Promises and privacy: Promissory estoppel and confidential disclosure in online communities

Temple Law Review

Volumn 82, Issue 4, 2009, Pages 891-928

  Hartzog, Woodrow ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 79251570245     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (281)

1. SELF-HELP RESOURCE CENTRE, CONFIDENTIALITY IN SELF-HELP SUPPORT GROUPS 1 (internal quotation marks omitted) (citation omitted), http://www.selfhelp.on. ca/resource/factsheetonconfidentiality.pdf (last visited June 3, 2010).
2. For more analysis, see generally Andrew J. McClurg, Kiss and Tell: Protecting Intimate Relationship Privacy Through Implied Contracts of Confidentiality, 74 U. CIN. L. REV. 887 (2006)
3. Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure, 53 DUKE L.J. 967 (2003)
4. Lior Jacob Strahilevitz, A Social Networks Theory of Privacy, 72 U. CHI. L. REV. 919, 920-21 (2005)
5. Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking About You, 52 STAN. L. REV. 1049 (2000).
6. See also Patricia Sanchez Abril, A (My)Space of One's Own: On Privacy and Online Social Networks, 6 NW. J. TECH. & INTELL. PROP. 73, 77 (2007) ("When faced with the privacy-related risks of the medium, digital immigrants fervently argue, 'if you can't stand the heat, get off of MySpace.'").
7. See Moreno v. Hanford Sentinel, Inc., 91 Cal. Rptr. 3d 858, 862 (Ct. App. 2009) (holding that school principal did not invade family's privacy by submitting journal entry written by student's sibling for republication in local newspaper)
8. see also Solveig Singleton, Privacy Versus the First Amendment: A Skeptical Approach, 11 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 97, 112-14 (2000) (discussing hesitancy with which courts have applied tort of public disclosure)
9. Volokh, supra note 2, at 1057-58 (explaining that parties who contract to maintain confidentiality have reasonable expectation of privacy)
10. Diane L. Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and Brandeis's Privacy Tort, 68 CORNELL L. REV. 291, 311-20 (1983) (discussing Supreme Court's protection of truthful speech in modern case law).
11. See, e.g., Eve Fairbanks, The Porn Identity, NEW REPUBLIC, Feb. 6, 2006, at 34 (discussing one internet user's experience with innocent Google searches leading to pornographic sites related to her name).
12. See, e.g., MySpace, About Settings, http://www.myspace.com/Modules/ ContentManagement/Pages/page.aspx?placement=privacy-settings (last visited June 3, 2010) (describing settings options)
13. see also MichaelZimmer.org, How to Adjust Your Facebook Privacy Settings-2009 Edition, http://michael zimmer.org/2009/08/12/how-to-adjust-your- facebook-privacy-settings-2009/ (last visited June 3, 2010) (describing Facebook privacy settings).
14. See generally Emily Christofides et al., Information Disclosure and Control on Facebook: Are They Two Sides of the Same Coin or Two Different Processes?, 12 CYBERPSYCHOLOGY & BEHAV. 341 (2009)
15. Zeynep Tufekci, Can You See Me Now? Audience and Disclosure Regulation in Online Social Network Sites, 28 BULL. SCI. TECH. & SOC'Y 20 (2008).
16. Facebook, http://www.facebook.com (last visited June 3, 2010).
17. MichaelZimmer.org, supra note 5.
18. Jennifer L. Gibbs et al., Self-Presentation in Online Personals: The Role of Anticipated Future Interaction, Self-Disclosure, and Perceived Success in Internet Dating, 33 COMM. RES. 152, 153 (2006).
19. See, e.g., Online Intergroup of Alcoholics Anonymous, Privacy Statement, http://www.aaintergroup. org/privacy.php (last visited June 3, 2010) (explaining that, in addition to traditional formal AA statements regarding privacy, well-established customs on anonymity apply to online environment).
20. McClurg, supra note 2, at 929.
21. RESTATEMENT (SECOND) OF TORTS § 613 cmt. j (1977).
22. Id. §§ 652A-E (1977)
23. see also William L. Prosser, Privacy, 48 CAL. L. REV. 383, 389 (1960) (describing four types of invasion of privacy protected by tort law: intrusion upon seclusion or solitude, public disclosure of embarrassing private facts, publicity placing individual in false light, and appropriation of another's name and likeness).
24. RESTATEMENT (SECOND) OF TORTS § 652D (1977).
25. See Abril, supra note 2, at 78-81 (showing limited recourse provided by tort law)
26. Patricia Sánchez Abril, Recasting Privacy Torts in a Spaceless World, 21 HARV. J.L. & TECH. 1, 7-12 (2007) (articulating problems with public disclosure tort)
27. McClurg, supra note 2, at 887-88 (showing public disclosure tort does not provide adequate chance of recovery for plaintiffs)
28. Volokh, supra note 2, at 1117 (arguing that public disclosure torts are underinclusive).
29. See Abril, supra note 2, at 78-81 (explaining how "tort law provides limited atonement for cybershame")
30. Abril, supra note 15, at 6-12 (discussing potential inapplicability, obsolescence, and unconstitutionality of privacy torts in internet context)
31. McClurg, supra note 2, at 887-88 (explaining possibility that public disclosure tort may be unconstitutional under First Amendment)
32. Volokh, supra note 2, at 1117 ("Florida Star v. B.J.F. made clear that information privacy speech restrictions are unconstitutional if they are underinclusive with respect to the interest in information privacy.").
