Mister, We Could Use Some Men Like Warren and Brandeis Again
On the “been done before” scale, referencing 1984 when talking about scary implications of media technology is right up there with using that Lux Aeterna composition in a film trailer to make it dramatic (because, incidentally, the end of Requiem for a Dream is exactly what I want to be reminded of when I watch one of my favorite childhood stories come to life on the silver screen). We try our best to avoid the term “Orwellian” because it has been used so much it has all the gravity of a curse word at an Australian social gathering.
And then once in a while it’s just too on the nose to resist. Is it really possible to avoid drawing loose parallels to telescreens and Big Brother when you hear about poor Nathalie Blanchard?
Her story in a nutshell: Blanchard had been on paid sick leave in Quebec for serious depression until her insurance company, apparently determined to quell all that “awesome health care in Canada” chatter, decided that Blanchard needed to get back to work because she could be seen smiling in Facebook photos from such solemn events as her birthday. To be fair, it should be noted that a judge reviewed the case and refused to reinstate Blanchard’s benefits while her court fight goes on, and a psychiatrist looks to have been involved in the decision to revoke the benefits in the first place. But still: All that for smiling on Facebook?
I get the idea that people should be aware that their Facebook stuff can get out there. If your profile picture features you pulling tubes with Michael Phelps, you might want to do some account revisions before that big job interview. In my untrained opinion, though, it seems like getting caught smiling when you have depression is not exactly akin to getting caught skydiving when you’re collecting benefits for a bad back. At some point, it seems that cases like Blanchard’s cross the line between thorough claims investigation and Minority Report territory.
Way back in 1890, Samuel Warren and Louis Brandeis got their blood up about things like snapshot photography and nosy journalists and wrote a famous article in the Harvard Law Review titled “The Right to Privacy.” Their argument, which I prefer to think was narrated with those silent movie title cards in accordance with the fashion of the period, essentially spawned a lot of the privacy and defamation law we have today in much of the United States.
Granted, a lot of that legacy is about preventing defamation or people taking pictures of Erin Andrews through her hotel peephole (and with that, welcome to all you Google users who just arrived here looking for something else), but the 1890 article also has a focus on the more general principle of the “right to be let alone.” The idea of being “let alone,” one might argue, is about more than just knowing the law will protect you if you stay at home with the shades drawn and keep all your online profiles private.
Should “let alone” also mean you can smile in a photo without worrying whether people will make inferences about your official medical status?
Some might say that it’s silly to expect any privacy regarding anything that you put out there, online or otherwise. It might seem naive to even suggest that information made available to the public are not fair game for insurance companies, employers, and anyone else who wants to snoop. At the same time, though, it’s not without precedent to say some electronic information should be left alone. Consider the somewhat relevant argument by Minnesota District Judge James Rosenbaum, who suggests that maybe unsent draft email messages should not be used against their authors even when they are technically recoverable and that such email should have something of a six-month statute of limitations.
Is there a way to enjoy some semblance of privacy even for information that we make public online? How do we ensure that we can have a reasonable online social presence without either fearing exploitation or constantly begging all our friends to untag us? Is the answer in firm policy, in some general etiquette guiding online privacy, or something else?
I’d like to hear your thoughts, but I am inclined to hope that we are not faced with the choice between a reclusive life on one hand and constant fear that any image or word online might be used against us in unexpected ways on the other hand. I mean, surely we can express ourselves a little bit without…oh no…I’ve had my Facebook and Twitter accounts open in other windows this whole time…
Okay, that was a bit much. Just wanted to get all the Orwell references out of my system.
Your right, I did arrive randomly from Google – which questions whether its is worth even trying to be private in the modern age. The savvy ensure that Googling their name finds the exact message we wish to portray… and that is in favour of our claims of depression.
I argue that privacy never really existed, and near impossible in the information age.
Thanks for the thought provocing article.
John
Thanks very much for reading the post and sharing your thoughts, Mr. Nayler. I would think that norms about privacy have changed over time, though you have a good point that even when those norms were different people may not have really enjoyed any true privacy. I guess I can’t say for sure. As you mention, though, it looks like the days of being able to expect to be “let alone” are perhaps behind us–for better or for worse.
I also enjoyed seeing your site. It looks like you keep pretty busy and get to see a lot of interesting things. My sister lives near Wandoan in Qld. when she is not traveling herself, so perhaps I will spot you cruising up and down the coast sometime when I visit her.
Jimmy