Privacy and the Internet – 2003

“Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.  In our tradition the State is not omnipresent in the home.  And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence.  Freedom extends beyond spatial bounds.  Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”

These inspirational words preface Justice Kennedy’s majority opinion in the recent US Supreme Court decision in Lawrence et al. v Texas (539, US, 26 June 2003, unreported). The majority opinion is available online at

http://supct.law.cornell.edu/supct/html/02-102.ZO.html

With the Full Court of our Court of Appeal about to consider the scope of the law of privacy in the Hoskin matter, it is a topic very much in mind in New Zealand. In Australia, the Queensland District Court has just found, in what is thought to be a first in that country, that an aggrieved party can bring an action under the tort of invasion of privacy.  Senior Judge Skoien ordered the defendant to pay the plaintiff $178,000 for the invasion of her privacy and other torts and the post-traumatic stress disorder he caused by stalking her. See Grosse v Purvis [2003] QDC 151 (16 June 2003).

Privacy in the Internet Context

Two recent US Supreme Court decisions illustrate the real tension between private and public rights and obligations.  The first had nothing to do with the Internet, while the second did.

The first, Lawrence (supra), involved a review of the constitutionality of a Texas statute which forbade persons of the same sex engaging in intimate sexual conduct.  The appellants were found to have violated the law, after Houston Police had entered their apartment (for other legitimate reasons) and charged them.  The question was whether the legislation was invalid under the Due Process Clause of the 14th Amendment.

A primary question was whether the appellants were free to engage in private conduct in the exercise of their liberty or whether the State could legitimately intervene.  The case is relevant in a privacy sense in that the Court considered the extent to which the law can and should impinge on fundamental freedoms, including the right to engage in intimate private conduct without undue interference.

To that extent, proponents of a regime which recognises a fundamental right to privacy will contend it addresses a concern of importance to most (right thinking) people. That is, the extent to which they are (or should be) entitled to live a private life or to maintain some semblance of private space without undue encroachment or interference by others ((whether commercial entities (including spammers) and states)).

The Supreme Court found, by a majority, that the Texas legislation was unconstitutional and that two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle had a right to do so without government intervention and that there was no legitimate state interest which justified its intrusion into the individual’s personal and private life in this way.

Some may find such lifestyles abhorrent but others see them as perfectly acceptable.  The latter in turn feel such groups are entitled to recognition and the safeguards of “due process”.  Lawrence thus illustrates the extent to which the courts may be prepared to go to protect aspects of personal and private life. (Arguably comments in the majority decision extend not just to a person’s private life but beyond it.)

Filtering Software

Three days earlier, on 23 June 2003, the Supreme Court issued another judgment of importance in the area of privacy.  This case related very much to the Internet.  In United States, et al, appellants v American Librarian Association Inc, et al, (539, US, 23 June 2003, unreported) it reversed the District Court which had earlier found the Children’s Internet Protection Act (CIPA), (114 Stat. 2763A-335) invalid. See majority opinion at http://www.epic.org/free_speech/cipa/scotus/opinion.pdf

The majority reached its view on the basis that Congress did not induce public libraries and other institutions to violate patron’s First Amendment (free speech) rights. Congress enacted CIPA ostensibly to try and address the problems associated with the accessibility of Internet pornography and other “undesirable material” in public libraries.  In order to do so it offers public libraries and other institutions substantial incentives if they install appropriate filtering and blocking software, which many have done. The appellants comprised a group of libraries, library associations and the like.

In the decision, the majority and minority were sharply divided on the merits of and need for the legislation, with much of the debate turning on the distinction between a public library and a public forum for web publishers to express themselves.  The majority (led by the Chief Justice) took issue with the minority view that other alternatives to filtering and blocking existed, on the basis that they had their own significant drawbacks.

Ultimately, the argument was accepted by the majority that close monitoring of computer users would, in effect, be more intrusive than the use of filtering software and would turn librarians into compliance officers.  It was also noted that moving terminals to places where the displays could not easily be seen by others or installing privacy screens or recessed monitors would not address a library’s interest in preventing patrons from deliberately using its computers to view on-line pornography.  Indeed, the majority found that this would make it easier for this to occur.

The decision has not been met with acclaim by civil rights groups. The problem is that filtering software is still in its relative infancy and it is notoriously unselective. For example, if one were to search the word “sex” as part of an enquiry into “sex abuse” and “breast” as part of a search on “breast cancer”, the search would probably be blocked.  This has lead to some well directed criticism. For example:

“Every time people subscribe to a censorware program, they inadvertently become part of the anti-free-speech movement.

