Hub Dialogue

Do our privacy protections go too far, or not far enough? Law professor Amy Gajda untangles the tricky topic

Steve Satterfield, vice president of privacy and public policy at Facebook Inc., appearing through videoconference, speaks before the Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights, Tuesday, Sept. 21, 2021, in Washington. Ken Cedeno/Pool Photo via AP.

This episode features Sean Speer in conversation with Tulane University law professor Amy Gajda on her fascinating new book, Seek and Hide: The Tangled History of the Right to Privacy.

They discuss the trade-offs between free speech and privacy in our interconnected social media age, including the tensions between the public’s right to know and the individual’s right to be left alone.

You can listen to this episode of Hub Dialogues on Acast, Amazon, Apple, Google, Spotify, or YouTube. A transcript of the episode is available below.

SEAN SPEER: Welcome to Hub Dialogues. I’m your host, Sean Speer, editor-at-large at The Hub. I’m honored to be joined today by Tulane University Law Professor Amy Gajda, who’s the author of the fascinating new book Seek and Hide: The Tangled History of the Right to Privacy. I’m grateful to speak to her about the book, its key insights, and how our own thinking about the trade-offs between free speech and privacy has evolved.

A note for Canadian listeners: while many of the legal particularities in the book are American, the questions it raises, including about privacy in the internet age, are highly relevant for a Canadian audience.

Amy, thank you for joining us at Hub Dialogues, and congratulations on the book.

AMY GAJDA: Thanks so much. I’m delighted to be here.

SEAN SPEER: If it’s okay, let’s start our conversation at a big-picture, conceptual level before we get into the specifics of the law. A major insight of the book is that these questions are fundamentally about balancing trade-offs between “the right to know” versus “the right to be left alone.” I want to help listeners by defining these terms and how we might think about them.

What does it mean to say the public’s right to know and how far should it go? Does the public need to know about a public individual, say a politician’s personal life, to judge him or her? What about other public individuals like, say, an athlete? Should a politician have less privacy than an athlete? I guess all this to say, Amy, how should we think about the right to know?

AMY GAJDA: That’s a really wonderful question. In the United States, part of it looks at who the individual is as you suggest. The higher up the politician is, the more the public has the right to know about that individual and that individual’s behaviour, that individual’s background, and so it’s nearly always been that way in the United States. I say very nearly always because, at least initially, the right to know really didn’t focus so much on individuals as it did on government entities and what those entities were doing.

In other words, early courts in the 1800s would suggest that the public has the right to know about court systems. The public has the right to know about police and their behaviour. What happened was that then broadened and the public then, mainly through court cases, at least initially, got the right to know about individuals, mainly politicians, and thereafter celebrities in a sense. The courts would allow certain things to be revealed about those individuals because of this notion of the right to know.

SEAN SPEER: On the other side of this issue, what are the risks of a legal regime that tilts too far in the direction of “the right to be left alone” even if it’s well-intended? What might be lost if privacy protections are too strong in terms of the public interest?

AMY GAJDA: That too is a wonderful question. Very often, there’s an awful lot to be lost if we focus too much on an individual’s right to privacy. Surprisingly, presidents in the United States have been able to cloak themselves with privacy to some extent. For example, right now and actually during his presidency, Donald Trump, in part, argued that he had the right to privacy in his income tax returns.

If you speak with any journalist, I would assume that journalist would argue that, “No. In fact, we do have the right to know about those tax returns, that privacy should not cloak that sort of information. Privacy should not cloak the sort of information that would help us better understand how an individual might lead.” That’s a bit of a wobbly line, of course, because one person’s right to know is another person’s right to privacy, and yet that balance is what courts have done for a very long time.

SEAN SPEER: That’s a great segue to my last big-picture question before we get into the law. I want to ask about your own framework for thinking about these trade-offs. You were previously a journalist. You write that, in that capacity, you were something of a free-speech absolutist. That is to say, you were worried that privacy could become expansive legal protection that could come at the expense of free speech. As a legal scholar, however, your thinking has evolved a bit and you’re now more comfortable with robust privacy protections. 

Why don’t you just talk a bit about your own intellectual journey on this subject? How has your thinking evolved?

AMY GAJDA: Sure, and I would have to point at least a little bit to the law here. When I was starting out as a journalist, I learned all about defamation and how information that is incorrect that harms another’s reputation can lead to a successful lawsuit. I very much understood that. I learned that in school. I learned that in the newsrooms. What I didn’t learn is this notion of privacy, that the reporting of truthful information can be punished at times by law.

I think the reason why I didn’t learn this so much was because back in the day when I was in journalism in the 1980s and into the 1990s, the right to privacy wasn’t as expansive as it is now, let’s say, because oftentimes back then, media very much respected people’s privacy. Not so much on legal grounds, but on ethical grounds.

