Facebook and the Social Dynamics of Privacy James Grimmelmann* Draft — August 25, 2008 This Article provides the

first comprehensive analysis of the law and policy of privacy on social network sites, using Facebook as its principal example. It explains how Facebook users socialize on the site, why they misunderstand the risks involved, and how their privacy suffers as a result. Facebook offers a socially compelling platform that also facilitates peer-to-peer privacy violations: users harming each others’ privacy interests. These two facts are inextricably linked; people use Facebook with the goal of sharing some information about themselves. Policymakers cannot make Facebook completely safe, but they can help people use it safely. The Article makes this case by presenting a rich, factually grounded description of the social dynamics of privacy on Facebook. It then uses that description to evaluate a dozen possible policy interventions. Unhelpful interventions—such as mandatory data portability and bans on underage use—fail because they also fail to engage with key aspects of how and why people use social network sites. The potentially helpful interventions, on the other hand—such as a strengthened public-disclosure tort and a right to opt out completely—succeed because they do engage with these social dynamics. I. INTRODUCTION .............................................................................................................2 A. Definitions..........................................................................................................................4 B. Facebook ............................................................................................................................5 II. THE SOCIAL DYNAMICS OF PRIVACY ON FACEBOOK ......................................................9 A. Motivations ...................................................................................................................... 11 B. Risk Evaluation................................................................................................................. 17 C. Harms .............................................................................................................................. 20 III. WHAT WON’T WORK ................................................................................................ 30 A. Market Forces .................................................................................................................. 31 B. Privacy Policies ................................................................................................................. 33 C. Technical Controls........................................................................................................... 35 D. Commercial Data Rules................................................................................................... 38 E. Use Restrictions................................................................................................................ 39 F. Data “Ownership”............................................................................................................ 41 IV. WHAT WILL (SOMETIMES) WORK ............................................................................. 43 A. Public Disclosure Torts..................................................................................................... 44 B. Rights of Publicity............................................................................................................. 45 C. Reliable Opt-Out ............................................................................................................. 46 D. Predictability.................................................................................................................... 47 E. No Chain Letters.............................................................................................................. 48 F. User-Driven Education ..................................................................................................... 49 V. CONCLUSION.............................................................................................................. 51

Associate Professor of Law, New York Law School.


I. INTRODUCTION The first task of technology law is always to understand how people actually use the technology. Consider the phenomenon called “ghost riding the whip.” The Facebook page of the Ghost Riding the Whip Association links to a video of two young men who jump out of a moving car and dance around on it as it rolls on, now driverless. If this sounds horribly dangerous, that’s because it is. At least two people have been killed ghost-riding1, and the best-known of the hundreds of ghost-riding videos posted online shows a ghost rider being run over by his own car.2 Policymakers could respond to such obviously risky behavior in two ways. One way—the wrong way—would treat ghost riders as passive victims. Surely, sane people would never voluntarily dance around on the hood of a moving car. There must be something wrong with the car that induces them to ghost ride on it. Maybe cars should come with a “NEVER EXIT A MOVING CAR” sticker on the driver-side window. If drivers ignore the stickers, maybe any car with doors and windows that open should be declared unreasonably dangerous. And so on. The problem with this entire way of thinking is that it sees only the car, and not the driver who lets go of the wheel. Cars don’t ghost ride the whip; cars people ghost ride the whip. To protect drivers from the dangers of ghost riding, policymakers would be better off focusing on the ghost riders themselves. What motivates them? Why do they underestimate the risks? When they get hurt, what went wrong? Engaging with ghost riders’ world-views suggests modest, incremental policies appropriate to the ways in which they use automotive technology. Reduce ghost riding’s allure; help its practitioners appreciate the dangers; tweak car design to help drivers regain control quickly.3 The key principle is to understand the social dynamics of technology use, and tailor policy interventions to fit. This Article applies that principle to a different problem of risky technology use: privacy on Facebook. Think again about the Ghost Riding the Whip Association video. Anyone with a Facebook account, including police and potential employers, can easily identify the two ghost riders by name. Not only did these men misunderstand the physical risks of ghost riding, they also misunderstood the privacy risks of Facebook. They’re not alone. Over a hundred million people have uploaded personally sensitive information to Facebook, and many of them have been badly burnt as a result. Jobs have been lost, reputations smeared, embarrassing secrets broadcast to the world. It’s temptingly easy to pin the blame for these problems entirely on Facebook. Easy—but wrong. Facebook isn’t a privacy carjacker, forcing its victims into compromising situations. It’s a carmaker, offering its users a flexible, valuable, socially compelling tool. Its users are the ones ghost riding the privacy whip, dancing around on the roof as they expose their personal information to the world. Thus, if we seek laws and policies that mitigate the privacy risks of Facebook and other
See Garance Burke, ‘Look Ma - No Hands!’, STAR-LEDGER (N EWARK), Dec. 30, 2006 § News 27. Ghost Ride the Whip, FUNNYO RDIE, http://www.funnyordie.com/videos/428d3416c0. 3 For example, the videos and press accounts suggest that high-speed, showy ghost riding is much more dangerous than low-speed ghost riding in an open, flat space. It’s also evident that ghost riding is a cultural phenomenon, united by two pro-ghost-riding rap songs, and that the videos are the key form of showing off. Thus, rather than trying to stamp out all ghost riding, safety-conscious police would want to focus on high-profile ghost riders posting online videos of themselves doing particularly unsafe tricks with fast-moving cars. They’re greater direct risks, and they’re more appealing to potential copycats.
1 2


social network sites, we need to go through the same social and psychological analysis. What motivates Facebook users? Why do they underestimate the privacy risks? When their privacy is violated, what went wrong? Responses that don’t engage with the answers to these questions can easily make matters worse. Consider, for example, technical controls: switches users can flip to keep certain details from being shared in certain ways. Facebook is Exhibit A for the surprising ineffectiveness of technical controls. It has severe privacy problems and an admirably comprehensive privacyprotection architecture. The problem is that it’s extraordinarily hard—indeed, often impossible—to translate ambiguous and contested user norms of information-sharing into hardedged software rules. As soon as the technical controls get in the way of socializing, users disable and misuse them. This story is typical; other seemingly attractive privacy “protections” miss essential social dynamics. Thus, this Article will provide the first careful and comprehensive analysis of the law and policy of privacy on social network sites, using Facebook as its principal example. The rest of Part I will provide the necessary background. After clearing up the necessary terminology, it will provide a brief history of Facebook and other social network sites. Part II will then present a rich, factually grounded description of the social dynamics of privacy on Facebook. Section II.A will explain how social network sites let people express themselves, form meaningful relationships, and see themselves as valued members of a community. Section II.B will show how these social motivations are closely bound up with the heuristics people use to evaluate privacy risks, heuristics that often lead them to think that Facebook activities are more private than they actually are. Section II.C will finish by examining the privacy harms that result. The message of Part II is that most of Facebook’s privacy problems are the result of neither incompetence nor malice; instead, they’re natural consequences of the ways people enthusiastically use Facebook. Having described the social dynamics of privacy on Facebook, the Article will apply that description in Parts III and IV, distinguishing helpful from unhelpful policy responses. Part III will be negative; it show how badly wrong policy prescriptions can go when they don’t pay attention to these social dynamics. • Leaving matters up to “the market” doesn’t produce an optimal outcome; users’ social and cognitive misunderstandings of the privacy risks of Facebook won’t disappear any time soon. • “Better” privacy policies are irrelevant; users don’t pay attention to them when making decisions about their behavior on Facebook. • “Better” technical controls make matters worse; they cram subtle and complicated human judgments into ill-fitting digital boxes. • Treating Facebook as a commercial data collector misconstrues the problem; users are voluntarily, even enthusiastically asking it to share their personal information widely. • Trying to restrict access to Facebook is a Sisyphean task; it has passionate, engaged users who will fight back hard against restrictions. • Giving users “ownership” over the information they enter on Facebook is the worst idea of all; it empowers them to run roughshod over others’ privacy.


Part IV, on the other hand, will be positive; it will show how proposals that do engage with Facebook’s social dynamics can sometimes do some good. Each of these proposals seeks to reduce the gap between what users expect to happen to their personal information and what does happen to it. • Not everything posted on Facebook is public. Users shouldn’t automatically lose their rights of privacy in information solely because it’s been put on Facebook somewhere. • Users’ good names are valuable. There’s a commercial reputational interest in one’s Facebook persona, and using that persona for marketing purposes without consent should be actionable. • Opt-outs need to be meaningful. People who don’t sign up for Facebook, or who sign up but then decide to quit, deserve to have their choice not to participate respected. • Unpredictable changes are dangerous. Changes that pull the rug out from under users’ expectations about privacy should be considered unfair trade practices. • Strip-mining social networks is bad for the social environment. Bribing users to use a social network site—for example, by giving them rewards when more of their friends sign up—creates unhealthy chain-letter dynamics that subvert people’ relationships with each other. • Education needs to reach the right audiences. Targeted efforts to explain a few key facts about social network site privacy in culturally appropriate ways could help head off some of the more common privacy goofs users make. Finally, Part V will conclude with a brief message of optimism. A. Definitions I’ll refer to Facebook and its competitors as “social network sites.” The phrase captures the idea that Facebook and its competitors are web sites designed to be used by people connected in “a social network,” a term used by sociologists to refer to the structure of interactions of a group of people.4 I’ll rely on danah boyd and Nicole Ellison’s definition of “social network sites” as: web-based services that allow individuals to (1) construct a public or semi-public profile within a bounded system, (2) articulate a list of other users with whom they share a connection, and (3) view and traverse their list of connections and those made by others within the system.5 This definition emphasizes the explicit representation of connections among users. I don’t just write nice things about you on the site; I use the site’s tools to create a standardized link from my
See generally LINTON FREEMAN, T HE DEVELOPMENT OF SOCIAL NETWORK ANALYSIS (2004) (describing history of “social network analysis” in social science). Sometimes, people refer to Facebook as a “social network,” but that usage introduces an ambiguity whenever we want to distinguish between the map (Facebook) and the territory (the relationships among people). 5 danah m. boyd & Nicole Ellison, Social Network Sites: Definition, History, and Scholarship, J. COMPUTER-MEDIATED COMM . 13(1) art. 11 (2007), http://jcmc.indiana.edu/vol13/issue1/boyd.ellison.html. boyd and Ellison use “social network site” rather than “social networking site” because “participants are not necessarily ‘networking’ or looking to meet new people; instead, they are primarily communicating with people who are already a part of their extended social network.”


profile to yours. Social network sites make the graph structure of social networks explicit; users are nodes and connections are links.6 This design choice has profound implications for the social interactions that take place on such sites. The definition’s three prongs correspond to three important aspects of the social interactions such sites enable. The first prong—profiles—emphasizes identity: Users create profiles that represent themselves. The second prong—contacts—emphasizes relationship: Users establish one-to-one connections with others. The third prong—traversing lists of contacts—emphasizes community: Users occupy a specific place among their peers. (Loosely speaking, one could think of these aspects as corresponding to the first, second, and third persons: I, you, them.) I’ll use this tripartite structure repeatedly when discussing what people do on social network sites and what privacy on them looks like. I’ll use the term “contact” to describe a user with whom one has an explicit link on a social network site; it’s more neutral about the nature of the relationship than the terms used by many sites, such as “friend.” The set of one’s contacts on a social network site is well-defined; each other user is either a contact or not. On some sites, such as Facebook, being a contact is a symmetrical relationship; if I’m a contact of yours, you’re a contact of mine. On other sites, such as LiveJournal, the relationship can be asymmetrical; I can add you as a contact without you adding me as one.7 Some sites let users annotate their links so they convey more information than the binary contact/not-a-contact distinction; for example, Orkut lets users indicate that they are “fans” of particular contacts. The “social graph” is a term commonly used to refer to the entire network of users and explicit contact links on an entire social network site, or, by metonymy, to the idealized network of users and explicit contact links that would exist if all significant human relationships were stored in the same site.8 When we speak of a user’s “social network” in the context of a specific site, we usually mean something fuzzier and more subjective: the set of people with whom one interacts on the site, even if infrequently, and whether or not they are listed as contacts. Facebook confuses matters by referring to a “network” of all users associated with a given institution, e.g. a user’s “Barnett College network” is the set of the user’s contacts who have indicated that they are affiliated with Barnett College. Social network sites are only one kind of “social software,” defined by Clay Shirky as “software that supports group interaction.”9 B. Facebook Social network sites date to the late 1990s. Some early sites have since closed,10 but others, like LiveJournal, are still successful today.11 Social network sites started to enter American

See generally ALBERT-L ÁSZLÓ BARABÁSI, LINKED 16-18 (explaining usefulness of graph theory in modeling realworld social networks). 7 Graph theorists would say that a social network site could have either directed or undirected links. 8 See, e.g., Brad Fitzpatrick, Thoughts on the Social Graph, http://bradfitz.com/social-graph-problem/. 9 Clay Shirky, Social Software and the Politics of Groups, NETWORKS, ECONOMICS, AND CULTURE M AILING LIST (Mar. 9, 2003), http://www.shirky.com/writings/group_politics.html. Other kinds of social software include blogs, wikis, and media-sharing sites like Flickr and YouTube. 10 See boyd & Ellison, supra note __. 11See LiveJournal.com Statistics, LIVEJOURNAL, http://www.livejournal.com/stats.bml (claiming 1.8 million active accounts).


FACEBOOK HELP CENTER . 20 Carolyn Abram. 2006). took its name (originally “TheFacebook. RU Kidding Me?. some of the privacy settings it offers allow users to restrict access to certain information to members of one of their Networks. http://www.13 Instead.danah.22 For example. you need an email address associated with that institution. http://www.”) Facebook applies this policy rigorously almost to the point of absurdity. 2005). http://emptyage. many other social network sites. 12 6 . http://www. only people with an @barnett. launched in February 2004. EMPTYAGE. your affiliation with any person or entity [and not to] create a false identity on the Service or the Site. http://www.com/ (providing directory of 3701 social network sites). 2008.php. Sirius sign up under that name.Y. Friendster Lost Steam. Facebook was claiming that 85% of all students at the 882 colleges it supported had Facebook profiles. There are many. 21. A Network is a collection of users with a school.CO. FACEBOOK BLOG (Sept.17 The site. current and complete information about you [and not to] misrepresent .19 It opened to high school students that same month. 2007.html 14 Catherine Holahan. FACEBOOK (June 7. 1.php?post=2210227130.200 students.23 Facebook’s pace of innovation is so blistering that it’s not uncommon to log into the site danah michele boyd.newmedia. 2004 CONF.com/networks/networks. 12 A series of technical problems and community management missteps kept Friendster from fully exploiting its extensive press coverage.new. 7. Friendster and Publicly Articulated Social Networks. MySpace: My Portal?.edu address could access profiles in the (hypothetical) Barnett College Network.businessweek.com/terms. supra note __ (“[Y]ou agree to (a) provide accurate. Backing up this rule.com/help. 23 Terms of Use.16 Facebook was created by an ambitious Harvard student.php?page=403. It refused to let the writer R. it had signed up 1.mass popular consciousness with Friendster in 2002.20 Facebook’s roots as a college-based service as still visible in the key role it assigns to Networks.techcrunch. 26. G UARDIAN. June 12.net/mth/2008/07/ru-kidding-me. Who Found the Bright Idea?. July 26.uk/technology/2007/jul/25/media. to anyone with an email address willing to claim to be 13 or older. 2008. or region in common. Is MySpace Just a Fad? (Mar.18 It rapidly expanded to provide “networks” for students at other colleges. Everyone. FACEBOOK.danah. FACEBOOK .html.guardian.org/papers/FriendsterMySpaceEssay. http://www. within a month. at C1 (discussing competing claims to the “original college social networking system”). even though he’d written six books and hundreds of articles under it and he uses it in everyday life. a year later.UK. and it shows.honan. MySpace (over 100 million users14) and Facebook (over 80 million15) ate Friendster’s lunch.org/papers/CHI2004Friendster.21 To gain access to a college or company network. http://www.facebook.COM . http://blog. by September 2005.co.php. 85% of College Students Use Facebook. 18 Sarah Phillips.facebook. 2008). Mat Honan. 19 Michael Arrington. 22 Networks. A Brief History of Facebook. 2007). but I’ll draw most of my examples from these four.com/technology/content/jun2008/tc20080612_801233. TIMES. 15 Statistics.com”) and inspiration from the books of student headshot photos and basic biographical data distributed to Harvard students to tell them about each other. workplace. . Sept. Welcome to Facebook. BUSINESSWEEK.facebook.facebook. TECHCRUNCH (Sept. half the undergraduate population.com/press/info..digfoot. Terms of Use.com/blog.php?statistics. ON HUM. and then. Within a day. 2006).U. Mark Twain and George Eliot would have been amused. 13 danah boyd.pdf. 21 See Networks on Facebook. 16 See DIGF OOT . F ACTORS & COMPUTER SYS. N. 17 John Markoff. http://www. http://www.htm. the terms of use repeatedly forbid signing up with false information. http://www.facebook. 60% of whom logged in daily.com/2005/09/07/85-of-college-students-use-facebook/. . http://www. (July 25.

net/images/gifts/532. APOPHENIA (Sept. FACEBOOK DEVELOPERS WIKI. which developers use to create Applications that plug seamlessly into the Facebook site. http://www.com/gadgets/mac/magazine/15-11/ps_macicons (profiling designer of Facebook Gift icons). classified ads and an application API. 08 CIV 6567 (S. Sept. Inc. and Drama. O’REILLY R ADAR.N. In Online Social Club. INFORMATION WEEK (Sept.37 Some of the more notable applications include: • Scrabulous. 2007). No.31 You’d see that Seth’s relationship status had changed.” 27 Users can also send each other Gifts (actually 64x64 pixel icons) for $1. 8.D. among other things. v. Facebook made that stream visible to users.html. http://wiki. WIRED (Nov. 27 Pokes. 38 See Hasbro.danah. whose only message is “You were poked by ____. P OST.com/help.html (“What happened with Facebook was not about a change in the bit state .com/. 34 Facebook Platform.png. see also Steve Silberman. 39 Scrabulous. FACEBOOK HELP CENTER . 24 7 .com/index.facebook. 35 API .scribd. 2008).facebook. F ACEBOOK DEVELOPERS WIKI. 2006).35 along with a custom markup language so that the application’s notifications and interface are shown to users with Facebook look and feel.php?page=407.and see that part of the interface has changed overnight to offer a new feature. instant messaging.29 If it’s someone on Facebook. FACEBOOK DEVELOPERS. video-sharing. Invasion. FACEBOOK HELP CENTER .developers.33 Facebook’s most technologically interesting feature is its Platform. Facebook Founder Apologizes In Privacy Flap. http://www.facebook.34 The Platform provides developers an interface to issue instructions to Facebook and gather information from it. Users Given More Control. http://www.informationweek. and so on.oreilly. The announcement of the change generated an uproar over the panoptic privacy implications. 2006.24 Each user’s profile page has a Wall.facebook.com/index.com/help. Bad News about Facebook Application Market: Long Tail Rules. in which each user controls a zombie that can bite other users’ zombies. complaint filed July 24. imaginatively named Photos.php?page=408. 36 FBML.com/2007/10/good-news-bad-news-about-faceb.com/applications/Scrabulous/3052170175. that Gwen gave Marcia a gift. http://www. All of these activities generate a rich stream of event notifications. http://www. FACEBOOK HELP CENTER. Facebook at first defended itself by saying that the information had always been available. http://www.com/doc/4083968/hasbro-v-scrabulous..00 each.wired. 37 Tim O’Reilly.php?page=443. 26 Messages and Inbox . http://wiki.”) 33 Antone Gonsalves.36 There are now thousands of applications. the name becomes a link to their profile. http://static. http://www. group pages. It’s added. F ACEBOOK HELP CENTER .php?page=412. that Fred wrote on Shari’s Wall.32 Then it partially backed off.com/help. a hugely popular (and possibly infringing38) implementation of Scrabble. 8. users could simply have looked at the changed profiles directly. 7.org/papers/FacebookAndPrivacy.com/help.39 • Zombies.30 Each user’s home page displayed a News Feed: a list of the most recent notifications from their contacts.ak. email-like Message system.28 There’s a photo-sharing feature. http://www. 31 News Feed and Mini-Feed. http://www.it was about people feeling icky. 30 Susan Kinzie & Yuki Noguchi. F ACEBOOK HELP CENTER. Good News. 28 Gifts .Y. http://radar. FACEBOOK.php?page=406.40 MySpace has also been an aggressive innovator.26 and the Poke system. where other users can post messages. WASH. with a clever tagging system: Click on a face in a photo—even one posted by someone else—and you can enter the person’s name. In September 2006.fbcdn. Sharing Is the Point Until It Goes Too Far. 25 Wall . 2006).facebook.facebook. http://developers. a few of which are runaway successes. at A1. F ACEBOOK HELP CENTER.php/FBML.facebook. 29 Photos. allowing users to exclude various items from showing up in others’ News Feeds. The Mother of All Happy Macs Gives the Gift of Web 2.jhtml?articleID=192700574. Faeebook’s “Privacy Trainwreck”: Exposure.facebook.com/help. RJ Softwares.php/API.0.25 There’s also a private.com/news/internet/ebusiness/showArticle.developers. http://www. 32 But see danah boyd.facebook.

