Fulfilling government 2.0's promise with robust privacy protections

George Washington Law Review

Volumn 78, Issue 4, 2010, Pages 822-845

  Citron, Danielle Keats ^a  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

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EID: 77955341233     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (184)

1. MySpace-Barack Obama, http://www.myspace.com/barackobama (last visited Nov. 13, 2009).
2. Although Andy's story is of my imagination, it may soon be routine if we permit Government 2.0 to proceed unchecked.
3. Federal agencies share intelligence and information with state and federal agencies and law enforcement through fusion centers, which facilitate the "information sharing environment" mandated by Congress in the Intelligence Reform and Terrorism Prevention Act of 2004.
4. See Danielle Keats Citron & Frank Pasquale, Fixing Fusion Centers: Restoring Liberty and Enhancing Security in the Post-9/11 World 10 (unpublished manuscript, on file with author).
5. Gerri Willis, Are You on the List?, CNN, Sept. 30, 2009, http://www.cnn.com/video/#/video/crime/2009/09/30/willis.fusion. centers.cnn.
6. Gregory B. Hladky, Arrest Exposes State's Threats List: Activist's Rights Trampled, Rett, State Lawmakers Say, NEW HAVEN REG., Jan. 9, 2007, at A1.
7. Id.
8. Jennifer Medina, Arrest of Activist Troubles Hartford Officials, N. Y. TIMES, Jan. 9, 2007, at B6.
9. Transparency and Open Government, 74 Fed. Reg. 4685 (Jan. 21, 2009).
10. The White House, http://www.whitehouse.gov/(last visited Nov. 13, 2009) (urging the public to connect with the White House on MySpace, Facebook, Twitter, iTunes, YouTube, Vimeo, LinkedIn, and Flickr).
11. Social Media at CDC, http://www.cdc.gov/socialmedia/(last visited Nov. 13, 2009).
12. Outreach at Earth System Research Laboratory, http://www.esrl.noaa.gov/ outreach/(last visited Nov. 13, 2009).
13. This Essay focuses on government's use of social media, i.e., networked technologies that enable the production and sharing of digital content in mediated social settings. This characterization includes social-network sites where users post personal information, view their network of relations to others, and communicate with others in their network.
14. See danah m. boyd & Nicole B. Ellison, Social Network Sites: Definition, History, and Scholarship, 13 J. COMPUTER-MEDIATED COMM. 210, 211 (2008) (discussing social-network sites like MySpace, Facebook, YouTube, Flickr, Bebo, LinkedIn, etc.);
15. Frederic D. Stutzman & Woodrow N. Hartzog, Boundary Regulation in Social Media 5-6 (Oct. 9, 2009) (unpublished manuscript, on file with author).
16. See Hilton Collins, Emergency Managers and First Responders Use Twitter and Facebook to Update Communities, EMERGENCY MGMT., July 27, 2009, http://www.emergency mgmt.com/safety/Emergency-Managers-and-First.htral.
17. See, e.g., Data.gov, http://www.data.gov/("The purpose of Data.gov is to increase public access to high value, machine readable datasets generated by the Executive Branch of the Federal Government.").
18. Beth Simone Noveck, Wiki Government: How Technology Can Make Government Better, Democracy Stronger, and Citizens More Powerful 20-21, 40-42 (2009);
19. Eric E. Holdeman, Opinion, Twitter: Five Lessons for Emergency Managers from Iran, GOV'T TECH., June 23, 2009, http://www.govtech.com/gt/697201;
20. see also Danielle Keats Citron, Open Code Governance, 2008 U. CHI. LEGAL F. 355, 358 (arguing that an open code model for governance can encourage public participation in the administrative state, improve political accountability, and marshal expertise).
21. Many individuals might not have interacted with government about policy due to the considerable transaction costs associated with writing letters, calling agency staffers, and submitting comments on rulemaking. They also may have declined to do so due to their age and life experiences. In the past, younger Americans may not have engaged with executive agencies and the White House because government may have seemed too remote or disinterested in their concerns. As the 2008 presidential election demonstrates, today's youth has become increasingly involved with political campaigns and government decisionmaking, both offline and online.
