
Facebook reportedly argues there's no 'expectation of privacy' on social media - kerng
https://www.cnet.com/news/facebook-reportedly-thinks-theres-no-expectation-of-privacy-on-social-media/
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bryanrasmussen
Going from a model where social media is a new instance of the public square I
guess I would agree there is no expectation of privacy in the public square,
but where the public square metaphor breaks down is that this square is
actually owned by a corporation that is taking pictures and wiretapping all
the individual conversations taking place in their square and selling the
contents thereof to other corporations.

So as always metaphors are a lousy way to reason, and quickly break down
because once you are arguing that X is like Y you will end up hitting the
limit of X being unlike Y anytime you try to deal with something complicated
in regards to X.

Hence regulation of a medium where everything lasts forever and can be looked
up instantaneously from almost anywhere, and copied and repeated all over the
world by anyone wanting to do so, should not follow the model of regulation
for a medium where everything is ephemeral and while theoretically open to
anyone in practice not so open because availability of space is a limiting
factor on proximity and proximity is needed to take part.

~~~
michaelchisari
Also, given that metaphor, if I'm whispering to a friend in a public square, I
do have an expectation of privacy in the sense that there should not be boom
mics placed everywhere to pick up the smallest of conversations.

~~~
derefr
The “expectation of privacy” isn’t about what you would expect regular people
to do. It’s about what you would expect malicious actors like spies (or just
private detectives hired to tail you) to do. You wouldn’t expect to be safe
from a detective with a boom mic in the public square—therefore, the square is
not a place where you should be having private conversations (even whispered)
if you have anything to hide.

~~~
Dylan16807
I wouldn't expect to be safe from that detective in my own house, in a sealed
room! But I certainly have an expectation of privacy there.

~~~
derefr
You _should_ expect to be safe from that detective in your own house, because
we’ve drawn a very clear distinction—that detective is _breaking the law_ by
snooping on what you do in your own private residence. If the police wanted to
discover what you were doing in your own home, they’d have to get a warrant in
order to not be breaking the law by doing that (“warrant” literally being
defined as “a writ making something that’s normally illegal to do, temporarily
not, for you, in this situation.”)

Whereas, neither the private detective, nor the police, would be breaking the
law by snooping on you in the public square. So either/both would feel
_empowered_ to do so, because society does not think such an action is worthy
of punishment.

~~~
Dylan16807
That's pretty circular logic. There are feedback loops between expectations
and law, but that doesn't mean the status quo is always correct. The nature of
how much surveillance one person can perform has increased by many orders of
magnitude. It's worth rethinking how we limit public surveillance.

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mehrdadn
For anyone looking for the actual PDF page, my best guess is it's referring to
page 25 of docket number 261.

Here's the quote I found; it seems to be referring to a particular tort. You
may also want to look at the full text to see the citations I omitted in the
[...] for brevity:

 _Intrusion upon seclusion. This tort requires intentional intrusion “upon the
solitude or seclusion of another or his private affairs or concerns … if the
intrusion would be highly offensive to a reasonable person.” [...] Plaintiffs
have not alleged any intrusion into their private affairs; rather, the
information at issue is all data they already shared with a broad circle of
friends and even strangers (friends of friends). [...] Nor could the
disclosure of information such as page likes, which are designed to be
communicated to other people, be “highly offensive to a reasonable person.”
Disclosure of far more private information, such as private medical records
and the identity of undercover police, has been found insufficient. The
“highly offensive standard … is reserved for truly exceptional cases of
intrusion,” [...] and this is not such as case._

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coldtea
I always find this BS legal idea of "expectation of privacy" backwards.

The important thing is not whether there's some pre-existing "expectation of
privacy" in a domain (e.g. public square, or social media).

The important thing is whether (1) society _wants_ (or deems beneficial)
privacy in that domain and (2) privacy is achievable in that domain.

If (1) and (2) hold, there should be no talk of "expectation" and other such
BS.

[1] and this can be settled with e.g. a referendum or a number of other ways.

~~~
dahart
I probably wouldn’t be so cavalier about writing off and calling BS the legacy
of legal definitions that are successfully protecting citizens. It has taken a
long time and a lot of smart people to get to where we are with expectation of
privacy, and while it might not be perfect, it has been battle tested in
court, so it’s presumptuous to assume your untested opinions are clearly
better.

The problem I see with your suggestion is then society must pro-actively make
some sort of decision for each and every domain in advance, which isn’t
possible. The goal of expectation of privacy is as a test to determine when
privacy would be or has been violated on a case by case basis. In that sense
it’s already somewhat doing what you’re talking about; it is a way to
determine whether society deems privacy beneficial in a given domain.

