Misconstrual of Privacy in Cyberspace
The issue of privacy in online communications is complex in part because the intuitions, expectations, beliefs, and felt experiences of users often conflict with legal realities. Online spaces like social media platforms typically feel to users as though they are private, in part because users often access these platforms from physically private locations like home offices, bedrooms, and even bathrooms; yet legal precedent dictates that social media spaces are equivalent to public spaces. 8 In its 2017 Packingham v. North Carolina ruling, the Supreme Court equated the internet to a public square, stating that only minimal restrictions should be imposed on public use, and acknowledging that social media play a vital role in many aspects of contemporary life.9 While the designation of social media as public spaces seems straightforward from a purely legal standpoint, there is substantial concern that broadly defining the internet as a public forum creates unanticipated opportunities for exploitation of information that citizens intend and make efforts to protect as private. 10 These concerns are grounded in the notion that the internet is a qualitatively different type of space from physical public or private realms; therefore, it requires a different legal and ethical approach to privacy that accounts for the different types and quantities of personal data that exist in cyberspace.11
Some researchers contend that the use of social media intelligence as a policing tool is tantamount to deliberately exploiting public ignorance because people who erroneously believe that they can selectively protect their online communications or create private nooks in cyberspace are more likely to
6 Patricia R. Recupero, “Homicide and the Internet,” Behavioral Sciences & the Law 39 (2021): 223-225.
7 Ibid.
8 Kira Vrist Rønn and Sille Obelitz Søe, “Is Social Media Intelligence Private? Privacy in Public and the Nature of Social Media Intelligence,” Intelligence and National Security 34, no. 3 (2019): 366.
9 Packingham v. North Carolina, 137 S.Ct. 1730 (2017). 10 Rønn and Søe, “Privacy in Public,” 366-367.
11 Ibid.
unwittingly trap and incriminate themselves.12 While this seems like a rational criticism, it would set a dangerous and worrisome precedent to decide that ignorance of the law constitutes a valid excuse for breaking it, and this argument represents a rather bleak view of the collective public intellect that is hopefully unwarranted. Additionally, while government interests should not trump individual civil liberties, even opponents of social media intelligence recognize its tremendous value as a mechanism for prosecuting, disrupting, and preventing serious threats to public safety including mass violence and terror.13 Given the fraught nature of this issue, the best way forward will likely involve a multipronged strategy that prioritizes educating citizens about the public nature of the internet and about how to protect their data from unintended use or exploitation by others in their social networks, online companies, their employers, and government agencies. It is also critical for law enforcement agencies to be transparent about their online data collection and surveillance practices while being able to articulate how these practices keep the public safe without endangering civil liberties, and for researchers to continue exploring and instigating dialogs about the evolving nature of privacy in online spaces and its influence on liberty, safety, and security.
Table of Contents
- Introduction
- Misconstrual of Privacy in Cyberspace
- Demystifying True Online Threats vs. Protected Violent Speech
- Cyberspace is a Hunting Ground
- Shrinking Big Data
- Behavioral Profiling and Human Judgment
- Conclusion
- Bibliography