22. The Pew Internet and American Life Project recently reported that thirty-seven percent of social-network site users expect updates from the Obama Administration via social-network sites and thirty-four percent expect to hear from the Administration via email. AARON SMITH, PEW INTERNET & AM. LIFE PROJECT, PEW INTERNET PROJECT DATA MEMO 1 (2008), available at http://www.pewinternet.org/~/media//Files/Reports/PIP-Voter-Engagement-2008.df;
23. see also AARON SMITH, PEW INTERNET & AM. LIFE PROJECT, THE INTERNET'S ROLE IN CAMPAIGN 2008 (2009), available at http://www.pewinternet.org/~/media// Files/Reports/2009/The-Internets-Role-in-Campaign-2008.df (documenting the public's avid involvement in the 2008 campaign).
24. See danah boyd, Friends, Friendsters, and Top 8: Writing Community into Being on Social Network Sites, FIRST MONDAY, Dec. 4, 2006, http://firstmonday. org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/1418/1336 (suggesting that social-network sites create a community through the process of "friending").
25. James Grimmelmann, Saving Facebook, 94 IOWA L. REV. 1137, 1159 (2009).
26. Id. at 1159-60.
27. Social-network sites like MySpace and Facebook are less about networking as they are about socializing inside of preexisting networks. danah boyd, Social Media Is Here to Stay... Now What?, Feb. 26, 2009, http://www.danah.org/papers/ talks/MSRTechFest2009.html.
28. Although this Essay refers to microblogging sites like Twitter in passing, it does not focus on them, as they may engender privacy norms that differ from social-network sites and the like. Compare danah boyd, supra note 20 (explaining that Twitter users see their activities as involving the "public square" and hope to garner the attention of the wider public), with Stutzman & Hartzog, supra note 12, at 13 (explaining that individuals often maintain separate work and personal Twitter accounts due to privacy concerns).
29. As Part I explains, social-media providers treat agencies like any other users of their service, thus permitting them to access their friends' social-media information if their privacy settings permit. To date, only Facebook does not follow this model; instead, agencies generate "fans, " not friends, there. While agency Facebook "fans" can comment on an agency's postings and interact on live chats about policymaking, government cannot view their fans' profiles in their entirety.
30. This Essay uses the terms social-media data, social-network information, and social-network data interchangeably to refer to information revealed on social-media sites that does not involve feedback on policy matters.
31. See ARISTOTLE, Book 1, in POLITICS 3-13 (H. Rackham trans., Harvard Univ. Press 1944) (1932) (explaining his concept of the public state and the private family);
32. JOHN STUART MILL, ON LIBERTY 68-74 (Gertrude Himmelfarb ed., Penguin Books 1974) (1859) (discussing the interaction between the struggle of liberty-the private self-and authority-the public sphere).
33. Duncan Kennedy has explained that the public/private distinction is so incoherent that it cannot help us describe, explain, or justify anything. Duncan Kennedy, The Stages of the Decline of the Public/Private Distinction, 130 U. PA. L. REV. 1349 (1982).
34. Alan Freeman & Elizabeth Mensch, The Public-Private Distinction in American Law and Life, 36 BUFF. L. REV. 237, 247-50 (1987) (arguing that the public/private distinction collapses on itself, has no objective content, and is incoherent). For example, the economy involves the public arena for some; it implicates the private sphere for others.
35. Id. at 250-52.
36. Cf. JEFFREY ROSEN, THE UNWANTED GAZE: THE DESTRUCTION OF PRIVACY IN AMERICA 66-70 (2001) (noting that employees create privacy spaces in public workplaces). Stutzman and Hartzog argue that social-network sites defy the public/private categorization-users have privacy expectations that instead fall along a continuum, from complete anonymity, to practical obscurity, to complete transparency. Stutzman & Hartzog, supra note 12, at 14.