Whether privacy is achievable does not make a good criteria at all, because
it’s always possible to compromise privacy. The entire point of the
“expectation of privacy” test is to determine whether someone who did violate
another’s privacy should be allowed to, it’s a pre-cursor to determining right
to privacy.

~~~
coldtea
> _The problem I see with your suggestion is then society must pro-actively
> make some sort of decision for each and every domain in advance, which isn’t
> possible._

First, why not? It's very much possible, we have all kinds of systems in
place, even electronic voting.

Second, privacy is a serious matter, of which there aren't tons, so it's not
like "each and every domain" is equally important.

Third, it's not like a decision for all domains has to be taken simultaneously
and right now. We could vote for one domain per year, and we'd have covered 10
most important domains in a decade...

> _The goal of expectation of privacy is as a test to determine when privacy
> would be or has been violated on a case by case basis._

It's also used to mean "you wouldn't expect it in X domain, so you don't get
to have it there".

And, as lots of domains where privacy is important are new, what's "expected"
can go either way, like FB trying to argue that "people don't expect privacy
in social media".

If we instead change it to whether people _want_ privacy in social media,
that's more clear cut, regardless to whatever someone can argue we "expect" or
"not".

In fact, even if we keep it to "expect" (as the deciding factor), why
shouldn't we vote on whether we do expect it or not? Why expect should be
speculation?

Ask us (the people) to vote directly whether we expect it or not, don't decide
for us, with some BS medieval-style theological syllogisms...

~~~
dahart
I suspect your strong negative reaction to expectation of privacy is because
you’re mixing up expectation of privacy with right to privacy, which are two
different legal concepts. I think what you’re proposing is right to privacy
laws rather than expectation of privacy. Laws establishing right to privacy
already exist as a declaration of what domains society deems privacy necessary
in. Expectation of privacy is there as a legal test to help make
determinations in cases where the right to privacy hasn’t been already
established.

We can and do already vote on it, and laws establishing the right to privacy
online already exist and more are in the process of being established, since
historically speaking online domains have only just barely been invented.

[https://en.m.wikipedia.org/wiki/Right_to_privacy#Privacy_law...](https://en.m.wikipedia.org/wiki/Right_to_privacy#Privacy_laws_in_different_countries)

For example, you already have no right to privacy from being photographed
while outside in public in the US. You already do have an established right to
privacy in your bedroom. Neither of those cases is subject to expectation of
privacy tests, because the right to privacy has already been determined.

Personally it seems quite useful for expectation of privacy to always exist as
a way to help sort out domains that have not yet been covered by law, and it
would be silly to think that we understand all the future permutations and
implications of online privacy mixed with big data well enough to cover it
legally today.

Facebook’s defense here is using “expectation of privacy” in a subversive and
sneaky way. The problem is Facebook has both kinds of data, public and
private. It’s wrong to suggest that people don’t have an expectation of
privacy for their hidden profile data just because they’re using social media.
It’s probably right to suggest that anything I post publicly can’t be
considered private, even if people want that. But that’s complicated when you
data-mine all public data at once and draw potentially private implications
using AI. It looks like their defense is about to be tested in court, so
hopefully the court will see through Facebook’s defense. One of the outcomes
of Facebook using “expectation of privacy” as their defense is that whatever
happens here in court starts to become the law by precedent.

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zwaps
This should not hold.

Facebook has been running huge ads all over media and streets with "your
privacy choices" and "we protect your privacy" to salvage some of their
reputation.

If they do this, and then at the same time claim there is no privacy on their
platform, any judge who does not throw this out would be really dumb.

Right?

~~~
brennebeck
This was my first thought. The ability to specifically control your post
privacy and profile profile seems to imply there /is/ and expectation of
privacy? IANAL but that just doesn’t make sense to me.

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negamax
Tech people and young people are quitting Facebook or have done so. These are
the trendsetter groups. We have likely seen peak of social media

~~~
o10449366
Tech people and young people in general? Or just people you know? I've been
seeing variations of this comment on Hacker News for over 10 years now, and
yet the imminent demise of Facebook as a result of users who probably never
actively used it anyway leaving has yet to be realized.

~~~
negamax
That’s fair point. I can only speak for people I know. Facebook has become
less for sharing with friends but more about messenger and events

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ahartmetz
Contrast to Facebook's recent "privacy initiative". A certain level of untruth
is unfortunately expected from company PR, but Facebook is really taking it to
the next level.

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eraad
I have to admit this sounds awful but true. I'm not going to be hypocrite and
claim to have read the Facebook terms of use but I have never really expected
those to be in my favor in terms of privacy.

Society and regulators should treat the social media industry like we do with
tobacco and firearms.

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onedognight
Zuck: Yeah so if you ever need info about anyone at Harvard

Zuck: Just ask.

Zuck: I have over 4,000 emails, pictures, addresses, SNS

[Redacted Friend's Name]: What? How'd you manage that one?

Zuck: People just submitted it.

Zuck: I don't know why.

Zuck: They "trust me"

Zuck: Dumb fucks.