a system that allows third-party web sites to send event notifications to Facebook. N. Harris v. “Ever wanted your own Facebook app? Too lazy to code? This app's for you! Use this app to create your very own quiz app by filling out a few easy forms!”42 Applications can be connected to almost every aspect of one’s Facebook experience. 49 Louise Story & Brad Stone.D. Mark Zuckerberg. 18 U.html. http://www. Causes. F ACEBOOK. Facebook now sports an extensive set of options to let users customize what data about them applications can see and what aspects of their Facebook presence Applications are allowed to spam with messages. 2007. Viewing American Class Divisions Through Facebook and MySpace (June 24.. 30. 50 danah boyd.47) Beacon launched with a clearly ineffective opt-out: A transient pop-up window treated inaction as consent. http://www.com/applications/Zombies/2341504841. supra note__. 40 41 8 . 2007).com might send a message that a user of its site has reviewed a recipe. 23. 51 Hargittai. 45 See Jay Goldman.52 but Facebook’s Zombies. http://www. Epiciurious. http://www.facebook. 2:08cv-0155-DF (E.com/applications/Causes/2318966938.com/business/?socialads.43 In November. 42 Quiz Creator .net/archive/2007/12/10/facebook_and_the_vppa_uhoh. One of Facebook’s Beacon partners is Blockbuster. 2007. the message will be associated with her and will show up in her News Feed.C. FACEBOOK PRESS ROOM (Nov. 73 and Loaded with Friends on Facebook. http://www.S. and donate money. find other users who support the same causes. See James Grimmelmann.facebook.com/help.facebook. Blockbuster. 47 Facebook Social Ads. 2007). Thoughts on Beacon. FACEBOOK. http://www. complaint filed Apr. Facebook unveiled Beacon. 2007.facebook.49 One way of thinking about the distinction between Facebook and MySpace is that Facebook has fashioned itself around the institution of college. http://www. TIMES. Facebook Retreats on Online Tracking.danah. Nov. 52 See John Schwartz. 44 Leading Websites Offer Facebook Beacon for Social Distribution.facebook. which lets users display their social commitments.php?post=7584397130. 14. Oct.com/press/releases. Tex. then offers the third party affiliates the option of showing related ads to her contacts when they see the notification in her News Feed.com/blog. FACEBOOK BLOG. 2007).ethanzuckerman. 48 Ethan Zuckerman. 46 Facebook Beacon. No.48 After dealing with yet another public outcry.php?page=419.44 Through clever programming. 9.• Causes. FACEBOOK BUSINESS SOLUTIONS . For example. and there was no way to disable Beacon prospectively except on a site-by-site basis as each site tried to send notifications. Inc. 43 See Privacy.com/business/?beacon. Facebook implemented better opt-out procedures.50 There are plenty of college students on MySpace51 and plenty of non-college students on Facebook.radiantcore. which asks. FACEBOOK BUSINESS SOLUTIONS . F ACEBOOK.com/blog/archives/23/11/2007/deconstructingfacebookbeaconjavascript (documenting iframe/cookie-injction mechanism by which Beacon works). FACEBOOK HELP CENTER .45 if the user is also logged into Facebook. Causes writes to your profile page and News Feed whereas Zombies builds a list of your contacts so you can decide whom to bite.org/papers/essays/ClassDivisions.46 (An additional Facebook program.facebook. M Y HEART ’S IN ACCRA (Nov. 2008). Facebook Changes the Norms for Web Purchasing and Privacy. http://www. http://www. at C1. http://blog. 2007). 15. TIMES.com/blog/2007/11/15/facebook-changes-the-norms-for-web-purchasing-andprivacy/. Social Ads.Y. For example. http://laboratorium.facebook. Facebook and the VPPA: Uh-Oh.php?p=9166.41 and • Quiz Creator. RADIANT CORE (Nov. T HE LABORATORIUM.facebook. § 2710. http://www.Y. N. the process of sending notifications about video rentals through Beacon violates the Video Privacy Protection Act.com/applications/Quiz_Creator/6016992457. 6. Deconstructing Facebook Beacon JavaScript.

Invites.php (search for users).facebook. the United States-based Orkut never caught on big at home. A study of college students found that women are more likely to use them than men. BUSINESS WEEK. sex. sexual preference and relationship status. educational and employment history. 56 Eszter Hargittai.php?page=6 (invite others to join Facebook). Friendster Lost Steam (describing how MySpace’s lack of “parsability” adds to its “subcultural capital”). 59 See Friends. COMPUTER-MEDIATED COMM .facebook.berkeley. 13(1) art. People You May Know.com/findfriends. allows users nearly limitless freedom to customize their profile page’s design by entering raw HTML. Another is that there are substantial demographic variations in social network site usage whose causes and consequences are not well understood. Whose Space? Differences Among Users and Non-Users of Social Network Sites. 14 (2007). http://www.edu/vol13/issue1/hargittai. of course. MySpace pages are often hideous but self-expressive like a sticker-laden high-school locker.html (“In MySpace. these elements can only appear in Facebookapproved locations and sizes. Oct. favorite books. 2008). such applications should be grounded in careful study of local patterns of social network site use. http://blog. F ACEBOOK HELP CENTER . Google’s Orkut: A World of Ambition. http://www. 53 54 9 . birthday.cultural norms reflect the collegiate experience in a way that MySpace’s don’t. those under 30) in Anglophone countries.com/theshow/archives/2006/07/071406. F ACEBOOK. http://www. boyd. F ACEBOOK HELP CENTER.zefrank. which give a reasonable cross-section of what a profile page looks like.pdf . One reason for this limit is a paucity of source in translation.54 The result is that Facebook pages have the clean lines of a modernized college dorm. online and offline contact information. http://www. Copy and Paste Literacy: Literacy Practices in the Production of a MySpace Profile.facebook.html.facebook. picture. II.edu/~dperkel/media/dperkel_literacymyspace. See Dan Perkel. MySpace. THE SOCIAL DYNAMICS OF PRIVACY ON FACEBOOK Facebook knows an immense amount about its users. Viewing American Class Divisions. and. http://jcmc. but its popularity in Brazil has been a springboard to success in Latin America and Asia.55 This Article will primarily discuss the social dynamics of social network site use among young people (roughly. 58 Mockups of its impending (as of July 2008) redesign.56 Similarly. are available at http://www.”). while users and Applications can add text and pictures to a profile. But ugly as a representation of mass experimentation and learning is pretty damn cool. 55 See Ze Frank.php?post=15610312130 (get suggestions from Facebook).59 By the time you’re done. Facebook’s user interface is tightly-controlled. J. but in keeping with this Article’s thesis. http://people. Friend Finder. millions of people have opted out of pre-made templates that "work" in exchange for ugly.com/FacebookPreviews. A fully filled-out Facebook profile contains about 40 pieces of recognizably personal information. Ugly when compared to pre-existing notions of taste is a bummer.com/FacebookPreviews (suggest contact to current contacts). and that Hispanics were more likely to use MySpace and less likely to use Facebook than whites were. http://www. boyd. including name.businessweek.indiana. on the other hand. supra note__.com/help. FACEBOOK BLOG (May 1.ischool.53 The difference is also visible in their appearance. and so on. Florin Ratiu.htm. Facebook has a reasonably comprehensive snapshot both of who you are and of who you know. The Show: 07-14-06. 2007. 57 Olga Kharif.facebook.58 Facebook then offers multiple tools for users to search out and add potential contacts. 8. political and religious views.com/technology/content/oct2007/tc2007107_530965.com/blog. movies.57 It may be possible to apply the lessons of this Article to other countries and cultures.

60 10 . Privacy 3. 1 Cal. 1991) (enjoining employer from using personality test that included religious questions)..” the most sensitive of four categories of personal information and the one requiring the greatest legal protection). INT’L CONF. 37 F. and permits a reasonable inference that I was the photographer. about the postee (another asked about my beard).66 Now multiply this depth of information by eighty million users. 64 See Handschu v.pdf. 28 BULL. or induction [into the United States military] shall not be asked or required to reveal their sexual orientation . App.org/papers/HICSS2006. 61 See. choosing one gift over another (e.. • If I Poke you. or about both (a third mentioned a course we’d taken together in college). It also documents that I know you. Can You See Me Now? Audience and Disclosure Regulation in Online Social Network Sites. • Each game of Scrabulous you play gives some hints about your vocabulary. and preferences. 27-31 (2008) (finding that two-thirds of students surveyed indicated “romantic status and sexual orientation” on their profiles and half indicated their religion).cgi?article=1000&context=andrew_serwin (classifying such information in “Tier 1. v. and I’m thinking about you.1 (July 11. • Quiz Creator may not necessary say much about the people who write quizzes.S. danah boyd & Jeffrey Heer. http://works. . Corp.bepress. 86 (Ct. http://www. Special Servs. Andrew Serwin.2.63 events attended.64 and appearance65—as personal. Consider again the features and applications described above.”) 63 See NAACP v.g. and your Facebook presence says quite a lot about you.g.. Each of them serves as a conduit for information-sharing: • Wall posts can contain information about the poster (one contact who posted on my Wall mentioned an upcoming trip to Pisa). SCI. LEXIS 43176 (2007) (monitoring New York Police Department’s compliance with consent decree and guidelines preventing certain forms of police photography and videotaping at protests). 20. (2006). ON SYS. Profiles as Conversation: Networked Identity Performance on Friendster.com/cgi/viewcontent. Put it all together. it’s true there’s not that much sensitive information in the fact that I have only a Level 1 Ensign Zombie (especially once I add that I play Zombies only for research purposes). 2203 (CSH). • The payment infrastructure required by Gifts provides stronger links between a profile and offline identities. SCI. 2d 77.0: The Principle of Proportionality 27-30 (draft). but the whole point of answering a quiz is to reveal things about your knowledge.g. Zeynep Tufekci. & SOC. 2d 472 (1999) (preventing public disclosure of mug shot). United States DOJ.danah. 71 Civ. 2007 U. a “Get Well” balloon rather a lipstick kiss or a dreidel) has a meaning that at least one other person understands.8. HAW. it indicates that I’m online. 357 U. Dayton Hudson Corp. No.62 group memberships. at E2. • Your list of Causes tells others what principles are meaningful to you. appointment. Soroka v. 65 See Times Picayune Publ'g. e. e. 62 See DoDI 1304. TECH..60 Now. it documents what you look like and some place that you’ve been. . Dist. 449 (protecting NAACP membership lists against compelled disclosure). Rptr.S. as does the personalized message accompanying it.26. e. beliefs. Supp. But the law often treats many of the other facts in a typical profile—including religious affiliation61. .g. 66 See. and bars attempts to discover or disclose them. Div. See. • If I upload and tag a Photo of you. 2007) (“Applicants for enlistment.The profiles and links are only the beginning. in PROC. Alabama. sexual orientation. Playing a hundred games of Scrabulous also says something different about your personality than having a level 8 Zombie does.

Since Friendster didn’t allow users under 18.74 Burning Man attendees. 30.typepad. listed their festival See generally HOWARD RHEINGOLD. 74 boyd & Heer. Motivations People have been using computers to socialize for a long time. 2007). BUZZ CANUCK (Aug. Friendster Lost Steam. everything from your chat nickname to your home page can be used to influence how other people think of you. and these social motivations explain both why users value Facebook notwithstanding its well-known privacy risks and why they systematically underestimate those risks. Erving Goffman observed that daily social interactions are full of attempts. boyd.html. supra note __. 13 (2007).72 Each additional datum is a strategic revelation. Profiles as Conversation.70 Social network sites offer a gloriously direct tool for what Goffman calls “impression management”: the profile page. http://www. on the other hand.This flood of personal information presents us with a puzzle: Why do so many Facebook users entrust it with so much personal information? The answer is that people have social reasons to participate on social network sites. 70 See P ATRICIA WALLACE: T HE PSYCHOLOGY OF THE INTERNET 28–37 (1999). 16-year-olds would list their age as 61. it instead lets users communicate “prestige.edu/vol13/issue1/liu.68 In this Section.”) 69 See ERVING GOFFMAN . 2008). 67 68 11 . http://buzzcanuck. supra note __ (“Social technologies succeed when they fit into the social lives and practices of those who engage with the technology. 13(1) art. I’ll detail three ways in which Facebook scratches its users’ social itches. COMPUTER 294-96 (1996) (describing rapid adoption of email in 1970s). each depends on the personal information of other users.71 Many users choose the most flattering photograph of themselves they can. The fact that half the “Personal” fields on a Facebook profile involve favorite forms of media isn’t an expression of consumerism. one more daub of paint in your self-portrait.73 These messages aren’t universal. forge reciprocal relationships. to convince others to accept your claims about yourself. Social Network Profiles as Taste Performances. even primal. COMPUTER MEDIATED COMM . THE VIRTUAL COMMUNITY (1993). See MARTIN CAMPBELL-KELLY & WILLIAM ASPRAY. 72 See Kristy Ward. and accumulate social capital.com/agentwildfire/2007/08/65-ways-to-post. Each drives users to release personal information. authenticity. A. http://jcmc. 71 See 65 Ways to Post a Facebook Profile Picture.indiana. so does your choice of profile photo. human desires.html.php?option=com_content&task=view&id=20014&Itemid=151 73 Hugo Liu. THE PRESENTATION OF SELF IN EVERYDAY LIFE (1959) (applying “dramaturgical” perspective to daily social interactions). THE CHARLATAN (Mar. large and small. Faecbook’s profile fields aren’t a list of the things most important to its users.67 and new forms of social software take off when they offer users something socially compelling. J. whose immediacy can trigger systematic biases in the mechanisms people use to evaluate privacy risks.charlatan. they’re a list of the things its users most want to say about themselves. 1. Identity The first social factor is the easiest to see: A social network site lets you say who you are. 20.69 Online interactions are no different. Facebook provides users with a forum in which they can craft social identities.ca/index. a code understood by other teens. These are important. and theatrical persona” using a common cultural language. Just as your choice of clothing and hairstyle also signals how you think of yourself (and want others to think of you). differentiation. they’re self-consciously coded for particular audiences. The Psychology of Facebook.

“I found about 630 Dmitri Medvedevs” on Odnoklassniki. . J ULIAN DIBBELL .”).81 (Friendster called its profile comments “Testimonials. 85 See.g. MY TINY LIFE 235–63 (describing author’s online romance). J.. I personally like “Dave Sarfur” on Facebook. 2006. 133-39 (1998) (describing romances and weddings carried out via telegraph). TIMES. LIFE ON THE SCREEN: RDENTITY IN THE A GE OF THE INTERNET 178 (1995). REV. FIRST MONDAY (Dec. You are who you present yourself as. but also constitutive of it. BT TECH.77 Thus. you’re See. in the context of the site. N. at 71 (Oct. 2008) (describing Fakester phenomenon). L. at 20 (describing “heart-to-heart contact” online). Joining a Darfur Action Group doesn’t just encourage your contacts to save Darfur. 78 See Alex Williams. Apr.” and “role-playing. § 9 at 1 (quoting experts describing “digital self-portraiture” on social networking sites as “self-branding.85 Some social network sites see themselves as a way to meet new people. None of This Is Real. 4.83 Communications technologies have been connecting people since long before the Internet. at A12 (quoting Russian president-elect as saying. THE VICTORIAN INTERNET 127–29.Y. 18.84 and many authors have noted the strength of online relationships. TIMES. Sharing information about yourself is a basic component of intimacy. TOM STANDAGE.friendster.75 or an unauthorized profile claiming to be a celebrity. names that would mean nothing if you weren’t also a “Burner. Beer Goggles.79 and the paper-doll aspect of a social network site profile encourages this dynamic. R HEINGOLD . Why Youth (Heart). A New Leader’s Mandate for Changing Little. 83 See Lior Strahilevitz. to your contacts. social network site profiles are wholly social artifacts: controlled impressions for a specific audience. “Barnett College”). albeit one you can’t fully control. None of This Is Real. 75 12 .g. other communications also signal who you are. supra note __ (calling Fakesters “a public art form” and describing “positive feedback” as a consistent goal of Fakester creators). 80 See boyd. e. Here I Am Taking My Own Picture. 76 See Clifford J. as much performative as informative. the comments other users leave on your profile become part of your own performance.com/8032093.” “theatrical. Vol 22 No 4. e. Relationship The second social factor is that a social network site lets you make new friends and deepen your connection to your current ones.82 2. 82 See J Donath & d boyd.”) 81 See boyd. you’re known by the company you keep. but others were used in more expressively creative ways. Friends. 79 See generally SHERRY T URKLE. http://www. CHI.) Even your list of contacts makes statements about identity.” The ultimate example of this phenomenon—a literally false but still intelligible profile— is the Fakester: a profile for a non-existent person. 19. FRIENDSTER. http://profiles. Friendsters. 2006). Feb. A Social Networks Theory of Privacy. 84 See.org/issues/issue11_12/boyd/ [hereinafter Top 8].80 Identity construction isn’t limited to one’s profile.” explicitly encouraging their use for reputation management. it also tells them that you’re the sort of person who cares about saving Darfur. Public Displays of Connection. N. 2004).nicknames on their profiles. Levy. See generally danah boyd.firstmonday.78 I should add that they’re not just expressive of identity. a Russian social network site) 77 boyd. 919. e. 923–24 & nn. 2008. 7–8.g. on Facebook as in life. supra note __ (“A MySpace profile can be seen as a form of digital body where individuals must write themselves into being. Similarly. and Top 8: Writing Community into Being on Social Network Sites.g. Its “looking for” profile field is a dating-site touch that’s been adopted by many other social network sites: whether you check off “friendship” or “dating” on Facebook. Friendster’s “suggest a match” and “ask for an introduction” buttons leverage existing relationships to create new ones. supra note__. 72 U. in STRUCTURE OF PARTICIPATION IN DIGITAL CULTURE 157 (Joe Karaganis ed.Y. Social software has facilitated identity play for a long time. using the site's lexicon of profile questions.76 While some Fakesters were creations of convenience (e.

html (listing 18 possible meanings). 584 (2006) (finding that positive feedback on profiles increased users’ selfesteem).uva. First Love. 88 See boyd. supra note __. Friend Networking Sites and Their Relationship to Adolescents’ Well-Being and Social SelfEsteem. N.”95 Some messages that appear to be sent to the world—like Status updates—may in fact be part of a conversation with specific other users. Why Youth (Heart). § 7. a form of minor intimacy that signals trust. explicit ways to enact relationships. having a band as a “friend” typically means only that you’re a fan of the band. Valkenburg et al. 23. Private.93 It’s important to be sensitive to the social subtleties involved. Feb.fmg. supra note __ (listing 13 reasons to add a user as a contact).org/papers/VodafoneReceiver.”89 The act of adding someone as a contact also (by default) gives them access to your profile information. VODAFONE RECEIVER (June 2007). the interaction is psychologically valued. supra note __. It’s a socially multivalent act.Y. & BEHAV. MASTER OF 500 HATS (Oct.” with which I can say that I know you from high school.danah.96 Friendster users used Testimonials to carry out extended personal conversations. supra note __. http://www. 2007). 93 See Patti M. The act of adding someone as a contact is the most fundamental.”[T]he popularity of MySpace is deeply rooted in how the site supports sociality amongst pre-existing friend groups. 92 See Testimonials. see themselves as a way for friends who have fallen out of touch to reconnect.”87 If all that social network sites offered were the ability to send other users messages. 91 Sometimes. In her words. Other sites. teens are taking social interactions between friends into the public sphere for others to witness. LIVEJOURNAL SUPPORT (Apr.bml?faqid=120. as danah boyd persuasively argues. 90 See boyd. http://www. or Public?. FRIENDSTER. 9.”). which can mean everything from “I am your friend” to “I’m a fan of yours” to “Please let me see your contacts-only blog. even though Friendster also had a private-messaging feature. Something as simple as a Poke can be socially rich.livejournal. at 16 (explaining how social network sites “expedite the process” of tracking down old flames). 86 13 . draft available at http://www2. 87 boyd. Sept. Remember Me?. 89 Frances Wilson.pdf (“Friends are expected to comment as a sign of their affection.92 Everything from uploaded Photos to Event invitations to Zombie bites can be a way to interact with people. 30.typepad. or.signaling an interest in new relationships. http://www.86 Still. SOLOVE. like email and IM. Top 8. Profiles as Conversation. which displays the back-and-forth See Abby Ellin. See pauamma. like Classmates.pdf. they’d have little to recommend them over other electronic media. Why Youth (Heart).friendster. Socializing Digitally.91 Facebook’s Gifts are a straightforward performance of regard.90 These explicit contact links then provide a foundation for more robust interactions. at 16. 94 See Dave McClure.”88 Facebook resolves a bit of this ambiguity with its “Friend Details. TELEGRAPH (LONDON). How Do I Make All My Journal Entries Friends-Only.com/500blogs/2007/10/the-zen-of-poke. non-contacts can’t leave comments on “friends-only” LiveJournals. and so are the Testimonials Friendster’s users give each other.nl/cam/pdfs/2006_friend_networking_sites.php (“Friendster makes me feel good because my friends write all these great testimonials about me. They work for relationship-building because they also provide semi-public. Yoo-Hoo.. Top 8. social network sites are most effective at continuing relationships established offline. DANIEL J. 2008). 9 CYBERPSYCHOL. UNDERSTANDING PRIVACY 34–37 (2008) (discussing intimacy theory of privacy). supra note __. 6. § 9.com/support/faqbrowse. Do You Facebook?. amusingly. not that you’re friends with its members. “I don’t even know this person. or that we dated.”) 97 See boyd & Heer. 95 See danah boyd.com/info/testimonials. http://500hats. they’re even a prerequisite. 2007. The Zen of Poke: A Facebook Story.97 Facebook’s Wall-to-Wall feature.”) 96 See boyd.94 whereas the only important message of a Wall post may be the implicit “You matter to me. 2005. On MySpace. TIMES. things are even more free-form. at 7 (“By [writing conversational comments on each others profiles].

