” • Social networks as locus of political mobilization • Egypt, Tunisia, Arab spring • Obama campaign: New Media, and get friends to get friends to knock on doors • A different “progressive” view of privacy • Tea Party • Senator Brown; not a left/right split • Social media central to associational activity • Already by 2009, 97% of charities in the U.S. used some form of social media • 2011 Pew study: majority of online users in the US have been invited via Internet to join a group; 38% have used the Internet to invite others to join a group

4. 1st Amendment Doctrine • Possible state action to govern associations in social networks • “Expressive” association, not “intimate” • Strict scrutiny thus far test for association, ok if: • Compelling state interest • Unrelated to the suppression of ideas • That cannot be achieved through means significantly less restrictive of associational freedom • Perhaps “commercial association” • Social network challenges its ability to supply association • Perhaps “time, place, and manner association” • Some aspects of social networks are regulated, while allowing “ample alternative channels” for association

5. Previously on Privacy & Association • NAACP v. Alabama: state wanted membership list of NAACP members • Alabama lost: • Privacy interest of members, chilling effect if their association links revealed • Chilling as well of the NAACP’s associational rights • Limit on data flow supported freedom of association • Applied to social networks: • Freedom of association (to protect privacy) can be a state interest justifying privacy limits • As applied in a case, look at privacy rule’s restrictions on freedom of association (limit on data flows) and also its advancement of freedom of association (protect individuals from revealing their memberships)

6. Example 1: Privacy by Design • Issue: legal mandate of “privacy by design” • Plaintiff can be a political campaign or non-profit, and wants “outreach by design” • Plaintiff can be the social network, claiming “commercial association” rights violated by limits on the platform • Facts matter – effects on association, other alternatives • Doctrine matters – strict, commercial, or TPM scrutiny

7. Example 2: Do Not Track • Do Not Track unclear on details: • May limit display of targeted ads (industry view) • May limit collection of information across multiple sites (Cranor and “tracking”) • For display-only version of DNT • This is the outreach by the organization to find people likely to be interested in joining the association or participating in a campaign/activity • May be strong argument for exception for political campaigns and non-profits, as with Do Not Call • For collection limits version of DNT • Goes deeper into architecture of what data created & shared • May be harder for challengers to say need accommodation specifically for political campaigns and non-profits

8. Data Empowerment v. Data Protection • Usual statement, in E.U. and more broadly • Fundamental/human right to privacy protection • Rights of the data subject • Form of the argument: the individual’s rights should outweigh utility (cost/benefit) arguments, and privacy should win • Additional point today • Fundamental right of freedom of association can be limited if the state protects privacy • Form of the argument: the individual’s rights to privacy (limit social networking sharing) are contrasted with an individual’s right to form and further associations (expand social networking sharing) • Similar to Volokh’s “right to speak truthfully” about another person • Here, the distinct “right to associate effectively” is at issue • Data empowerment v. data protection – doctrine and policy

9. Conclusion • Towards integrated intellectual structure for social networks as: • Platforms for association (share data) • Platforms for privacy invasion (limit sharing) • Individuals ourselves (and our non-profits and political groups) • Split within our psychology – data empowerment & protection • Legal doctrine • Will need development of FOA law for association platforms • Practical politics • This is how politicians do their outreach, so may be hard to enact limits on association (NPR story) • Policy • Whatever is constitutional, question of how to achieve both goals • Discussion of only one goal misses our dual aspirations