TCS Daily


Privacy, harassment protections damage freedom

By James K. Glassman - December 4, 2000 12:00 AM

Government`s attempts to set up privacy rights on the Internet and enforce workplace rules on harassment are a back door way to restrict people`s rights to free speech, UCLA legal scholar Eugene Volokh tells TechCentralStation host James Glassman. "When you have vague laws, when you have over-broad laws, they chill even that speech that they may not be intended to actually punish," he warns.

James K. Glassman: The Federal Trade Commission decided last summer that Internet websites were not self-policing themselves well enough in protecting people`s privacy. You have said that you aren`t really bothered by privacy policy keeping others from disseminating information about you, but you are worried about risks for freedom of speech. What do you mean by that?

Eugene Volokh: Look, I`d love it if I could control how people talk about me and what they say about me. That would be really great because then I can control people`s understanding of me and people`s perceptions of me. Who doesn`t want to do that? But when you frame it as: "Well, would I like to be barred from telling other friends of mine what I know about my friends or what I have learned about business partners or that I saw somebody famous buying in the supermarket?" I would say, "Hey, wait a minute, wait a minute, that is an abridgment of my freedom of speech." It is much easier to see an abridgment of the freedom of speech when it is you who are being restricted. So I think many people have this kind of mixed attitude. We really like the idea of stopping others from talking about us, but when you recognize that many claims of privacy rights are really claims of a right to stop people from talking about you. But when you frame it as stopping people from speaking on certain subjects, then I think they recognize that this is a freedom of speech matter.

We have seen it litigated for decades in our courts, where the so-called "disclosure of private facts" tort has run up against freedom of speech and freedom of the press, where people try to muzzle newspapers and stop them from publishing facts that are supposedly private and of no public concern and newspapers said, "Hey, it should be we and our readers who decide what`s of legitimate public concern, and not the government and the court systems that decide that."

I think that illustrates the broader problem that is inherent in a lot of restrictions on speech to protect information privacy. In order to try to keep people`s information private, they do it by stopping other people from communicating it, which is to say, they stop other people from speaking.

Glassman: But you agree that there is such a thing as invasion of privacy. I remember when I was a young reporter, I was taught that, in addition to libel laws, there were invasion of privacy statutes. In other words, we couldn`t look through a window at somebody with a telephoto lens and take a picture of him or her on toilet.

Volokh: Oh, you betcha. I think there are two very important protectors of privacy out there. One is trespass law. One of the things that protects my privacy is that I do a lot things in my house. People aren`t allowed to break into my house or peek into my house by hanging out on my property or, and this I think is a logical extension, by using electronic eavesdropping equipment or cameras with telephoto lenses or some such. I think that is a very important rule, and it is a rule that doesn`t restrict people from speaking. It doesn`t say that you may not talk about certain subjects; it restricts people from trespassing including when the trespassing is for purposes of gathering information. It really treats speakers like newspapers, like television stations, really no different than anybody else. Nobody can go out there and trespass on my property. Therefore, it is not really a speech restriction. It doesn`t raise the same serious first amendment problems that information privacy speech restrictions do.

Glassman: So, trespass is one protection. What is the other?

Volokh: The other very important protection of privacy is contract law. I can make a contract with you that says that if I reveal certain information to you that you will keep it private. That is a very important thing, and it comes up all of the time. Businesses, for example, demand such non-disclosure agreements. Also, I think that there is an implicit promise of confidentiality in a lot of a lot of relationships, like the lawyer-client relationship or the doctor-patient relationship.

Glassman: Actually, I am glad you brought up that issue because really this contractual arrangement perhaps is the most important issue on the Internet. When you are doing business on the Internet as an individual, buying something from a website, for example, is there an implicit contract with that website that information about you will not be distributed?

Volokh: I think the government has an important role to play in enforcing contracts through its court system and sometimes through actions like those by the Federal Trade Commission, although there are sometimes problems with that kind of enforcement. I think that sometimes it is also helpful for the government to be able to specify the default terms of implicit contracts.

One problem with implicit contracts is that it is often very hard to figure out exactly what the terms are, and that causes uncertainty and vagueness. So I think it makes a lot of sense in certain situations, not in all situations, but in some situations for the government to say, "Look, here is the default terms of an implicit contract, and we are going to hold you liable to it, so long as you don`t disclaim that term."

Glassman: Let`s talk about the current regime, the way it works now is that a website does not have to have any privacy policy at all. But if it does have a policy and says that it won`t distribute information about you to some other commercial users and it violates that agreement with you, then the FTC can take action. Do you like that regime?