2008). On your home page. http://www. you’d join Status. 101 See Justin Smith. 102 CS377W: Create Engaging Web Applications Using Metrics and Learning on Facebook. The basic desire is simple and age-old: to be recognized as a valued member of one’s various communities. 7.103 On social network sites. ROBERT D.insidefacebook. everyone else is doing it. 7.But Who Can You Turn to For Real Insight?. which emphasizes the intimate tone. BOWLING ALONE 274 (2000) (linking social capital. because there’s a natural psychological instinct to mirror what one’s conversational partner is doing.S. giving a stronger psychological impression of direct interaction. and Developer Analytics). FACEBOOK HELP CENTER.99 The use of real names (rather than usernames) and especially of profile photos humanizes the interface.102 3.100 At least four companies have jumped into the business of providing “analytics. and spammers. community membership.254 (filed Jun.php?page=706. because participation in a gift culture demands that gifts be returned or passed along. Sometrics. They also piggyback on the deeply-wired human impulse to reciprocate. Facebook Gives Developers More Metrics . and expose personal information.com/2008/08/07/facebook-gives-developers-more-metrics-but-whocan-you-turn-to-for-real-insight/ (describing KISSMetrics. the more personal the appeal. they’re engineered to.facebook. http://www. It’s not a coincidence that social network sites activate relational impulses. After all. http://credibilityserver. “What are you doing right now?” with three recent answers to that question from your contacts.of Wall posts between two users. Community The third social factor is that a social network site lets you establish your social position. write back. INSIDE F ACEBOOK (Aug. explicitly embeds this semi-public conversational mode in the site’s interface design. See boyd & Heer.edu/captology/facebook/syllabus. P UTNAM. supra note __. No. Profiles as Conversation. 17. Friendster intensifies this personalization by using only first names in contact lists and messages. 98 99 14 . on a way to convince users to upload more photos of themselves and other users. the harder it is to ignore. telemarketers. 100 U. this desire to fit in and be noticed has several important consequences. e. the Status Updates box juxtaposes the question.101 There’s even a Stanford class in which students write Facebook Applications and are graded on the number of users they attract. As we know from dealing with panhandlers. Facebook’s design encourages reciprocal behavior by making the gesture-and-return cycle visible and salient. 103 See.pdf. If your friends were at the mall. Friendster holds a patent on a “Method of inducing content uploads in a social network”—that is.98 Even seemingly undirected communications—such as filling out one’s profile—implicitly invite conversation using the site’s tools. The combined effect of these design decisions is to make the user feel like a bad friend if she doesn’t sign up. The norms of social network sites encourage both relationships and public affirmation of them.g. because it’s disrespectful to spurn social advances. People reciprocate because it helps them solve collective-action problems. Kontagent Viral Analytics. The most basic is that people would enjoy using a social network site even if they had no other reason than that their friends enjoyed using it. and sense of belonging). 2005).” tools that help Application developers study how people are using their Applications and fine-tune them to draw more users.com/help. and because we learn how to conduct ourselves by imitating others. Pat.117.stanford.

118 A stand-up comedian racked up 182. 110 Phillips. ADDMYF RIENDS. Cohen. 768 (1986) 108 See boyd. 117 See generally T HORSTEIN VEBLEN.108 Los Angeles hipsters on MySpace. which led bloggers to protest angrily boyd. HAMLET ON THE H OLODECK 129–30 (1997). http://www.com/. it means that real-life social networks rapidly tip towards mass social network site adoption as overlapping groups sign up because all their friends are: Burning Man attendees on Friendster.g.119 Facebook later instituted a 5. CHI. By representing relationships as hyperlinks. BROWN DAILY HERALD (Sept. If you add Seth as a contact. supra note __.e. M URRAY. L.adderdemon. There’s an entire niche of programs that will add more MySpace contacts for you. mapping the connections within them. described by Julie Cohen as “a nexus of social practice by embodied human beings. since by connecting to you. 107 COLUM. at 55–64 (describing value of “hubs”: i. 9. MICROECONOMICS 127–66 (2004). 116 See BARABÁSI. 236. 111 See boyd.. supra note __. if they’re on Facebook. F RIENDBLASTERPRO. Because many privacy settings are based on network distance. supra note __. http://www. all of his contacts are now contactsof-contacts of yours—and all of your contacts are now contacts-of-contacts of his. By reifying relationships and making them visible. This navigational pleasure also provides an inducement to extend your social horizon. supra note __. “When I ask teenagers why they joined MySpace. giving you a richer view of your social context. to add more contacts. 113 Julie E.109 Harvard students on Facebook. highly connected nodes). 119 See Anne Wootton.them at the mall.111 Another motivation for recreating a real-life social network on a social network site is to visualize it. REV. As danah boyd puts it. ADDERDEMON . signing up is pointless unless you supply enough personal information for your friends to find you. MIRROR WORLDS 22–36 (1992) (describing importance of navigable information spaces that “mirror” offline phenomena). supra note __. 711. e. Commerce. 53 U. Top 8. Quest for Facebook Friends Turns into $10K Hurricane Relief Effort. for example. Adding connections fills out your social map. Cyberspace As/And Space. Why Youth (Heart). social network sites enable new forms of competitive conspicuous accumulation. The Comedy of the Commons: Custom. REV .addmyfriends.. 104 105 15 . 6. they spatialize social networks.115 It also makes you yourself more valuable as a contact. 2005). 210. and Inherently Public Property. THE THEORY OF THE LEISURE CLASS (1899). the more profiles are visible to you. Moreover.000-contact limit. 118 See. the more contacts you have. Brief History. others can expand their own horizons. 116 Connectedness is social currency. ECONOMICS OF NETWORK INDUSTRIES (2001) 106 See SAMUEL BOWLES . supra note __. Publicly Articulated Social Networks. social network sites enable users to negotiate a different kind of social “position”: their status within communities. 112 See generally DAVID GELERNTNER. 2006). at 2. you’d join them on Facebook.. Why Youth (Heart).000 Facebook contacts in 2005.”113 Moving purposefully through informational space can be pleasurable in itself.com/.112 It thus becomes possible to see and to speak of an individual’s location within networked space.105 call it a coordination game. L.114 the traversal function of a social network site offers the experience of navigating your own social geography. 109 Id. 107 See Carol Rose.110 Of course.addnewfriends. http://www.117 People compete. See OZ SHY.106 call it a comedy of the commons107—by whatever name. 115 See boyd.com/.’”104 Call it a network externality. 114 See JANET H. the answer is simple: ‘Cuz that’s where my friends are.

this signal itself becomes devalued if given off too obviously. A Theory of Human Motivation. and community are not unique to social network sites. any number.Fo r.html.124 Of course. Zombies.com/apps/application. and it always will be. you can signal your coolness by having cool friends. 50 PSYCHOL. The You-Don’t-Need-More-Friends Lobby. and other games prominently display each user’s scores.H.”) 125 See Stephanie Tom Tong et al. 130 See A. They’re basic elements of social interaction. especially of the bridging type”123 In addition to the direct value of the friendships themselves. “Their Profile is cool so being Friends makes you look cool.”126 Many of these dynamics are driven by the explicit representations of status demanded by the use of a software platform. 1 (2007). http://developer. REV. http://scobleizer. however. Note: Regulation by Software. http://jcmc.browndailyherald. 114 YALE L. “not unlike the drama over best and bestest friends in middle school..edu/vol12/issue4/ellison. 16 . Top 8. offline and on.000 users putting price tags on each other. COMPUTER-MEDIATED COMM. 13 J. None of This is Real. supra note __ (giving.php?api_key=ac434b27ff9de7e3ae41944571c91e34.”128 These “active[] signal[s]” of intimacy and respect use publicly revealed personal information to “work[] through status issues.”129 *** Identity. 14. supra note __. 531 (finding that viewers’ ratings of a Facebook user’s social attractiveness declined as the number of friends listed on the profile increased beyond 300). J. or ranking will be treated as a competitive game by someone. My personal favorite for blatant commodification of community is the Friends for Sale Application. 123 Nicole Ellison et al.Friends.. supra note __. 2007).120 And it’s not just contact counts.Turns. 1719. badge. relationship.when they bumped up against it. Y AHOO! DEVELOPER NETWORK DESIGN PATTERN LIBRARY.10k.php?pattern=reputation (describing use of patterns like “Leaderboard” and “Collectible Achievements” to harness user community’s competitive desires for good).121 Indeed. which has over 600.yahoo. One study of college students found “a robust connection between Facebook usage and indicators of social capital.Relief. COMPUTER-MEDIATED COMM.www. 120 Robert Scoble.122 Similarly. 370 (1943). danah boyd has documented the “tremendous politics” this feature generated. only the other users on one’s Top Friends list would appear on one’s profile.125 some users denigrate others whom they think have too many contacts as “sluts” and “whores.facebook. SCOBLEIZER (Oct. 124 See boyd.indiana. supra note __.shtml. As this Section has shown.Effort-980480. boyd. This urge to sociality is a highly motivating force—only sustenance and safety come before it on the Maslow hierarchy of human needs. FACEBOOK. 1740 (explaining that software necessarily applies “explicit ex ante rule[s]”). 126 boyd.J. Maslow.com/ypatterns/parent.com/2007/10/14/the-you-dont-need-more-friends-lobby/. 121 See Reputation.Hurricane. 122 Friends for Sale. Top 8.Facebook. 129 Id . 128 boyd.127 MySpace had a “Top 8” feature. http://www. Top 8 . these social urges can’t be satisfied under conditions http://media.Into. it’s no coincidence that Scrabulous. 12(4) art. as reason #7 to add a contact. The Benefits of Facebook "Friends:" Social Capital and College Students' Use of Online Social Network Sites.130 It’s always been central to human experience. in a familiar pattern. plenty of Facebook Applications are competitive games. 127 See James Grimmelmann.com/media/storage/paper472/news/2005/09/09/CampusWatch/Quest. Too Much of a Good Thing? The Relationship Between Number of Friends and Interpersonal Impressions on Facebook. the constant human desire to be part of desirable social groups also drives social network site adoption and use.

there is absolutely no plausible way. & THE CORPORATION 19 (Andrea Matwyshyn ed. is it any wonder that social network site users are sometimes willing to give up a little privacy in exchange? B. and safe setting. emotional social dynamics of our contact networks.. to assign probabilities to many of the possible outcomes.com/article:1759531.ssrn. we do what everyone else is See boyd.131 These factors intertwine. Instead. These proxies don’t always work so well on Facebook. Kahan et al. Why Youth (Heart). all at once. 1083 (2006).137 We can’t reason in that way about the complex. Fear of Democracy: A Cultural Evaluation of Sunstein on Risk. 135 Dan M. “culture is cognitively prior to facts” in risk evaluation.cfm?abstract_id=1152082 (reporting comparative data on identity-theft-related fraud rates at financial institutions). COLLEGE HUMOR. The victim here was lucky. Identity performance requires an audience. 136 See Lillian Edwards & Ian Brown. in H ARBORING D ATA: INFORMATION SECURITY. situated. even in theory. Risk Evaluation The social dynamics of social network sites do more than just give people a reason to use them notwithstanding the privacy risks. 138 See. the reposter blanked out his full name.com/sol3/papers.g. come on in.133 and some cultural (people fear things that threaten shared worldviews). community is a public.135 What people “know” about how the world works drives their perception of risks. Epic Burn. LAWS OF FEAR 35–63 (2005). some psychological (people fear the unfamiliar)132 some social (people fear what their friends fear). http://papers. 131 17 . Given how deeply these urges run. When those risks are privacy risks. e. REV. and a claim to a social position in proximity to you. 89–106. LAW.”). 134 See M ARY DOUGLAS & AARON WILDAVSKY. 137 See Chris Jay Hoofnagle. supra note __ (describing social interactions among teens carried out in front of “networked publics”). People don’t think about privacy risks the way perfectly rational automata would. They also cause people to misunderstand those risks. job opportunities and promotions may be pursued. relationships are impossible without another. forthcoming 2009). Data Control & Social Networking: Irreconcilable Ideas?. With sufficient data.134 As one recent review asserts. these signals are the same ones that make it such a natural place for socializing. real people use all sorts of simplifying heuristics when they think about risk. People rely heavily on informal signals to help them envision their audience and their relationship to it. 1071. Facebook systematically delivers them signals suggesting an intimate.com/sol3/papers. Dan Gurewitch. Measuring Identity Theft (Version 2.of complete secrecy.cfm?abstract_id=1148732 (“It is in human nature to want jam today – fun and frivolity – over jam tomorrow – safety and security in some murky future where relationships.0) (unpublished draft June 26. L. 132 See CASS SUNSTEIN. when in doubt.collegehumor. these observations have particular force. confidential. we could in theory make reasoned decisions about the statistical trustworthiness of large commercial entities. 119 HARV. What is the probability that one of my contacts will republish some of my Wall posts on the Internet?138 The best we can do is rely—and mostly subconsciously—on the proxies for privacy risks that seem to work well in the social settings we’re familiar with. and when that evaluation takes place in the context of a social network site.ssrn. an affirmation of our relationship. Perhaps unsurprisingly. Most of the time.136 For one thing. 2008). The water’s fine. 133 See id. my comment on your Wall is a statement about who I am. RISK AND CULTURE (1982). http://www. available at http://papers.

ARTIFICIAL INTELLIGENCE: A MODERN APPROACH 426–29 (1995). ECON . e. Mass adoption is an echo chamber. 508–12 (2007) (describing courts in Fourth Amendment cases sometimes seeks to understand societal expectations of observation). CIALDINI. 147 See Strahilevitz. REV . supra note __ (“Almost as soon as Brazilians started taking over Orkut in 2004 . you should revise upwards your estimate of the probability that the site is in fact safe. we rely on social147 and architectural148 heuristics to help us envision our potential audience. supra note __. THEOR. Seeing contacts’ pictures and names makes it easy to visualize talking to them. Westley. W. whereas most individual risks (e. POL. Hamilton. and the cycle repeats. 33.D. it must be that your Facebook-trusting friends know something you don’t. Safety in numbers. supra note __.150 in.139 Quantitatively. 31 J. 7 Y ALE J. Those behind us figure we wouldn’t have jumped unless it was safe. I think we’re alone now.140 qualitatively. See generally STUART RUSSELL & PETER NORVIG.’”). and why most people usually do).g.143 They won’t single me out. REV. T HE T RANSPARENT SOCIETY 14–15 (“An added factor that helps deter people from staring [in a restaurant] is not wanting to be caught in the act. at 925–27. a stalker) don’t depend on the overall size of the site. 1. 141 If your friends are concerned with privacy and you trust their judgment. 144 See. Kettering. 145 See. they can’t possibly shoot all of us. Geometry for the Selfish Herd. Securitization and Its Discontents: The Dynamics of Financial Product Development. and Cultural Change as Informational Cascades.”) 151 See boyd. Architectural Regulation and the Evolution of Social Norms. Four Models of Fourth Amendment Protection. A. This kind of reasoning.146 Nobody in here but us chickens. 38 (1957) (describing police tactic of “pretend[ing] to know people in the crowd” to destroy sense of anonymity). 149 See boyd. The Nature and Control of Hostile Crowds. 100 J. SCI. . 143 Sometimes it is. 60 STAN. 142 See Sushil Bikchandani et al. 140 See JAMES SUROWIECKI. 1553. We don’t say private things when the wrong people are listening To know whether they might be. 148 See Lee Tien. 23 CAN. 150 Seee DAVID BRIN.145 doesn’t work for thinking about social network site privacy. People tend to assume (incorrectly) that a whole social network site is populated by people like them. J. such as the arrival of News Feeds.. On a social network site with a hundred million users. Bayesian reasoning says that each time you observe one of them choosing to join a site. not a careful pooling of information.. T HE WISDOM OF CROWDS xi–xxi (overviewing argument for collective intelligence of large groups).142 When our friends all jump off the Facebook privacy bridge. A Theory of Fads. English-speaking users formed virulently anti-Brazilian communities like ‘Too Many Brazilians on Orkut. & POL . Top 8. closed to unwanted outsiders.141 The problem with this heuristic is that it falsely assumes that other users know something about how safe Facebook is. we do too. e. INFLUENCE: T HE PSYCHOLOGY OF PERSUASION 114–66 (1998) (explaining why it is sometimes but not always reasonable to go with the crowd.. while perhaps valid for mobs144 and financial instruments. supra note __. 992. unlike in a restaurant. Custom. 295 (showing how herding behavior can result from self-interested decisions of animals fleeing a predator).g. Some kinds of privacy problems. ECON . what are the odds that the New York Times will write a front-page story about your personal indiscretions? Not high.149 Facebook’s design sends mutually reinforcing signals that it’s a private space. 13–15 (2004/2005). BIOL. When we’re nervous.151 it’s easy for college students to think that only college ROBERT B. Kenneth C. 139 18 . fifty million Facebook users can’t be wrong. See W. L. Kugel. hit everyone on Facebook at once.doing. L. . 503. Why Youth (Heart). we stick with the crowd because it feels safer than being exposed on our own. potential eavesdroppers are literally invisible. & TECH. 29 CARDOZO L. 1632–71 (assessing process by which commonly-used financial devices become “too big too fail”).g. Fashion. 146 See Orin Kerr.

That’s socially satisfying. Luís Cabral & Ali Hortaçsu. and they know it. We’re rarely explicit about it.com/article/SB119518271549595364.pdf (documenting “opportunistic exit” by eBay sellers).155 Cut it out! Do you think I can’t see what you’re doing? When we trust people. and touching them on the arm are for. You know me.152 The availability of technical controls (and the language of “control” in Facebook’s policies and PR statements) further invite users to think in terms of boundedness.nyu.158 And finally.g. we are invited to become spies – for our own good.Y. e. This insularity also inhibits users’ ability to remember that not everyone using the site shares their privacy norms. and other informal touches make each contact look like a well-known friend.edu/~lcabral/workingpapers/CabralHortacsu_Mar06. and the socially thick sense of mutual personal obligation that keeps confidences confidential doesn’t always operate as strongly as we expect. it’s often because of mutual surveillance. 2 SURVEILLANCE & SOC . WALL ST. You May Have Gone Over Your Limit of Network Friends.153 Everyone else isn’t a close friend. This cooperative equilibrium breaks down easily in electronic media. 154 WALLACE . names.I. The Work of Watching One Another: Lateral Surveillance. with Mark Andrejevic. You see where this is going. e. 2007. Who’s Stalking You on Facebook. old pal.students use Facebook.com/news/features/45592/ (describing argument over propriety of high-school teacher looking at student Facebook groups). N. KATIE HAFNER. 30. When we say things to people. The powerful if unspoken message is that what you say on Facebook will reach your contacts and desired contacts but no one else. The pictures. 494 (2005) (“In an era in which everyone is to be considered potentially suspect. 155 See James Grimmelmann.com/390004/whos-stalking-you-on-facebook (describing Facebook “feature” supposedly providing a “list of the five people who search for your name most often”). N. 16. and we know that they know. The mere thought that searches might be visible to others makes some people freak out. and Governance. INTERNET L. Carl Bialik. E VOL 469–493 (1992).stern. (2006). Neocortex Size as a Constraint on Group Size in Primates. 158 For a nice discussion of how people’s behavior changes when they think they might be being watched.154 Especially in young media—such as Facebook—without well-established norms. Mar. cf. Dunbar. Electronic media are notorious for their ability to garble these nonverbal signals. 156 Compare BRIN. supra note __. the surveillance that most social See. 152 19 . Working Paper EC-06-32.Y. people may disagree about expectations. even though the actual network boundaries are highly porous. J. speaking quietly. Gabriel Sherman.157 The same reasons there’s a mismatch between our own actions on Facebook and our (insufficient) perceptions of being watched also mean there’s a mismatch between others’ actions and their (insufficient) perceptions of being watched. 2007. Sorry. We don’t say private things to people we don’t know. 479. I know how much this means to you. http://pages. Testing Horace Mann. Facebook is great at making us feel like we know lots of people. http://online. 12 J.html. Accidental Privacy Spills. people exit online communities all the time with spectacular betrayals and recriminations all around.wsj. T HE WELL 85–101 (describing destructive exit of one member from online community). at 254–57 (promoting “mutually assured surveillance”).g. http://nymag. but primate brains only seem capable of maintaining between a hundred and two hundred close relationships at a time. supra note __. old buddy. http://gawker. Stern School of Business.”) 157 See. MAG. at 14–19 (describing emoticons as a compensation to the difficulty of conveying tone online). 153 See R. we also tell them our expectations about how much to keep what we say private.. The Dynamics of Seller Reputation: Evidence from eBay. Nov.156 we’ll see if they betray us. and so on. Risk. that’s what leaning in.M. 22 J H UM.U. 2008). leading to misunderstandings about confidentiality. GAWKER (May 13. read the comments to Hamilton Nolan. 3 (2008).