33. PEW INTERNET & AM. LIFE PROJECT, ADULTS ON SOCIAL NETWORK SITES, 2005-2009 (2009), http://www.pewinternet.org/Infographics/Growth-in-Adult-SNS- Use-20052009.aspx.
34. JEFFREY BOASE ET AL., PEW INTERNET & AM. LIFE PROJECT, THE STRENGTH OF INTERNET TIES, at vii (2006), http://www.pewinternet.org/~/media//Files/ Reports/2006/PIP-Internet-ties.pdf.pdf.
35. Id.
36. Virtual Community Definition, DICTIONARY.COM, http://dictionary. reference.com/browse/virtual%20 community (last visited June 3, 2010).
37. Indeed, "community" is defined as "a group of people having common interests." THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 374 (4th ed. 2000).
38. See Online Intergroup of Alcoholics Anonymous, supra note 10 (outlining ways AA provides anonymity).
39. See Match.com, Privacy Statement, http://www.match.com/registration/ privacystatement.aspx (last visited June 3, 2010) (explaining consumer privacy choices).
40. See MichaelZimmer.org, supra note 5 (describing various levels of privacy settings).
41. It should be noted that these groups are potentially operating in one of two different forums: (1) online communities that restrict access to information to certain users and (2) online communities that do not provide the option of restricting access to information to certain users.
42. See danah m. boyd & Nicole B. Ellison, Social Network Sites: Definition, History, and Scholarship, 13 J. COMPUTER-MEDIATED COMM. 210, 210-11 (2008) (introducing variations among websites). For example, one definition for social network sites, which are a type of online community, is "web-based services that allow individuals to (1) construct a public or semi-public profile within a bounded system, (2) articulate a list of other users with whom they share a connection, and (3) view and traverse their list of connections and those made by others within the system."
43. Id. at 211.
44. Abril, supra note 2, at 74
45. see also Ian Byrnside, Note, Six Clicks of Separation: The Legal Ramifications of Employers Using Social Networking Sites to Research Applicants, 10 VAND. J. ENT. & TECH. L. 445, 453-56 (2008) (explaining purpose of social networking sites).
46. Online social networks have seen a meteoric rise in popularity over the past six years. THE PEW RESEARCH CTR. FOR THE PEOPLE & THE PRESS, SOCIAL NETWORKING AND ONLINE VIDEOS TAKE OFF: INTERNET'S BROADER ROLE IN CAMPAIGN 2008, at 9 (2008), http://people- press.org/reports/pdf/384.pdf. As of 2008, roughly one in five Americans (22%) uses at least one social network site.
47. Id. at 9. The Pew Research Center reports that 55% of online teens ages twelve to seventeen have created a profile on a social networking site such as Facebook or MySpace; 47% of online teens have uploaded photos where others can see them, though many restrict access to the photos in some way; and 14% of online teens have posted videos online. AMANDA LENHART & MARY MADDEN, PEW INTERNET & AM. LIFE PROJECT, TEENS, PRIVACY & ONLINE SOCIAL NETWORKS, at ii-iii, 27-28 (2007), http://www.pewinternet.org/~/media//Files/Reports/2007/ PIP-Teens-Privacy-SNS-Report-Final.pdf.pdf. Indeed, as recently as 2006, it could be said that "[i]f MySpace [one of the most popular social network sites] alone were a country and each of its profiles a person, it would be the 12th most populous nation in the world." Abril, supra note 2, at 74.
48. Abril, supra note 2, at 74.
49. Id.
50. Id.
51. Id.
52. Online Intergroup of Alcoholics Anonymous, OIAA Flyer, http://www.aa-intergroup.org/down loads/PIC.pdf (last visited June 3, 2010).
53. See Yahoo! Help: Yahoo! Groups, http://help.yahoo.com/l/us/yahoo/groups/ orginal/ownmod /starting/ (providing links to information on how to start groups and restrict access to groups) (last visited June 3, 2010).
54. For more information on the impact of online communities, see generally HOWARD RHEINGOLD, SMART MOBS: THE NEXT SOCIAL REVOLUTION 172 (2002)
55. HOWARD RHEINGOLD, THE VIRTUAL COMMUNITY: HOMESTEADING ON THE ELECTRIC FRONTIER 312 (MIT Press 2000) (1993)
56. CLAY SHIRKY, HERE COMES EVERYBODY: THE POWER OF ORGANIZING WITHOUT ORGANIZATIONS (2008).
57. Irwin Altman et al., Dialectic Conceptions in Social Psychology: An Application to Social Penetration and Privacy Regulation, 14 ADVANCES IN EXPERIMENTAL SOC. PSYCHOL. 107, 109-10 (1981). Altman's "social penetration theory" posits, among other things, that the development of intimate relationships depends on the amount and degree of reciprocal self-disclosure.
