62 — The Elon Journal of Undergraduate Research in Communications • Vol. 1, No. 2 • Fall 2010
out any suspicion at all, seize and search the records of third party entities, such as Facebook and MySpace.
However, as Matthew Hodge states in his comment, state and appellate courts have not strictly adhered to these rulings when interpreting an expectation of privacy based their own state constitutions.16 Furthermore, Congress itself has passed legislation that has largely supplanted these rulings.17
IV. Consequences of pure market self-regulation
In most cases, the policies previously described have been used to protect the social media indus- try and have not protected an Internet user’s privacy. Essentially, social media outlets have been permitted to regulate themselves. Paul Schwartz advances two critical assertions why this self-regulation has been largely ineffective in protecting one’s privacy on the Internet. “(1) the ‘knowledge gap,’ which refers to the widespread ignorance regarding terms that regulate disclosure or nondisclosure of personal information and (2) the ‘consent fallacy,’ which points to weaknesses in the nature of agreement to data use. Both support a conclusion that reliance on a privacy market will not generate appropriate rules regarding personal data use in cyberspace.”18 Further research has shown that Schwartz is quite correct in this assessment, especially when applied to social networking websites. According to a research survey conducted by students at M.I.T. in 2005, over 90% of users of Facebook said that they had not read the site’s terms and conditions.19 Addi- tionally, in December 2009 Facebook overhauled the privacy settings of every user’s profile and reset them to the default. In conducting its own survey, Facebook revealed that 35% of users had read the documenta- tion outlining this change and modified their privacy settings appropriately. Therefore, 65% remained largely unaware of whom their information was being shared with.20 In investigating this development, Danah Boyd, a Social Media Researcher at Microsoft Research New England, has noted that in her interviews with Facebook users she has yet to find an individual who could correctly describe their current privacy settings. In a recent speech, Boyd narrated a story involving a woman who had moved away from her abusive father. “The young woman talked with her mother (who had moved with her) about possibly joining Facebook. They sat down to make the content as private as possible, which worked well. But in December, the young woman clicked through Facebook’s privacy dialog (as most people did) and had no idea her content was public. She only found out when someone who should not have seen the content told her.”21
In conjunction with Boyd’s analysis, in March 2009 Cambridge University’s Computing Laboratory published a report criticizing Facebook for its excessive use of pithy legal language within its terms of service document. These criticisms stem from the fact that Facebook has publicly claimed to be a democratic service, when in fact, if read carefully, its terms of service prove otherwise. As Professor Ross Anderson of Cambridge University stated following the release of the aforementioned study, “We should not be surprised that corpo- rations do not want to give power to their users, but pretending that the site is democratic when it is not is offensive - it is reminiscent of the old German Democratic Republic, which was actually a Russian colony and not democratic at all.”22 The report itself identifies several terms that are particularly vague and can produce multiple interpretations.
Facebook has failed by its own standards by not providing a Statement that is clear and free
16 Hodge, “The Fourth Amendment and Privacy Issues on the ‘New’ Internet: Facebook.com and MySpace. com” 103.
17 Hodge, “The Fourth Amendment and Privacy Issues on the ‘New’ Internet: Facebook.com and MySpace. com” 104.
18 Schwartz, Paul M. “Privacy and Democracy in Cyberspace.” Vanderbilt Law Review 52.1607 (1999), 1683 LexisNexis. Web.
19 The Global Covenant Network. The Shocking Truth of Facebook. I-Newswire, 2 Aug. 2008. Web.
20 Kincaid, Jason. “Danah Boyd: How Technology Makes A Mess Of Privacy and Publicity.” TechCrunch. WordPress.com, 13 Mar. 2010. Web.
21 Kincaid, “Danah Boyd: How Technology Makes A Mess Of Privacy and Publicity.”
22 Saran, Cliff. “Cambridge Researchers Slam Facebook Democracy.” ComputerWeekly.com. Reed Business Information Ltd, 17 Apr. 2009. Web. <http://www.computerweekly.com/Articles/2009/04/17/235687/cambridge- researchers-slam-facebook-democracy.htm>.