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

of personal information on the Internet is generally limited and often incoherent.”3 Additionally, law and policy has been slow in keeping up with the ever-evolving social networking applications that have developed over the course of the past decade. More specifically, “Despite the centrality of these issues the American courts lack a coherent methodology for determining whether an individual has a reasonable expectation of privacy in a particular fact that has been shared with one or more persons. Indeed, jurisdictions cannot agree on a framework for resolving these kinds of cases.”4 The following document will provide an overview of the court decisions and policy initiatives that relate to this discussion. In addition, it will provide a brief summary of the legal opinions held by several attorneys and law professors.

The main focus of this article is to demonstrate how privacy law should evolve to account for the tech- nological advancement of the Internet with a particular emphasis on the social media networks Facebook and MySpace. Although the Supreme Court has been hesitant to definitively rule on this issue, lower court opin- ions, legal ethics opinions, and relevant policy are included in this comment. These sources are examined in order to understand how the law is approaching the privacy issues surrounding social media including “cyber- bullying,” employment practices, and law enforcement monitoring of the internet. Through careful analysis, it can be determined how policymakers and the courts can aid in resolving these issues and progressively establish a more clear definition of the legal obligations placed on Facebook and MySpace. After doing so, this article argues that that by recognizing privacy abuse on social networking websites, Congress can pass and enforce new laws that protect Americans from these harms and provide greater protection to individual privacy.

II. Current policy

To a large extent, social networking websites receive government protection from policy written in the 1990s. Section 230 of the Communications Decency Act (“CDA”) protects Facebook and MySpace. This policy states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”5 In other words, if person A posts a defamatory comment about person B on a social networking website such as Facebook, person B cannot sue Facebook for allowing the post because social networks cannot be found liable for these criminal damages. The Act establishes the notion of “cyberspace exceptionalism,” a concept that endorses the belief that, “the Internet is unique/special/different and therefore should be regulated differently. Section 230 of the CDA is a flagship example of such exceptionalism. It creates rules that really differ between the online and of- fline worlds, such that publishing content online may not create liability where publishing the identical content offline would. The medium matters.”6

III. Fourth amendment background & applicable Supreme Court deci- sions

The Fourth Amendment protects “the people” from “unreasonable searches and seizures.”7 In 1967 the Supreme Court handed down its decision in Katz v. United States.8 Prior to this date, the Court had ad- opted a literal interpretation of the Fourth Amendment. It had ruled that a violation of privacy could only occur

3 Schwartz, Paul M. “Privacy and Democracy in Cyberspace.” Vanderbilt Law Review 52.1607 (1999), 1632. LexisNexis. Web.

4 Strahilevitz, Lior J. “A Social Networks Theory of Privacy.” The University of Chicago Law Review 72.3, 921. JSTOR. Web. Summer 2005.

5 Congressional Research Service, Library of Congress (1996) (enacted). Print.

6 Goldman, Eric. “Re: Roommates.com Denied 230 Immunity by Ninth Circuit En Banc (With My Com- ments).” Web log comment. Technology & Marketing Law Blog. 3 Apr. 2008. Web. <http://blog.ericgoldman. org/archives/2008/04/roommatescom_de_1.htm>.

7 U.S. Const. amend IV. 8 Katz v. United States, 389 U.S. 347 (1967).

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