58. Id. at 109-12.
59. Id.
60. Strahilevitz, supra note 2, at 930.
61. See generally Carly Brandenburg, Note, The Newest Way to Screen Job Applicants: A Social Networker's Nightmare, 60 FED. COMM. L.J. 597 (2008)
62. Byrnside, supra note 27.
63. Byrnside, supra note 27, at 447 (citing Alan Finder, When a Risqué Online Persona Undermines a Chance for a Job, N.Y. TIMES, June 11, 2006, at 1).
64. Id.
65. See Amina Sonnie, Social Networking Sites: Enter at Your Own Risk, IEEE-USA TODAY'S ENGINEER ONLINE, Jan.-Feb. 2007, http://www.todaysengineer.org/ 2007/Jan-Feb/networking.asp (warning professionals that employers may check social networking websites before hiring).
66. Would-Be Teacher Denied Degree over 'Drunken Pirate' MySpace Photo Sues University, FOXNEWS.COM, Apr. 29, 2007, http://www.foxnews.com/story/0,2933, 269079,00.html.
67. 91 Cal. Rptr. 3d 858 (Ct. App. 2009).
68. Moreno, 91 Cal. Rptr. 3d at 861.
69. Online Intergroup of Alcoholics Anonymous, supra note 10.
70. Id.
71. Aaron Ben-Ze'ev, Privacy, Emotional Closeness, and Openness in Cyberspace, 19 COMPUTERS HUM. BEHAV. 451, 453 (2003).
72. CHARLES FRIED, AN ANATOMY OF VALUES: PROBLEMS OF PERSONAL AND SOCIAL CHOICE 142 (1970).
73. See Altman et al., supra note 36, at 107-12 (explaining that social penetration theory requires intimate disclosures to develop social relationships).
74. Ben-Ze'ev, supra note 48, at 457 ("Emotional self-disclosure- especially that which is contrary to accepted moral norms-is more likely to be revealed in online communication.").
75. Strahilevitz, supra note 2, at 961 (citing Gene A. Shelley et al., Who Knows Your HIV Status? What HIV+ Patients and Their Network Members Know About Each Other, 17 SOC. NETWORKS 189, 203-13 (1995)).
76. Julia Angwin, Hello, My Name Is USER01, WALL ST. J., July 7, 2009, at D3.
77. Id.
78. Id.
79. Id.
80. Id.
81. Id.
82. John A. Cunningham et al., Internet and Paper Self-Help Materials for Problem Drinking: Is There an Additive Effect?, 30 ADDICTIVE BEHAVS. 1517, 1522 (2005).
83. Ben-Ze'ev, supra note 48, at 458 ("The great anonymity of cyberspace gives individuals a higher degree of privacy.").
84. Angwin, supra note 53 (quoting Keith Humphreys).
85. Id.
86. As one scholar notes, "in online relationships, people typically share personal information that they do not share with their intimate offline partners." Ben-Ze'ev, supra note 48, at 457. Given the importance of emotional self-disclosure, "online relationships often have a higher degree of intimacy than offline relationships."
87. Id.
88. John A. Cunningham et al., Access to the Internet Among Drinkers, Smokers and Illicit Drug Users: Is It a Barrier to the Provision of Interventions on the World Wide Web?, 31 MED. INFORMATICS & INTERNET MED. 53, 57 (2006).
89. Cf. Facebook, Facebook's Privacy Policy, http://www.facebook.com/policy. php (last visited June 3, 2010) (outlining policies and methodologies for controlling access to personal information).
90. Moreno v. Hanford Sentinel, Inc., 91 Cal. Rptr. 3d 858, 861 (Ct. App. 2009)
91. see also J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 757 A.2d 412, 425 (Pa. Commw. Ct. 2000). In finding that the discloser of information had no reasonable expectation of privacy in his website, the court noted that the website in question "was not a protected site, meaning that only certain viewers could access the site by use of a know password. As such, any user who happened upon the correct search terms could have stumbled upon [the] web-site."
92. Id. at 425.
93. No. 4:07CV1963 CDP, 2009 U.S. Dist. LEXIS 17104 (E.D. Mo. Mar. 6, 2009).
94. Burcham, 2009 U.S. Dist. LEXIS 17104, at *7-8 ("In this case, Expedia offers its customers what is known as a 'clickwrap' agreement. A customer must affirmatively click a box on the website acknowledging receipt of and assent to the contract terms before he or she is allowed to proceed using the website. Such agreements have been routinely upheld by circuit and district courts.")