For example, when I would find something out when I was reporting something about a victim of a wrongful death, for example, or a victim of a murder, the information there to me ethically, even though it would’ve been interesting to some viewers—I was in television mostly—I still felt this ethical sense, this decision to hold back on ethical grounds, even though I didn’t fully understand that, in fact, there were some viable claims for invasion of privacy back then based on those things.

For me, at least looking back on my work as a journalist, it was mostly the ethical decisions I made. The decisions, for example, not to publish videotape of a gruesome accident, for example, even if the person didn’t die or even if the person did die, not to report that sort of thing, not to use video of a very newsworthy suicide, for example. It was my call whether to use that video or not. All those sorts of decisions that I made were very much focused on ethics as opposed to anything having to do with law.

Intriguingly, I think that once many more people became publishers on the internet, and once those people stopped using any sort of ethics sense to make publication decisions, that’s when you really saw courts coming in and starting to embrace this right to privacy. I like to think, even though you’re right that very much back then I was a free-speech absolutist. Maybe not that because, certainly, I drew an ethical line at times and made those calls. Today, it’s a very familiar thing for me to read a court case in which a court uses, perhaps not by word, ethics bounds that I’m very familiar with as a former journalist.

SEAN SPEER: That’s a fascinating answer, Amy. Listeners will know that a topic we frequently cover on this podcast is what George Will called “statecraft as soulcraft”—that is to say, the causal relationship between social norms and the law. It’s a fascinating example here where the two-way conversation between social norms and the law seems to be self-reinforcing even in your own career.

AMY GAJDA: I’ll give you an example of that. When I suggest that we would go to accident scenes—I was a reporter as well as an anchor—and I would go to accident scenes, I remember distinctly urging the photographer not to take gruesome video, but then, certainly, if anything was gruesome to make the decision not to air that. Just within the past five years or so, there was a court that decided that the mother of a man who died in a fatal car crash could sue a website for emotional distress for publishing that sort of video.

When I say that there’s a parallel and when you suggest that same parallel, I think that’s a really great example of something that very likely would not have been published in the past by a television journalist like me suddenly being published today and having courts having to grapple with that right to know versus the right to privacy and coming down at times then in favour of the right to privacy even in surprising sorts of cases involving the First Amendment and freedom of the press.

SEAN SPEER: Let’s turn now to the law. The book tells the story of this critical moment in 1890 when future U.S. Supreme Court Justice Louis Brandeis co-authors a famous law review article and we start to see the beginning of a formalistic right to privacy. You make the case that privacy as a legal concept actually dates back to the 17th century. What are the origins of our current conception of privacy rights?

AMY GAJDA: It’s interesting to take a look at some of the very first newspapers in the United States and reporting on an affair involving the king of France and that publication being shut down immediately. The very first long-form newspaper in the United States was shut down in effect for reporting this sort of information involving someone we would certainly consider a public official if we had kings in the United States today.

Even when the Founders were discussing issues involving the First Amendment and freedom of the press, there was the suggestion that there were privacy interests there too and that that sort of publication that would reveal instances of, and this is a quote, “male conduct” would go too far. In other words, even though there was freedom of the press, the suggestion among a couple of the Founders was, “We do have freedom of the press in the First Amendment, yet, that press freedom is not unlimited.” That if the press reports on “instances of male conduct,” which at the time meant extramarital affairs, et cetera, that the press could be held liable despite the First Amendment. We do have, even the Founders grappling with the same sort of thing, this right to know, including the right to know about people in power versus their right to privacy.

SEAN SPEER: Let me pick up on that answer, Amy. You make the case in the book that the application of privacy protection in the United States has been unequal. That is to say, historically, protections have tended to benefit powerful people, namely men, but not others. Do you want to talk a bit about this uneven tradition?

AMY GAJDA: Sure, and that highlights that 1890 law review article called “The Right to Privacy”. Back then in 1890, there was a man named Samuel Warren. He was one of the co-authors of this law review article along with Louis Brandeis as you suggest. Samuel Warren was very good friends with the president, Grover Cleveland. Grover Cleveland really hated the press. Grover Cleveland believed that he had the right to privacy.

He felt that the press very much overstepped when it was very interested in his relationship with a young woman, who had been in effect his adopted daughter. He argued openly in speeches for a right to privacy and suggested that he had this right and that the media was going beyond all bounds in reporting things about this relationship and otherwise. You see those sorts of interests then being reflected in this law review article titled “The Right to Privacy”.

There’s the suggestion in there, for example, that even politicians have the right to privacy and that they have the right to privacy in information from their past. Therefore, the suggestion that the press can’t report whatever it wants because there’s some level of privacy, some level of protection, even for politicians’ pasts in which the public might well be interested.