Gartner denied knowing the mystery urinator. the less salient the presence of all those outsiders becomes. Facebook Pulls ‘Stalker List’ Tool After Gawker Exposes It. where he discovered that Chiles and Gartner were listed as friends. http://news. Cop Snares College Pals in Own Web. See Caroline McCarthy. but theirs is still a case about privacy. Both friends were ticketed. Facebook immediately disabled the feature and claimed it had nothing to do with who was searching for you. All six patterns are united by a common theme: their “peer-to-peer” nature. Once I’ve infected you. Cohen. Aug. but the officer logged on to Facebook. the safer it feels—even when it isn’t. Facebook very quickly gives a strong sense of relationship with other users. they also make us believe that everyone cool thinks Facebook is privacy-safe. but the social interaction is real C. a student at the University of Illinois at Urbana-Champaign. disagreement. This Section will describe the similarly social dynamics of six common patterns of privacy violations on social network sites: disclosure. None of this would happen if Facebook were not catalyzing genuine social interaction. so I’ll simply refer to his categories as appropriate. CHICAGO TRIBUNE.html. This is where the viral nature of Facebook participation is clearest and most frightening.160 Chiles ran away. Plenty of fake things happen on Facebook. who was present at the scene. so the officer questioned Adam Gartner. Gartner and Chiles may be more frat-boy than poster-boy. after a night out drinking.159 *** These misleading heuristics are all fueled by the relentless use of other people’s personal information. we’ve seen that people’s reasons for using social network sites and their evaluation of the privacy risks involved are driven by social factors: identity. at C1. that photo becomes a signal to you to trust me. and denigration. Facebook enters the picture as a catalyst. 2006. 1. this Section is not offered as precise taxonomy of social network site privacy harms. Users’ privacy is harmed when other users find out sensitive personal information about them. If I upload a profile photo. Specifically. it enables privacy violations more often than it perpetrates them.cnet. instability. Because the patterns interlock and interrelate. Daniel Solove has already created a perfectly good taxonomy of privacy interests in general. and we may be glad they incriminated themselves on Facebook. Tipping dynamics mean that everyone cool is on Facebook. spillovers. WEBWARE (May 13.network sites permit is better for learning personal information than it is for detecting misuse of that information. 2008). you’ll help do the same for others.com/8301-17939_109-9943285-2. 160 See Jodi S. surveillance. 3. I convince you to let down your guard. Marc Chiles. they were victims of what Daniel Solove calls disclosure: a fact they’d rather have kept under wraps The previous example will serve just as well. And so on. 159 20 . that sense is both a satisfying reason to use Facebook and a highly misleading heuristic for evaluating the privacy risks. Harms So far. That restored a status quo in which you could search for other people—thereby gathering information on them—but not learn whether anyone was gathering and distributing information on you and your contacts. By joining Facebook and adding you as a contact. The more common self-revelation becomes on Facebook. Disclosure One night in the summer of 2006. was urinating in a bush when a police officer spotted him. The more personal your interactions with a few close friends.

htm.com/seven/07062007/news/regionalnews/n_j__miss_in_a_fix_over_her_pics_regionalnews_a ustin_fenner__with_post_wire_services. 18. Cal.com/posts/1210889188. though. that people view as deeply primordial. people lie when they sign up for social network site accounts. urinating in public and drinking in a variety of settings.com/underwire/2007/12/is-the-infamous.www.Y. “[W]hy should students be disciplined for posting to sites that weren’t intended to be public?”) 167 See.dailypennsylvanian. 2008. 162 Alan Finder. MICH. The best-known examples of unwanted disclosure on social network sites involve students acting their age and being called out for it by authority figures. many blog authors choose publicly-accessible media “with the thought that someone they cannot identify a priori might find the information interesting or useful. Andrew Grossman.Privacy-3292188. not everyone is “supposed” to be on the site. Drew (C. This theory is legally questionable. 2006. POST.166 Facebook’s rules about who can and can’t join. Sometimes. which means that potential employers just ask alums to check on current students for them. however. http://blog. Typically. When a Risque Online Persona Undermines a Chance for a Job. 168 See..g. The indictment claims that the defendant created a false MySpace profile in violation of the site’s terms of service.”) That would have crossed the line into what Solove calls exposure: “exposing to others certain emotional and physical attributes about a person . They were all wrong While people using any social medium often start with the implicit assumption that they’re addressing only a peer group.D. such as the college student who lost a shot at a summer internship when the company’s president saw that his Facebook profile lists “smokin’ blunts” as an interest. 2008). 2008.wired. Mar.164 These people all thought (if only subsconsciously) that their Facebook activities would be seen only by a trusted few. college faculty and administrators already have email addresses giving them access to their school’s Network.The.162 Disclosure is hardly limited to students. 6. Apr. Miss in a Fix over Her Pics.165 Second. 2007. 169 Id (calling employer use of Facebook “unethical. United States v.g. 18 U. http://media. June 11. e.com/content/how-you-want-your-employer-see-you-first-time.shtml.S. 2006.g. N. § 1030. N.Fall. and they’ve used privacy rhetoric to express it. 164 See Jenna Wortham. as other college students have. .” SOLOVE. Chiles was lucky that Gartner didn’t upload and tag a photo of him actually doing the deed.Facebook.And Why It Should Be Dismissed. http://volokh. The MySpace Suicide Indictment -.became more widely known. so do alumni. 166 See Sherman. See.J.Of. social network sites add two things. See Jim Saksa.pdf.nypost. 2007). supra note __. July 5. Their See SOLOVE. May 15. Facebook – The Fall of Privacy.michigandaily.Y. DAILY. . http://www. N. First. Orin Kerr. supra note __.169 Their senses of identity and community are at stake. are leaky. there’s a clearer expectation of boundedness. TIMES.168 College students have voiced plenty of anger about disclosure on Facebook. Miss New Jersey 2007 was blackmailed by someone who sent racy pictures taken from a private Facebook album to pageant officials. 165 As Lauren Gelman observes.167 Sometimes.” (unpublished draft on file with author). http://blog. at 146–49.shtml (“On Facebook you can find pictures of me in a girl's shirt. DAILY PENNSYLVANIAN. e.html.com/27bstroke6/files/my_space_lori_drew_indictment. supra note __ (summarizing student sentiment as. and that doing so constituted a violation of the federal Computer Fraud and Abuse Act.wired. they don’t need to.163 Or consider Sandra Soroka. T HE VOLOKH CONSPIRACY. Is This How You Want Your Employer to See You for the First Time?. 163 See Austin Fenner.” only to see the story flood the Internet. Is the Infamous Facebook Breakup Actually a Hoax?.161 Unwanted disclosure is everywhere on social networking sites. who posted a Facebook status update saying she was “letting Will know it’s officially over via Facebook status. at 5.com/media/storage/paper882/news/2008/03/31/Opinion/JimSaksa. indictment returned May 15.C. 31. e. http://www. there’s a tighter psychic focus on “speaking” to your pre-existing social network.”) 161 21 . § 1 at 1. at 140–46. UNDERWIRE (Dec.

2007. http://corpainvestigation. 72 MO. for a police officer to go on Facebook transgresses those limits. students saw searches on Facebook as breaking the rules of the student-administrator or student-employer relationship. Facebook.S.htm. Laura Clout.usatoday.g. Bousquet. 2. whose lie to the police was exposed on Facebook. There are women out there with Facebook stalkers they don’t know about. 7. People v.com/jsp/legaltechnology/pubArticleLT. . a pattern that can culminate in violence.wordpress. and many states now criminalize stalking with statutes specifically targeting online activities.177 SOLOVE. it is always OK to comment on their profiles. 176 “Stalking” means more than just looking at someone’s Facebook profile.uk/news/uknews/1565048/Man-jailed-over-Facebook-message. Finding Treasures for Cases on Facebook.com/tech/webguide/internetlife/2007-03-07-facebook-stalking_N.com vs Your Privacy . it is almost never OK. It's those in the middle that are tricky. 25. 172 Id .html (describing similar case on Facebook) 177 Byron Dubow. Of course. http://www. lawyers174 and private investigators. does lead users to be more cautious.gov/criminal/cybercrime/cyberstalking. 173 Id. The appropriation of the term to describe certain uses of social network sites is a reminder of the high stakes. Solove calls this privacy harm surveillance: awareness that one is being watched. saying “It seems kind of unfair. http://www.2d 339 (N. REV. see DEPARTMENT OF JUSTICE. 5. 2008) (finding that a MySpace friend request could constitute a “contact” in violation of a protective order). violative relationship with her subject.”170 He connects it to “anxiety and discomfort . they expect it and might even be upset if you don't. Surveillance There’s also a privacy issue with Facebook investigations even if the investigator doesn’t learn much. Note that surveillance in this sense. self-censorship and inhibition.”171 In my framework. which disrupts the integrity of their chosen social groups. Cyberstalking.. TELEGRAPH (UK). City Crim. it's OK to bring up their profiles only if there is a reasonable explanation for why you were looking at it in the first place. With distant acquaintances. It’s also an obsessive pattern of observing someone else.telegraph. a New Crime: Evaluating the Effectiveness of Current State and Federal Laws.Y.law. Ct. 2007). surveillance implicates the relationship interest.” even “social control. . http://www. the spy has an asymmetrical. 174 See Vesna Jaskic.”172 Chiles agreed. 171 Id. which is a dignitary insult to their desired identity.By a Private Investigator. Mar. some of whom will become criminal stalkers.J. it isn’t just college administrators conducting surveillance on Facebook.co. 125. USA TODAY. Confessions of ‘Facebook Stalkers’. I would add that these older forms of stalking harassment are also migrating to social network sites. e. see Naomi Harlin Goono. And their elders see them that way by sneaking onto Facebook. supra note __. See. saw a relational surveillance problem. Oct.. Even Adam Gartner. 149 (2007). T HE P RIVATE INVESTIGATION CENTER (Apr. “I got bone-crushed. which can have indirect privacy benefits. In the student examples. 15.Y. “It's a pretty shady way they got us. available at http://www. NAT’L L.jsp?id=1192179809126. REPORT ON CYBERSTALKING: A NEW CHALLENGE FOR L AW ENFORCEMENT AND INDUSTRY (1999).”173 They’ve got a mental template for the student-police relationship. Oct. Stalking moved online early. 2007.175 One-sidedness seems to be a recurring theme of surveillance issues among users. 851 N. while a direct privacy harm. 2007. 170 22 . Fernino. one with ethical limits. Consider the following paraphrase of a self-confessed “Facebook stalker”’s176 code of ethics: With close friends. at 106–12.com/2007/04/25/facebookcom-vs-your-privacy-bya-private-investigator/.elders see them in ways they’d rather not be seen. 175 See Kevin D.htm. it’s also police.usdoj. at 108. Man Jailed Over Facebook Message.” he said. L.

180 Jonathon Berlin.183 There are opt-outs. things settled into the same equilibrium as before.178 But since snooping is generally invisible. The profiles themselves are widely visible. 2. but the opt-outs don’t address the more fundamental problem: These limited profiles went live after people had uploaded personal Gelman. you can reach out to all of them. supra note __.html (retelling Hamlet in the form of News Feed updates). FRIENDSTER FREQUENTLY ASKED QUESTIONS.com/headcandy/2008/06/a-modern-day-ro. you don’t need to think about it.’” all the way to “Kevin is now listed as ‘single. more literal Benthamite sense. Cf. It’s also fine for more distant acquaintances to look at your profile. TRIB. Precisely because the surveillance is invisible.php?p_faqid=192. but there needs to be a social reason. your profile might be of legitimate social interest to many people. Singles Google Before Canoodling.Note the social norms coded in these guidelines.custhelp.182 But with time. supra note __. 183 See What Is My Public (Limited) Profile?. Further. It’s fine—indeed intended—for “close friends” to look at one’s profile.’”180 Thus. CHI. Cf. It’s panoptic in the more limited.com/help.net/2008/7/30schmelling. But when it launched. http://www. Hamlet (Facebook News Feed Edition).g. 2008). they were made vividly aware that users could now monitor each other. 2001. Now they both put “limited profiles” on the public Internet. 181 This surveillance is not panoptic in the Foucaldian sense. The Chicago Tribune’s HeadCandy blog made this point with a graphic that tells the story of a relationship with nothing but News Feed entries. that’s an easy norm to violate. Don’t Go Into Date Blind. People with no social connection to could look at your profile but shouldn't.html. A Modern Day Romance (Using Facebook's News Feed Feature As a Narrative Device). http://friendster. http://featuresblogs. Facebook’s ‘Privacy Trainwreck’. just a shift that focused users’ attention on the panoptic prospect of constant undetectable surveillance. where they can be found by search engines.php?page=428. News Feed made it obviously trivial to assemble a rich portrait of a user by combining many individual data points.. 3 (describing practice of using Google to research potential romantic partners).new. invisibly and in real time.181 The immediate uproar was unsurprising. you never know whether you’re being watched or not. This observation explains the trend of the reactions to News Feed.facebook. MC SWEENEY’S (July 30. and the distinctive privacy harm of surveillance (as opposed to disclosure) recedes.com/cgi-bin/friendster.. from “Kevin and Jennifer are in a relationship” through “Amy friended Kevin” and “Jennifer wrote on Amy’s Wall: ‘You tramp. There was no change in the actual accessibility of information. Instability One of the most disruptive things a social network site is change the ground rules of how personal information flows—and social network sites do it a lot. 2008). I suspect that most Facebook users would have opted in to sharing with News Feed.. By making it broadly viewable. 178 179 23 . Friendster and Facebook used to keep profiles wholly internal. F ACEBOOK HELP CENTER.179 Thus the attitude described above: The real faux pas isn’t looking at someone’s Facebook page. but you’re not sure in advance exactly who. but letting them know that you did. http://mcsweeneys. it’s not your responsibility to fence them out. for the same reasons they opted in to Facebook itself. the social norm against snooping puts implicit limits on how far the information should spread. e. Tempo p. Apr. 3.chicagotribune. Sarah Schmelling. 182 boyd. Search. it doesn’t enforce discipline through internalization. Nara Schoenberg. Facebook took an activity considered creepy and made it psychologically salient for users. HEAD CANDY (June 25. as danah boyd has explained. Lauren Gelman describes this phenomenon in terms of “blurry-edged social networks”.cfg/php/enduser/std_adp.

189 Perhaps it is. this is a problem of secondary use: “the use of data for purposes unrelated to the purposes for which the data was originally collected without the data subject’s consent.com/cgibin/friendster.188 We’ve seen that the inability to know who’s watching you on a social network site can lead to a mistaken sense of privacy.186 Nissenbaum’s theory provides an alternate explanation of the privacy problem with News Feed. 189 See Lior Strahilevitz. 136–38 (2004). The information wasn’t exposed to the wrong people.com/faculty/2005/10/friendster_and_. Facebook changed how profile update information flowed from users to their contacts. location as insufficient). 185 SOLOVE. Facebook’s Beacon provides another good example of a contextual integrity violation. APOPHENIA (Dec. 188 Tara Wheatland. and opting out didn’t retroactively efface users’ noseprints. this time involving an information flow into a social network site. In Solove’s taxonomy.”) 184 24 . 11. supra note __.custhelp. however. sensitivity. Friendster. Meanwhile. Pull (you visit my profile to check on me) and push (my activities are sent to you automatically) are socially different. Friendster’s Sneak Attack on Your Anonymity. supra note __.zephoria. 6. Social network sites disrupt flow norms in privacy-damaging ways all the time. so switching between them implicates privacy values. CHI . See Ben. REV .html. I can do so through my alternate account. L. U. a user willing to give up the ability to see who’s viewed her page can view other pages anonymously.boalt. 79 W ASH. As Wheatland notes. and wasn’t sent to a more public place. Not only does the opt-out mean that anyone willing to give up one kind of surveillance (knowing who’s viewed their profile) can engage in another (viewing other’s profiles anonymously). even this modest restriction can be circumvented. While the principle of “symmetrical privacy” or “mutually assured surveillance” may work in other settings.html. If I leave my main account in the “who’s viewed me?” system but opt my alternate account out of it.190 They disrupt established relationships and redefine the scope of relevant communities out from under users’ feet. so it’s possible to defend “who’s viewed me?” as a privacy-promoting step. Privacy As Contextual Integrity.php?p_faqid=212.typepad. but the unpleasant privacy surprises involved in the transition are themselves a serious problem. at 129–33. then whenever I want to browse profiles anonymously. wasn’t particularly sensitive.com/1327678 (showing me with a paper bag over my head). 2005). 190 See Wheatland. 2007). users could find out which other users had looked at their profiles. I have an alternate account on Friendster in addition to my named account.html. The feature can be disabled. BIPLOG (Sept. 2005).org/thoughts/archives/2007/12/11/facebooks_optou.” it transgresses those norms by changing the structure of informational flow. http://profiles.”185 Helen Nissenbaum’s theory of privacy as contextual integrity also pinpoints the problem: Once a site has established a social “context” with specific informational “norms of flow. they ceased being valid when the site changed. http://www. http://www.cfg/php/enduser/std_adp.187 Instead. 186 Helen Nissenbaum. Friendster launched a “who’s viewed me?” feature in 2005.friendster.org/biplog/archive/000631. once we reach equilibrium. my main account can track anyone who’s viewing it. http://uchicagolaw. http://friendster. 119. see generally BRIN. E-commerce shoppers don’t expect See danah boyd. Facebook’s “Opt-Out” Precedent. 187 See id. FRIENDSTER FREQUENTLY ASKED QUESTIONS. at 133–36 (rejecting principles of government action. FACULTY BLOG (Oct.184 If you—like most people— formed your privacy expectations around the way the site originally worked. 29. the feature was deployed without announcement. Who’s Viewed Me?. “who’s viewed me” probably doesn’t actually provide it.information to sites that weren’t on the publicly-searchable Web. Friendster and Symmetrical Privacy. supra note __ (“This freaks me out.

for example. but they’re also fueled by social network site dynamics.196 These may sound like garden-variety computer security issues. . 9.heinz. WIRED (updated Oct. Mar.edu/~acquisti/papers/privacyfacebook-gross-acquisti. a senior at Radford University in Virginia. First Serious Facebook Hack?.e.COM. .com/2007/11/facebook_you_owe_me_one_christ. May 15. http://weblog.pdf. 193 See Alessandro Acquisti & Ralph Gross. You Owe Me One Christmas Present. it’s worth noting that there are unintentional instability problems—i. 2007). 24. 1. Jun.191 They especially don’t expect it to be imported into social network sites. “If I'm holding something I shouldn't be holding. I'll untag. Security Lapse Exposes Facebook Photos. See Chris Jay Hoofnagle & Jennifer King. Facebook. Perhaps they ought to. 4. Cross-Site Scripting Worm Hits MySpace. Private Facebook Pages Are Not So Private. but didn't also change their search settings”). 2008).information on their purchases to be dispersed to third parties. Disagreement The New York Times recently ran an article on the phenomenon of “untagging” on Facebook: De-tagging -. OFF THE HOOF (Nov. http://papers.msn. (2005).” says Robyn Backer. 2005..” It infected over a million MySpace pages. Ryan Singel. http://repository. http://www. MSNBC.e.upenn. 195 See Matt Hines. . http://www.192 Finally. security breaches. http://www. PC WORLD.com/id/23785561/. Beacon also interfered with certain socially-sanctioned forms of secret-keeping: one blogger complained that Facebook ruined his son’s birthday by spoiling the surprise when it pushed a video-game purchase out into his Facebook feed where his son could see it.removing your name from a Facebook photo -. OPEN TO E XPLOITATION: AMERICAN SHOPPERS ONLINE AND OFFLINE (Annenberg Public Policy Center. 20. Samy is my hero.html.com/article/CrossSite_Scripting_Worm_Hits_MySpace/1129232391.aspx?myId=31. http://www. 196 See Nate Mook. 192 Mike Monteiro. Facebook has had to scramble to fix privacy leaks caused by mistakes in how it handled searches193 and in how it keeps photos private.has become an image-saving step in the college party cycle.pcworld.195 Samy Kamkar took advantage of MySpace’s profile customization options to write a computer worm that spread from page to page adding the phrase “but most of all. “The event happens. Oct.” says Chris Pund.upenn. online and off.msnbc. 2005. ACM WORKSHOP ON PRIVACY E LECTRONIC SOC .edu/usr/jturow/internet-privacy-report/36-page-turow-version-9.annenbergpublicpolicycenter. and within another 12 hours people are de-tagging. 2007) (describing Facebook’s move to close a hole that leaked identities of users “who thought they marked their information as private. AMERICANS AND ONLINE PRIVACY: THE SYSTEM IS BROKEN (Annenberg Public Policy Center 2003).asc.com/article/140994/first_serious_facebook_hack. 2008..ssrn. pictures are up within 12 hours. Jan.php.org/NewsDetails.cmu. Research Report: What Californians Understand About Privacy Offline (unpublished draft.com/sol3/papers.edu/cgi/viewcontent. But they don’t.muledesign.cgi?article=1035&context=asc_papers. The Samy worm. given how widely purchase information is shared.betanews. http://www. 2005).pdf.194 and it banned the “Secret Crush” application after security researchers discovered that it tricked users into downloading and installing adware on their computers. bugs— and malicious ones—i. 194 Michael Liedtke. 191 25 . 15. Information Revelation and Privacy in Online Social Networks (The Facebook Case). Pushing purchase data into Facebook thus transgressed the flow norms of two different contexts.. a junior at Virginia Wesleyan College. AND OFflINE. took advantage of MySpace’s identity-promoting profile customization and spread so rapidly because MySpace users formed a highly connected social network. 3.cfm?abstract_id=1133075 (finding large fractions of Californians overestimated legal limits on data sharing by merchants). She recalls how her high school principal saw online photos of See J OSEPH T UROW. JOSEPH T UROW ET AL. http://www. 2008.