37. Chris Snyder, Government Agencies Make Friends with New Media, WIRED, Mar. 25, 2009, http://www.wired.com/epicenter/2009/03/government-agen/.
38. Transparency and Open Government, 74 Fed. Reg. 4685 (Jan. 21, 2009);
39. see also Macon Phillips, White House 2.0, posting to The White House Blog (May 1, 2009, 14:03 EDT), http://www.whitehouse.gov/blog/09/05/01/WhiteHouse/.
40. Transparency and Open Government, 74 Fed. Reg. 4685 (Jan. 21, 2009).
41. Beth Noveck, Enhancing Citizen Participation in Decision-Making, posting to The White House Blog (June 10, 2009, 13:08 EDT), http://www.whitehouse.gov/ blog/Enhancing-Citizen-Participation-in-Decision-Making/.
42. Facebook now has over 250 million members. Caroline McCarthy, Facebook Hits a Quarter Billion Users, CNET NEWS (July 15, 2009), http://news.cnet.com/ 8301-13577-3-10287336-36.html. MySpace has over 100 million members.
43. Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 851 n. 8 (W. D. Tex. 2007);
44. see also Jon Swartz, MySpace Cranks Up Heat in Facebook Turf War, USA TODAY, Dec. 23, 2007, at 1B. They have different audiences in these networked environments-MySpace and Facebook communities tend to have different socioeconomic backgrounds, ages, nationalities, etc.
45. See danah boyd, supra note 20.
46. Saul Hansell, The Nation's New Chief Information Officer Speaks, posting to The New York Times Bits Blog (Mar. 5, 2009, 14:57 EST), http://bits.blogs. nytimes.com/2009/03/05/thenations-new-chief-information-officer-speaks/.
47. The White House, posting to Facebook-The White House (Aug. 6, 2009, 14:20 EST), http://www.facebook.com/WhiteHouse.
48. YouTube-FEMA's Channel, http://www.youtube.com/user/fema?blend=1&ob=4 (last visited Nov. 13, 2009). The Federal Trade Commission has a YouTube channel as well. You-Tube-FTCvideo's Channel, http://www.youtube.com/user/ FTCvideos (last visited Nov. 13, 2009).
49. U. S. Department of State Company Profile, LinkedIn, http://www.linkedin. com/companies/u.s.-department-of-state (last visited Nov. 13, 2009).
50. L. Gordon Crovitz, Opinion, From Wikinomics to Government 2.0, WALL ST. J., May 12, 2008, at A13.
51. See Hilton Collins, Emergency Managers and First Responders Use Twitter and Facebook to Update Communities, GOV'T TECH., July 27, 2009, http://www.govtech.com/gt/701799.
52. Id.
53. Saul Hansell, Should the White House Be a Place for Friends?, posting to The New York Times Bits Blog (May 4, 2009, 10:24 EDT), http://bits.blogs. nytimes.com/2009/05/04/should-thewhite-house-be-a-place-for-friends/.
54. Id.
55. Interview with Clay Shirky by Meet the Innovators (June 15, 2009), http://media.bonnint.net/wtop/15/1560/156071.mp3 (available online in mp3 format).
56. NAACP v. Alabama, 357 U. S. 449, 453, 466 (1958) (striking down Alabama court order requiring NAACP to produce list of its members on the grounds that privacy in group association is indispensable to preserving the freedom to associate).
57. WARD CHURCHILL & JIM VANDER WALL, THE COINTELPRO PAPERS 95, 165-66 (1990).
58. Nick Madigan, Spying Uncovered, BALT. SUN, July 18, 2008, at 1A.
59. Bob Drogin, Spying on Pacifists: Greens and Nuns, L. A. TIMES, Dec. 7, 2008, at A18, available at http://articles.latimes.com/2008/dec/07/nation/na- cop-spy7;
60. Lisa Rein, Maryland Police Surveillance Listed Some Activists as Terrorists, WASH. POST, Oct. 8, 2008, at B1.
61. See supra note 3.
62. MO. INFO. ANALYSIS CTR., MIAC STRATEGIC REPORT: THE MODERN MILITIA MOVEMENT (2009), available at http://www.firearmscoalition.org/images/news/miac- militia-2009.df.