We fast forward a bit into then-President Warren Harding. President Warren Harding lobbied the journalist of the day to respect privacy in an ethics sense. He was a former journalist and part of his push as president was this suggestion that, “You know, we need to really respect people’s privacy and that, therefore, you, media of the day, tamp things down a bit. You should give people a break and not report the sorts of things that might invade their privacy.”

That sounds like a really good thing and it’s certainly what I suggested in my own journalism background I did, and yet Warren Harding was trying to hide the fact that he was having two extramarital affairs, including one in which the woman had a baby. You see then these self-interested presidents arguing for the right to privacy. Richard Nixon did the same thing, right before he then removed himself from power, arguing at the time Watergate was brewing that all Americans deserve the right to privacy. You see it in that sense journalistically being used to tamp down very important stories that a lot of people would suggest that they had the right to know about politicians.

SEAN SPEER: I recognize this is a big question, so I apologize in advance, but how have privacy protections evolved? Have they gotten stronger or weaker over time? In other words, Amy, is the right to know winning over the right to be left alone or vice versa?

AMY GAJDA: I would say right now, it is unclear which will win out. My worry is that the right to privacy is being used in very surprising ways to tamp down the right to know. Because we are so very concerned today—and “we” collectively—about data privacy, about our neighbours who might have doorbells that can record us about social media posts and things that are revealed there about people walking down the street or otherwise, there’s this real sense, I think, in the public’s mind that privacy is critically important.

You see this in court opinions as well because, of course, judges are people. It’s not surprising that they’re making the sorts of calls that they are, and that they’re writing the sorts of language that they’re writing. Yet, if you don’t fully understand the practice of journalism, some of this language can be very harmful to people just trying to do their job and work as journalists. I’ll give you just a very quick example.

This one is from a number of years ago now, but it involved an investigation by one of the networks in the U.S. into a prosecutor, who had exchanged graphic texts, including sending nude photos to someone he suspected or he thought apparently was 13 or 14 years old. The media showed up when police went to arrest him. He killed himself before he was arrested as the police were at his home.

His sister brought a claim for intentional and negligent infliction of emotional distress on his behalf. A court found that she had a viable claim there for emotional distress. The court suggested that this prosecutor had always had an outstanding record and that the media, by showing up as it did and working with a vigilante group that revealed this sort of behaviour online, that the media had violated its ethics principles.

What the judge did there was the judge used ethics against media to decide that this was proof. This helped prove then that the media was responsible for emotionally distressing this prosecutor. When I think about that case as a former journalist, I wonder if journalists knew about this case, how many would say, “Well, maybe I shouldn’t go to cover the arrest of a public official because maybe this language might be used against me someday.”

My worry then is that this right to privacy is being used in a way with real potential to harm what I would call “journalism,” not just publishing but journalism, and that the more courts understand the difference between what a journalist does and the difference between what a poster on Facebook does, the better off journalism will be with regard to that language in those court opinions.

SEAN SPEER: That’s a comprehensive answer. Thank you, Amy. At the risk of addressing a divisive topic, can you please help me and listeners understand the role of privacy in the Roe v. Wade decision on abortion rights and how the recent Dobbs decision, which overturned Roe v. Wade, directly targeted the previous interpretation about privacy? How, in other words, is the question of privacy implicated here?

AMY GAJDA: The question of privacy is implicated because, in the Dobbs majority, the justices decided that there are two ways that something can become a fundamental right in constitutional terms. Those two ways are that the right is explicit in the Constitution someplace. Here, the judges decided that this right to abortion, which had been cloaked with the right to privacy in this line of cases then, didn’t exist because it wasn’t explicit in the Constitution.

The second way that the justices in the majority and Dobbs suggested that there might be some fundamental right within the Constitution was if the information that something like abortion, that right then was deeply rooted in American history and traditions. Therefore, those justices suggested abortion was not deeply rooted in American history and tradition. Therefore, we’re not going to suggest that it’s a fundamental right in the Constitution.

What’s interesting and deeply troubling about the Dobbs decision is that the court suggests that there is this other right of privacy. It’s the right that we’ve been talking about today mainly. Abortion is more of a right to autonomy, the right to make important personal decisions without government interference is what the Dobbs majority said. That’s very different, the Dobbs majority suggests, from this other type of the right to privacy. That is, the Dobbs majority says, the right to shield information from disclosure.

That’s why I think looking back at the history of privacy and looking at what the Founders thought and going way back to even this first long-form newspaper will, in fact, potentially help convince the justices, maybe not the most skeptical, but hopefully will convince the judges that, in fact, there is a right to privacy that exists in the Constitution because we had that discussion among the Founders. Certainly, that’s been around for a while.