~~~
dTal
You know everyone always calls this the "dumb fucks" quote, but I think it
ought to be the "just ask" quote. That's the truly objectionable part, the
part that exposes the black heart of Facebook even today - you have no
expectation of privacy, and your data is handed over to third parties for a
pittance (or even, in this case, to impress Zuck's friends).

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cmsonger
> "There is no invasion of privacy at all, because there is no privacy,"

... and therefore one should seriously consider not using Facebook.

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ravenstine
Wow, just... wow. What happened to their thing of building a "privacy based"
Facebook? Either their PR sucks worse than I thought or that whole balloon
deflated rather quickly.

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fredgrott
Did they suddenly forget the court cases oh say oh crypto? Those held that yes
we do have a US right to non public free speech.

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village-idiot
Given the outrage about data theft and sales, I believe the consumer has an
expectation of privacy on Facebook.

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pugworthy
Is this really a surprise to anyone? I mean beyond that they admit it?

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Alex3917
So have they officially given up on Facebook at Work?

~~~
ulfw
No. But companies should.

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vikramkr
That's not at all unreasonable on _social_ media

~~~
Barrin92
Do you really think putting the word 'social' in italics is sufficient to
argue that Facebook can hand my private data over to third parties without my
knowledge?

If you've read the article, the context here is the cambridge analytica
scandal, not someone posting on their public timeline.

~~~
vikramkr
Yeah. Because frankly I dont get what information you put on Facebook should
be considered private, and that would include what cambridge analytica did. I
think that knowing it's a social media platform is more than sufficient to
have zero expectation that anything at all put there is private.

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bayesian_horse
I would agree with facebook in this point.

Data you put on social media is basically public. It may not be easily
discoverable by the public at large, but that lack of discoverability is not a
perpetual guarantee at all.

But most participants on social media don't understand that. Maybe it's
because they overestimate the confidentiality of social circles. Even offline
that's not much of a protection.

~~~
alexandercrohde
>>> But most participants on social media don't understand that.

So you actually are conceding the point. You agree that "most participants"
actually do have an expectation of privacy.

~~~
bayesian_horse
A common expectation may well be unreasonable.

In my opinion it is unreasonable to expect friends not to share private
information about you. And I see a lot of evidence, both in my life and from
observation of other people, that people consistently underestimate the
probability of friends breaking that trust.

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jasonkester
Well said, Facebook.

People are uploading thing to the internet for the sole purpose of having as
many people as possible see it. That’s the entire goal of the exercise.

It’s baffling that those same people would then turn around and behave as
though they are surprised that people can see those things.

~~~
sgt101
I upload photos to S3 as a backup, only I have ever seen them (I think).

Is it ok for Amazon to sell or use them? How about using them to blackmail me
? Would that be ok?

~~~
jasonkester
No. Just the things I said in my comment.

So if instead of uploading that photo to S3 and marking it private, you
uploaded it to Facebook and clicked the "Show This Photo To Everybody In The
World" button, it would be OK for Facebook to show it to everybody in the
world. It would be impossible to blackmail you with it, given that there is
nobody left without the ability to see it, at your request.

I personally have lots of photos up on Facebook that anybody in the world can
look at if they choose. I also have lots of photos that nobody but me and my
family can look at unless I show them personally. I accomplished this by not
uploading photos from that second group to Facebook.

~~~
sgt101
But if Facebook (as they do) offer you a service that allowed you to share the
photos with a selected set of individuals would you not have the reasonable
expectation that Facebook would not share them further?

What I'm parsing out of your comments is that no matter what Facebook says we
should expect it to act without regards to privacy?

~~~
jasonkester
So to paraphrase what you're saying, in both your comments:

"But if [something other than what I said], then [something different would
happen]."

Yes. I agree with your conclusions about the things I didn't say. But I guess
I'll have to ask that you stop posting them as though they were responses to
(or related in some way to) things I _did_ say.

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RickJWagner
Given that people are fired on a pretty regular basis for social media posts,
I'd tend to agree.

~~~
clubm8
People have been fired for being gay, does that mean there is no reasonable
expectation of privacy in the bedroom?

~~~
pugworthy
There is privacy in the bedroom because we expect there to be.

On social media, we share (and over share), and yet we are shocked at our
privacy being exposed. We should not expect it.

If we talk quietly to each other in the privacy in our homes, sharing that
information is a breaking of social trust.

If we talk on the bus around others, we should't be too surprised if someone
hears us.

If we share what we say to all, we should absolutely not be shocked.
Especially when we are explicitly sharing on purpose.

~~~
JKCalhoun
Am I missing something? When I was on FB I only shared with maybe 50
friends/family. My expectation was that it ended precisely there.

~~~
pugworthy
Facebook knows everything - and they use that. That lack of social trust is
about them not playing fair. You did everything right, and you trusted your
friends. It's Facebook that broke your social trust.