I can think of you as “my friend Bob from work. http://www. 2004). All of these thoughts are implicit.co. that any given photo can have multiple people in it. and be tagged by multiple different people. 2008. 201 See Emma Justice.evidence.” and loosely associate with that hook my various memories of a stressful preparation for an important presentation.php?page=412. but not demand that it be taken down or made private. you’re just Bob. 199 Photos. Regulation by Software. Offline. Facebook lets the subject untag the photo. hard-edged questions about privacy and relationships like that in offline social life. Anything really embarrassing.uk/tol/life_and_style/women/body_and_soul/article2452928. I don’t need to articulate precisely our relationship or what goes into it. See Gross & Acquisti. Education Life Supp. 200 Just because you don’t know about a tagged photo doesn’t mean other people can’t link it back to you if they want.com/help. 203 See Sharing. supra note __. July 27. TIMES (LONDON).199 Note also that a photo of you that isn’t tagged may not be visible to you. of course. Cf. Everything is explicit and up front—at the cost of flatting our entire relationship into a single bit. lets users limit access to their photos to contacts they’ve tagged as “friends” or “family.html (describing increasing use by prosecutors of Facebook party photos of drunk-driving defendants to show lack of remorse).”197 The remarkable thing about the untagging ritual is that it would be completely unnecessary if there weren’t a corresponding tagging ritual.201 That problem is amplified because social network sites require explicit representation of social facts. N. and the subject. Grimmelmann. Whoever has control over it can act in ways that others with legitimate interests in it don’t like. Robyn Backer doesn’t want a photo of her holding a beer bottle tagged with her name on Facebook.com/help/sharing/. There’s something strange about the question “Is this photo okay for everyone in your family and no one else?” We don’t have to answer categorical. FACEBOOK HELP CENTER .200 I’d add. or we’re not.ece (describing user caught between jealous boyfriend and ex who “had posted up old pictures of us together which I had no power to remove”). on the basis of all sorts of fuzzy facts and intuitions. 9. situational manner. Associated Press. 15. for example.com/2008/CRIME/07/18/facebook. Unrepentant on Facebook? Expect Jail Time. Picture Your Name Here. the tagger. 2008.2. Facebook Suicide: The End of a Virtual Life. a waterballoon fight at the company barbeque. MANY-2-MANY 9 (Mar. TIMES.partying students and suspended the athletes who were holding beer bottles but not those with red plastic cups. These complexities illustrate an important point: It’s not easy to uniquely associate each piece of information on a social network site with one person. FLICKR HELP . but three parties: the photographer. our social lives are infinitely richer than Lisa Guersney. supra note __. but the friend who tagged it does. But Facebook reifies these social facts into explicit links: We’re contacts.cnn.ap/index.198 Backer’s friend is holding a piece of information that affects her privacy—this is a photo of Robyn—but doesn’t respect her preferences about that information.2. and I can make decisions about how much to trust you or what to invite you to in an ad-hoc. “And if I'm making a particularly ugly face.new. http://www. 6.flickr. 197 198 26 . at 1738–41 (explaining inefficiencies caused by software’s insistence on making decisions explicit). http://www. § 4. I'll untag. 2007. 202 Cf. July 18. That’s a relationship problem. Flickr. Disagreement and privacy problems go hand-in-hand on social network sites. and that Facebook also lets users tag photos with the names of non-users.Y. and the way you covered for me when I was sick.”203 But this way lies madness.202 Some sites have tried to deal with this information loss by increasing the precision of connections. YASNSes Get Detailed: Two Pictures.facebook. A photo tag can involve not just two. http://women. I'll untag myself. Sept. See Clay Shirky. Our brains aren’t good at it. Researchers at CMU were able to do just that with Friendster profile pictures using off-the-shelf facerecognition software.timesonline.

often painful “drama. 208 See boyd.php. If Hamlet and Gertrude are contacts..” “lostContactWith.” and every other phrase we could use to describe our real.207 Nor should we expect people to agree about them.”) 209 boyd. Cf. in T HE BEST SOFTWARE W RITING I 35.org/relationship/. Heather Richter Lipford et al. though now up to 40) would show up on their profile page. supra note __. 2004).php (“Human social calculations are in particular a kind of thing that cannot be made formal or explicit without changing them so fundamentally that the model no longer points to the things it is modeled on.206 We shouldn’t expect Facebook’s formal descriptors to be precise approximations to the social phenomena they represent. 39–41 (Joel Spolsky ed.corante.org/event/upsec08/tech/full_papers/lipford/lipford_html/ (arguing that ability to understand privacy settings would be improved by allowing users to view their profile as it would appear to various groups). RELATIONSHIP: Two Worldviews.208 danah boyd has brilliantly documented one example of the social fallout from this fact.” particularly among younger users negotiating similar status issues in their school peer groups. 2005) (comparing flattened computer representations of social life to autistic worldview). . But if you Facebook-add me and say “We dated. None of This is Real .” and “wouldLikeToKnow. 206 Clay Shirky. AND SECURITY 2008. USABILITY.” “knowsByReputation. supra note __. 210 Id. http://vocab.” “usedToSleepWith. MANY-2-MANY (Mar.204 Consider the RELATIONSHIP project.any controlled vocabulary can comprehend.” “friendYouDontLike. http://many. 5. PSYCHOL. RELATIONSHIP: A vocabulary for describing relationships between people (Mar. which aims to provide a “vocabulary for describing relationships between people” using thirty-three terms such as “apprenticeTo. We’ve already seen how users can upload information—embarrassing photos. http://www..209 The feature therefore “requires participants to actively signal their relationship with others” in a context where there’s only room for a few people inside the velvet rope. We may be able to work together in real life without needing to confront the basic fact that you like me but not vice versa. 204 See Clay Shirky. 2005). danah boyd.”205 Clay Shirky shows what’s wrong with the entire enterprise by pointing out that RELATIONSHIP’s authors left out “closePersonalFriendOf. 211 boyd. 10.211 The fallout from a friend they’re not a “top 8” friend is a relationship issue. lived relationships.”) 205 Ian Davis & Eric Vitiello Jr.com/archives/2004/03/16/relationship_a_vocabulary_for_describing_relationships_between _people.com/archives/2004/03/09/yasnses_get_detailed_two_pictures.php.usenix. I disagree. people joining a social network sit to connect with friends sometimes find instead that they’ve been snubbed. That point works in reverse. http://many. Top 8.” what am I supposed to do? Uncheck that box and check “I don’t even know this person?” Divergences are made manifest.210 The result is visible..com/archives/2004/03/22/relationship_two_worldviews. then when Gertrude accepts http://many.. Top 8. . . 2004). You think you’re my friend. Recall as well that adding contacts is a way to expand your horizon in the social network.corante. RELATIONSHIP: A vocabulary for describing relationships between people (Aug. Autistic Social Software. for example—about each other. 27 . 16. 22. sometimes to mutual chagrin. MySpace users can choose which “Top Friends” (originally 8. Understanding Privacy Settings in Facebook with an Audience View. 207 Cf. Spillovers What people do on social network sites has privacy consequences for others.” “antagonistOf.corante. supra note __ (“Expressing social judgments publicly is akin to airing dirty laundry and it is often socially inappropriate to do so. Friend requests on Friendster require people to make social judgments about inclusion and exclusion and—more to the point—to reveal these decisions.

215 Id .cmu.C. supra note __.cobase.219 Contact links are a mixture of what sociologists would call “strong ties” and “weak ties.”217 The same goes for removing contacts. Chu. it may be possible to infer it statistically by looking at the values others in the social network list. The more weak-tie contact requests you accept. 213 Ian MacKinnon & Robert Warren. Chen & C. but in an aside Strandburg perceptively notes that commercial profilers are likely to start looking at patterns of association on social network sites. But as Clay Shirky observes. Freedom of Association in a Networked World: First Amendment Regulation of Relational Surveillance.com). “‘[F]riend of a friend of a friend’ is pronounced ‘stranger. AND NEW DIRECTIONS 176 (Edoardo Airoldi et al. REV 741 (2008). A social network site in motion tends to grow. If you attend Barnett College. 221 See id. Granovetter. http://www. eds 2006). the worse the insult of implying that someone fails to meet your already-debased standards 219 Id.C.pdf.218 This leads not just to large. And so the networks grow. dense social networks. Katherine Strandburg has written about the related problem of “relational surveillance. 260–61 (H. Facebook “friends” include not just people we’d call “friends” offline but also those we’d call “acquaintances” (to say nothing of the Fakesters).213 How many openly gay friends do you have to have on a social network before you’re outed by implication? The identity privacy interests here are clear. None of This Is Real.212 Researchers using a simple algorithm on LiveJournal were able to predict users’ age and nationality with good confidence in many cases simply by observing the age and nationality of their contacts. draft available at http://nlg. 49 B.cs. in Protecting Private Information in Online Social Networks. Strandburg. We’ve seen the various reasons people add contacts. 218 The cycle is self-reinforcing. at 765. Relying on network structure to limit profile visibility often means relying on the discretion of your contacts and their contacts. L. One of them is disproportionately important: It’s hard to say no to a contact request. 2008) (using Bayesian inference to predict user interests on Epinions. 214 Katherine J. 216 See boyd.221 social network sites usefully amplify our limited ability to manage weak ties. Even if you don’t list a trait on your profile. so we don’t. is that we must delegate some of our privacy decisions to people with whom we don’t have close See Jianming He & Wesley W. 220 See generally Mark S.214 The NSA call database is the most famous example of such analysis. The Strength of Weak Ties. The price we pay for that networking.216 Because of explicit representation. she may compromise Hamlet’s privacy from Claudius.” in which the network structure itself is used to infer sensitive information about relationships and group activities. it’s easier just to click on “Confirm. rather than embarass both them and yourself with a visible rejection. J.edu/tech-docs/jmhek/privacy_protection.. however. 1360 (1973). but there are also community ones. Yang eds. there’s no way to finesse requests from people you’d rather not invite.ucla.”) 217 See boyd.’” I can also leak information about you implicitly. THE TIPPING P OINT: H OW L ITTLE T HINGS CAN M AKE A BIG DIFFERENCE 30–88 (2000). Age and Geographic Inferences of the LiveJournal Social Network. in STATISTICAL NETWORK ANALYSIS: MODELS. SOC. 212 28 . M ALCOLM GLADWELL. but to ones in which the social meaning of being a contact is ambiguous. “I don’t like you as much as I used to” is a hard message to send. 78 AM.”220 Weak ties are essential for networking (whether it be finding a job or a spouse).cs.pdf. INTELLIGENCE AND SECURITY INFORMATICS 249.Claudius’s contact request. many of your Facebook contacts probably attend Barnett College too. ISSUES.edu/icml_sna/paper2_final.215 There’s an important underlying dynamic that makes these spillover problems more likely. Top 8. supra note __ (“[T]here are significant social costs to rejecting someone.

Benjamin Ryan. ‘Fake Facebook Profile’ Victim Awarded £22. http://news.J.ece. “Hey. 2..com/montrealgazette/news/story. 23. Charles Mandel. but there’s still a social network site angle to the harm.g. 2008. 230 See. e. at 158–61. Mark A.” dramatizes an unwanted Wall post as a “friend” spray-painting crude graffiti on the protagonist’s house. 23.nowlebanon.231 Even what your See GOFFMAN. 227 See Clay Shirky. See also Jail for Facebook Spoof Moroccan. http://www.co. Robert C..228 This may sound like a classic defamation case.bbc. which Facebook will helpfully link from your profile.canada. Three Concepts of Privacy. mm-kay”).g. 231 See. it was (the defendant argued that someone else had created the false profile).” that he owed large sums of money. 89 GEO. “Facebook in Reality.Borehamwood” group. 2092–96 (2001). Denigration Since a Facebook user’s identity is social—it inheres in the impressions she gives and gives off to others222—she runs the risk that someone else will mutilate it. they could tag photos of someone else as you. stop trying to cram your religion down my throat. like the typical Facebook profile. 24. 225 SOLOVE. 226 Idiots of Ants. actually written by its putative author. 6.corante.uk/tol/news/tech_and_web/article4389538. 228 See Jonathan Richards. BBC NEWS. and that he was a member of the “Gay in the Wood.youtube. and legally.223 Two of Solove’s categories are relevant here. 2004).”225 Both protect “control of the way one presents oneself to society.php (describing LiveJournal prank to fill Christian communities with image reading . 2008.com/watch?v=nrlSkU0TFLs. e. http://technology.co.aspx?ID=27719 (reporting on arrest of four Lebanese men for making “making crude and harassing remarks on a Facebook group dedicated to a female student” and on each others’ Walls).com/NewsArticleDetails. http://many. ONLINE L. Any parts of a profile page that are filled by data supplied by other users could be filled with garbage. Assholes. 8. or worse. An acquaintance of Matthew Firsht’s created a fake Facebook profile.com/archives/2004/04/08/operation_fuck_with_the_lj_christians. it falsely said that Firsht was looking for “whatever I can get. MANY-2-MANY (Apr. Those are precisely the people who are less likely to understand or respect our individual privacy preferences.timesonline. 1995 J. July 24. See Whitman. Rights of Attribution and Integrity in Online Communications. The use of Facebook amplified the defamation by increasing its credibility: readers would be more likely to assume that Firsht’s profile page was.” A comedy sketch broadcast on the BBC. supra note __.000. 2007. 224 SOLOVE. There’s distortion—“being inaccurately exposed to the public”224—and there’s appropriation—”the use of one’s identity or personality for the purposes and goals of another. 2087.. at 154–58. L. supra note __. supra note __. Facebook in Real Life (BBC television broadcast). the social dynamics of the site can both encourage groups to egg each other on into anti-social behavior230 and encourage the rapid spread of false information. ¶¶ 30–39 (discussing possible privacy torts for impersonation).226 As we’ve seen. If so.227 You don’t even have to be a Facebook user to be a victim of distortion on Facebook. explicit pornography. The Case of the Facebook Four. G AZETTE (M ONTREAL) Aug. available at http://www.html?id=c8f236f0-bab2-4be1-913f-e8ecc9316ab8 (describing 222 223 29 . TIMES (LONDON). 229 Cf. Dalhousie Halts Defamatory Facebook Group. Lemley.stm (reporting on three-year jail sentence for engineer who created false Facebook profile for Moroccan prince). N OW LEBANON. Feb.uk/2/hi/africa/7258950. http://www.relationships. If they’re feeling cruel. Operation Fuck With the LJ Christians. 2008.229 Similarly. your contacts can also blacken your good name by using it to tag embarrassing photos. supra note __. art. Jan.. then the dignitary side of her privacy interest has been harmed. Post.

you have them as contacts.metacritic.”235 Our social roles are contextual and audience-specific—but when multiple audiences are present simultaneously. supra note __. Solove might call it breach of confidence. May 21. while facts inconsistent with our Facebook performances leak inwards.233 Putting an advertisement for Bio-Dome in my News Feed hijacks my persona—my reputation and credibility with my contacts—for its commercial endorsement value. WHAT WON’T WORK People who use social network sites get deeply upset about many of the privacy-violating things that happen to them there.000-member Facebook Group “Stop Dogs and Puppies from being murdered at Dalhousie University”). it may not be possible to keep up both performances at once. Sometimes law will be the best tool for the job. Facebook performances leak outwards. keeping our hands off and letting the market or social norms do the job will do more good. CODE: AND OTHER LAWS OF CYBERSPACE 85–99 (1999).232 That’s distortion. 232 See Bio-Dome. at 136–40. Bio-Dome hits me where it hurts: in my identity.236 The stories we’ve just seen are stories of convergence. supra note __. 237 See LAWRENCE LESSIG. just as the law ignores most insults offline. This Part will show how interventions that don’t think about Facebook’s social dynamics can go catastrophically wrong. Finally. New Haven. we can’t and shouldn’t worry about preventing every privacy harm resulting from Facebook use. CT. William McGeveran persuasively argues that Beacon also has an appropriation problem. to the extent that associating it with me impugns my judgment and my honor. it should ignore most insults on Facebook. at other times changes to software will be better. If I’ve gone to some effort to list only French New Wave cinema. That’s a relationship-based harm. Even if I bought this “movie” for myself.234 *** The story of social network sites is the story of what danah boyd calls “social convergence. 234 In addition to the identity interests encompassed by appropriation and distortion. 2008. 30 . In other cases. I can still have a reputational interest in keeping that fact confidential. When an intervention interferes with Dalhousie University’s response to the 15. supra note __.) The problem for policymakers is that many seemingly plausible “fixes” for Facebook actually make things worse. Freedom and Privacy. It offers social differentiation but delivers convergence—which its users experience as a violation of privacy. http://www. Channels created for social purposes are misused for commercial ones. the lowest all-time score on Metacritic’s average of critics’ movie ratings. 233 William McGeveran. If we can avert some of those harms without causing worse ones in the process. we ought to.contacts do with their own profiles reflects on you. consider Facebook’s Beacon. the unintentional endorser has been tricked into betraying her friend’s expectations of loyalty within the relationship. III. or “extreme dislike or disgust”). Presentation at Computers. Why Youth (Heart).237 (Of course. See SOLOVE. METACRITIC. 235 boyd. after all. it’s also possible to argue that Beacon improperly piggybacks on users’ relationships with their contacts. Not everything I buy or do online reflects me as I’d like to be seen. perhaps I bought that copy of Bio-Dome for my Pauly Shore-obsessed 6-year-old nephew. The paradox of Facebook is that the same mechanisms that help it create new social contexts also help it juxtapose them. 236 See GOFFMAN .com/video/titles/biodome (giving Bio-Dome a 1 on a scale of 0–100. Social network site profiles are carefully calibrated to present the persona users want to present.

if users overestimate how much privacy they’ll get. 243 See AMANDA LENHART ET AL.. when an intervention keeps users from doing what they want to.com/sol3/papers. Social network site users don’t think rationally about the privacy risks involved. The social causes of this gap should be familiar by now. 1213–18. they fight back... e. Chi. they care more about privacy as they age. 2008.pdf (finding that 55% of online teens had a social network profile compared with 20% of older users). PRIVACY AND THE COMMERCIAL USE OF PERSONAL INFORMATION (2001) (finding no failures in the market for personal information and recommending against government intervention). Emily Gould.pewinternet. L.. they won’t negotiate for enough. e. If left to their own devices. The more subtle reason is that there’s a structural difference between a Facebook user choosing the terms of her participation and a non-user potentially being tagged by any social network site.240 This is a powerful argument. A. if she and Facebook reach a satisfactory agreement. REV.html (describing how author who chronicled her romantic life on her blogs gradually came to regret it). it may artificially distort markets in favor of some technologies and against others.com/2008/05/25/magazine/25internet-t. A Coasean Analysis of Marketing. 241 See Edwards & Brown. Picker. Randal C. Competition and Privacy in Web 2. supra note __.. due to all sorts of deeply-wired cognitive biases. Social network sites change their architecture in ways that defeat earlier privacy expectations.g. so too is privacy-protecting regulation. Market Forces One possible response to privacy concerns is the default: Do nothing.241 That’s a market failure.g. Eric Goldman. Worse. L. at 18–20. Exposed. Sometimes—as when Facebook allows photo tagging of non-users —the people who’ve suffered a privacy loss aren’t in a position to negotiate effectively. RUBIN & THOMAS M LENERD. 242 The intuitive reason why Facebook can’t internalize the tagged non-user’s privacy preferences is that if Facebook knows their name and what they look like but nothing else about them. N. they become disoriented and may act in even riskier ways. but it depends critically on the assumption that market forces will converge on giving users the level of privacy they truly desire. http://www.& Econ.0 and the Cloud (U.244 Teens in particular are notorious risk-takers. On this point of view.243 People are time-inconsistent. http://www.Y.org/pdfs/PIP_Teens_Social_Media_Final. 2006 WISC. while privacy harms are costly.239 while depriving consumers of the benefits of personalized online experiences.. The transaction costs there are prohibitive unless she has a property-style in rem exclusionary right at the outset.238 If government intervenes. 239 See. May 25. 244 See.ssrn.g. Where a well-functioning market would need a feedback loop. We have good reason to believe that this assumption is false for social network sites. MySpace and Bebo and every other site could still tag her. e. even if she pays Facebook to go away.nytimes. The former situation is bilateral. and companies will rationally respond by undersupplying it. 238 31 . http://papers. Working Paper 414. The problem is that there’s a consistent difference between how much privacy users expect when they sign up for a social network site and how much they get. they do dangerous things like See generally PAUL H. instead there’s a gap. TIMES MAG. it’s not in a position to find out how much they’d pay not to be tagged. The latter situation is multilateral. businesses will naturally sort out an optimal level of privacy protection by offering consumers as much privacy as they actually value.users’ perceptions of their social environment.242 Later regret about initial openness is an especially serious problem for the most active social network site users: young people. 2008).cfm?abstract_id=1151985. that’s the end of the matter. 1151. 240 See. TEENS & SOCIAL MEDIA 5–6 (Pew/Internet Report 2007).

most adults had never heard of the site. local government officials. they flocked there to either to track teenagers that they knew or to market goods (or promises) to any teen who would listen. 554–57 (2007–2008) (reviewing psychological literature on adolescent risk-taking behavior). the personal information already online would suffice to ruin the political careers of millions of young people if they were judged by the standards we apply to adult politicians. Zittrain.WARS 4–41 (describing stresses on USENET culture caused by influx of spammers and AOL users). boyd. at 110–44.J. It’s also the story that T. Jonathan Zittrain’s work on generative technologies also suggests why the social dynamics of social network sites do not tend towards equilibrium.250 That See Susan Hanley Duncan. that Katie Hafner tells about the Well. at 25–37. 12. supra note __. why would anyone search for them? Unfortunately for teens. There’s a plausible societal equilibrium around social networks in which those hundreds of thousands new users form accurate expectations about the privacy risks by being burned. MAG. Feb.L. teachers. NET.248 Early privacy expectations fall apart. 248 See. Unless someone is of particular note or interest.org/static/ZittrainTheFutureoftheInternet. Say Everything. even when given accurate information about the risks. informal social norms as new users flood in. But popularity leads to heavy stress on its early. 119 HARV. and that Howard Rheingold tells about USENET and BBSes. supra note __. REV.g.html (“More young people are putting more personal information 245 32 . unexpected. L.smoke and drive recklessly that they later regret. T HE F UTURE OF THE INTERNET—AND H OW TO STOP IT (2008). For the most part. 2007. 247 See J ONATHAN ZITTRAIN. T. there are two groups who have a great deal of interest in them: those who hold power over them – parents. Social network sites are platforms are socially generative: their users can socially reconfigure them in new. afterwards.246 But Zittrain shows how generative technologies can be victims of their own success.245 Even if people in general develop more accurate expectations about how social network sites work and the privacy risks involved. danah boyd’s description of MySpace’s growth shows the dynamic: Most people believe that security through obscurity will serve as a functional barrier online. 249 boyd. e. http://futureoftheinternet. supra note __. hundreds of thousands of children come online each year: people who by definition don’t have much experience in what to expect in terms of online privacy. 1974. Jonathan L. WENDY GROSSMAN . TAYLOR. 527. given the enthusiasm with which the young have embraced semi-public online media. Taylor tells about EverQuest. this is a reasonable assumption. MySpace Is Also Their Space: Ideas for Keeping Children Safe from Sexual Predators on SocialNetworking Sites. – and those who wish to prey on them – marketers and predators.247 When sites are small.L. supra note __. the social flexibility that makes them compelling also helps users predict and enforce privacy norms. N. HAFNER.pdf. etc. 246 This is the story danah boyd tells about Fakesters on Friendster. Why Youth (Heart). http://nymag. Before News Corporation purchased MySpace. That wouldn’t be good. None of This is Real. RHEINGOLD. This shift ruptured both the imagined community and the actual audience they had to face on a regular basis.Y. 1980–96 (2006) (defining “generative” technologies). The Generative Internet. and valuable ways..com/news/features/27341/index7. 250 Emily Nussbaum. The divergence in privacy norms between heavily wired teens and their parents (to say nothing of their grandparents) is striking. PLAY BETWEEN WORLDS 136–50 (2006). 96 KY L. we as a society are going to have some serious issues in getting to the steady state needed for the market-equilibrium theory of privacy choices to hold.249 Indeed.