63. Chad Livengood, Agency Apologizes for Militia Report on Candidates, SPRING-FIELD NEWS-LEADER (MO.), Mar. 25, 2009, at 1A. The fusion center intended the report only for the eyes of police officers-it was made public after being leaked on the Internet.
64. Id. The fusion center apologized to former presidential candidates Ron Paul, Bob Barr, and Chuck Baldwin for linking them to the modern militia movement in the report.
65. Id. The Missouri fusion center has ceased distribution of the February 20, 2009 report.
66. Chad Livengood, State Retracts Militia Report, SPRINGFIELD NEWS-LEADER (MO.), Mar. 26, 2009, at 1A.
67. While a traditional investigation might require police to obtain a warrant to gain access to sensitive personal information residing on a person's computer, for instance, there is no such requirement for Government 2.0 sites, which may give government access to similarly revealing personal information that individuals voluntarily post.
68. DANIEL J. SOLOVE, UNDERSTANDING PRIVACY 131 (2008).
69. Id. at 129-33;
70. see Danielle Keats Citron & Leslie Meltzer Henry, Visionary Pragmatism and the Value of Privacy in the Information Age, 108 MICH. L. REV. 1107, 1114 (2010) (reviewing Daniel J. Solove's Understanding Privacy).
71. It is crucial to note that nothing suggests that agencies have already engaged in such secondary use of their friends' social-media data. This Essay urges government to adopt policies that would preclude this possibility, which the law, to date, largely does not.
72. Citron & Pasquale, supra note 3, at 12-13.
73. Jim McKay, The New Neighborhood Watch, GOV'T TECH., Sept. 2009, at 24. In The Netherlands, law enforcement agencies use social-network data to learn about criminal activity and to monitor affiliates of known criminals.
74. Joseph Bonneau et al., Prying Data Out of a Social Network (2008) (unpublished manuscript), available at http://www.cl.cam.ac.uk/~jra40/ publications/2009-ASONAM-prying-data.df.
75. McKay, supra note 55, at 28. I use this example not to suggest that law enforcement may never use social-network data in their investigations. Quite the contrary. As Part III discusses, the one-way mirror policy ought to be cabined to instances where government uses social-network sites to garner feedback on government policy and to engage citizens in democratic discourse. Government could use other social-network data for investigative purposes if the law so permits.
76. Jeannette Sutton, The Public Uses Social Networking During Disasters to Verify Facts, Coordinate Information, GOV'T TECH., July 30, 2009, http://www.govtech.com/gt/706523. It appears that the Denver fusion center obtained social-media data from the Internet, i.e., information that individuals released to the public through blogging and social-network sites. This example demonstrates law enforcement's use of social-media data generally, not the sharing of Government 2.0 data with fusion centers and the like.
77. Paul Marks, Pentagon Sets Its Sights on Social Networking Sites, NEW SCIENTIST, June 9, 2006, http://www.newscientist.com/article/iTigl9025556.200- pentagon-sets-its-sights-on-social-net working-websites.html?full=true.
78. See supra notes 5-7 and accompanying text (discussing the arrest of Ken Krayeske at a gubernatorial inaugural parade in Connecticut because law enforcement identified him as a potential threat due to his blog posts urging others to protest the parade, his work on Green Party campaigns, and his prior arrest at an antiwar rally).
79. Police Pay Flying Visit to Halt 30th Birthday Party, TIMES (London), July 17, 2009, at 27.
80. Id. According to the host, the police arrived in a helicopter to "stop 15 people eating burgers." Id.
81. See Danielle Keats Citron, Technological Due Process, 85 WASH. U. L. REV. 1249, 1274-75 (2008) (discussing the misidentifications that occur because of the "No Fly" computer matching system).
