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December 05, 2005

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Bruce

A "non-trivial possibility of [widespread] dissemination" seems too low a bar. Given the ease of posting information to the Internet, doesn't *any* disclosure create a "non-trivial possibility" of widespread dissemination? I.e., anyone can be a "supernode" with respect to information now. Perhaps your suggestion is that there should be no reasonable expectation of privacy if there is a non-trivial possibility of widespread, *non-tortious* dissemination. But without thinking hard enough about this to make my head hurt, that seems like it might be circular as a means of defining tort liability.

Also, defining the standard solely in terms of risk seems to perversely offer less protection to the most salacious information, which, if it escapes, will both spread the most widely and cause the most harm. I think we may instead need to focus on the rules that accompany the information transmission -- what were the discloser's actual intentions, and what are the ordinary social expectations that govern the receipt of information in the manner that the defendant received it? Those expectations may include that the information not be disclosed outside of a narrow circle of friends (see, e.g., the definition of "public performance" in copyright law). The discloser's internal assessment of the probability of onward disclosure may be relevant to determining his or her actual intentions -- if I tell someone I know to be a gossip about something private, taking no extraordinary precautions, that may indicate that my own expectations with respect to the privacy of the information were somewhat lower than I could, in similar circumstances with other friends, reasonably demand. But that is simply a situation in which I am choosing to afford my personal information less protection that I am ordinarily entitled to expect for it.

In the case at issue here, the principal appears to have observed behavior and heard gossip that was being widely disseminated within the high school student population, and it does not appear it was kept secret from administrators, either. In such circumstances, is there a rule that administrators in receipt of such information not further disclose it to parents or others? Although administrators obviously may come into possession of confidential information (e.g., high school guidance counselors), I'm not familiar with a rule that governs disclosure of repeated instances of widely observed behavior in a high school.

One interesting fact here, the privacy harm is based on disclosure to the teenager's parents, but her mother is actually bringing the case as the teenager's "next friend." Reading between the lines, it seems possible that the teenager's real complaint may be that the principal made the disclosure as part of an effort to hurt her in retaliation for her refusal to hide her sexual orientation at school. As you note, even if she does not have a viable privacy claim, the alleged attempts to punish her for her sexual orientation may support other causes of action.

none

"When friend A reveals sensitive secrets about friend B to friends C, D, and E without B's consent, I think the appropriate remedy is the cessation of A and B's friendship, not a lawsuit."

What if A's divulgence leads to some tangible harm to B not perpetrated by A? For instance, what if, in the discussed CA court case, upon learning of P's sexuality, the parents had physically hurt P? Should the administrator be held civilly liable?

Further, how do we distinguish social secrets, like this one, where the divulgence is unlikely to result in obviously monetizable damages, from trade secrets where damages are more easily monetizable?

Can we say that the harm to the student was any less than the harm to a corporation whose trade secret has been divulged?

Of course, taking this too far would probably result in the filing of many formerly frivolous lawsuits.

And maybe, for soft fuzzy reasons, we don't want to turn secrets amongst friends into the equivalent of trade secrets. Current popular relief includes two of my favorites: affairs of honor (aka after-school fights) and the retaliatory leak (aka The Scooter Libby).

The Law Fairy

While it's true that the best remedy might be self-help, i.e., breaking off a friendship, none raises a good point about the possibility of *actual* harm to the person whose privacy has been violated.

I think the law should switch from looking at what a reasonable person's expectations were (which creates far too subjective a standard, inviting judges and juries to substitute "what would I want shared?" for the legal standard) to instead looking at what a reasonable person in the *listener's* position would think. This makes much more sense from a tort perspective, since the mens rea of a tortfeasor has profound implications for liability stemming from a wrong (for instance, the eggshell-skull rule for intentional torts).

If we focus on the listener's reasonable belief, it also invites a somewhat more objective standard. Instead of putting judges and juries in the position of trying to imagine what a person should or shouldn't want shared, it leaves them in their position as potential listeners. If a friend whispers to me, "I just cheated on my boyfriend!" it is reasonable for me to surmise that she wishes this to be kept secret. If we instead focus on what was reasonable for her to *expect* it becomes confusing, because it's easy to judge such disclosure on the basis that, hey, if you tell this to someone, you should expect it to get out. This allows us to look at external, objective factors, such as how many people were present at the disclosure, what specifically was said, the speaker's tone of voice, etc. Focusing on the speaker underprotects privacy because there's always a pretty good chance your friends are traitors. "Don't tell anyone" isn't a fantastic solution either, because much of human emotional development depends on making and receiving personal disclosures.