most people don’t read privacy policies.dbm?ID=1275. its users will know what they’re getting into and approve of the consequences. TRUSTE. either society will significantly adjust its privacy norms or a lot of people are going to have some lifelong regrets about their youthful Internet indiscretions. 15338. A 2001 poll found that only 3% of the people surveyed claimed to read privacy policies carefully “most of the time. 258 Zogby Interactive (online survey conducted Mar. F ACEBOOK . save for an entirely different definition of privacy. In the first place. if a site’s privacy policy is clear and honest.g. AMERICANS AND ONLINE PRIVACY. 23–26). Facebook users don’t read it.facebook.”256 Nonetheless. consumers will make good choices.com/policy. don’t understand it. available at http://www. companies.259 A 2006 survey of Facebook users found that 77% of them had never read its out in public than any older person ever would—and yet they seem mysteriously healthy and normal.com. B.gov/reports/privacy3/fairinfo.com&sealid=101. The percentage of adults using the Internet at home who incorrectly believed that the mere existence of a 33 . L. F AIR INFORMATION PRACTICE PRINCIPLES (1998). supra note __. Ciocchetti. OPEN TO E XPLOITATION . there’s no room in it for the social dynamics of how people actually make privacy-affecting decisions. 253 Note the absence of substantive regulations from industry policy statements such as SOFTWARE AND INFORMATION INDUSTRY ASSOCIATION.258 Those users who do read privacy policies generally don’t understand them. and Facebook users are no exception.php?url=www.overhang of personal information isn’t going to go away.com/NEWS/ReadNews. Study No. 2008). Privacy Policies Some privacy scholars. E-Commerce and Information Privacy: Privacy Policies as Personal Information Protectors. The traditional focus of this approach is the privacy policy. The market prescription leaves matters in the hands of instability-producing social dynamics. instead. it should make sure that companies clearly tell consumers what will be done with their personal information.net/govt/docs/pub/priv_brief_fairinfo. 254 The approach is typified in. http://www.ftc.shtm. 44 AM.. Everything the model knows is wrong. BUS. Privacy Notices Research (telephone poll conducted Nov. see Validated Privacy Statement For www.”257 and a 2007 poll found that 31% claimed to. government shouldn’t regulate any specific privacy standards.J. http://www.org/UnderstandingPrivacy/library/datasum. 257 Harris Interactive. large majorities of them were badly misinformed about what those policies actually said. e. for example. TUROW ET AL . 252 See. Studies have found that although the consumers surveyed claimed to care about privacy and to look to see whether sites had privacy policies.254 An examination of Facebook’s privacy policy shows that the informed-choice model is completely unrealistic. Presentation to IP Scholars Conference (Stanford Law School. 55 (2007). supra note __.siia. 259 TUROW.”) 251 Anupam Chander. http://www.org/ivalidate. 2001). the precondition for market forces to work effectively— stable privacy preferences—fails.truste. 256 Privacy Policy. Corey A. and regulators support an informed-choice model of online privacy. Facebook’s beautifully drafted privacy policy ought to be Exhibit A for informed choice: It bears a TRUSTe seal255 and contains reassuring statements such as We share your information with third parties only in limited circumstances” and “Facebook takes appropriate precautions to protect our users' information.facebook. http://www.252 On this view. FEDERAL TRADE COMMISSION. 8.bbbonline. 9–14. available at http://www. F AIR INFORMATION PRACTICE PRINCIPLES (2001).pdf.253 Armed with good information.251 Either way.zogby. Aug.facebook. It’s a beautiful irrelevancy. 255 Facebook remains in good standing with TRUSTe.pdf.php. don’t rely on it and certainly aren’t protected by it.

please be aware that no security measures are perfect or impenetrable. for privacy violations. You understand and acknowledge that.privacy policy and that large majorities had mistaken beliefs about how Facebook collected and shared personal information. http://privacy. who can use Facebook’s data to invade privacy. 267 Justin Smith. and law enforcement. We are not responsible for circumvention of any privacy settings or security measures contained on the Site.”264 Moreover. that it retains discretion over whether and when to share their information with third parties.263 The bottom line.com/apps/application. in PRIVACY-ENHANCING TECH. Top Friends Vanishes from Facebook Platform. 264 Id.260 Even the 23% who claimed to have read the policy were no more likely to understand what it allowed.261 If its users did read Facebook’s privacy policy closely—and even more counterfactually. Although we allow you to set privacy options that limit access to your pages. 261 Id. 2008). Here’s the paragraph that disclaims any responsibility for actual privacy in no uncertain terms: You post User Content (as defined in the Facebook Terms of Use) on the Site at your own risk. 265 Harvey Jones & José Hiram Soltren. even after removal. http://www. 2006). and that sometimes Facebook even deliberately gives out accounts to let outsiders see what’s going on inside. is that any personal information users upload “may become publicly available. including other users.267 Of course.facebook.262 Facebook also warns users that it may retain data on them even after they delete their accounts. if they understood it—they’d know that it doesn’t restrict Facebook’s activities in any genuinely significant ways. Facebook suspended Top Friends. copies of User Content may remain viewable in cached and archived pages or if other Users have copied or stored your User Content. Imagined Communities: Awareness.swiss.edu/6095/student-papers/fall05-papers/facebook. we cannot and do not guarantee that User Content you post on the Site will not be viewed by unauthorized persons.ai. that it may surveil them even when they’re not using Facebook. There are plenty of other actors. as Facebook repeats near the end. its third-most popular Application (with over a million users266). Facebook’s privacy policy binds only Facebook.pdf (unpublished class paper).000 profiles in 2005 using an automated script—over 70% of the profiles from the four schools in their study. 260 Alessandro Acquisti & Ralph Gross. 263 Id .pdf. Information Sharing. and Privacy on the Facebook.cmu. 262 Privacy Policy. F ACEBOOK. 2008). Facebook: Threats to Privacy (2005). Therefore.php?id=2425101550 (July 13. 266 Top Friends . Application developers.cs. http://apps. Two MIT students were able to download over 70. http://www.insidefacebook.265 In late June 2008.: 6TH INT’L WORKSHOP 36 (George Danezis & Philippe Golle eds. Facebook’s privacy policy explicitly warns readers that Facebook privacy policy meant that the site offering it would not share personal information with third parties was 57% in 2003 and 59% in 2005. INSIDE FACEBOOK (June 26. supra note __ (emphasis added). We cannot control the actions of other Users with whom you may choose to share your pages and information. that it uses their information for marketing purposes (including targeted ads).com/2008/06/26/breaking-top-friends-vanishes-from-facebook-platform/ 34 .mit.edu/dataprivacy/projects/facebook/facebook2. to the extent that it has any binding effect at all.

000 members. This prevents unwanted parents from lurking.org/privacy/facebook/default. All (English. 2007). 27.272 they’ve also sparked mass outrage among Facebook users. Application developers. social factors undermine technical controls: By choosing to make their profile private.g.com/tech/your-privacy-is-an-illusion/why-facebook-employees-are-profiling-users-316469.html (collecting news and resources). 7.stm (describing investigation by UK Information Commissioner’s Office). 275 See danah boyd. 2007). if some accounts in the blogosphere are to be believed. Why Facebook Employees Are Profiling Users.273 and an anti-News Feed group over 700. and Lexis (News. Canadian Internet Policy and Public Interest Clinic. http://valleywag. 29. PIPEDA Complaint].has no control over other users. and shouldn’t rely on Facebook’s privacy policy to protect their personal information as they use it. 1201 (discussing use of technical measures to provide detailed control over private medical information). Technical Controls Some scholars think that one of the better ways to protect privacy on Facebook is give users better technical controls on who else can see their personal information. http://www.cippic.php?gid=5930262681 (73. Yahoo.) 277 See Edwards & Brown.ca/uploads/CIPPICFacebookComplaint_29May08. who treat access to profile and user-activity information as a “job perk. couldn’t.276 C. L. http://epic. journalists. To handle Privacy Policy. 3 I/S 723 (2007–2008) (criticizing informed-choice model and calling for substantive regulation.”269) We can put one last nail in the coffin of the informed-choice theory: Facebook’s reputation on privacy matters is terrible. Full Text)) produced zero results for the phrase “Facebook protects privacy. 274 Facebook’s pattern—launch a problematic feature. 276 See generally Joseph Turow et al.co.268 (Indeed.facebook. See generally Owen Thomas. consumers don’t.bbc. 2006). 18.271 and regulators.” 271 See. REV..org/thoughts/archives/2006/09/07/will_facebook_l.000. Searches on Google. but it also means that peers cannot engage with them without inviting them to be Friends. watchdog groups. supra note __. D ANIEL SOLOVE . Facebook Privacy Page.com/group. Complaint Under Personal Information and Protection and Electronic Documents Act (submitted to Privacy Commissioner of Canada May 30.275 In short. offer a ham-handed response to initial complaints.. F ACEBOOK . Facebook has trouble controlling its own employees. When people use “Facebook” and “privacy” in the same sentence. Stop Invading My Privacy!. 52 STAN. e. VALLEYWAG (Oct. See also Jonathan Zittrain. as danah boyd’s ethnography of teenage MySpace users illustrates.uk/2/hi/technology/7196803. 268 269 35 . can’t. scholars. the word in between is never “protects. or the legal system. VALLEYWAG (Oct. MSN. The Federal Trade Commission and Consumer Privacy in the Coming Decade. Will Facebook Learn from Its Mistake?. 273 Petition: Facebook. Facebook Faces Privacy Questions. supra note __.com/tech/scoop/facebook-employees-know-what-profiles-you-look-at-315901. 270 I’m not exaggerating. teens are able to select who can see their content.”270 Facebook’s privacy missteps haven’t just drawn the attention of bloggers. BBC NEWS (Jan. What the Publisher Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted Privication. supra note __. 2008). and ultimately make a partial retreat—hasn’t given it much privacy credibility. 2008). An anti-Beacon group attracted over 70. 272 Chris Vallance. Nick Douglas. http://www. ELECTRONIC PRIVACY INFORMATION CENTER. http://www.html (describing pattern). Facebook Employees Know What Profiles You Look At.php (collecting posts on Facebook employee misbehavior).php. THE FUTURE OF REPUTATION 200–03. http://news.pdf [hereinafter CIPPIC.277 But. http://valleywag.124 members on Facebook) 274 Story & Stone. APOPHENIA (Sept.zephoria.

282 Chris Kelly. 552 ( Lorrie Faith Cranor & Simson Garfinkel eds.286 Indeed.285 A study of college students found that between 20% and 30% didn’t know how Facebook’s privacy controls worked. 286 Acquisti & Gross. http://blog.html. thereby leaking personal information to it.com/pressoffice/news/articles/2007/08/facebook. See Gelman. Facebook has the most comprehensive privacy-management interface I’ve ever seen. by a security vendor. 280 See Nissenbaum.”281 and it implements this principle by offering users a staggeringly comprehensive set of privacy options presented in a clean. Anonymity Loves Company: Usability and the Network Effect. BEHAVIOURS. found that a similar fraction of Facebook users were willing to add a plastic frog as a contact. 14. Facebook’s experience provides strong evidence of the limited usefulness of technical controls. its Chief Privacy Officer.insidefacebook. Surveys show that many users either don’t care about or don’t understand how Facebook’s software-based privacy settings work. Not that it matters.284 Another study.279 It’s deeply alien to the human mind to manage privacy using rigid ex ante rules.”) 278 279 36 .pdf. http://www. 283 See Testimony of Chris Kelly. One study by the UK Office of Communications found that almost half of social network site users left their privacy settings on the default. supra note __. Privacy as Contextual Integrity. called its controls “extensive and precise” in testimony to Congress. attractive interface. Facebook users have greater technical control over the visibility of their personal information than do users of any of its major competitors. Computer users are often confused by complex interfaces. FACEBOOK BLOG (Mar. Chief Privacy Officer of Facebook. supra note __. turning instead to social norms of appropriateness and on informal assessments of practical obscurity. http://www. Science. how to change them.facebook. 282 See Naomi Gleit. We think about privacy in terms of social rules and social roles. and Transportation. teens are often promiscuous with who they are willing to add as Friends on the site. supra note __. SOCIAL NETWORKING: A QUANTITATIVE AND Q UALITATIVE RESEARCH REPORT INTO ATTITUDES. probably irreconcilable tension between the desire for reliable control over one’s information and the desire for unplanned social interaction. Before the United States Senate Committee on Commerce. and emphasized that Facebook’s goal was “to give users effective control over their information” through its “privacy architecture. users almost always spurn or misuse technical controls.ofcom.com/blog. Why Youth (Heart). 2005) (“Extra options often delegate security decisions to those lease able to understand what they imply. or even whether they themselves ever had.278 The fact is that there’s a deep. more detailed technical controls can be worse for privacy than less detailed ones. Imagined Communities.280 Thus. supra note __. AND USE 8 (2008).”283 He’s not blowing smoke. not in terms of access control lists and file permissions. More Privacy Options.org. 281 Privacy Policy.sophos. when given the choice. 287 See Roger Dingledine & Nick Mathewson. July 9.287 and can easily be talked into boyd.uk/advice/media_literacy/medlitpub/medlitpubrss/socialnetworking/report. 2008). 2008.php?post=11519877130 (describing new privacy interface and options). SOPHOS (Aug. One of Facebook’s two “core principles” is that users “should have control over [their] personal information. http://www. supra note __. 285 Sophos ID Probe Shows 41% of Users Happy to Reveal All to Potential Identity Thieves.this. 2007). 284 OFFICE OF COMMUNICATIONS.com/wpcontent/uploads/2008/07/chriskellyfacebookonlineprivacytestimony.pdf. 19. in SECURITY AND USABILITY: DESIGNING SECURE SYSTEMS THAT PEOPLE CAN USE 547.

and everything else technological.”). the two them have something new to argue about—or worse. Amy Polumbo wanted her friends to have access to photos of her dressed up as a salacious Alice in Wonderland. the network will be unable to prevent them from sparking privacy blowups. in SECURITY & USABILITY. 32 (“Unless you stand over them with a loaded gun.” only to recognize that “this is not a desirable start state for social networking. If we’ve learned anything at all from the DRM wars. Computer Science.”292 If Facebook profiles started off hidden by default. DRM Talk at Hewlett-Packard Research (Sept. 82 NOTRE DAME L.e. always). unless it’s the police asking. transcript available at http://craphound. but that way lies madness. supra note __. Shah. The deeper problems are social. there’s still “friendYouDidntUsedToLike. but seen how Facebook has gotten into trouble by changing privacy controls that users were familiar with. SECRETS AND LIES 266–69 (2000) (“Social engineering bypasses cryptography. Setting Software Defaults: Perspectives from Law. 2005). Facebook could add such a control. users will disable. REV. in which case they’re not friends.” As long as there are social nuances that aren’t captured in the rules of the network (i. Adding “friendYouDontLike” to a controlled vocabulary will not make it socially complete. it’s a moral certainty that I do—anything that makes it harder for me to share is a bug. that one of them couldn’t be trusted was the friend’s fault. and Behavioral Economics. 28. or avoid any security system that proves to be too burdensome or too bothersome. 583 (2006) (emphasizing power of defaults). Kesan & Rajiv C. 290 See Cory Doctorow. Maybe Chiles would have been willing to acknowledge the friendship to members of the “College Administrators” group but Gartner wouldn’t have. see also Jay P. See BRUCE SCHNEIER. Users will disable any feature that protects their privacy too much. it’s that technical controls are rarely effective against a person genuinely determined to redistribute information they’ve been given access to. and all the technical controls in the world wouldn’t have helped Polumbo. The very idea is an oxymoron. be unpleasantly surprised by when one realizes that the other’s privacy settings have just gotten him busted. checking the box that says “Don’t show to Bob” will stop Facebook from showing it Bob. the next thing each user would do after creating it would be to turn off the invisibility. Social needs induce users to jump over technological hurdles. Increased granularity can also make problems of disagreement worse. “social” and “technical” are incompatible adjectives here. supra note __.290 There’s also another way of looking at “information others want to share”: If I want to share information about myself—and since I’m using a social network site.291 The defaults problem nicely illustrates this point. There are no ideal technical controls for the use of information in social software. 288 37 .com/hpdrm. computer security. network security.”289 If you’re already sharing your information with Alice. 291 See Bruce Tognazzini. Lillian Edwards and Ian Brown flirt with the idea that default “privacy settings be set at the most privacy-friendly setting when a profile is first set up. supra note __. at 21–23.”) 289 Privacy Policy. not a feature. If Facebook adds that option..overriding security measures designed to protect them.288 Complexity also requires more maintenance. but it won’t stop Alice from showing it to him. Another reason that comprehensive technical controls are ineffective can be found in Facebook’s other “core principle”: that its users should “have access to the information others want to share. evade. Usable Security. at 31. Marc Chiles and Adam Gartner would have liked a technical control to say that they’re friends.txt (applying lessons to conclude that “privacy DRM” cannot work). 292 Edwards & Brown.

297 These are important concerns.J. Information. these are peer-produced privacy violations. Even if the government left Facebook completely alone. Internet Nondiscrimination Principles: Commercial Ethics for Carriers and Search Engines. whether for marketing or by turning it over to third parties. just someone in her social network with a little ill will towards her. Comment: The Fourth Amendment and Privacy Issues on the “New” Internet: Facebook. 296 Similarly. L. Frank Pasquale. 293 294 38 . for diverse reasons. 1995 O. and Law.293 Large concentrations of personal data in the hands of a single entity raise serious and well-known privacy concerns.294 Another is that the entity itself may misuse the data. 295 See. Siren Songs and Amish Children: Autonomy. ch. diversely social motivations. Coase’s Penguin. That’s typical of the problems we’ve seen in this Article: we worry about what of ours our parents. the European Union’s Data Protection Directive seeks to protect individuals from nonconsensual data collection. they don’t buy and sell their social capital (except in jest with the Sell Your Friends application). The same sharing-friendly platform. FORUM (forthcoming) (claiming that arguments for imposing limits on exercise of power by network providers also justify imposing limits on exercise of power by search engines). 369 (2002) (discussing peer production at length and in detail).com and MySpace. The privacy violations are bottom-up. As we’ve seen. 5. 23 (2001) (deploying concept of peer production). L.U.Y. e.J. just as much as we worry about what malevolent strangers will see. and they don’t organize themselves hierarchically. and expectations. friends. when it comes to private information. T HE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION T RANSFORMS M ARKETS AND FREEDOM 105 (2006). One is that the government may misuse the data for illegitimate investigations. Pipeda Complaint. goals. 31 S. 297 Council Directive 95/46/EC 24. 298 YOCHAI BENKLER. and no other company ever had access to Facebook’s data. 2008. U. they emerge spontaneously from the natural interactions of users with different tastes. (L 281) 31. 95 (2006) (discussing whether users have a reasonable expectation of privacy in data revealed to social network sites). not aimed towards sales in a market for either motivation or information. and employers will see.295 This analogy has led to a complaint against Facebook under Canada’s Personal Information Protection and Electronic Documents Act.”298 That’s a fair description of Facebook culture: users voluntarily sharing information with each other. See generally Yochai Benkler. both personal and social. supra note __.C. They don’t use intellectual property to control Wall posts. Commercial Data Rules H. Yochai Benkler. New Haven. Brian Holland has observed that while users share individually and for social reasons. Hodge. 2000 S. CHI. May 21. and enormous userbase that make Facebook compelling and valuable also make a privacy nightmare. most of the problems we’ve seen would remain. There are plenty of other contexts in which it makes sense to ask whether platform operators have too much power over their users. Amy Polumbo’s would-be blackmailer wasn’t a government agent or a data miner. Brian Holland. and Facebook showed no advertisements to its users. CT. a genuine commons is the last thing we want. or Linux and The Nature of the Firm.D. Presentation at Computers.com. ILL. U. Facebook’s role as a platform gives it access to everyone’s data. 76 N. but they’re orthogonal to the privacy issues detailed above. and not organized around property and contract claims to form firms or market exchanges.g. REV. however.J. 112 YALE L. . L. exes. 296 CIPPIC. Freedom and Privacy. In other words. The dark side of a peer-to-peer individualH. Facebook has the essential features of an information commons. Yochai Benkler describes peer production as a mode of “information production that is not based on exclusive proprietary claims. See Matthew J.