Taken to its logical conclusion, censorware will irreparably damage the internet. Instead of being the frontier of information, liberal thought, dissent, discussion and free expression, it will become the sort of mouthpiece dreamed about by neo-conservative political parties.”

See article by Barbara Sumner Burstyn in The New Zealand Herald 21 July 2003: Internet censorship fails to tell the good from the bad at http://www.nzherald.co.nz/storydisplay.cfm?storyID=3513595&thesection=news&thesubsection=dialogue&thesecondsubsection=

See also the detailed information available on the Electronic Information Privacy Centre (EPIC)’s website at http://www.epic.org/free_speech/cipa.html

Where the issue may be of some significance in New Zealand is that it illustrates that filtering software is available and is to a reasonable extent effective.  It may be argued that, in terms of the negligence test, organisations (whether government or commercial) that fail to install such software thereby fail to exercise reasonable care.

For example, it has been reported that employers who do not at least try to stop offensive spam may be open to sexual harassment claims from their staff.  According to Phil Butler, of Phil Butler and Associates, of Christchurch:

“Pornographic or offensive images appearing on a worker’s screen by way of unsolicited or junk email (spam) could also qualify as evidence of a “hostile work environment”, a situation contravening the Human Rights Act….. problems could arise for bosses because the laws make no provision for sexual harassment that is delivered electronically, often from unknown sources.”

See article by Doug Griffiths in The New Zealand Herald – 25 April 2003 –

Employers in the gun over email porn at http://www.nzherald.co.nz/storydisplay.cfm?thesection=technology&thesubsection=&storyID=3451044

From a privacy/civil rights perspective the tensions are apparent. On the one hand we have rights to freedom of access and to information, whether accessed on or off line.  On the other hand we have a perceived need to provide a safe and balanced environment for patrons to access public information – regardless of whether they are using the Internet or not.

To an extent, it could be said that the two Supreme Court judgments represent different sides of the same coin.  In Lawrence, individual liberties (within a person’s private space at least) took precedence while in American Library Association Inc the rights of individuals to not be hassled took precedence over other patrons’ wish to access pornographic (and other) material in the same place.  (As noted above however the risk is that not just pornography but other legitimate material is being censored as a result).

Did the Supreme Court reach roughly consistent conclusions?  Arguably they did.  I suggest that a slender but discernible thread runs through the two decisions.  In Lawrence, private rights (to not face undue interference at home) were regarded as paramount while in American Library Association Inc. individuals’ rights (to not face undue interference in public) were given priority.  In that sense, while the individual’s rights to unsupervised intimate conduct at home were recognized, it did not mean that other members of the public had to put up with unwanted intimate content in public.

To that extent the outcomes are conceptually consistent. In my view they recognize a distinction between the private and public sphere.  Perhaps the difficulty is that in the Internet context, the distinction between what is private and public is far less certain.  As we will see below, much of the perception of privacy associated with the Internet is an illusion.  Often through a lack of understanding of the technology, members of the public put their own privacy at risk.  In reality, the Internet is a very public institution and when we go on-line we do so publicly, even if we perceive it to be in private.

Internet Activity

Certain Internet users wish to shield their identities while engaging in frank discussion about sensitive topics.  Others choose to fulfill fantasies and engage in ostensibly harmless role plays, often using anonymous identifiers.  By the same token, not everything done in chat rooms is harmless as the recent elopement of a 12 year old English girl to Germany, to meet her chat room friend (a 31 year old male), shows.  Likewise, unjustified attacks on individuals, harassment and scams are common; often shielded by anonymity and technical devices such as proxy servers, remailers and the like.

While it is difficult to generalise about this type of activity, it is probably fair to say that the Internet represents a microcosm of everything that is both good and bad about modern society.  There are undoubtedly unseemly aspects to the Internet. This is apparent from the report of the Government Administration Committee – The Enquiry into the Operation of the Films, Videos, and Publications Classification Act 1993 and Related Issues (I.5A, March 2003, 90pp).

The report notes that sexual abuse and exploitation of children is a real problem and much of this material is obtained from the Internet.  As a result, the report proposes, inter alia, monitoring and controlling ISPs and increasing search and seizure powers of the Department of Internal Affairs.  However, as Penny Pepperell notes in the The Capital Letter of 11 March 2003 (26 TCL 8)

“Political freedoms are hard won and easily removed.  As politicians are naturally susceptible to highly emotive issues (such as child pornography) an independent judiciary is essential to keep the balance.”

This of course echoes Australian High Court judge, Justice Kirby’s thoughts (see conclusion below) and I suggest that we, as legal practitioners, should endorse this view.

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