Constitution Daily

Smart conversation from the National Constitution Center

Five Things to know about online privacy

November 17, 2010 by Sarah Hinchliff Pearson


If Facebook were a country it would be larger than the United States.

However, as the controversial "Firesheep" plugin has shown, what we do on the social networking site is not as private as we may think.

But what happens to the information collected about us online? And what kind of Constitutional protections are in place to keep our online activities private?

Follow us as we look at the five things you should know about online privacy.

1. In the United States, websites have very little federal law governing their privacy policies.

In fact, the most significant federal law affecting website privacy policies is the general ban on deceptive consumer practices, which means that anything a website says it will or will not do in its privacy policy must be consistent with its actual practices. This potentially creates a perverse incentive for companies not to disclose much information about how the personal data of website users will be used or stored in order to avoid tying their own hands.

2. Website operators are not the only ones using your personal information.

If we know that our information will be used in a particular way, we can adjust our online behavior accordingly

Most online content is free, but it comes at a non-monetary cost. Users pay for the content by giving up certain personally identifying information, which websites can sell to third parties for advertising and marketing purposes. But the information we provide online is also used outside of this quid pro quo arrangement between website owners and users. So-called “crawlers” prowl the web for this information as well, selling it to third parties with no corresponding benefit to website users.

3. Privacy comes at a cost to free speech.

As in the copyright context, when we allow people to stop others from speaking by giving legal remedies to individuals for violations of privacy, we bump against some very interesting and tricky constitutional questions. Who owns a fact? When does control of our reputation run afoul of the First Amendment?

4. The Internet makes us all mini-celebrities.

Historically, we have operated under the assumption that celebrities sacrifice a certain level of privacy for their status. That distinction may now be obsolete. Today there are blogs dedicated to reporting the news on particular industries, like for young lawyers, and many of us freely create blogs dedicated to providing information about our own lives. If we are all pseudo-celebrities online, there may be a price to fame.

5. Consumer expectations do not provide a strong check on corporate privacy practices.

Many privacy advocates talk about the importance of consumer expectations. If we know that our information will be used in a particular way, we can adjust our online behavior accordingly. The problem with using expectations as a backstop is that as online privacy erodes, so do our expectations of privacy. After Facebook changed its privacy settings and provoked an onslaught of criticism, Slate’s Farhad Manjoo wrote that it was only a matter of time before the controversy subsided and the new settings became the norm.

Sarah Hinchliff Pearson is s Residential Fellow for The Stanford Center for Internet & Society. See more of their work at

Photo by Flickr user spiritolibero85.


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