Privacy Counsel. Even if Facebook were perfectly ethical and completely discreet.. at 34.g.europa.pdf (objecting to unconsented marketing and transfer of customer information to Ticketmaster affiliates). “[M]ost of the personal information published in social network services is being published at the initiative of users and based on their consent. 299 39 . http://www.enisa. while the clinic at the University of Ottawa certainly knows how to draft hardhitting complaints that object to data transfers to third parties. 20.datenschutzberlin.eu/doc/pdf/deliverables/enisa_pp_social_networks. CIPPIC. http://www.pdf (expressing concern over the length of time that Google retains query logs).pdf (requesting injunction to prevent data transfers between Google and DoubleClick as part of proposed merger). they’d kill off social network sites. 2005). http://ec. Complaint by Electronic Privacy Information Center et al.europa. Google (May 16. E. TIME. If commercial data rules were applied too rigorously. to Peter Fleischer. TECH. Julie Rawe.empowering ecology is that it empowers individuals to spread information about each other. Oct.de/attachments/461/WP_social_network_services.ca/documents/privacy/Ticketmaster-OPCCletter. snooping on each other. & INTELL. How Safe Is MySpace?. Its Facebook complaint focuses instead on improving disclosures by Facebook to its users of its practices. PROP. 306 See. 2007). at 1. 2007). 299 Thus. 73. These are not concerns about powerful entities looking down on the network from above.300 it implicitly recognizes that this is often the wrong paradigm for thinking about what Facebook does. 6 N W. http://epic. 2007).eu/justice_home/fsj/privacy/news/docs/pr_google_16_05_07_en. supra note __. supra note __. 73–76 (2007) (attributing fears of sexual predators on social network sites to a generation gap).pdf [hereinafter IWG-DPT Report] 303 Security Issues and Recommendations for Online Social Networks (ENISA position paper no.. users would still be creating false profiles. Complaint Re Ticketmaster Non-Compliance with PIPEDA (Nov.”304 Social network sites that couldn’t collect or distribute personal information couldn’t function—and users would be frustrated. 300 See.org/privacy/ftc/google/epic_complaint. 302 Report and Guidance on Privacy in Social Network Services (Mar. 4. Chairman. while reports dealing with privacy and other platforms often propose strong restrictions on data collection and transfer. e. Article 29 Data Protection Working Party.cippic.g. 304 IWG-DPT Report. Commercial data restrictions are inappropriate because they treat the problem as commercial one. the focus of reports on social network site privacy is appropriately elsewhere. For this reason. July 3. 301 See CIPPIC. like chat rooms before them.301 European reports from the International Working Group on Data Protection in Telecommunications (IWG-DPT)302 and the European Network and Information Security Agency (ENISA)303 similarly focus on improving communications with users rather than on stronger restrictions on data collection and transfer. As the IWG-DPT report acknowledges. to Federal Trade Commission (Apr. e. e. baby and bathwater together.306 While recent studies shows that these fears are See. J. are seen as a place where “predators” find children and lure them into abusive sexual relationships. and on enabling users who wish to quit Facebook to remove their information from it. A (My)Space of One's Own: On Privacy and Online Social Networks. 305 See Patricia Sanchez Abril.pdf. rather than relieved. and struggling over the bounds of the private. 1. 17. Use Restrictions Our next bad idea comes out of the moral panic over online sexual predators..305 Social network sites. Letter From Peter Schaar. 2006. http://www. they’re concerns about individuals looking at each other from ground level.g. 2008). not social. PIPEDA Complaint.

Version were reintroduced in the Senate and House in the 110th Congress and remain pending. Would Your Favorite Website be Banned by DOPA?. id. 309 H.B.com. 2008. CBS Sportsline.” id. id. id. http://techliberation. would have threatened social network sites with legal action for not preventing minors from signing up.com/27bstroke6/2007/05/banned_myspace_.g. They also sweep up many people who are not significant threats to anyone’s safety online. that putting personal information online was not a predictor of receiving sexual solicitations. § 3(c). id.g. supra note __. http://www. S. id.nj. 1120. 310 Id. Id. § 3(a). 110th Cong. 2007). May 8. 2008) (dismissing claims against MySpace arising out of sexual assault committed by nineteen-year-old against fourteen-year-old first contacted via her MySpace profile). 317 Joint Statement on Key Principles of Social Networking Sites Safety. and Implications for Prevention and Treatment. http://blog.com/DocumentStreamerClient?directory=PressReleases/&file=AG%20Cooper%20MySpace% 20agreement. 49. The Deleting Online Predators Act (DOPA) passed the House during the 109th Congress but died in the Senate in committee. PSYCHOLOGIST 111 (2008) (summarizing conclusions of multiple surveys). T HREAT LEVEL (May 21. 63 AM. Banned MySpace Sex Offender: Why Me?. See Patricia A. Powers. that most victims go to face-to-face encounters expecting sexual activity. TECHNOLOGY LIBERATION FRONT (Mar. 311 Id. 307 40 . 308 See. § 1. at 112. Realities. at 120. See. States Ponder Laws to Keep Web Predators from Children. The site checks its membership rolls against a database of known sex offenders and deletes their accounts. essentially all social network sites would have been covered. L. Online “Predators” and Their Victims: Myths.com/2007/03/10/would-your-favorite-website-be-banned-by-dopa/ (listing USAToday. e. 14. that Internet-initiated contacts were responsible for about 7% of statutory rapes.R. 59 (Ga. H. The authors conclude that most victims know they are dealing with adults. 1049 (2003/2004).pdf.3d 413 (5th Cir.ncdoj. (2007). and many others).C. the states’ agreements with both MySpace316 and Facebook317 stop short of keeping kids off the sites.314 along with a broad coalition of state attorneys general. 316 Joint Statement on Key Principles of Social Networking Sites Safety.308 Unfortunately. 2007). http://www. Jan. Commentators have observed that the definition—and similar ones offered in similar state bills—could encompass not just MySpace but also Wikipedia and many other websites with social network features. (2007). 110th Cong. May 6.substantially overblown. Doe v.R 5319. 132 (N. 10. 312 S. These broad restrictions—as enforced by MySpace with minimal due process protections for the individuals whose profiles are removed—are part and parcel of the increasingly comprehensive surveillance now being directed at sex offenders. TIMES.315 (For now. 38 NEW ENG.html. at 117.Y. 313 S.. See Kevin Poulsen.311 Other proposals go even further. 318 The “voluntary” steps MySpace has agreed to keep convicted sex offenders off the site are themselves worrisome from a privacy point of view. Adam Thierer. and that claims of increased sexual offenses due to the Internet “remain speculations as yet unsupported by research findings.”310 Under the list of factors the Federal Communications Commission would have been required to use in defining that term.312 Bills in Georgia313 and North Carolina.wired. MySpace. See Stone. 1682 (Ill. at 113. It also gave their names and addresses to the attorneys general. 2007. 109th Cong.318) See Janis Wolak et al.gov/oag/newsreleases08/Facebook-Joint-Statement. 315 See Jennifer Medina.. 314 S. REV. (2006). e. 2007). some legislators and attorney generals think the solution is to severely limit access to social network sites. that social network site usage was not associated with increased risk. Note: Making a Spectacle of Panopticism: A Theoretical Evaluation of Sex Offender Registration and Notification.B. DOPA only would have applied to libraries receiving federal E-Rate funding and would have allowed librarians to enable social network site access upon patron request. 2008. N. 2007). An Illinois bill would have dropped both of those limits. 2007).pdf.307 some children do meet their abusers through social network sites. at 37. 528 F. at 115.309 It would have required that libraries and schools install Internet filters on computers to block access to “commercial social networking website[s].B.

319 320 41 . 13.S. quoting ACLU v. supra note __. e. No Easy Solutions (Progress & Freedom Foundation Progress on Point Release 14. 326 See Picker. Reno.. Apr. the Supreme Court held that there was “no effective way to determine the age of a user” on the Internet. As Edwards and Brown put it.technologyreview.findlaw.324 F. REV.pff.321 The impossibility of keeping teens off social network sites points to a deeper reason why it’s a bad idea to try. 7.net/journalisms/2007/4/3/what-the-myspace-generation-should-know-about-working-forfree.323 These are compelling social benefits for social network site users of all ages.326 When that happens.D. http://kottke. reentering information from scratch is a big hassle. If we deprive ourselves of them out of privacy fears. http://www. Aug. In danah boyd’s words. explore social roles.325 When users can’t easily carry their digital identities with them from one site to another. either. and engage publicly. Jason Kottke.328 others think that the lack of market discipline means that social network sites don’t pay enough attention to privacy. 844. Why Youth (Heart).5ageverification. http://www. supra note __. You’ve Been Poked: Privacy in the Era of Facebook. so they’ll look for ways to circumvent any obstacles thrown up to stop them. “[O]nline access provides a whole new social realm for youth. Who Owns Your Friends?.. “[U]sers will put up with a bad deal rather than make the effort of replicating all their personal data and ‘friends’ connections elsewhere. FINDLAW.news. but that didn’t stop users under 18 from signing up by lying about their age.”322 She traces a set of overlapping trends that have pushed teens into age-segregated spaces while simultaneously subjecting them to pervasive adult surveillance and depriving them of agency in roles other than as consumers. Why the Delete Online Predators Act Won't Delete Predatory Behavior. supra note __. 327 Edwards & Brown. Reno v. 2007). 323 Id.. 2007). Social Networking and Age Verification: Many Hard Questions. KOTTKE.”327 Some see this “bad deal” as a form of exploitative unpaid labor. it’s much harder for new entrants to compete with an entrenched incumbent. Supp. For them. 2007) (calling for social network site interoperability). 521 U.org/issuespubs/pops/pop14. 325 See. http://writ.html (arguing that DOPA would increase the digital divide). Facebook Is the New AOL. 929 F.org/07/06/facebookis-the-new-aol (calling Facebook a “walled garden”). 19.html. SCITECH L AW. 324 See also Anita Ramasastry. but they’re no silver bullet. 1996). but far too many people have fallen into the trap of thinking boyd & Heer. People want to use socially compelling technologies.330 These are serious concerns. The state AGs consistently call for social network sites to use age verification technologies.329 Users themselves want a seamless online experience. Pa. July/August 2008. Getting Social Network Sites to Socialize.319 That shouldn’t be surprising. ACLU. 322 boyd. Summer 2008. Profiles as Conversation. the terrorists will have won.5. In its opinion striking down the Communications Decency Act of 1996. at 23. 329 See Ruben Rodrigues. 330 See Erica Naone. 3.collectivate. supra note __.com/Infotech/20920/ (“huge burden”). social online media provide an essential “networked public”: a space in which they can define themselves. Friendster originally didn’t allow users under 18 to sign up. 321 See Adam Thierer.g. 2007.ORG (June 29. 945 (E. What the MySpace Generation Should Know About Working for Free. Michael Geist. TECH. 824. at 18. https://www.The first problem with trying to keep people (especially teens) off of social network sites is that it doesn’t work. 855 (1997).320 There still isn’t. TORONTO STAR (Aug. 2006. users suffer. Data “Ownership” Some people think the biggest problems with social network sites are closure and lockin. 328 See Trebor Scholz.com/ramasastry/20060807.pdf.

he can override your graph-based privacy settings.332 Thus. INFOWORLD (Feb. technical. Feb.. Who Owns Your Address Book. the privacy consequences would be disastrous.”) Does that mean that Quittner’s contacts also own him? 332 See Joseph Smarr et al. 2008).org/2007/09/05/bill-of-rights/ (listing “onwership” as one of three “fundamental rights”). 331 42 . 334 Specifically. but which aren’t exposed through Facebook’s public API. end-run Facebook’s social norms. It's Time For Services on The Web to Compete On More Than Data. Consider the story of Plaxo’s screen-scraper. John Battelle.334 Facebook’s decision makes sense from a privacy perspective. it can squelch user attempts to leave when it chooses to be closed.techcrunch.333 Plaxo. A Bill of Rights for Users of the Social Web. Everyone who has access to “portable” information on social network site A is now empowered to move that information to social network site B.com/article/08/02/08/Facebook-privacy-chief-Data-portability-dangers-overlooked_1. 4. 2008). Facebook Privacy Chief: Data Portability Dangers Overlooked. or social constraints applied to that information in social network site A. See. while data portability may reduce vertical power imbalances between users and social network sites.335 If you agreed to be Scoble’s contact on Facebook. encouraged Facebook users to change horses midstream by providing a tool for users to import their piece of the social graph from Facebook into Plaxo. e. Thus. http://www. mandatory data portability rules create a privacy race to the bottom for any information subject to them. relied on Facebook’s enforcement of community norms. users should “own” their personal information. Robert Scoble’s screen scraper is an insult to thousands of people’s contextual privacy expectations. http://battellemedia. a contacts manager with strong social network features. 2008). 333 See Naone. The tool worked by loading Facebook profile and extracting the relevant information from them directly. FORTUNE. even though the nature of the property allegedly to be “owned” is unclear. while user data ownership might help with the competitive lock-in problem.g. but it need not..infoworld. You probably didn’t have in mind being Scoble’s contact on Plaxo. http://www.com/2008/01/03/plaxo-flubs-it/. 8. 5. the Plaxo tool gathered email addresses.com/archives/004189.php (“Imagine a world where my identity and my social graph is truly *mine*. OPEN SOCIAL WEB (Sept. You may have tweaked Facebook’s account settings to limit access. Josh Quittner. which Facebook users can put on their profile pages.. Blogger Robert Scoble tried it out and promptly had his account banned for violating Facebook’s terms of service. it creates horizontal privacy trouble. Think of it this way: If you and I contacts. See Michael Arrington. ”) Many people use ownership rhetoric uncritically. and feed it into one of Facebook’s competitors. Unless we're prepared to dictate the feature-set every social network site must have. 2007). If he can unilaterally export his piece of the social graph from Facebook to Plaxo.html. 2008 (“My contacts should belong to me. Unfortunately. goes the argument.g. See. you had Facebook’s privacy rules in mind. 18. In the process. Perhaps social network site B has similar restrictions. In other words. and presented yourself in ways that make sense in the social context of Facebook.we should respond by giving users “ownership” over “their” information on a social network site. 3. supra note __. http://opensocialweb. delete it from Facebook. Plaxo Flubs It. and rip your identity out of the context you crafted it for. SEARCHBLOG (Jan. retaining the rights to export the information. and is represented in a machine readable manner. 335 Juan Carlos Perez. TECHCRUNCH (Jan. they can strip it of whatever legal. e. is that fact your personal information or mine? Giving me the “ownership” to take what I know about you with me to another site violates your privacy.331 The ownership frame thinks that the problem is that Facebook currently “owns” all user data.

WHAT WILL (SOMETIMES) WORK Recognizing that Facebook’s users are highly engaged but often confused about the privacy risks suggests turning the problem around. GOOGLE CODE . http://www. Others are pragmatic. the fewer bad calls they’ll make. 2008).com/fbconnect. http://developers. F ACEBOOK DEVELOPERS. They have in common the fact that they take the OpenSocial. People have compelling social reasons to use Facebook. ethical advice for social network site operators. it also becomes less secure—and thus less private. “Solutions” that treat Facebook as a rogue actor that must be restrained from sharing personal information miss the point that people use Facebook because it lets them share personal information. Lindsay Lohan Privat Pics Exposed by Yahoo Hack.340 As social network site data becomes more portable. the many cases of interpersonal conflict we’ve seen can’t be fixed simply by setting expectations appropriately. 336 337 43 . Some of these suggestions are jobs for law. V ALLEYWAG (Jun.. http://valleywag.cs. and with whom it shares personal information is shared—we should focus on the users. there are ways that law can incrementally promote privacy on social network sites.com/apis/opensocial/.For this reason. they ask regulators to restrain social network sites and their users from behaving in privacy-harming ways. I’m looking at you). Data Availability.338 Personal information is only as secure as the least secure link in the chain through which such information passes. 340 See Owen Thomas. complete with plenty of photos. http://code.com/5012543/paris-hilton-lindsay-lohan-private-pics-exposed-by-yahoo-hack.com/community/myspace/dataavailability.php.myspace. http://developer. There will always be a need to keep companies from making privacy promises and then deliberately breaking them. and we ought not to let the fact that they’re not complete solutions stop us from improving matters where we reasonably can. we should also be extremely cautious about technical infrastructures for social network portability. and those same social factors lead them to badly misunderstand the privacy risks involved.339 A bug in data portability between MySpace and Yahoo! exposed Paris Hilton’s and Lindsay Lohan’s “private” MySpace pages to anyone with a Yahoo! account. they can often implement reforms more effectively than law’s heavy hand could. 338 Facebook Connect. The supposedly privacy-promoting solution so badly misunderstands the social nature of relationships on social network sites that it destroys the privacy it means to save. Even more importantly. IV. People have different desires—that’s the point—and someone’s hopes are bound to be dashed. like Google’s OpenSocial336 and APIs from MySpace337 and Facebook. One study found that 90% of Facebook applications requested access to more personal information than they needed. Instead of focusing on Facebook—trying to dictate when.g. e. Adrienne Felt & David Evans.virginia. how. Privacy Protection for Social Networking APIs. *** The strategies detailed in this Part fail because they don’t engage with Facebook’s social dynamics.edu/felt/privacybyproxy. 3. Paris Hilton.google. It’s their decisions to upload information about themselves that set the trouble in train. This prescription is not a panacea.facebook.aspx. The smaller we can make the gap between the privacy they expect and the privacy they get. Still. Others make bad decisions that are probably beyond the law’s power to alter (teens.pdf. MYSPACE DEVELOPER PLATFORM. Some people walk knowingly into likely privacy trouble. 339 See.

g. Because six of his proposed factors require examining features of the network itself—e. supra note __.343 He draws on the sociological and mathematical study of networks to show that some information is likely to spread widely throughout a social network and other information is not. 96 GEO .346 These torts are not appropriate in all situations—de minimis non curat lex—but they’re good legal arrow to have in our quiver for protecting online privacy. 342 Gelman. we might also consider reviving the tort of breach of confidence. there’s no longer a privacy interest in it. supra note __. while “on Facebook. Privacy’s Other Path: Recovering the Law of Confidentiality. Where the defendant was a contact and learned the information through Facebook. after all—but they were still often effectively private.342 Facebook provides a great illustration of why the secret/public dichotomy is misleading. Lior Strahilevitz’s social networks theory of privacy provides a better middle ground. arguing that in everyday life. The same idea should apply. They weren’t secret—they were on Facebook.social dynamics seriously. The same would be true if Facebook were tomorrow to make all profiles completely public. but with a difference balance. because it’s practically obscure and social norms keep it that way.345 Courts should therefore sometimes have the facts they need to conclude that a piece of information. Solove. my faithless contact is the one who made the information “public. In particular. 346 See Neil M. supra note __. as Neil Richards and Daniel Solove propose. while the privacy settings chosen by the original user shouldn’t be conclusive. Public Disclosure Torts For legal purposes often there’s often a sharp dichotomy between “secret” and “public” information. at 970–71. and one of them puts everything on it on a public web page seen by thousands of people. Courts sometimes seem to believe that once a personal fact is known by even a few people. including a stalker I’d been trying to avoid.344 Social network sites—where the social network itself is made visible—are a particularly appropriate place for the kind of analysis Strahilevitz recommends. He invites courts to look at the actual structure of people’s real networks and the structure of information flow in them to decide whether information would have become widely known even if the defendant hadn’t made it so. they’re good evidence of how the plaintiff thought about the information at issue. 343 Strahilevitz. If I hide my profile from everyone except a close group of contacts.J.” remained private enough to support a public disclosure of private facts lawsuit along the lines Strahilevitz suggests. at 973–80. DANIEL SOLOVE .” not me. “prevalence of ties and supernodes”—they’re substantially easier to evaluate on Facebook than offline. 341 44 . L. we rely on social norms and architectural constraints to reveal information to certain groups while keeping it from others. THE DIGITAL PERSON 42–44 (2004) (attacking “secrecy paradigm). 123 (2007). Richards & Daniel J. A.341 Lauren Gelman persuasively argues that even publicly-accessible information is often not actually public. Scholars have sharply criticized this dichotomy. when it comes to defining See Nissenbaum. and of how broadly it was known and knowable before the defendant spread it around. 345 Id. 344 Id.