Finally, focusing on the listener would allow apportionment of liability at every stage of disclosure. By focusing on the tortfeasor's conduct, we can apportion liability based on who committed the most unreasonable or egregious violation of the person's privacy. For instance, the friend who reveals a deep secret is more liable than the next person to reveal it, since the revelation of second- or third-hand information carries with it a stronger suggestion that the information is not private.

A danger of this is that it might outlaw gossip, which would make life far more boring. I'm not sure how to fix that problem.

Roach

Shouldn't it matter that the alleged victim was a teenager--i.e., a minor--and the recipient of the allegedly secret information was the child's parents, charged with that child's protection and upbringing. By privileging teenagers and their "open secrets" vis a vis parents we're undermining parents and their authority. Parents have a right to know anything publicly known about their teenagners, particularly if those facts relate to that child's emotional and mental health. It is particularly incumbent upon school administrators who are supposed to act "in loco parentis" to communicate such information. An administrator that found out about this sort of thing should be as duty bound to report to the parents, as if the kid were found with drugs or engaging in self-destructive acts like self-mutilation. All of these actions would likely affect a child's welfare for the worse and can be adequqtely addressed by parents only with complete information. The extreme individualism of any perspective that emphasizes a minor child's "right to privacy" ignores the natural and legally established authority and rights of parents over their children. Of course, this is all setting aside the lunacy of saying that communicating certain semi-public information to other members of the public is some kind of violation of anyone's rights.

anon

"An administrator that found out about this sort of thing should be as duty bound to report to the parents, as if the kid were found with drugs or engaging in self-destructive acts like self-mutilation."

This seems a flawed analogy, as the cases appear quite distinguishable. When you suggest the parents "adequately address" the situation, what do you have in mind? With drugs or self-mutilation one could easily see counseling, rehab, etc. But homosexuality is neither a choice nor a disease. It would seem the most parents could do would be to discourage the relationship. You might argue the harm principle is inapplicable to children in the case of drugs or other voluntary destructive behavior (even engaging in sexual relations would fit here). But it seems fundamentally different to inform parents of the mere fact (or more likely the mere suspicion) of their child's sexual orientation. The sole justification for such an act would seem to be to encourage parents to "discourage" such relationships, an effort that will have high costs and few (if any) benefits.

Roach

Thankfully, for now, parents still have the right to encourage their kids to live a life that conforms to their values, whether you like it or not, anon.

Lior

Thanks for the very interesting comments on my post. Here are some responses:

Bruce - I like your post a lot. In the paper, I take the position that "non-trivial" means greater than 5 or 10%, and it does seem to me that if a plaintiff discloses information about himself that he should have known had a 1 in 20 or better chance of being disseminated widely, he has little cause of action against the person who happened to be the disseminator. One of many people could have acted as the defendant did, and so perhaps the plaintiff's willingness to disclose the information in such a context is some evidence of consent to its dissemination. I agree with your point that salaciousness of the information could make it "less private" under my analysis, although that wouldn't be the case if the information was so salacious as to implicate widely shared anti-dissemination norms. In any event, I don't see that as a problem with the paper, though it is one of the more controversial points I raise.

none - There will be some cases where limited disclosure among friends results in serious damage to a plaintiff, but that still doesn't say why the law should intervene. The costs of stopping ordinary person-to-person gossip more generally in society are very high, and self help sanctions (cessation of a friendship, telling secrets about the person who spilled the beans) function as an adequate deterrent in the overwhelming majority of cases.

Law Fairy - Your points echo those I made in the paper, and I suspect you'll find other stuff to agree with if you give it a quick read. An objective standard means that both the subject of the information and the discloser of the information would have expected the information to remain bottled up / get disseminated widely, and that's precisely what I advocate, and what I think the "reasonable" in "reasonable expectations of privacy" means.

