Privacy Laws and Social Media Sites


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Social media sites and privacy are somewhat inherently at odds. After all, the point of social media is to share your life with the world; the very opposite of maintaining your privacy. Still, there is a difference between sharing parts of your life and all of it. Thus, a number of legal lines have been drawn in the sand regarding privacy on social media sites.

While the sharing of social media may help us to feel closer with friends and family, even if they are far away, social media can create a number of problems, too. While pictures from a drunken night out with friends or soaking up sun in a skimpy bikini on the beach might be totally fine to share with your friends, you may not want employers or coworkers finding them. Similarly, you almost certainly do not want the world knowing your passwords or private messages with other people.

Until recently, there has been very little to protect those who either intentionally or accidentally share too much on social media. Prior to 2013, lawmakers were more concerned with gaining access to information on social media than protecting it from others. On the other hand, other nations around the world recognized the potential risks of social media much earlier than in the US and began acting laws to protect privacy much sooner. Still today, in the United States, only certain classes of information enjoy any sort of protection under federal law. They generally relate to things like financial transactions, health care records, and information about kids under the age of 13. Nearly everything else still remains fair game, provided it is obtained through legally acceptable means (i.e., not by virtue of a hacking attack, fraud, or other illegal activity).

Traditionally, two bodies have acted to protect the rights of those online: the Federal Trade Commission (FTC) and state attorneys general. However, throughout the development and rise of popularity of social media sites, these bodies have only acted to protect published privacy policies. If the site either claimed not to collect certain information, or merely omitted it from disclosures, the site itself might be subject to prosecution, but generally those third parties gaining access to that information legally were not. However, social media sites with vague privacy policies that did not clearly disclose which information it gathered and whether it sold that information, or sites that disclosed their practices of gathering and selling information (even if the disclosure was hard to find) were generally not subject to any sort of enforcement action.

Recently, though, the FTC has changed its philosophy on these matters, using its powers to enforce privacy policies on social media sites to force many social media sites into both monetary settlements and long-term consent order permitting the FTC to exercise greater control over the site’s policies.

States have had somewhat different experiences with social media laws. Attorneys general have had mixed results trying to enforce privacy policies, and even less success when trying to strong arm social media sites into offering tighter protections of user information. More than 45 jurisdictions around the US have some sort of data breach notice law requiring companies to disclose intentional or accidental disclosures of information. While these laws would generally encompass social media sites, as well, they are often excluded by special provisions because they are specifically designed to allow the users to share personal information with the larger public. Thus, many state laws are largely ineffectual when it comes to protecting one’s privacy rights under social media sites.

As social media sites grow in popularity and become increasingly central to the lives of Americans who use them, privacy intrusions have similarly grown increasingly common. Unfortunately, as is often the case with new technologies, the laws relating to those technologies lag years if not decades behind the developments themselves. States, with smaller legislatures and more agile means of enacting laws, are leading the way in creating new regulations, but many of these may suffer under the scrutiny of judicial review (particularly if they contradict existing federal laws). Additional legal changes will likely take place in the coming months and years, but true privacy on social media is likely not going to occur in the near future.

In the meantime, the best way to avoid privacy concerns through social media sites is to avoid using them. Of course, that is rather like suggesting that the best way to avoid a wiretap is to not speak on the phone, so odds are good that you will continue using social media and accepting the risk of somewhat eroded privacy. However, if you do feel that you have experienced a breach of your privacy in violation of a site’s privacy policy, consider speaking with your state’s attorney general or reporting the situation to the FTC. You may also want to consult with an attorney. You can find a lawyer experienced in internet privacy laws by visiting HG.org’s attorney search feature.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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