82. Citron & Pasquale, supra note 3.
83. See Danielle Keats Citron, Mainstreaming Privacy Torts, 98 CAL. L. REV. (forthcoming 2010) (exploring the reputational damage inflicted when information is read online out of its original context).
84. This concern might apply to social-network sites that permit users to become fans of government agencies if government can access the names of their fans' friends, which it appears that Facebook does. See Facebook Help Center, http://www.facebook.com/heIp/?faq=12277 (last visited Nov. 13, 2009) ("Pages cannot see the profiles of their fans. They can only see the profile photo and the name of each of their fans.");
85. see also Bonneau et al., supra note 55.
86. Grimmelmann, supra note 19, at 1174.
87. Carolyn Y. Johnson, Project 'Gaydar,' BOSTON GLOBE, Sept. 20, 2009, at K1, available at http://www.boston.com/bostonglobe/ideas/articles/2009/09/20/ project-gaydar-an-mit-experiment-raises-new-questions-about-online-privacy?mode= PF.
88. Id.
89. Id.
90. Katherine J. Strandburg, Freedom of Association in a Networked World: First Amendment Regulation of Relational Surveillance, 49 B. C. L. REV. 741, 759-60 (2008).
91. Id.
92. Individuals may find it easier to censor themselves than to de-friend an agency or executive department. Individuals also may be unaware that they could de-friend an agency.
93. DANIEL J. SOLOVE & PAUL SCHWARTZ, INFORMATION PRIVACY LAW 525-26 (3d ed. 2009). Christopher Slobogin has argued that governmental surveillance of expressive activities, such as a speech at a park rally, can chill conduct, even though it takes place in public and is meant to be seen by others.
94. Christopher Slobogin, Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity, 72 MISS. L. J. 213, 253-55 (2002).
95. As Solobogin recognized, the Supreme Court rejected a similar assertion in Laird v. Tatum, 408 U. S. 1 (1972). Id. Nonetheless, Laird might not foreclose a First Amendment argument against automated surveillance if social-network site users appreciated the risk, as it might present a direct "compulsion" against speech acts that the First Amendment would prohibit. Id.
96. See Grimmelmann, supra note 19, at 1174-75.
97. This is true if the privacy settings of government's contacts' contacts permit. Many people allow friends of friends to see their profiles. See id. at 1174. Indeed, some permit anyone living in their geographic area to see their profiles. On the other end, some only allow friends to do so. Research suggests that some users do not use these settings at all, id. at 1185, meaning that the social-network site's default privacy rules govern who can view their profile (which is often not protective of users' privacy).
98. Id. at 1174.
99. See id. at 1174-75.
100. HELEN NISSENBAUM, PRIVACY IN CONTEXT: TECHNOLOGY, POLICY, AND THE INTEGRITY OF SOCIAL LIFE 6-7 (2009);
101. Helen Nissenbaum, Privacy as Contextual Integrity, 79 WASH. L. REV. 119, 138-40 (2004) [hereinafter Nissenbaum, Privacy as Contextual Integrity]. Daniel Solove offers a comprehensive, pragmatic theory of privacy that requires decisionmakers to balance the multitude of interests at stake in a given situation.
102. SOLOVE, supra note 51, at 87-88.
103. Nissenbaum, Privacy as Contextual Integrity, supra note 78, at 138-40.
104. Grimmelmann, supra note 19, at 1151.
105. Id.; see also Danah Boyd & Jeffrey Heer, Profiles as Conversation: Networked Identity Performance on Friendster (Jan. 2006) (unpublished manuscript), available at http://vis.berkeley.edu/papers/friendster-profiles/ 2006-Friendster-HICSS.df.
106. Grimmelmann, supra note 19, at 1160-64.
107. Id. at 1162.
108. Id. at 1161-62.
109. My previous work Cyber Civil Rights explores how an online group's feeling of anonymity breeds destructive behavior online. Danielle Keats Citron, Cyber Civil Rights, 89 B. U. L. REV. 61, 81-84 (2009).
