Judge Ginsburg, writing for a 3 judge panel on the D.C. Circuit, considered a case where an employee sued his employer for violating the Privacy Act by disclosing the details of an investigation into his conduct. by disclosing the details of an investigation into his conduct.
In this opinion, Judge Ginsburg relies on Professor Lior Jacob Strahilevitz’s article,A Social Networks Theory of Privacy, 72 U. CHI. L. REV. 919 (2005):
Second, Armstrong admitted he himself disclosed some details of the investigation to others. In addition to his wife, he identified five coworkers at the TIGTA and two persons outside the TIGTA with whom he spoke about the investigation.
Armstrong’s disclosures to seven professional contacts could easily account for certain details finding their way into the TIGTA rumor mill. Cf. Lior Jacob Strahilevitz, A Social Networks Theory of Privacy, 72 U. CHI. L. REV. 919 (2005) (explaining why information disclosed to a coworker circulates more widely). Armstrong’s mere assertion that the disclosures must have come from a record are not compelling in view of the sources Thompson identified and his own spilling of the beans.
The social network theory of information privacy, especially when applied to web 2.0. I relied on Professor Strahilevitz’s social network theory in Omniveillance to discuss the dissemination prong of the tort I proposed.:
One methodology to quantify the dissemination [of Omniveillance] is to analyze social networks.300 A perfect illustration of this dynamic was discussed in Multimedia WMAZ, Inc. v.293. See Kubach.301 In this case, plaintiff Kubach revealed that he was HIV-positive to sixty close family members and friends.302 Subsequently, he went on a television program to anonymously discuss HIV, but the station failed to properly blur out his face as he requested, making him easily recognizable.303 The plaintiff sued under the tort of public disclosure of private facts, and the television station argued that Kubach lost any expectation of privacy by telling so many of his friends and family about his disease prior to the broadcast.304 The court looked at the social circles involved and decided in favor of the plaintiff, holding that Kubach still expected privacy because he only told people that “cared about him” and would not likely spread the information.305
Rather than strictly placing a numerical count on how many people view the recording, this element will focus on the social circles, or groups of friends in which information travels.306 The degrees of separation between separate social circles generally prevent private information from spilling out.307 For example, an individual’s notoriety in his elementary school will usually not transfer over with him to his university because the social group has changed.
Therefore, a court could look to see if the disclosure of private information was something that was approximately contained in a quasi-defined social circle. Or, the court could analyze if the information was disclosed outside the bonds of trust, and spread without concern for relationships and confidence. Also, a judge could look to the norms about sharing information within a group based on the different types of
relationships, such as between a professor and student, or father and son, or employer and employee.308 If the information was contained within a limited circle, it is private, and should be protected. The maxim “what happens in Vegas stays in Vegas” is apt.309 Although these may seem to be difficult determinations, courts constantly perform such a fuzzy analysis when applying the Pinkerton doctrine in identifying conspiracies in criminal law.310
I also discuss the dissemination of information via viral networks, and even gave an inadvertent shout-out to my favorite Justice on the Texas Supreme Court, Don Willett.
In addition to social networks, it is important to understand how information is rapidly disseminated throughout the Internet in a phenomenon known as “viral” distributions.311 The Internet, unlike any library or reporting service in the world, is unique in that it allows an almost infinite supply of information to be accessed instantly. Perhaps one of the most famous examples of viral distribution is the “Star Wars Kid,” in which a video of an awkward adolescent acting out scenes from the movie Star Wars exploded onto the Internet and was viewed millions of times within weeks of its release.312 Viral videos are so prominent in our culture that an order from a Justice of the Supreme Court of Texas footnoted to a video on YouTube.313 Once recordings are made of a person in public, the photographs will be stored in perpetuity.314