Roach / anon - Roach is surely correct that minors' information privacy rights are diminished where their parents are concerned, but that doesn't mean these privacy rights are nonexistent. In this case, I think the plaintiff didn't act in a manner consistent with an expectation that her orientation would be kept secret, but I can imagine facts where a school administrator might have some obligation not to disclose the information to the students' parents (e.g., the information was obtained via an illegal search of a student's diary stored in her locker, and the administrator knows the parent to be both homophobic and abusive of her child.)

Phew! Hope that's helpful.

anon

"Thankfully, for now, parents still have the right to encourage their kids to live a life that conforms to their values.."

Yes, but this does not go to whether 3rd parties should have an affirmative duty to share information, and whether they should be liable if they do share. My point is that outside of information that suggests a minor is going to come to harm without parental intervention (such as your drug example, for instance), there is no obvious ground for such a duty. I take Lior to be saying that that's irrelevant, since because parents are likely to find out anyway, there's no reasonable expectation of privacy. I suppose I see this from the opposite side of the problem. I think teachers should have a duty to share information, but that their obligation should be a function of the risk involved by not sharing that information. Here, where there was little to no risk to the student, what was accomplished by telling the parents? On this view, the administrator is little more than a gossip. I think the student's assumption of privacy was "reasonable" in the sense that s/he had no reason to anticipate a school administrator sharing this information, since that sharing accomplished little and probably provoked an untimely family discussion.

Rich

I disagree factually with your point, Prof. Strahilevitz, and think the teen's parents would be very unlikely to hear of this absent the principal's act. I think this disagreement sheds light on a level-of-generality problem with a "likelihood of disclosure" framework.

I know of few teenage social networks attached to non-participatory parents, i.e. parents who are not normally included in the group's consumption and dissemination of gossip. I would imagine parents who are in the social network (probably a small number, at least if it's anything like my high school) would feel uncomfortable sharing the information. This might be for altruistic reasons, such as a realization that if the parents haven't been told by the teen, it is probably for a good reason. It could also be for selfish reasons, like continued membership in the social network.

But this norm of nondisclosure to a non-participatory parent can break down, and we might think (and hope) that it will in cases of potential death or serious harm. There, the cost-benefit analysis of disclosure to the parent might favor a breach of privacy. But that's not what we have in the case at bar, or is it? If the relevant social community finds homosexuality on the same level, then perhaps we can expect a great likelihood of disclosure to the non-participatory parent.

Another important fact is what information was conveyed: if Teen A tells Parent A "Teen B is gay," Parent A might feel that Parent B already knows, and could bring this up quite casually. "What's it like to have a gay daughter," "I'm glad you're comfortable with your child's sexuality," etc. But if the information was "Teen B is gay, and Teen B's parents don't know," then the norm of nondisclosure would be stronger.

Ultimately, I can't shake the feeling that it is much more likely that these parents wouldn't have found out about their daugther's sexuality but for the principal's act (or her later personal disclosure).

While I think that we can make a more informed guess as to the likelihood of disclosure if we knew more about the particular network, or the culture of networks of this kind in a particular locality, how specific should a judicial inquiry be here, Prof. Strahilevitz? What level of generality is appropriate: likelihood of disclosure in a random group, based on national, state or local statistics/demographics/trends? Through an inquiry of members of the particular group?

Some of the problems are related to what types of information are kept private, and what types of information one parent thinks others should know about: this seems to be solvable through an analysis of the relevant community. But other problems are unanswerable without knowing what was disclosed, to whom, and when, which seems to require an even more particularized inquiry.

Do you see this as problematic, or a tempest in a teapot?


Catherine Duren

I have been doing much research on teen privacy laws and the problems that arise from them. It is ultimately casing a problem because some people do not believe that it is the schools business what the student does outside of their walls. Now that it is 2007 the weight of what a student says online has come to the point where students are being expelled for what they say or do online.

Whether or not the school has the jurisdiction to do that is not my call. I’m not a law student or lawyer or anything like that but I do not think that it is fair to the students. Although if you air you dirty laundry someone is bound to see it. If it cuts down on students doing things that they shouldn’t be doing in the first place then how could it be a problem? Most people forget that they shouldn’t do things in private that they would not be able to face up to in public.

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