110. Danah Boyd, Social Network Sites: Public, Private, or What?, 13 THE KNOWLEDGE TREE 4, 7 (2007), http://kt.flexibleleammg.net.au/tkt2007/wp- contentyuploads/2007/05/edition-13.df.
111. Grimmelmann, supra note 19, at 1161.
112. Id. at 1168.
113. Zeynep Tufekci, Can You See Me Now? Audience and Disclosure Regulation in Online Social Network Sites, 28 BULL. SCI., TECH. & SOC'Y 20, 31 (2008).
114. This view is, of course, mistaken-more than half of all employers check a person's social-network activities in making interviewing and hiring decisions. A 2006 survey of 100 executive recruiters reported that 77% of recruiters used search engines to find background data on candidates and 35% eliminated a candidate based on what they uncovered. Casting a Digital Shadow; Your Reputation Precedes You, BRIAN SOLIS, July 17, 2009, http://www.briansolis.com/ 2009/07/casting-a-digital-shadowyour-reputation-precedes-you. Ralph Gross attributes people's willingness to divulge a wealth of personal information on social-network sites to a herd effect-they see others doing so and follow their lead.
115. Ralph Gross et al., Information Revelation and Privacy in Online Social Networks (The Facebook Case) 80 (Nov. 7, 2005) (unpublished manuscript), available at http://www.heinz.cmu.edu/~acquisti/papers/privacy-facebook-gross- acquisti.df.
116. Grimmelmann, supra note 19, at 1162. Because Government 2.0 is so new, social scientists have yet to study individuals' privacy expectations associated with it.
117. danah boyd, Facebook's Privacy Trainwreck: Exposure, Invasion, and Social Convergence, 14 CONVERGENCE 13, 13 (2008).
118. Id.
119. Id. at 14-15.
120. Id. at 15.
121. Id. at 13-14. In an ironic but perhaps expected turn of events, News Feed is now one of Facebook's most popular features.
122. I thank Woody Hartzog for this insightful point.
123. Lawrence M. Friedman, The One-Way Mirror: Law, Privacy, and the Media, 82 WASH. U. L. Q. 319, 327 (2004).
124. Anonymous, posting to eParticipation (Mar. 27, 2009, 19:54 EDT), http://eparticipation.com/content/government-agencies-use-social-networking- sites.
125. Joseph Bonneau & Soren Preibusch, The Privacy Jungle: On the Market for Data Protection in Social Networks 29-30 (2009) (unpublished manuscript), available at http://preibusch.de/publications/Bonneau-Preibusch-Privacy-Jungle. df;
126. Bruce Schneier, Facebook Should Compete on Privacy, Not Hide It Away, GUARDIAN (U. K.), July 15, 2009, http://www.guardian. co.uk/technology/2009/jul/ 15/privacy-internet-facebook.
127. Richard Goettke & Joseph Christiana, Privacy and Online Social Networking Websites 2 (May 14, 2007) (unpublished manuscript), available at http://www.eecs.harvard.edu/csl99r/fp/RichJoe.df. Privacy information does not appear anywhere on the MySpace homepage, and although it allows users to change their settings, it is not user-friendly.
128. Id. at 4. Social-network sites also discourage users from invoking restrictive privacy settings; they tell users that doing so would "make it more difficult for [them] to network with their friends."
129. Id. at 2.
130. Gross et al., supra note 88.
131. Jeff Chester, Federal Gov't (GSA) Refuses to Make Public Agreements with Facebook, MySpace, etc., posting to Digital Destiny (Apr. 30, 2009, 13:38 EDT), http://www.democraticmedia.org/jcblog/?p=801;
132. Snyder, supra note 28.
133. David Temoshok, Presentation at the U. S. Dep't of Homeland Security, Government 2.0: Privacy and Best Practices Workshop 157 (June 22, 2009), available at http://www.dhs.gov/xlibrary/assets/privacy/privacy-gov20-June2009- transcripts-dayl.df.