95. see also CoStar Realty Info., Inc. v. Field, 612 F. Supp. 2d 660, 669 (D. Md. 2009) (applying Burcham).
96. Abril, supra note 2, at 79-81. In detailing the reasons the torts are inapplicable to the disclosure of private information on a social network site, Abril states: The tort of intrusion upon seclusion addresses harmful information-gathering, but not the subsequent disclosure of its fruits. It would only apply if the information was uncovered in a furtive way from a place within which the plaintiff had a reasonable expectation of privacy, such as a home, hotel room, a tanning booth, or a shopping bag⋯ The tort of false light privacy, a first cousin of defamation that focuses on protecting the plaintiff's peace of mind rather than reputation, requires the injurious publication to have been published with knowledge of its falsity in addition to being false or misleading and highly offensive in nature⋯Appropriation ⋯is uniquely property focused and does not involve a false statement or a shameful disclosure⋯Hence it would only apply if the plaintiff's information or image were used without his consent for the defendant's commercial purposes.
97. Id.
98. Id. at 79.
99. Id.
100. Strahilevitz, supra note 2, at 920-21.
101. Id. at 921 (citing Multimedia WMAZ, Inc. v. Kubach, 443 S.E.2d 491, 494 (Ga. Ct. App. 1994) (holding that plaintiff's disclosure to approximately sixty individuals-family members, friends, medical personnel, and fellow support group members-that he was living with AIDS did not make the fact of his disease public as a matter of law)).
102. U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763-64, 770 (1989). The Court wrote: [B]oth the common law and the literal understandings of privacy encompass the individual's control of information concerning his or her person. In an organized society, there are few facts that are not at one time or another divulged to another. Thus the extent of the protection accorded a privacy right at common law rested in part on the degree of dissemination of the allegedly private fact and the extent to which the passage of time rendered it private. According to Webster's initial definition, information may be classified as "private" if it is "intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public." ⋯In sum, the fact that "an event is not wholly 'private' does not mean that an individual has no interest in limiting disclosure or dissemination of the information."
103. Id. (footnotes omitted) (internal quotation marks omitted).
104. Abril, supra note 15, at 11.
105. For example, courts have had extreme difficulty determining how the law should distinguish between speech of public and private concern. Solove, supra note 2, at 975.
106. McClurg, supra note 2, at 905.
107. Abril, supra note 2, at 81.
108. Id.
109. See supra note 69 and accompanying text for a discussion of how the torts of intrusion, false light, and misappropriation are generally inapplicable to the self-disclosure of personal information.
110. For example, Major League Baseball player Grady Sizemore has seemingly asserted copyright as grounds for the removal of private pictures of himself, taken by himself, that were obtained through laptop theft and posted on a website. Paul Hoynes, MLB Requesting that Pictures of Cleveland Indians' Grady Sizemore Be Removed from Internet Site, CLEVELAND.COM, Nov. 30, 2009, http://www.cleveland.com/tribe /index.ssf/2009/11/mlb-requesting-that-pictures- o.html ("The photos posted in the article cited below are the property of Grady Sizemore. They were stolen from a personal computer. We've begun an investigation and request that you immediately remove Mr. Sizemore's property from the posting." (quoting e-mail from MLB's Department of Investigation) (internal quotation marks omitted)).
111. Abril, supra note 2, at 81 (citing 17 U.S.C. § 512(c)(3) (Supp. 1999)).
112. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985) ("No author may copyright his ideas or the facts he narrates.").
113. Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, 96 GEO. L.J. 123, 156-58, 180 (2007).
114. Id. at 157 (footnote omitted).
115. Id. at 157-58 (footnotes omitted).
116. Id. at 181.
117. See id. (characterizing American confidentiality tort as limited to particular relationships).
118. See Am. Online, Inc. v. Booker, 781 So. 2d 423, 425 (Fla. Dist. Ct. App. 2001) (upholding user agreement as freely negotiated contract).
119. Patricia Sanchez Abril & Anita Cava, Health Privacy in a Techno-Social World: A Cyber-Patient's Bill of Rights, 6 NW. J. TECH. & INTELL. PROP. 244, 267-68 (2008).
120. Id. at 268.
121. Id.
122. Professors Abril and Cava also recognize some undesirable aspects of website contracts: Many user contracts are written abstrusely or in a legalistic style, dissuading even the most punctilious consumer from taking time out of her online pursuit to carefully read and understand them. This issue is exacerbated when the user is a minor. Further, terms of use and privacy policies vary from website to website, making true understanding of each contract more difficult and impracticable, especially since most users visit several websites a day. Website contracts are built on shifting sands. The professed ability of many operators to change terms of use at any moment and without prior notice leaves users in a constant state of uncertainty about their rights and privacy expectations.
123. Id. at 267.
124. It is important to note, however, that [i]n cases where a reporter is the recipient of confidential information, the courts have generally held consideration to be present [in confidentiality agreements]. Consideration is found in the exchange of promises-the confider offers information, conditioned on confidentiality, and this offer is accepted by the confidant. Consideration to the confider is the promise of confidentiality, while consideration to the confidant is the promise of information.
