Dark Window: A Look into Privacy in the Age of Social Media

The Bencher—November/December 2019

By Katherine Alphonso, Esquire

“Privacy has been defined as the desire of people to freely choose the circumstances and the degree to which individuals will expose their attitudes and behaviors to others.”
—Alan F. Westin, “Privacy and Freedom” (New York: Atheneum, 1967).

As a social concept, privacy has been deeply rooted into our literature, culture, government, and history. It is so important that Parliamentarian William Pitt once declared, “the poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail: its roof may shake, the wind may blow through it; the storms may enter; the rain may enter—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.” Lord Brougham, “Historical Sketches of Statesmen in the Time of George III,” First Series, Vol. 1 (1845).

Today’s societal values have shifted tremendously, with an “if I didn’t post it, did it really even happen” attitude. We scroll through our news feeds and learn more about our friends than we ever cared to. We know that Amy had baked ajvar eggs with toast for breakfast; that Sean did three sets of 10 on the flat barbell bench press, followed by an hour of cardio at the gym; and that Shannon spent too much time at work, which is why Jessica filed for divorce. #priorities. But who can blame us? Social media influencers make millions of dollars every year just for opening up their lives to an audience. The more views, likes, subscriptions, and followers a person gets, the more valuable their posts become. Sponsorships pay serious money, and we share everything we can for a chance at the action.

For almost a year, our Earl Warren American Inn of Court pupillage group in Oakland, California, examined the dark side of surrendering your privacy for a chance at fame and fortune. Our script followed an up-and-coming attorney, Sally Noma, as she catapulted into the life of a social media influencer. Having returned home from her honeymoon in India, Sally surprised her new husband with an authentic Indian meal, using a recipe shared by her new aunt. Unaccustomed to spicy food, the video recording captured her unadulterated reaction and hilarity ensued. Her post, of course, went viral, and the industry came knocking.

As a whole, our presentation was guided by three specific events taking place around the world: (1) the recent passage of several privacy regulations, (2) breaking news that companies were selling consumer information for psychological profiling, and (3) the creation of social credits within an entire country. For those unfamiliar with the social credit system, China is developing a metric for tracking national reputations. It is intended to standardize a citizen’s or business’s economic and social reputation by allowing other citizens to monitor and rate behaviors. This social score—likened to a credit score—demands a more extreme form of surveillance.

We examined many of our pressing questions: What does the implementation of these regulations look like? Should the federal government step in to preempt state privacy laws? Can government regulation keep up with rapidly changing technology? And will social credits change things for the better?

The first part of our skit, titled “Identity,” addressed the recent privacy regulations that passed in both the European Union and California. When a data mining company approached Sally after she went viral, she was quick to sign away her privacy in exchange for the convenience of the service. It promised to keep her relevant and trending at no cost and with very little effort. In compliance with the law, it was explicitly explained what types of information were collected, how that information was processed, and whether that information was secure. We watched as she relinquished control of her social media content to algorithms “who simply knew better.” But the unintended consequences of her choice reverberated through every aspect of her life, and there was nothing she could do about it—the information was out there.

The second part of our skit, titled “Commodity,” addressed the psychological profiling scandal from recent news. The dialogue and described events were based on actual indictment papers from a pending federal case. Members of our group (and hopefully the audience) gave pause as we learned just how effective and damaging information could be.

In addition, we explored what the congressional conversation might look like when debating the preemption of state privacy laws. Plenty of companies have approached the federal government asking for nationwide legislation on data privacy. With each state passing its own version of the law, companies are finding it harder and harder to remain compliant while still doing business internationally and across the United States. Privacy practitioners, on the other hand, are worried that federal legislation might be too lenient.

Inspired by the Mark Zuckerberg hearings, we played up the idea that many congressional representatives know very little about data privacy and the technology operated by such companies. We presented both sides of the argument to encourage discussion both inside and outside the organization. In the end, one of the characters offered an app solution that gave dominion back to the people. That set us up for the third and final part of our skit.

Titled “Veracity,” the skit ended with three distinct glimpses into the future. In this future, people use the app “Fact Up” to down-vote information they believe to be misleading and/or incorrect. The hope for the app was to allow the masses to control the narrative of data privacy, but the reality was horrifically different. With each new glimpse, the app took on a more prominent role in society. At first, a salesperson was questioned about the truthfulness of her sales tactics. Then, a respected reporter was demoted for reporting verifiable facts instead of allowing the public to make up its own mind. Everything culminated in a courtroom scene where a judge instructed jurors to down-vote evidence, witnesses, and attorneys as the case progressed.

What the legal landscape is going to look like in the future is unknowable. We can only guess, as our values ebb and flow with the changing times. The only thing we know for sure is that privacy should be a choice. And it is that choice that we should protect.

Katherine Alphonso, Esquire, works as an associate at Kaufman, Dolowich, & Voluck, LLP.  She focuses her practice on data privacy and cybersecurity, advising on best practices for California Consumer Privacy Act and General Data Protection Regulation.