Where that might lead, I certainly have hopes that other rights that are founded on this same sort of privacy will, in fact, someday be upheld. Of course, I’m very worried about this. Yet, it’s intriguing to me that even the majority in the Dobbs case makes this distinction between this autonomy-related right to privacy and to implement important personal decisions without government interference and this right to shield information from disclosure, and where we go with that second potential fundamental right will be interesting.

SEAN SPEER: We’ve been looking backwards with respect to privacy. I want to look forwards. How does the internet in general and the rise of social media, in particular, affect how we think about privacy? What does it mean, Amy, when everyone is effectively a public figure?

AMY GAJDA: If we were having this discussion five years ago, I would say, “Boy, you’re right. Everyone’s a public figure.” There were court cases and there were that suggested that if someone had 100 friends that that instantly made them a public figure and certainly that their support for that in that if enough people know about you, this notion was then that you were instantly propelled in a sense into some level of celebrity and that, therefore, you had fewer rights to privacy and you also had a lessened ability to win a defamation case, for example.

There are very critical reasons why we need to compartmentalize people in that sense and decide whether or not they’re public figures. Now, I said that was five years ago. Very recently, some courts have shifted. I think they better understand how social media works. There’s a suggestion in a fairly recent case that a post on Facebook or on social media generally, if that post is intended for a very small audience of family and friends, for example, that that doesn’t give data brokers and others the ability to use that sort of information.

Intriguingly, five years ago, I said, “Yes, you got a Facebook account. You’re going to be a public figure potentially. Moreover, anything you post on Facebook is public and, therefore, you have no right to privacy in that information.” Well, again, now that judges better understand the way social media works and they better understand then the dangers of categorizing people in the wrong way, you get these sorts of much more protective decisions like the one I suggested.

SEAN SPEER: Let me put a penultimate question to you. Amy, you are a leading thinker on the subject of “the right to be forgotten.” What does that mean and how, if it comes to be codified in law or jurisprudence, will it affect the trade-offs that we’ve been discussing today?

AMY GAJDA: Looking back on my days as a journalist, whenever there was some newsworthy arrest, we would ask the police for a mugshot. This was just commonly done. We would get the mugshot. We would use the mugshot in our newscast and it would go away. Now, again, we would only ask for mugshots from newsworthy arrests. What’s happened since is courts have started to protect the right to privacy in precisely that sort of information and mainly because of what can be done with mugshots and criminal records 10, 20 years down the line.

You see language in court opinions in the United States today suggesting that individuals have a right to privacy in a mugshot even when they’re public officials or public figures, I should say, and public officials too, that there’s some level of privacy in that mugshot because they look so bad. Many look guilty and that mugshot can be used for, say, 10 or 20 years from that point to harm the individual.

In addition, there’s language in something called the “restatement,” which is like a treatise that judges across the United States and state and federal courts use when deciding privacy cases. The restatement suggests that as time goes by, there is a right to privacy in older information, including older criminal information. When I read this as a lawyer, I was shocked, of course, because, journalistically, I think we learned that, wow, crimes are part of the public record and that, therefore, you can report on past crimes.

This language in the restatement and also in very recent court decisions suggests that there is this right to be forgotten that’s bubbling and moving forward in a sense in the United States. That’s a really good example, I think, of the way journalists who are just trying to do their job might, in fact, get into this privacy tangle, unsure if something that’s five years old is too old, or is that new enough to report? Again, these decisions are not across the board. They’re not statewide certainly in the United States, but you get that sort of language much more routinely today than you did in the past.

SEAN SPEER: That leads to my final question. What do your former journalistic colleagues think about the book? Have you gotten any feedback?

AMY GAJDA: That’s a really wonderful question too. I do sense some prickliness from some of my former colleagues. I think part of the reason is that if you learn the craft of journalism in a way that celebrates truth, and certainly that’s how I learned it, it’s difficult to try to wrap your head around this idea that some truth goes too far and that the internet itself is creating more and more opportunities for courts to draw that line, whereas in the past what I call mainstream media then never cross the line. Therefore, courts never had the opportunity to do this. It’s often surprising when I speak with journalists about these ideas. They’re surprised that this exists. I think they’re concerned and maybe in a sense also just a little bit concerned that I’m, in effect, reporting on this and revealing ways that courts are suggesting there’s potential liability for these days.

SEAN SPEER: Well, this has been a fascinating conversation. The book is Seek and Hide: The Tangled History of the Right to Privacy. Amy Gajda, thank you so much for joining us at Hub Dialogues.

AMY GAJDA: Thank you. It’s been a pleasure.

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