125. Susan M. Gilles, Promises Betrayed: Breach of Confidence as a Remedy for Invasions of Privacy, 43 BUFF. L. REV. 1, 20-21 (1995).
126. It should be noted that "courts deciding promissory estoppel claims are still grappling with appropriate boundaries between bargain and reliance and with what role each doctrine should play in contract law."
127. Juliet P. Kostritsky, The Rise and Fall of Promissory Estoppel or Is Promissory Estoppel Really as Unsuccessful as Scholars Say It Is: A New Look at the Data, 37 WAKE FOREST L. REV. 531, 542 (2002).
128. See generally Ian Rambarran & Robert Hunt, Are Browse-Wrap Agreements All They Are Wrapped Up To Be?, 9 TUL. J. TECH. & INTELL. PROP. 173 (2007).
129. Id. at 181.
130. M. Ryan Calo has suggested that anthropomorphic technology could play a role in protecting privacy because "humans are hardwired to react to technological facsimiles ⋯as though a person were actually present."
131. M. Ryan Calo has suggested that anthropomorphic technology could play a role in protecting privacy because "humans are hardwired to react to technological facsimiles ⋯as though a person were actually present." M. Ryan Calo, People Can Be So Fake: A New Dimension to Privacy and Technology Scholarship, 114 PENN. ST. L. REV. 809, 811 (2009). Calo argues that [T]he ability of technology to create the sensation of being observed also presents a novel opportunity to enhance privacy. Specifically, placing an apparent agent at the site of data collection can help line up user expectations about how data will be used with the actual practices of the entity collecting that data.
132. Id. at 848.
133. Angwin, supra note 53.
134. Cf. Brandenburg, supra note 39, at 612-13 (examining Facebook's extensive privacy policy regarding third-party access to private information)
135. Byrnside, supra note 27, at 465-66 (discussing Fair Credit Reporting Act's impact on employer access to information on social networking sites).
136. Julie Straw, Pearl Student Sues After Teacher Logs into Student's Facebook Account, WLBT 3, July 28, 2009, http://www.wlbt.com/global/story.asp?s= 10806760 (last visited June 4, 2010).
137. Id.
138. Id. Ms. Jackson would go on to bring suit against the coach, other high school staff, and the school district for violating Jackson's constitutional rights to free speech, privacy, and due process.
139. Id.
140. Eric Mills Holmes, The Four Phases of Promissory Estoppel, 20 SEATTLE U. L. REV. 45, 64 (1996) (quoting Roseth v. St. Paul Prop. & Liab. Ins. Co., 374 N.W.2d 105, 110-11 (S.D. 1985)).
141. See RESTATEMENT (SECOND) OF CONTRACTS § 90 (1981) (requiring reasonable reliance and detriment to promisee)
142. Crouse v. Cyclops Indus., 745 A.2d 606, 610 (Pa. 2000) ("[T]he doctrine of promissory estoppel is invoked to avoid injustice by making enforceable a promise made by one party to the other when the promisee relies on the promise and therefore changes his position to his own detriment." (citing RESTATEMENT (SECOND) OF CONTRACTS § 90)).
143. Gilles, supra note 94, at 33.
144. RESTATEMENT (SECOND) OF CONTRACTS § 90(1) (1981).
145. E.g., White v. Roche Biomedical Labs., Inc., 807 F. Supp. 1212, 1217 (D.S.C. 1992) (noting that promissory estoppel is equitable doctrine), aff'd, 998 F.2d 1011 (4th Cir. 1993)
146. Jarvis v. Ensminger, 134 P.3d 353, 363 (Alaska 2006) (stating promissory estoppel is equitable doctrine)
147. Bicknese v. Sutula, 2003 WI 31, ¶ 13 n.2, 260 Wis. 2d 713, 723 n.2, 660 N.W.2d 289, 294 n.2 (defining promissory estoppel as quasicontractual or equitable doctrine).
148. See, e.g., Werner v. Xerox Corp., 732 F.2d 580, 582-84 (7th Cir. 1984) (affirming district court grant of promissory estoppel claim)
149. R.S. Bennett & Co. v. Econ. Mech. Indus., Inc., 606 F.2d 182, 186-87 (7th Cir. 1979) (applying Illinois law to find plaintiff stated promissory estoppel claim)
150. Insilco Corp. v. First Nat'l Bank of Dalton, 283 S.E.2d 262, 263 (Ga. 1981) (finding Georgia recognizes doctrine of promissory estoppel)
151. Higgins Constr. Co. v. S. Bell Tel. & Tel. Co., 281 S.E.2d 469, 470 (S.C. 1981) (finding plaintiff stated promissory estoppel claim).
152. See Dickens v. Quincy Coll. Corp., 615 N.E.2d 381, 386 (Ill. App. Ct. 1993) (finding promissory estoppel is used to imply contract where none exists)
153. Grouse v. Group Health Plan, Inc., 306 N.W. 2d 114, 116 (Minn. 1981) (finding effect of promissory estoppel is used to imply contract in law where none exists in fact).