Volokh: Well, I don`t think the Constitution mandates such a regime. I think that other regimes may be constitutionally sound and might not infringe on our free speech. I think that this probably a good first start, and maybe even a good ending point. The advantage of this is that if promises are made, they are enforced. And if they are not made, then users might go somewhere else, to someplace that does protect privacy. The Internet is a highly competitive environment, where people can go from one store to another store, not by driving for a half and hour but by just clicking on something. My sense is that those users who really care about privacy are going to be able to go somewhere else and the actions of those users are going to pressure a lot of sites into implementing one or another kind of privacy policy. So I think that this situation with the market is probably doing a pretty good job. Not a perfect job by any means, but you have got to understand that the government regulation isn`t going to do a perfect job either.

Now the other thing to keep in mind is that if the government sets even default privacy policies that risks ossifying the rules. Right now, different sites can have different privacy policies and do have different privacy policies. But if the government goes in and even just sets default, this is going to be become not just, quite likely just as practical matter, not just as a default rule, but also the norm, a thing that most sites will provide. And a lot of sites would say, "We`d rather not have a privacy policy of our own because it is easier to just go with the default policy."

Glassman: What`s wrong with that?

Volokh: The trouble with that is this a very rapidly changing environment, where both the nature of information being gathered, the uses to which it is being put, and the nature of business that is transacted over the Internet is changing from year to year. The government has a rule-making process that is a slow process in which decisions made one year are very hard to change the next year. That may not be the optimal way of solving this problem.

Glassman: Do you think that rules regarding privacy ought to apply to the Internet in the same way that they apply in other kind of commercial transaction or is there something about the Internet, as Lawrence Lessig, for example, says that requires some kind of special governance?

Volokh: Most legal rules turn on the substance of what is happening and not the particular medium or the particular technical form in which it is done. This is true, for example, of free speech rules. I am free to say offensive things on my jacket; I am free to say offensive things in print; I am free to say offensive things on the Internet. I am not free to libel people on the Internet, or in print, or in other media. The focus is on the content and substance, and not on the medium. I think that is an excellent rule because most of the reasons why the rule is one way or the other really aren`t much affected by the medium.

Glassman: So, just because it`s the Internet, you don`t need new rules?

Volokh: Once you get away from the and the glamour of, "Oh, wow, this is the Internet, this is different" -- and I realize that as a business matter the Internet does make quite a bit of difference -- once you get away from that surface and you more on really what is going on, the legal issues are pretty much the same. The supermarket gathers information about me when I use my value-plus card to get discounts, likewise a website may gather information about me, and the credit card company gathers information about me for transactions that are either done on the internet or off the Internet.

So basically, while people may be more excited about the Internet because it is new, because it is different, because maybe there are more transactions that are easily, personally identifiable online than offline -- although, I am not even sure about that -- the underlying logical, moral, practical questions are actually similar in both situations. Every so often, you come up with a situation where the Internet rules have to be different, but that is very much the exception rather than the rule.

Glassman: Let me switch subjects for a second. You have been a critic of sexual harassment and campus speech laws for infringing on free speech.

Volokh: Some applications of workplace harassment laws.

Glassman: How are these rules or laws being applied in the information age? For example, do businesses really have to bar employees from sending e-mails that might have sexual connotations or from using websites that might be risqué in nature?

Volokh: If businesses are prudent, that is exactly what they will do. That`s exactly what the government through workplace harassment law, as applied to speech, is pressuring them into doing, and smart businesses will do that. In fact, I think that it`s unconstitutional for the government to impose this pressure. But once the pressure is there, that`s what a savvy, sensibly risk-averse business will do.

Let`s step back a bit, what is workplace harassment? It covers some things that don`t raise any first amendment issue, like sexual extortion -- "Sleep with me or you`re fired" -- that is called quid pro quo harassment. Also it covers physical abuse of co-workers by other co-workers, unwanted touching; it covers things that are clearly unprotected, such as death threats or something like that. But it also covers any speech that is "severe or pervasive" enough to create "a hostile abusive or offensive work environment" for a plaintiff and for a reasonable person based on race, sex, religion, national origin, veteran status and a bunch of other characteristics.

Glassman: This is the idea of posting a calendar that has a pinup girl on it.

Volokh: That would be covered. This is a tremendously vague and broad speech restriction. I say that it is a speech restriction in that it`s the government that is setting up the rule of law that says if an employer allows this, and then in that case the employer can be sued for perhaps millions of dollars. So it is the government that is pressuring employers through the threat of massive liability to restrict the speech.

Glassman: You disapprove of this rule, of this government pressure?

Volokh: Absolutely, because it covers so much speech. It covers calendars with pinups; it covers and has been invoked in cases involving people with prints of what everybody would consider legitimate art that has some nudity in it or some sexual connotation.