134. Id. at 157-59.
135. 5 U. S. C. § 552a (2006).
136. See Letter from Daniel J. Chenok, Chairman of Info. Sec. & Privacy Advisory Bd., to Peter Orszag, Dir. of Office of Mgmt. & Budget 11 (May 27, 2009), available at http://csrc.nist.gov/groups/SMA/ispab/documents/ correspondence/ispab-report-may2009.df.
137. 5 U. S. C. § 552a (m).
138. Chris Jay Hoofnagle, Big Brother's Little Helpers: How ChoicePoint and Other Commercial Data Brokers Collect and Package Your Data for Law Enforcement, 29 N. C. J. INT'L L. & COM. REG. 595, 595-97 (2004).
139. 5 U. S. C. § 552a (k).
140. Id. The Privacy Act precludes agencies from collecting information that exclusively concerns individuals' First Amendment activities. That restriction does not, however, apply when the information gathered addresses more than just the person's speech acts. In turn, its protections, in practice, reach too few scenarios, as law enforcement routinely collects, uses, and distributes information relevant to far more than a person's political, religious, and other expressive activities. Andy's story demonstrates the point.
141. E-Government Act of 2002, Pub. L. No. 107-347, § 208 (b), 116 Stat. 2899, 2921.
142. Memorandum from Joshua B. Bolten, Dir. of Office of Mgmt. & Budget, to the Heads of Executive Dep'ts & Agencies, at Attachment A, Part II. E.2.f (Sept. 26, 2003), available at http://www.whitehouse.gov/omb/memoranda-m03-22/.
143. Id.
144. This Essay uses the image of a one-way mirror to help guide our thinking about the government's ability to use, collect, and distribute individuals' personal information on socialnetwork sites. I recognize that the precise image of a mirror may not map perfectly onto every nuance of the proposal. For instance, one could argue that government's ability to obtain individuals' policy advice means that it has glanced back into individuals' views. Nonetheless, the image provides a powerful way to understand the extent to which government can use its Government 2.0 sites to obtain personal information about individuals.
145. Government could not view a fan's entire list of contacts.
146. See notes 63-79 and accompanying text (discussing the privacy problems associated with government's use of social-media data to infer individuals' group associations).
147. See Geoffrey D. Kravitz, Short Essay and Book Note, REAL ID: The Devil You Don't Know, 3 HARV. L. & POL'Y REV. 431, 445-46 (2009). This might be a particularly fruitful time to consider legislative action, as privacy advocates such as the Center on Democracy and Technology have devoted much time to thinking of ways to update the Privacy Act to account for networked technologies. But, as Paul Schwartz notes, such legislative change may come at too steep a price-the preemption of state privacy laws and ossification of legislation.
148. See Paul M. Schwartz, Preemption and Privacy, 118 YALE L. J. 902, 929-30 (2009).
149. I thank Peter Swire for his helpful comments on how we might implement the one-way mirror proposal.
150. Of course, agencies should adopt technology-neutral policies to prevent obsolescence. The policy should provide means for individuals to protest an agency's infringement of its terms.
151. Public Workshop Government 2.0: Privacy and Best Practices, 74 Fed. Reg. 17, 876 (Dep't of Homeland Sec. Apr. 17, 2009).
152. Transparency and Open Government, 74 Fed. Reg. 4685 (Jan. 21, 2009).
153. In other words, law enforcement cannot contact the White House or other agency to view a government friend's profile (now criminal target) without legal process.
154. Law enforcement agents could continue to pursue undercover operations online so long as those operations comported with law.