154. Mead Assocs., Inc. v. Scottsbluff Sash & Door Co., 856 P.2d 40, 42 (Colo. App. 1993).
155. Michael B. Metzger & Michael J. Phillips, Promissory Estoppel and Third Parties, 42 SW. L.J. 931, 939 (1988) (quoting United States v. Iverson, 609 F. Supp. 927, 929-30 (N.D. Ill. 1985)).
156. Id. (quoting Iverson, 609 F. Supp. at 930
157. Hoffman v. Red Owl Stores, Inc., 133 N.W.2d 267, 274 (Wis. 1965)).
158. Id. (quoting Werner, 732 F.2d at 582).
159. Id. (quoting Allen v. A.G. Edwards & Sons, Inc., 606 F.2d 84, 87 (5th Cir. 1979)).
160. Id. (quoting Div. of Labor Law Enforcement v. Transpacific Transp. Co., 137 Cal. Rptr. 855, 859 (Ct. App. 1977)).
161. Id. (quoting Klinke v. Famous Recipe Fried Chicken, Inc., 616 P.2d 644, 646 (Wash. 1980)).
162. Id. (quoting Glover v. Sager, 667 P.2d 1198, 1202 (Alaska 1983)).
163. 31 C.J.S. Estoppel and Waiver § 117 (2008) (citing Cherokee Metro. Dist. v. Simpson, 148 P.3d 142 (Colo. 2006)
164. Zollinger v. Carrol, 49 P.3d 402 (Idaho 2002)
165. Citiroof Corp. v. Tech Contracting Co., 860 A.2d 425 (Md. Ct. Spec. App. 2004)
166. Heidbreder v. Carton, 645 N.W.2d 355 (Minn. 2002)
167. Clevenger v. Oliver Ins. Agency, Inc., 237 S.W.3d 588 (Mo. 2007)
168. Crouse v. Cyclops Indus., 745 A.2d 606 (Pa. 2000)
169. Dellagrotta v. Dellagrotta, 873 A.2d 101 (R.I. 2005)
170. Davis v. Greenwood Sch. Dist. 50, 620 S.E.2d 65 (S.C. 2005)
171. Durkee v. Van Well, 654 N.W.2d 807 (S.D. 2002)
172. Bicknese v. Sutula, 2003 WI 31, 260 Wis. 2d 713, 660 N.W.2d 289
173. Birt v. Wells Fargo Home Mortg., Inc., 75 P.3d 640 (Wyo. 2003)).
174. Id.
175. Id.
176. Id.
177. 570 F.3d 1096 (9th Cir. 2009).
178. Barnes, 570 F.3d at 1109.
179. Gilles, supra note 94, at 39.
180. See Ruzicka v. Conde Nast Publ'ns, Inc., 939 F.2d 578, 582-83 (8th Cir. 1991) (discussing promissory estoppel for noncommercial plaintiffs), vacated, 999 F.2d 1319 (8th Cir. 1993)
181. Cohen v. Cowles Media Co. (Cohen II), 479 N.W.2d 387, 392 (Minn. 1992) (discussing promissory estoppel as remedy when media breaches its promise of confidentiality to source), on remand from 501 U.S. 663 (1991)
182. Sirany v. Cowles Media Co., 20 Media L. Rep. (BNA) 1759, 1761-62 (Minn. Dist. Ct. 1992) (discussing promissory estoppel for noncommercial plaintiffs).
183. Cohen v. Cowles Media Co. (Cohen I), 501 U.S. 663 (1991), remanded to 479 N.W.2d 387 (Minn. 1992).
184. See Cohen I, 501 U.S. at 669-70 (noting that First Amendment does not provide members of press with special protection against "law[s] of general applicability" such as doctrine of promissory estoppel)
185. Cohen II, 479 N.W.2d at 392 (affirming lower court verdict on grounds of promissory estoppel).
186. Cohen II, 479 N.W.2d at 388-89.
187. Id.
188. Id. at 389.
189. Id. at 388-89.
190. Id. at 389.
191. Id.
192. Id.
193. Id.
194. Id. at 389-90 (quoting Cohen I, 501 U.S. 663, 669 (1991)).
195. Id. at 390.
196. Id. at 391.
197. Id. at 391-92.
198. Id. at 391.
199. Id.
200. Id. (citing Kramer v. Alpine Valley Resort, Inc., 321 N.W.2d 293, 296 (Wis. 1982)
201. Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn. 1981)
202. Hoffman v. Red Owl Stores, Inc., 133 N.W.2d 267, 275 (Wis. 1965)).
203. Id.
204. Id.
205. Id. at 392.
206. Id. (quoting RESTATEMENT (SECOND) OF CONTRACTS § 90(1) (1981)).
207. Id. (quoting trial court's jury instructions).
208. Indeed, many of the most popular websites already provide self-imposed restrictions on the use of such information. For example, YouTube has clarified that it will remove videos if they violate another's privacy. Out-Law.com, YouTube Clarifies Ban on Privacy Invasions, Harassment and Threats (June 8, 2009), http://www.out-law.com/page-10239.