Glassman: What about the Internet, let`s focus on that?

Volokh: Well, the same thing applies with the Internet. So for example, there is a lawsuit that I believe is still pending that the EEOC brought against Freddie Mac, based in part on somebody sending around a list of Ebonics jokes in the wake of this controversy about the Oakland School District proposing that Ebonics, black dialect, be taught as a second language. This is clearly apolitical commentary. This is clearly constitutionally protected speech. It is true that some people might find it racially offensive, but in America the right to free speech means the right not to have the government censor speech even when it is racially offensive.

Glassman: The Ebonics case could be considered as being fair political commentary, what if someone was sending around a list of dirty or sort of sexually oriented jokes?

Volokh: The First Amendment protects not just political speech, it also protects religious commentary; it also protects commentary on social matters, commentary on relationships between men and women; it protects jokes; it protects serious comments; it protects frivolous comments. The First Amendment is not just limited to political advocacy. It certainly is concerned with politically advocacy. But if you look at most dirty jokes, they are a way of communicating some idea, sometimes an idea that people might find sexist and might find offensive, but they are a way of communicating some idea about people and they are clearly constitutionally protected.

If the government were to pass a law saying anytime somebody says a dirty joke, they will be fined "X" thousand dollars or they could be sued for that, then most people would say, of course, that is unconstitutional. And I believe that is exactly what the government is doing through workplace harassment law. It is doing it indirectly, but every bit as powerfully. It is saying we won`t fine you ourselves; we will fine your employer. We will allow a lawsuit against your employer and now, of course, the intended consequence is that the employer now has this tremendous incentive, this tremendous pressure to restrict speech that quite clearly the government could not directly restrict itself.

Glassman: Do you see the government as well as some individuals, trying to take advantage of what they see as differences in cyberspace to create restrictions on speech that otherwise wouldn`t pass constitutional muster?

Volokh: I think that might be true in some situations. The Communications Decency Act was a very cyberspace focused law. In defending the Communications Decency Act, the government did argue that, well, cyberspace should be treated more like television and radio, which are less protected than books and movies and such. I think in the wake of that decision, where the Supreme Court said, "Yes, cyberspace is generally as protected as books and as other fully protected media," I think by and large the government has not been trying to exploit the newness of the Internet. Rather, what we have is the constant issue that comes up with allsorts of media where the government has what it thinks are reasons for restricting speech and it tries to act on them. The trouble is that often it focuses on the particular pressing imperative - to fight sexual harassment, for example -- and doesn`t realize the corrosive effect of these kinds of restrictions on free speech more generally and the possibility of the restrictions growing as they roll down the slippery slope.

Glassman: You mentioned earlier how the government has used harassment law to force employers to limit employees` free speech. Has the Internet become involved in that issue?

Volokh: Employers are finding it necessary to block e-mail and access to various websites. It is now becoming standard policy, almost a no-brainer, that employers are going to block access to a particular website, even if doing so makes some employees a little upset. For if it allows access to websites, who knows, God forbid, there might be a lawsuit that could cost them of millions of dollars based on that sort of access.

Glassman: Well, certainly it is within the rights and maybe a very sensible thing for a company to say that employees shouldn`t be looking at questionably sexual websites during business hours. But isn`t it kind of a stretch to say that it would be somehow sexual harassment if somebody did that privately?

Volokh: Well, I think there are two important points here. First offal, I do want to stress I think the company has a right as the private property owner, to decide what is done on its private property. The First Amendment binds the government, not business. But here the government is trying to pressure companies into restricting speech that the government finds offensive and that the government wants to suppress.

The other thing is that there is a very real risk that access to sexually themed material or, for that matter, racially offensive political material or religiously offensive political material, will lead to a harassment complaint, and it has often happened this way. Somebody pops it up on the screen and leaves for lunch, and somebody walks into his office to pick something up and is offended. Or the risk may be somebody pulls it down from the Internet and then forwards it to a co-worker.

The problem is that once you set up this very vague standard, which could really mean what ever the jury wants it to mean, and once you setup massive liability for a company, the company is going to do whatever most minimizes its risks. So if there is a 1 percent risk that this kind of access could lead to this kind of lawsuit, the company is going to block that access. That is the chilling effect that the court has warned us about. When you have vague laws, when you have over-broad laws, they chill even that speech that they may not be intended to actually punish. Even if the law is not intended to block private viewing of potentially offensive material, in fact, this is the foreseeable, inevitable affect of a law that is this vague.

Glassman: Well, thank you again.

Volokh: Very much my pleasure.

To read Eugene Volokh`s recent paper on privacy, "Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Talking About You," go to www.pff.org.
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