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Friday, July 01, 2005

More Thoughts on Internet Vigilantism

Here's a question for Dan Solove and Marcy Peek:  What happens when internet vigilantism is combined with the prospect of "outing" a person for hidden faults?

Let's play with the idea a bit.

For example, let's say that a popular religious leader, Pastor Bob, is actually sleeping with his secretary.  Mike, someone who dislikes Bob, breaks into Bob's e-mail account one day and discovers this fact.  Mike subsequently registers pastorbobissleepingwithhissecretary.com and posts Bob's love letters to his secretary.  Readers notice this site and it becomes popular.  It gets linked by metafilter, Boing Boing, slashdot, kuro5hin, and Fark.com.  Within days, the entire country knows about Pastor Bob's indiscretion.  His name becomes a punch line for Jay Leno. 

Pastor Bob is fired from his job, his reputation is destroyed, his wife divorces him, he's evicted from his home, and he has to live on the streets, destitute. 

Is this actionable?  I really, really want to think that it is.  (Invasion of privacy?  Interference with relationships?  Loss of consortium?  IIED?)

But now let's change the facts a little, and say that Mike didn't get this information from breaking into Bob's e-mail account, but rather simply by taking a surreptitious picture of Bob and his secretary kissing in the back of a restaurant, where they thought no one would see them.  Does that change the analysis any?

To take it further, what if Pastor Bob had a private, pseudonymous blog about his affair (a la Washingtonienne) and Mike simply connected that blog to Pastor Bob, provided evidence that the pseudonymous writer was actually Bob, and let the damage accrue from there?

And finally, does the analysis change if Bob's actions are criminal (he's a child molester) rather than simply damaging if disclosed (he's having an affair)?

I don't know the answers to all of these.  But I think that they illustrate some of the difficulties in answering the broader question of "can further (broad) publicization of already-public (but not widespread) information be actionable?" 

Posted by Kaimi Wenger on July 1, 2005 at 01:19 PM in Information and Technology | Permalink


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I remember researching a tort called "public disclosure of private facts", one of the invasion of privacy torts, this spring for my Legal Research & Writing class. One of the examples where the tort was not committed was a newspaper publishing a photo of someone whose genetalia was accidentally exposed (I believe it was a soccer player). I think this would take care of the photograph of the couple in the restaurant.

Posted by: WhiskeyJuvenile | Jul 5, 2005 2:38:48 PM

Maybe I'm just not understanding the hypo, but what possible reasonable precautions could the pastor be taking at the restaurant to be sure he isn't spotted? He's sitting in a public place with his arm around a woman not his wife, how can he ever expect that to be private?

Now, if he's in a private back room, where customers are not allowed to roam, that's something different. But that also begins to look a lot like the email scenario.

Pre-internet, if a member of the church saw Pastor Bob at the restaurant, and then went and told the rest of the congregation, how would that be different? There too, his life is ruined. But you wouldn't want to make *that* illegal, would you? Why does adding the internet into the mix change things? Word of mouth might spread more slowly, but it's no less deadly.

To answer your second question, I honestly can't think of any public actions of mine that I'd like to keep private. Maybe that's only because, if I want something to be private, I won't engage in it in a public restaurant.

Posted by: Cyrus | Jul 2, 2005 11:41:59 AM

Yet Hillel and Cyrus, if I'm Pastor Bob, my life is ruined either way. I don't care much if this information was posted by someone who broke into my e-mail, or someone who just took a picture of me.

If I'm taking reasonable precautions not to be spotted at the restaurant, do I have an expectation of privacy?

And on the broader level -- isn't there at least one or two "public" actions of yours that you'd rather just keep swept firmly into the dustbin of history? Just because I do some act in a nook or cranny at a restaurant or at the Columbia Law Library or on a subway train, doesn't mean that I'm willing for that event to receive unlimited public circulation.

Posted by: Kaimi | Jul 2, 2005 9:02:43 AM

I'm with Hillel on this one. Why are these such tough questions to you? If a man posts about his escapades on a blog, and somebody figures out who he is, how could that be anything other than legal?

At the same time, if he breaks into a computer, how can that not be illegal?

I think you're making these questions harder than they need to be.

Posted by: Cyrus | Jul 1, 2005 4:37:45 PM


What is so difficult about the hypos you pose?

Breaking into someone's computer is (or should be) illegal.

Taking a picture of someone in public is not (and should not be).

Being smart enough to put two and two together is not only legal, but desirable.

Posted by: Hillel Levin | Jul 1, 2005 1:45:35 PM

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