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68 — The Elon Journal of Undergraduate Research in Communications • Vol. 1, No. 2 • Fall 2010

box and storage area, the vendor/owner may have a legitimate business purpose to have ac- cess to the area, but it would not be one which a person would reasonably expect to occur. In both situations, this information, much like the profile with the protection of the extra settings, could be considered to be not in open view, and therefore, be the equivalent of a ‘closed,

opaque container.51

Congress should take Mr. Hodge’s assertion into consideration when passing several new Acts that would protect the privacy of personal information on social networking websites. After placing these Acts in effect, in order to ensure that this new perception of social networking privacy is respected, a regulatory agency should be installed to police the misuse of these websites. This agency would behave similarly to the FCC, which was similarly created in large part to keep up with the regulation of emerging technology. The United States can follow the lead of nations such as Australia52 and Canada53, which have already established an Office of the Privacy Commissioner. This independent regulatory agency is obligated to “Determine how public bodies may collect, use and disclose personal information” and “set out how private organizations (including businesses, charities, associations and labour organizations) may collect, use and disclose personal information.”54 In fact, the Canadian office has already filed a case against Facebook that outlines its various privacy infractions.55

This comment has examined privacy on social networking websites largely from a legal perspective because it draws attention to important privacy concerns that require further clarification and interpretation. Historically, it typically takes an extended period of time for the law to catch up with new technology. Yet, the extraordinarily rapid growth of social networking websites such as Facebook and MySpace emphasize the perception that time is of the essence. Commonly, important legal issues are discussed in the lower courts extensively before the Supreme Court deems it necessary to provide further legal clarification. In this particu- lar instance, however, an effective solution must swiftly come from the legislature. It is not hard to conceive that the current Supreme Court will have difficulty understanding the innovative technological capabilities of social networking on the Internet. The average age of the current Supreme Court is 68 years of age and on several occasions Justices have showcased their inability to stay up-to-date with current technology. This became especially apparent during oral arguments conducted on April 19th, 2010 for a case concern- ing text messaging.56 At one point Chief Justice Roberts asked what the difference was “between email and a pager?”57 Shortly thereafter, Justice Anthony Kennedy inquired as to what occurs when an incoming text arrives at a cell phone just as another is being sent. “Does it say: ‘Your call is important to us, and we will get back to you?”58 At one point, Justice Scalia even asked whether texts are printed out in “hard copy.”59 The struggles the Supreme Court had in understanding the technological functions of cell phones highlights that it is unlikely the Court will understand the significance of addressing privacy on social networking websites in a prompt manner.

The Internet is evolving at a breathtaking pace. Its advancement has opened up new doorways through which the exchange of information can now flow. In deciding to create a profile on a social network- ing website such as Facebook or MySpace, an individual makes a conscious decision to share their personal information with others. However, this same individual does not expect this information to be guaranteed virtually no protection. It is improper to assert that privacy is rendered impotent the instant one establishes an account. Despite the difference in medium, citizens still deserve a right to certain protections. It is the duty of

51 Hodge, “The Fourth Amendment and Privacy Issues on the ‘New’ Internet: Facebook.com and MySpace. com” 119.

52 “Privacy Law.” Australian Government - Office of the Privacy Minister. Web. <http://www.privacy.gov.au/>. 53 “About Us.” Office of the Privacy Commissioner of Canada. Web. <http://www.priv.gc.ca/index_e.cfm>.

54 Office of the Privacy Commissioner of Canada.

55 McNish, Jacquie. “Jennifer Stoddart Blazes a Global Trail for Privacy Protection.” Globe and Mail. 27 Apr. 2010. Web. <http://www.theglobeandmail.com/report-on-business/industry-news/the-law-page/jennifer-stod- dart-blazes-a-global-trail-for-privacy-protection/article1548740/>.

56 Frauenfelder, Mark. “Supreme Court Justices Ask Important Questions About Text Messaging and Email.” Boing Boing. Happy Mutants LLC, 21 Apr. 2010. Web. <http://www.boingboing.net/2010/04/21/supreme-court- justic.html>.

57 Frauenfelder, “Supreme Court Justices Ask Important Questions About Text Messaging and Email.” 58 Frauenfelder, “Supreme Court Justices Ask Important Questions About Text Messaging and Email.” 59 Frauenfelder, “Supreme Court Justices Ask Important Questions About Text Messaging and Email.”

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