209. "Internet trolls are people who fish for other people's confidence and, once found, exploit it." Troll Definition, NETLINGO, http://www.netlingo.com/word/troll.php (last visited June 6, 2010).
210. 28 AM. JUR. 2D ESTOPPEL AND WAIVER § 129 (2000). Indeed, some courts have held that a promissor should reasonably foresee that his or her promise to one person will induce action or forbearance by a third person; the doctrine of promissory estoppel thus protects the third person even though the promise was not made directly to the third person ⋯.
211. Id.
212. Metzger & Phillips, supra note 112, at 964.
213. Id. at 966.
214. RESTATEMENT (SECOND) OF CONTRACTS § 304 (1981).
215. Id. § 302(1).
216. Metzger & Phillips, supra note 112, at 946.
217. Id. Whether incidental beneficiaries can recover under promissory estoppel is beyond the scope of this Article. The solution proposed here is not dependent on resolution of this assertion, which has not received significant support from the courts. See id. at 951-59 (discussing courts' rare application of promissory estoppel in cases where third parties seek to recover for their reliance).
218. Id. at 946. There appears to be some controversy over whether a third party must actually rely on a promise to be considered a beneficiary to a contract, as opposed to merely being the intended recipient of the contracting parties' beneficence. However, because any successful claimant of promissory estoppel must prove actual reliance anyway, analysis of this dispute is beyond the scope of this paper. For a more detailed discussion, see id. at 948-50.
219. RESTATEMENT (THIRD) OF AGENCY § 1.01 (2006).
220. Id. § 1.03.
221. Id. § 2.01.
222. Indeed, instances of estoppel arise in many contexts throughout the RESTATEMENT (THIRD) OF AGENCY, as a great deal of disputes involve reliance based on context.
223. See id. § 2.05, introductory note ("Estoppel, a general principle of broad applicability, protects justifiable and detrimental reliance on promises and factual representations when and to the degree necessary to avoid injustice⋯The term 'detrimental reliance' is used here to emphasize that estoppel in this context requires that a third party undergo a change of position involving an expenditure of money, or labor, an incurrence of loss, or a subjection to liability.");
224. id. § 2.05 (estoppel to deny existence of agency relationship if based on reasonable reliance)
225. id. § 3.02 ("A principal may be estopped to assert the lack of such a writing or record when a third party has been induced to make a detrimental change in position by the reasonable belief that an agent has authority to bind the principal that is traceable to a manifestation made by the principal.")
226. id. § 4.08 ("If a person makes a manifestation that the person has ratified another's act and the manifestation, as reasonably understood by a third party, induces the third party to make a detrimental change in position, the person may be estopped to deny the ratification.").
227. Id. §§ 3.14, 8.03.
228. RESTATEMENT (SECOND) OF AGENCY § 392 (1958).
229. See supra Part IV.A for a discussion of the requisite elements of a promissory estoppel claim.
230. 31 C.J.S., supra note 119, § 117 (citing Citiroof Corp. v. Tech Contracting Co., 860 A.2d 425 (Md. Ct. Spec. App. 2004)
231. Clevenger v. Oliver Ins. Agency, Inc., 237 S.W.3d 588 (Mo. 2007)
232. Filippi v. Filippi, 818 A.2d 608 (R.I. 2003)
233. Davis v. Greenwood Sch. Dist. 50, 620 S.E.2d 65 (S.C. 2005)
234. Birt v. Wells Fargo Home Mortg., Inc., 75 P.3d 640 (Wyo. 2003)).
235. Id. (citing Major Mat Co. v. Monsanto Co., 969 F.2d 579 (7th Cir. 1992)
236. Coca-Cola Co. Foods Div. v. Olmarc Packaging Co., 620 F. Supp. 966 (N.D. Ill. 1985)
237. First Nat'l Bank of Cicero v. Sylvester, 554 N.E.2d 1063 (Ill. App. Ct. 1990)
238. Martin v. Scott Paper Co., 511 A.2d 1048 (Me. 1986)).
239. See Gilles, supra note 94, at 33-37 (discussing potential complexities facing claims of promissory estoppel based on unwritten promises).
240. Cohen II, 479 N.W.2d 387, 391 (Minn. 1992) ("'[W]e have, without dispute, the reporters' unambiguous promise to treat Cohen as an anonymous source.'" (quoting Cohen v. Cowles Media Co., 457 N.W.2d 199, 204 (Minn. 1990), rev'd, 501 U.S. 663 (1991))).
