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

Overview 1. Linguistics: “network” and “association” 1. Social networks as platforms for association 2. Cyber conferences 1. One panel on political mobilization – celebrate sharing of personal information 2. One panel on privacy – concern about sharing of personal information 3. Towards an integrated view – spotting the issues, intellectual structure 3. Doctrine on possible state action 1. “Privacy by design”; Do Not Track 2. Do Not Track, even for political parties and non-profits 4. Data empowerment v. data protection

“Network” & “Association” 1. Linguistics: “network” and “association” 1. Also, “links”, “relationships” 2. “Circles” form “groups” and “associations” 2. Social networks as locus of political mobilization 1. Egypt, Tunisia, Arab spring 2. Obama campaign: New Media, and get friends to get friends to knock on doors 1. A different “progressive” view of privacy 3. Tea Party 1. Senator Brown; not a left/right split 3. Social media central to associational activity 1. Already by 2009, 97% of charities in the U.S. used some form of social media 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

1 st Amendment Doctrine 1. Possible state action to govern associations in social networks 2. “Expressive” association, not “intimate” 3. Strict scrutiny thus far test for association, ok if: 1. Compelling state interest 2. Unrelated to the suppression of ideas 3. That cannot be achieved through means significantly less restrictive of associational freedom 4. Perhaps “commercial association” 1. Social network challenges its ability to supply association 5. Perhaps “time, place, and manner association” 1. Some aspects of social networks are regulated, while allowing “ample alternative channels” for association

Previously on Privacy & Association 1. NAACP v. Alabama: state wanted membership list of NAACP members 2. Alabama lost: 1. Privacy interest of members, chilling effect if their association links revealed 2. Chilling as well of the NAACP’s associational rights 3. Limit on data flow supported freedom of association 3. Applied to social networks: 1. Freedom of association (to protect privacy) can be a state interest justifying privacy limits 2. 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)

Example 1: Privacy by Design 1. Issue: legal mandate of “privacy by design” 1. Plaintiff can be a political campaign or non-profit, and wants “outreach by design” 2. Plaintiff can be the social network, claiming “commercial association” rights violated by limits on the platform 3. Facts matter – effects on association, other alternatives 4. Doctrine matters – strict, commercial, or TPM scrutiny

Example 2: Do Not Track 1. Do Not Track unclear on details: 1. May limit display of targeted ads (industry view) 2. May limit collection of information across multiple sites (Cranor and “tracking”) 2. For display-only version of DNT 1. This is the outreach by the organization to find people likely to be interested in joining the association or participating in a campaign/activity 2. May be strong argument for exception for political campaigns and non-profits, as with Do Not Call 3. For collection limits version of DNT 1. Goes deeper into architecture of what data created & shared 2. May be harder for challengers to say need accommodation specifically for political campaigns and non-profits

Data Empowerment v. Data Protection 1. Usual statement, in E.U. and more broadly 1. Fundamental/human right to privacy protection 2. Rights of the data subject 2. Form of the argument: the individual’s rights should outweigh utility (cost/benefit) arguments, and privacy should win 3. Additional point today 1. Fundamental right of freedom of association can be limited if the state protects privacy 2. 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) 4. Similar to Volokh’s “right to speak truthfully” about another person 5. Here, the distinct “right to associate effectively” is at issue 6. Data empowerment v. data protection – doctrine and policy

Conclusion  Towards integrated intellectual structure for social networks as: Platforms for association (share data) Platforms for association (share data) Platforms for privacy invasion (limit sharing) Platforms for privacy invasion (limit sharing)  Individuals ourselves (and our non-profits and political groups) Split within our psychology – data empowerment & protection Split within our psychology – data empowerment & protection  Legal doctrine Will need development of FOA law for association platforms 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) 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 Whatever is constitutional, question of how to achieve both goals Discussion of only one goal misses our dual aspirations Discussion of only one goal misses our dual aspirations