it would also be reasonable to let them opt in on a source-by-source basis (e. http://baratunde.com/sol3/papers. 107 MICH.cfm?abstract_id=1138128 (describing and defending third-party doctrine). Thus. by sticking purchase-triggered ads in News Feeds with users’ names and pictures. under the third-party doctrine.com/blog/archives/2007/08/facebook_follies_or_the_dangers_of_investing_in_someone_elses_p latform. Facebook should need to get the knowing consent of its users before it can use their personae for advertising. SMALL PIECES LOOSELY JOINED 104 (2003). to lose one’s profile can be a harsh blow. supra note __ (discussing “reasonable expectation” test in Fourth Amendment jurisprudence). Similarly. Even worse is the way Facebook launched Beacon: on an opt-out basis. 28. a Facebook user who makes a fact known only to a small group of contacts has no Fourth Amendment grounds for complaint if one of those contacts reveals the fact to the police. 350 D AVID WEINBERGER. users can’t reasonably be asked to predict what new sites and services might become Facebook partners. with an ineffective opt-out.reasonable expectations of privacy for Fourth Amendment purposes. they’re expressing expectations about who will and won’t see their information. 349 McGeveran. Facebook Follies (Or the Dangers of Investing in Someone Else’s Platform). B. 2007). The Case for the Third-Party Doctrine. Four Models.348 On the other hand. REV. Just as with traditional celebrity endorsements. when users make privacy choices using Facebook’s technical controls. Kerr.349 We’re used to thinking of the right of publicity as a tool used by celebrities to monetize their fame.ssrn.html (describing how comedian who invited fans to follow him on Facebook lost his ability to contact them). on the Internet. it’s a brilliant innovation. (forthcoming 2009). 347 45 . 351 See Baratunde Thurson.350 Facebook has found a way to tap into the commercial value of this Long Tail of micro-celebrity. as David Weinberger asserts. That’s not onerous. Users can meaningfully opt in to Social Ads on a notification-by-notification basis. In one respect. GOOD CRIMETHINK (Aug.”) But consent to the program in general is meaningless. Rights of Publicity William McGeveran’s point that Beacon and Social Ads appropriate the commercial value of users’ identities for marketing purposes bears repeating. If. and society should treat those expectations as reasonable for Fourth Amendment purposes. draft available at http://papers. “It’s okay to show an ad with my name and picture to my friends whenever I add a Favorite Book available at Amazon. Beacon and Social Ads do the same thing on a smaller scale. and it’s eminently reasonable to let the police use information they gain this way. Facebook turns its users into shills. (rather than by logging in as users or having someone log in for them) they should be required to present a search warrant. Drawing the line there appropriate recognizes the social construction of expectations of privacy.351 Facebook has been See generally Kerr. L. supra note __.347 The police officer who logged in to Facebook and saw that Marc Chiles and Adam Gartner were friends was like an undercover investigator pretending to be a student in the back row of a classroom. when the when the police get the information by demanding it from Facebook the company.g. at that. 348 See Orin S. both commercially and socially. everyone is famous to fifteen people. A related concern is that people invest a lot of time and effort in their Facebook personae. These facts ought to support suits under state right of publicity laws.

at C5.356 One blogger was told that to close his account. Facebook had a drop-down option to show users their “Friends without Facebook profiles.metafilter. 2008.concurringopinions. they received the fearsome reply. For a while in July 2008. Data suction like this—Facebook can also gather names from current users’ address books and instant messenger buddy lists361— is worrisome. N. http://www. 13. 12. at C1.Y. a Facebook protest led to their accounts being restated. Brandon Blatcher.allfacebook. 2008. ALLF ACEBOOK (July 26. 2504 Steps to Closing Your Facebook Account. People who have chosen not to be on Facebook at all have made a clear statement of their privacy preferences and deserve to have that choice honored. 2008).stevenmansour. Wall post.358 but even that was plagued by bugs at first: Some “deleted” profiles were still visible. 2007). PIPEDA Complaint. 2008. but the most plausible seems to be that it took the names of non-Facebook users from tagged photos.COM (July 24. 357 Steven Mansour. Reductionism. http://www.com/help. bright-line rule to enforce them.com/writings/2007/jul/23/2342/2504_steps_to_closing_your_facebook_account. despite the take-no-prisoners tone of this “final” decision. we will not be able to reactivate this account for any reason. People who haven’t completely thought through the logical consequences of their privacy preferences—and that’s pretty much all of us—can be surprised when some of those preferences turn out to be inconsistent.new. Frank Pasquale.354 By allowing users to better direct how their profiles are used commercially.352 When Brandon Blatcher and his wife asked why their accounts had been deleted.bad about deleting profiles without warning or explanation. This decision is final. After Stumbling. and so on by hand—all 2. 360 See Nick O’Neill. 3. “Unfortunately. e. TIMES.com/99021/What-the-hell-Facebook. because non-users have never See. 352 46 .html. Rankings. Reliable Opt-Out Many expectations about what will happen on a social network site are ambiguous and confused. Facebook would further users’ interest in shaping their social identity. 356 See CIPPIC. 2008). What the Hell Facebook.359 Facebook may also have violated this principle by gathering information on people even before they’ve signed up. it was impossible to delete one’s Facebook account. REV . but its application of that principle to the Blatchers leaves a lot to be desired. 361 Friends. Daniel Solove. supra note __.”353 Facebook’s stated reason for kicking them off—it thought they’d signed up under false names—is reasonable enough. 355 See Maria Aspan. and Responsibility. Quitting Facebook Gets Easier. But there is one class of expectations that is reliable enough that the law should draw a simple. N. L. 359 See Maria Aspan.com/2008/07/facebook-starts-recommending-friends-not-on-site/..php?page=441. STEVEN MANSOUR. Feb. Facebook has an ethical obligation to institute better due process safeguards: at the very least. CONCURRING OPINIONS (Mar. at 25–27 (arguing that the lack of a delete option violated PIPEDA). the data associated with it would remain on Facebook’s servers even after a user “deactivated” the account. http://ask. http://www. at C1. 354 Cf. he’d need to delete each contact. Facebook Banishment and Due Process.Y. As the thread recounts. 18.Y TIMES. a rationale that doesn’t justify trapping those users who really do want to leave for good. Facebook Finds a Working Eraser. including contact lists and applications. ST . 11. 2008).”360 Theories vary as to where Facebook gathered the names. Facebook Starts Recommending Friends Not On Site. 353 See. 358 See Maria Aspan. Feb. notice and an opportunity to be heard. ASK METAFILTER (Aug.com/archives/2008/03/facebook_banish. C. Facebook’s past missteps illustrate why. TIMES. 115 (2006) (discussing due process protections for people affected by search engine ranking decisions). Feb. How Sticky Is Membership on Facebook? Just Try Breaking Free.g. FACEBOOK HELP CENTER .355 Facebook figured that some users who left would want to come back and reopen their old account. http://www.357 Facebook relented and added a “delete” option. 54 CLEV. N. Until February 2008.500 of them.facebook.

CIPPIC argues that Facebook should need permission to obtain non-users’ consent when pictures of them are uploaded. PIPEDA Complaint. I made fun of the idea that cars should be declared unreasonably dangerous because people injure themselves ghost riding the whip. 367 See CIPPIC. Facebook now gets it mostly right when a user tags a photo of a nonuser. Facebook’s ‘Privacy Trainwreck’. What should the law do about lurches? Users’ “consent” to the new patterns of data flow is questionable. Since manufacturers are generally strictly (and non-waivably) liable for injuries proximately caused by a defectively designed product. § 7704(a)(3)–(5). As danah boyd explains. the “as soon as contact is possible” principle provides a necessary qualification to that argument. an email address or IM screen name)363.g. it might make sense to hold Powell Motors liable for ghost riding accidents caused by Canyonero lurches. RESTATEMENT (T HIRD) OF T ORTS : P RODUCTS LIABILITY §§ 1 (basic liability). an overnight change that instantly made highly salient what had previously been practically obscure. at 14–16. 362 47 .C.364 A welldesigned product doesn’t change what it’s doing in unpredictable and dangerous ways. query whether this opt-out is prompted bt Facebook’s CAN-SPAM obligations. at 28–29. since the lack of a comprehensive information privacy statute means This is not to say that the opt-out option is always successful in practice.seen a site’s privacy policies and have had no reasonable chance to opt out.367 for which fresh consent would be required. I found that I couldn’t even see the photo without signing up for Facebook. 15 (causation). D. Facebook users were like partygoers who felt “protected by the acoustics” of the loud music at a party. First. But in a more limited way. It’s harder to make such an argument under U. Facebook users have since embraced their News Feeds. This is a bad product feature by any measure. The email that the non-user then receives from Facebook informing them of the tag offers not just the chance to untag the photo. Deliberately staying off of Facebook has an unambiguous social meaning. Facebook should proactively offer this sort of an opt-out to any non-user as soon as it acquires enough information about them to be able to contact them (e. 10 (failure to warn). supra note __. this idea does have some value. 363 Cf. By way of contrast. but also to opt out of future contact from Facebook. CIPPIC. changes in unpredictable and privacy-threatening ways with disconcerting frequency. In my (admittedly brief) tests. but it turns ghost riding from a dangerous sport into a positively suicidal one.S. but the transition was a privacy lurch. There’s a strong argument that lurches of this sort constitute a new “use” or “purpose” under privacy schemes like the European Data Protection Directive366 or the Canadian PIPEDA. supra note __.g. 365 boyd. 366 See Edwards & Brown. News Feed is the most famous example. Also. Predictability In the Introduction. Facebook’s description of the feature would seem to imply that the subject can’t untag the photo without signing up for Facebook. at 24.362 The right general rule extends this principle in two ways. 364 See. e. Facebook. PIPEDA Complaint. Suppose that the Powell Motors Canyonero unpredictably lurches from side to side about forty seconds after the driver takes his or her foot off the gas pedal. supra note __. supra note __.S. law. and Facebook should respect the request. 2 (design defects and foreseeable harm). See 15 U. however. 365 A reasonable voice for talking to a friend over loud music becomes an unreasonable scream when the music stops—and everyone can hear the end of your sentence. it should also purge from its servers any other information linked with the email address whose owner has opted out. 18 (non-waivability). It prompts the user to supply the non-user’s email address.

g. An explicit consumer-protection approach is promising.373 Facebook would have been perfectly happy to take the photos down if she asked. This is not a case about misleading the consumer. the more engaging it is. 2007). 2007 FTC LEXIS 83.html. E.C. Moreover. 2007). at 18–20. L. There’s a subtle but crucial difference between a user’s “consent” to Beacon and her “consent” to let her employer see photos of her in a drunken stupor. 370 Phillip Fung. Public Search Listings on Facebook. the site also breaches that implicit representation. Edwards & Brown.. by changing the service in a fundamental. SEARCH ENGINE L AND (Sept. such a large cultural shift—danah boyd observes that “Facebook differentiated itself by being private” and walled-off from the Internet at large371—should have been opt-in. See generally Deirdre K. http://blog. There’s not much wrong with Beacon as long as everyone involved knows it’s there and can turn it off if they want. supra note __.369 Similar reasoning ought to apply to the rollout of a service like Beacon. There’s an obvious network effect at work. 371 danah boyd. But Beacon was completely unforeseeable from a user standpoint.facebook.php?post=2963412130. Social lurches. 1158–77. giving users an opportunity to uncheck the appropriate box.that Facebook needs no permission in the first place to collect personal information. The FTC action against Sony/BMG for distributing CDs that surreptitiously installed spyware on consumers’ computers provides a useful model.org/thoughts/archives/2007/09/09/sns_visibility. 373 Cf. No Chain Letters We’ve seen that social network sites spread virally through real social network. he initial design of the system is a representation to users that information they supply will be used in certain ways.T.372 Consumer-protection rules are not a cure-all. and one blogger has produced evidence suggesting that Facebook may well have made the announcement at least several weeks after enabling the public profiles.. The Magnificence of the Disaster: Reconstructing the Sony BMG Rootkit Incident. consumers were confronted with a product that threatened their privacy by failing to conform to their legitimate expectations about how it would work. We can save the former from her folly by declaring the consent fictitious and rewriting a contract. http://searchengineland. Facebook didn’t give its users advance warning about the public profile pages. That Facebook could have done better with News Feed and Beacon is demonstrated by its own actions in rolling out public profiles. C-4195.com/blog. privacy-breaching way. the more users a given site or Application has. only about their exposure to search engines. That unannounced design change made both Facebook and its partner sites unreasonably dangerous services. In Re Sony BMG Music Entertainment. 370 Even so.zephoria. 2007). No. 9.com/070911-103851. 11. 372 Danny Sullivan.php. e. There was no precedent for two unrelated web sites to realize they had a user in common and start funneling information from one to a highly visible place on the other. Once they have.J. are inherently misleading. See. TECH. SNS Visibility Norms (A Response to Scoble). (F. rather than opt-out. http://www. 5. Perzanowski. June 29. Mulligan & Aaron K. 1157. but we can’t save the latter by meddling with the contract. they themselves provide a fertile environment for memes and add-ons to spread rapidly through the social network of users. but she didn’t. 4 Questions & Answers You Should Know About Facebook's Public Search Listings. It made an announcement several weeks before opening the profiles up to search engines. on the other hand. 368 369 48 . 22 BERK. F ACEBOOK BLOG (Sept. 2007). On this way of looking at things.368 There too. APOPHENIA (Sept.

Education can help them learn these essentials the easy way. True.”376 Before the policy went into effect. he has an incentive to treat Hermes as an object. Under most circumstances.com/2008/02/social-graph-visibility-akin-t.html (“I'm not jumping up and down 374 49 . and should be. but Facebook is doing the right thing by banning viral incentives that have no legitimate connection to the Application’s actual functionality. If Hubert is being paid to convince Hermes to sign up. they’re both irreducibly social. http://wiki. 2. Although people are always going to make mistakes at the margin and have privacy-affecting disputes with each other.375 Fortunately.insidefacebook. 85 TEX. 2008). Regulators should watch out for the deliberate exploitation of social dynamics. REV. information. that’s bad for Hermes and for their friendship. Social Graph Visibility Akin to Pain Reflex.com/index. but your character can’t be more than a Level 1 Nudger until you’ve invited ten other users. http://www. F ACEBOOK DEVELOPERS WIKI (July 21. 377 Platform Policy. when Hubert has an interest in Hermes’s participation that goes beyond the pleasure of his company. an Application may not “[r]equire that users invite. there’s a fine line between these “artificial” incentives and the “natural” incentives of inherently social Applications. or otherwise communicate with one or more friends to gain access to any feature. 83 (2008) (describing history and limits of FTC’s efforts to curb abusive business opportunity schemes).) Now. there are some basic facts about how social network sites that people don’t always appreciate. even if Hermes himself wouldn’t enjoy it. http://radar.”) with danah boyd..developers. 2008). rather than from painful experience. Just Because We Can. REV. however. Doesn’t Mean We Should.org/thoughts/archives/2008/02/04/just_because_we. 2008). the network effect and the conflict of interest are inseparable. User-Driven Education Education in the privacy risks of Facebook can help. § 2. http://www.374 There’s a particular danger that a social network site feature could be “social” in the same way that a multi-level marketing scheme or a chain letter is: by bribing or threatening current users to use every social trick in their book to bring in new ones. O’REILLY R ADAR (Feb. you can use HyperPoke as soon as you join. 378 Compare Tim O’Reilly. or portion of the application. in its role overseeing the Applications it allows to run.php?title=Platform_Policy&oldid=14244. Stealth Marketing and Editorial Integrity.”377 This is a useful general principle: It’s presumptively illegitimate to bribe users to take advantage of their social networks. 4. 376 See Karl Bunyan. 83 (2006) (arguing for mandatory sponsorship disclosure of “stealth marketing”).html (“It's a lot like the evolutionary value of pain. Most of the actual operations of viral word-of-mouth marketing are necessarily beyond regulation. Sales Gone Wild: Will the FTC's Business Opportunity Rule Put an End to Pyramid Marketing Schemes?. 375 See generally Sergio Pareja. Incentivized Invites No Longer Allowed on the Facebook Platform (Aug. 13.g. 39 MCGEORGE L.378 Cf.There’s also an obvious conflict of interest here. Facebook now wisely prohibits “incentivized invites. HyperPoke is subverting the relationship. prohibit such practices. and the best we can do is leave it up to Hubert and Hermes to negotiate any tension between themselves. APOPHENIA (Feb.6. and where appropriate.oreilly. Ellen Goodman. Application developers would sometimes reward users for inviting others (e. 2008). F. rather than as a friend. Matters may be different.facebook. notify.zephoria. Hubert would like Hermes to join him in using HyperPoke. L. Search creates feedback loops that allow us to learn from and modify our behavior.com/2008/08/13/incentivized-invites-no-longer-allowed-by-facebook/.

32 TDR 174 (1988).That education. Parents Outraged After Cop Uses Windsor High School Students’ MySpace Pages for Internet Safety Assembly. and proverbs.”) 379 See Hallie Woods. boyd.380 Western doctors in the in the camp had difficulty explaining to Hmong refugees the health risks of rabies and poor refuse disposal. dance.379 This wasn’t education about privacy violations. needs to be rooted in the communities it targets. T HE SPIRIT CATCHES YOU AND Y OU F ALL DOWN 32–38 (1998). He held parades in which allegorical figures drawing on elements of Hmong folklore and costume—such as Mother Clean. Even worse is the “education” offered by a Chyenne police officer to an assembly of high-school students. teens and college students would be better off with a better understanding of the ways that persistent postings can return to haunt them later. 383 boyd. are dry statements of fact by distant authority figures. So. THE COLORADAN.381 Conquergood succeeded where the doctors had failed. Conquergood attributed much of the parades’ appeal to the way the Hmong actors improvised and rewrote the messages to make them culturally appropriate. 50 . 380 See ANNE FADIMAN . however. thousands of refugees brought in dogs for vaccination. at 203. this was a privacy violation. One possible Mother Clean may be student-run college newspapers. and Culture. The pages of college newspapers have been peppered with editorials and articles explaining how embarrassing photos at the idea of being in the camp who dies because the healthy think that infecting society with viruses to see who survives is a good idea. supra note__. Aug. Health Theatre in a Hmong Refugee Camp: Performance.383 A critical theme of boyd’s work. On the unfortunate but probably justified assumption that society will not become more tolerant of youthful indiscretions any time soon. they often end up talking past the groups they’re trying to reach. the challenge is to help them be similarly sophisticated in dealing with future surveillance. e. Instead of trying to disabuse the Hmong of their cultural assumptions. 382 Conquergood. a gigantic grinning puppet—explained diseaseprevention essentials through song. He pulled up one student’s MySpace page and claimed he’d shared her information with an imprisoned sexual predator. An inspirational model of culturally appropriate education comes from the work of anthropologist Dwight Conquergood in the Ban Vinai refugee camp in the mid-1980s. She ran from the room in tears as the police officer told the students that the predator would now be masturbating to her picture. Why Youth (Heart).dll/article?AID=/20080820/UPDATES01/80820016. Communication. we’ve seen. When outsiders try to lecture on the dangers.382 Cultural appropriateness is particularly important for younger users. http://www. demanding that patients undress—clashed with Hmong cultural practices. too. is wholly ineffective. 384 See. after a rabies-prevention parade. supra note __. Teens are sophisticated (if not always successful) at negotiating boundaries of obscurity with respect to present surveillance from their elders. asking intrusive questions. Conquergood embraced them. 2008. Education via privacy policy. whose cultural practices—drawing blood.com/apps/pbcs. supra note __. 381 See Dwight Conquergood.coloradoan. however. The Hmong were suspicious of the doctors. is that social network sites are hugely popular with young users because they fit so effectively into the social patterns of teenage and young adult life. Why Youth (Heart).g.384 Warnings about the dangers of MySpace will wash right over them unless those warnings resonate with lived experience. 20..

Conquergood explained that the Ban Vinai health workers needed to learn just as much from their patients as vice-versa: “The ideal is for the two cultures. T HE DARTMOUTH. We misread these seemingly inane posts because we’re so unused to seeing written material in public that isn’t intended for us. http://thedartmouth. Clay Shirky.g. studying the social dynamics of Facebook is the essential first step in that dialog. and they act in privacy-risking ways because of it. 388 CLAY SHIRKY. The deeper point of Here Comes Everybody is that new online media and the social networks that coalesce around them are comprehensible.”387 For regulators. We can and should help them understand the consequences of their socializing. It’s easy for outsiders to misunderstand what’s really going on. . . college newspapers were generally earlier on the scene than the mainstream media: The October 2005 expulsion of a Fisher College student for creating a Facebook group targeting a campus security officer was shortly followed by articles about Facebook and privacy in at least a dozen college newspapers. Jillian Gundling. 386 See Jones & Soltren. There are better and worse ways to do these things. and this Article has attempted to start a conversation on what those ways are.386 Reaching out to studentnewspaper editors may be an effective way of getting appropriate warnings heard by the people who need to hear them. HERE COMES EVERYBODY 85 (2008). at 202. CONCLUSION In his recent book Here Comes Everybody.com/2007/11/02/arts/jobsandfacebook/. Their messages are heavily context-dependent. e. We’ve seen that the same three social imperatives—identity. not logically. Their users think socially. The people posting messages to one another in small groups are doing a different kind of communicating than people posting messages for hundreds or thousands of people to read. 385 51 .385 Indeed. They’re not talking to you. to enter into a productive and mutually invigorating dialog . this is a story abut people doing things together. 2. the great theorist of online social media. which really means it’s a story See. at 30.388 This short passage captures everything that makes it hard to set sensible policy for new social media. This may sound like a pessimistic message. 387 Conquergood. refugees’ and relief workers’. Nov. . Ultimately. It could also help in educating regulators themselves. This Article has confirmed the essential truth of Shirky’s lesson by applying it to Facebook and other social network sites. we cannot and should not stop people from acting on them.. relationships.and profiles are fodder for employers. 2007. had this to say about blog audiences: [W]hy would anyone put such drivel out in public? It’s simple. Users want and need to socialize. supra note __. V. supra note __. and protect them from sociality hijackers. Policymakers who are willing to take the time to understand those social dynamics will find their efforts rewarded. that there is an underlying social logic to how they work. Their norms are surprising. and community—recur again and again on these sites. make available safer ways to do it. Facebook: The Facetime That Can Lose You a Job. We cannot and should not beat these social urges out of people. but it isn’t.

52 . VOICES FROM THE NET xi (1995).about people.”389 389 CLAY SHIRKY. New technologies matter when they change the dynamics of how people do things together. This is their story. Laws are made for people. Social networking. can be a dangerous activity. As Shirky wrote over a decade ago. our inquiry must start with the people engaged in it. if we wish to address that danger. the story of people taking a technology and making it their own. “The human condition infects everything it touches. and we lose sight of that fact at our peril. the challenge for technology law is always to adapt itself to these changing dynamics. like ghost riding the whip.

Sign up to vote on this title
UsefulNot useful