The rise of social media has posed new problems for private information protection. Photo: FILE

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After Katz v. United States in 1967, the US Supreme Court established the theory of reasonable expectation of privacy. The theory holds that if citizens have subjective expectations of privacy for certain places or objects, the personnel of government law enforcement shall not search or detain such places or objects, unless the search is conducted in accordance with the established procedures of Fourth Amendment of the United States Constitution. The theory has been widely used in tort cases in the US since it was proposed and has exerted a great influence on the theory of privacy rights in Canada, Britain and European countries with civil law system. After entering the 21st century, emerging media especially social media have proposed new research topics related to the theory.

In the online world, web data can be transmitted, stored and copied quickly and freely. Always open in the transmission process, the information can be stored anywhere without extra cost. The minimal use of data in physical space allows electronic data to be distributed anywhere in the network. This greatly increases the difficulty for the police to obtain evidence and at the same time raises questions about whether the theory of reasonable expectation of privacy still applies in the internet age.

After social media emerged, there are new questions to answer about the theory of reasonable expectation of privacy, such as whether setting personal content to “be visible only to friends” by social media users means they automatically give up privacy expectations. Take Facebook for an example. After registering a new account, the user can access personal information that has been stored, and can also set the visible range of personal information, such as “visible only by oneself” and “visible only to friends.” In addition, the content managers can also view user information. If the user’s “friends” on social media allow the police to view the user’s private information, the user’s expectation of privacy no longer exists. However, if the user’s friends do not agree to the search, then can the police conclude that the user has automatically given up the reasonable expectation of privacy since the personal information has been submitted to social media for preservation? This is the new problem that the theory of reasonable expectation of privacy encounters in the era of social media.

The challenge that social media poses to the theory is this: how to define the objectivity of social media users’ expectation of privacy. The US Supreme Court has concluded that if a citizen divulges information to a third party, the user no longer has expectation of privacy. However, many from the field of law doubt the court’s standard of judgment, and many scholars insist that information disclosure does not automatically lead to the invalidation of expectation of privacy.

One of the necessary conditions for ascertaining a reasonable expectation of privacy is to determine for what purpose the third party intends to use the private information. The most controversial situation is when commercial companies employ users’ private information for business benefits. When it comes to the business intentions of information dissemination systems and the economic system, Western countries such as the US make different judgments. Social media belongs to the information dissemination system; at the same time, it is the leader of the internet economy, with obvious economic attributes. Therefore, one of the conundrums in determining the objectivity of reasonable expectation of privacy in social media is to decide by which system to judge the business intentions of social media.

The second puzzle that social media brings to the theory of reasonable expectation of privacy is how to determine the presumptive receiver of private information. Before the popularity of the internet, the telephone was the main medium for people to socialize. The caller and the called person automatically become the presumptive receivers of the telephone number information. In addition, the telecommunication company is also the presumptive receiver of the telephone number information, without which, the telecommunication company cannot realize its communication function. However, the telecommunications company is only the presumptive receiver of the telephone number, but not that of the content of the call. Therefore, the telecommunication company’s monitoring and listening to the private call is contrary to the reasonable expectation of privacy.
 

The focal point for social media as to the above discussion is if the presumptive receiver of the content includes the social media company itself. For users, since they set their private information “visible only to friends,” the presumptive receiver should only include their friends. But for social media, once the user is registered, the management of the content and information is automatically entrusted to the social media operator. Otherwise, the user cannot even use the password to log in. However, once the social media operator is regarded as the presumptive receiver of private information, how to prevent the social media operator from leaking the user’s information to third parties becomes another difficult problem in the process.

 

Zhao Kang is from the Institute of Journalism and Communication at the Chinese Academy of Social Sciences.

edited by BAI LE