241. Gilles, supra note 94, at 34.
242. Id. at 35 (alteration in original) (footnotes omitted) (quoting Cohen v. Cowles Media Co., 445 N.W.2d 248, 252, 254 (Minn. Ct. App. 1989), aff'd in part and rev'd in part, 457 N.W.2d 199 (Minn. 1990), rev'd, 501 U.S. 663 (1991)).
243. Id. at 35-36 (citing Cohen, 445 N.W.2d at 252).
244. Id. at 36.
245. Id. (quoting E. ALLEN FARNSWORTH, CONTRACTS § 2.19, at 94 (1982)).
246. Id. (quoting RESTATEMENT (SECOND) OF CONTRACTS § 90 (1981)).
247. Id. (citing Sirany v. Cowles Media Co., 20 Media L. Rep. (BNA) 1759, 1761 (D. Minn. 1992)).
248. Cohen II, 479 N.W.2d 387, 391 (Minn. 1992).
249. Id.
250. Id. at 392.
251. Gilles, supra note 94, at 37.
252. Kostritsky, supra note 95, at 576 (footnote omitted) (quoting Sidney W. DeLong, The New Requirement of Enforcement Reliance in Commercial Promissory Estoppel: Section 90 as Catch-22, 1997 WIS. L. REV. 943, 974).
253. Id. at 579 (citing Royal Fixture Co. v. Phoenix Leasing, Inc., 891 S.W.2d 553, 554, 556 (Mo. Ct. App. 1995)).
254. See Doctors' Co. v. Ins. Corp. of Am., 864 P.2d 1018, 1030 (Wyo. 1993) (allowing defensive assertion of promissory estoppel even in light of contract covering same situation because plaintiff was in most efficient position to assess information that could have prevented its own harm).
255. See supra Part III.B for a discussion of the prohibitions to contract enforcement and the requirements of contract formation.
256. The most extreme example would be the social network site Facebook, which recently topped 500 million users worldwide. Facebook, Statistics, http://www.facebook.com/press/info.php?statistics (last visited Sept. 2, 2010). Clearly, it would exceed the boundaries of logic to reasonably expect confidentiality from 500 million members. But what about a limited, restricted network of a member's, say, 150 friends? Analysis of the legal, policy, normative, and plausibility considerations involved in whether promises of confidentiality should be enforced in large online communities will be included in future research and is beyond the scope of this Article.
257. Gelman L., Privacy, free speech, and "blurry-edged" social networks, 50, B.C. L. REV., 1315, 1341-1342, 2009, Advocating technological solution whereby members of social networking websites can expressly indicate privacy preferences of posted content and suggesting privacy tort law could evolve to recognize such preferences.
258. James Grimmelmann, Saving Facebook, 94 Iowa L. Rev. 1137, 1139-42 (2009) (arguing for "culturally appropriate" outreach efforts to explain risks of posting personal content online as alternative to creating "better" technical controls that ignore actual use patterns).
259. This proposed agreement was modified from a simple confidentiality agreement drafted by patent attorney Gene Quinn and made available at http://www.ipwatchdog.com/simple-confidentiality-agreement (last visited June 6, 2010).
260. See, e.g., Posting of danah boyd to DMLcentral, Sociality is Learning, http://dmlcentral.net/ blog/danah-boyd/sociality-learning (Nov. 30, 2009, 12:35 EST) (discussing importance and educational value of social media in developing proper social skills of modern teenagers).
261. Solove, supra note 2, at 1064.
262. Id.
263. ALAN F. WESTIN, PRIVACY AND FREEDOM 7 (1967).
264. Stephen T. Margulis, On the Status and Contribution of Westin's and Altman's Theories of Privacy, 59 J. SOC. ISSUES 411, 412 (2003) (citation omitted).
265. WESTIN, supra note 190, at 7.
266. Margulis, supra note 191, at 412.
267. IRWIN ALTMAN, THE ENVIRONMENT AND SOCIAL BEHAVIOR (Irvington 1981) (1975).
268. Id. at 18 (emphasis omitted).
269. Gilles, supra note 94, at 39.
270. See supra Part IV.C.2.c for an analysis of the strengths and weaknesses of promissory estoppel.
271. DANIEL J. SOLOVE, THE FUTURE OF REPUTATION 123 (2007).
272. See generally Daniel J. Solove & Neil M. Richards, Rethinking Free Speech and Civil Liability, 109 COLUM. L. REV. 1650 (2009) (discussing discrepancies in application of First Amendment in different areas of law)
273. Volokh, supra note 2 (discussing First Amendment implications raised by attempting to broaden information privacy).
274. Cohen I, 501 U.S. 663, 670 (1991).
275. See generally, Volokh, supra note 2.
276. Gilles, supra note 94, at 37 (footnotes omitted).
277. Cohen II, 479 N.W.2d 387, 392 (Minn. 1992).
278. For example, the court in Cohen II upheld damages awarded at least partially to compensate for loss of Cohen's job. Id. at 389, 392.
279. Gilles, supra note 94, at 38.
280. Id. (footnote omitted).
281. 479 N.W.2d 387 (Minn. 1992).