155. Paul M. Schwartz, Internet Privacy and the State, 32 CONN. L. REV. 815, 837 (2000).
156. Paul M. Schwartz, Privacy and Democracy in Cyberspace, 52 VAND. L. REV. 1609, 1651 (1999).
157. SOLOVE, supra note 51, at 79-80.
158. Neil M. Richards, Intellectual Privacy, 87 TEX. L. REV. 387, 416-17 (2008).
159. See Schwartz, supra note 123, at 837.
160. Schwartz, supra note 124, at 1651.
161. Id.
162. Joel R. Reidenberg, Setting Standards for Fair Information Practice in the U. S. Private Sector, 80 IOWA L. REV. 497, 497-98 (1995).
163. Julie E. Cohen, A Right to Read Anonymously: A Closer Look at Copyright Management in Cyberspace, 28 CONN. L. REV. 981, 1003-19 (1996) (arguing that digital copyright-management technologies violate First Amendment freedom of speech and thought).
164. Individuals' personal information seems out of place in any discussion of the Open Government initiative. Indeed, White House spokesperson Moira Mack remarked via email "we are focused on opening government to the people (and not the other way around)." The White House Is Now Following You on Twitter..., posting to The Podium (May 4, 2009), http://internetinnovation.org/ blog/entry/the-white-house-is-now-following-you-on-twitter. This suggests that the White House and executive agencies have no interest in that information.
165. Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503, 1571 (2000).
166. Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2022 (1996);
167. cf. Danielle Keats Citron, Law's Expressive Value in Combating Cyber Gender Harassment, 108 MICH. L. REV. 373, 404-14 (2009) (exploring law's expressive power in conveying government's commitments).
168. U. S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U. S. 749, 770 (1989);
169. see also Woodrow Hartzog, Promises and Privacy: Promissory Estoppel and Confidential Disclosure in Online Communities, 82 TEMPLE L. REV. (forthcoming 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1473561, at 8-13 (describing the disclosure of personal information in online communities and its potential consequences).
170. Consider Lior Strahilevitz's critique of the public disclosure tort, where an individual's sharing of information with a few people or, in some jurisdictions, with one other person can waive a person's expectation of privacy.
171. Lior Jacob Strahilevitz, A Social Networks Theory of Privacy, 72 U. CHI. L. REV. 919 (2005). As Strahilevitz explains, a restrictive view of privacy fails to capture how information actually flows in given relationships. Id. In other words, a binary view of privacy-where disclosure to more than one person eviscerates any privacy protection-cannot capture the fact that something may be public vis-a-vis coworkers yet private vis-a-vis the outside world.
172. Id. at 940. Strahilevitz's social-network theory would instead examine the actual structure of social networks and the "extent of dissemination the plaintiff should have expected to follow his disclosure of that information" to decide whether information would have become widely known.
173. Id. at 921.
174. boyd, supra note 90, at 18.
175. Danielle Citron, Why We Should Care About Privacy in a Government 2.0 World, posting to Concurring Opinions (June 20, 2009, 18:05 EDT), http://www.concurringopinions.com/archives/2009/06/why-should-we-care-about-the- privacy-implications-of-government-20.html (Comment by Jake) ("If you put stuff on the Internet, expect people to read it. Most folks who put stuff on the Internet probably expect this.").
176. See supra notes 80-100 and accompanying text (discussing social-network users' privacy expectations).
177. It may be more likely that individuals perceive government as more akin to distant acquaintances than corporations they friend online. Individuals may be more likely to appreciate that corporations have a profit motive to use their data. We expect Coca-Cola, Amazon, or Verizon not to act in our best interests. On the other hand, we may get confused as to the government's motives and whether they are aligned with our own. Social scientists have yet to study these nuances.
178. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).
179. ROSEN, supra note 27, at 195.
180. Martha Landesberg, Presentation at the U. S. Dep't of Homeland Security, Government 2.0: Privacy and Best Practices Workshop 121, 140-41 (June 22, 2009), available at http://www.dhs.gov/xlibrary/assets/privacy/privacy-gov20-June2009- transcripts-dayl.df (asking panelists whether a notice regime might suffice to address privacy concerns of Government 2.0).
181. Grimmelmann, supra note 19, at 1181.
182. Id.
183. Id.
184. Id.