Forgotten

'It’s About Time: Privacy, Information Lifecycles, and the Right to Be Forgotten' by Meg Leta Ambrose in 16 Stanford Technology Law Review (201) comments -

The current consensus is that information, once online, is there forever. Content permanence has led many European countries, the European Union, and even the United States to establish a right to be forgotten to protect citizens from the shackles of the past presented by the Internet. But, the Internet has not defeated time, and information, like everything, gets old, decays, and dies, even online. Quite the opposite of permanent, the Web cannot be self-preserving. One study from the field of content persistence, a body of research that has been almost wholly overlooked by legal scholars, found that 85% of content disappears in a year and that 59% disappears in a week, signifying a decrease in the lifespan of online content when compared with previous studies. 

Those that have debated this privacy issue have consistently done so in terms of permanence and also neglected an important consideration: the changing nature of information over time. Our efforts to address disputes arising from old personal information residing online should focus on the changing value, uses, and needs of information over time and the ethics of preservation. Understanding how information changes over time in relation to its subject, how and where personal information resides online longer than deemed appropriate, and what information is important for preservation allows regulation to be tailored to the problem, correctly framed. This understanding requires an interdisciplinary approach and the inclusion of research from telecommunications, information theory, information science, behavioral and social sciences, and computer sciences. Recognizing that information does not last forever, this article takes the initial step of outlining an information life cycle in terms of phases in relation to information needs, creating a taxonomy to help assess the competing values at stake when one seeks to have old personal information “forgotten.” 

Some of the proposed legislation make exceptions for historical, statistical, and public safety needs, but none of them include time, a vital element to the information life cycle. The article concludes by working through specific issues like revived interest, the integrity and objectivity of the Internet, and the importance of time in protecting the interests other information needs. Permanence is not yet upon us, and therefore, now is the time to develop policies and practices that will support good decisions, preserve our cultural history, and protect the future of the past, as well as protect the privacy rights of individuals that will live with the information and a society that may suffer from the threat of a permanent record.

PoMo Kelsen?

'Hans Kelsen in Post-Modern International Legal Scholarship' by Jörg Kammerhofer in International Legal Positivism in a Post-Modern World (Cambridge University Press, 2013) edited by Jean d’Aspremont & Jörg Kammerhofer comments -

 Can we call Hans Kelsen’s Pure Theory of Law an example - or even the epitome - of post-modern international legal positivism? The Pure Theory of Law’s radical programme rivals that of many other critical scholarly projects; as a ‘down-to-earth’ critical enterprise, its deconstructive arguments hit orthodox doctrine harder than those of most post-modernists. Moreover, it also contains a constructive side. This chapter first and foremost aims to show that the Pure Theory can be an attractive approach for international legal scholars, but it does not assert its inevitability. 

The chapter’s main line of argument is developed through four topics, grouped in pairs. In the first set of topics, two key features of the Pure Theory of Law are introduced, developed and discussed. Section 2 outlines the Pure Theory’s radical programme for a science of law. Its dramatic departure from the orthodox opinions of the day - through the purification of legal scholarship - is still with us today. One of the key dualities of the Pure Theory’s approach is explored in Section 3. The two conceptual poles of ‘normativism’ and ‘positivism’ may look like thesis and antithesis, but they are united in synthesis in the legal theory of Kelsen and his followers; they do not constitute two extremes on an oscillating - and irreconcilable - pendulum. 

The second set of topics map the structural analysis provided by the Pure Theory of Law onto the sources of international law. Section 4 discusses the Kelsenian Grundnorm and contrasts it with Hart’s Rule of Recognition, before assessing this debate in connection with the origins and foundations of the formal sources of international law. Finally Section 5 focuses attention on one of the least ‘positivist’ sources: the ‘general principles of law recognized by civilized nations’ (Article 38(1)(c) ICJ Statute).

Roger Cotterrell takes a less positive view of Kelsen in 'Socio-Legal Studies, Law Schools, and Legal and Social Theory', which

argues initially that socio-legal studies are important for legal education and juristic inquiry, and it outlines problems facing social studies of law in law schools. It claims that legal theory is necessary for practical legal studies but that legal philosophy's purportedly timeless theories about the nature of law have largely failed to meet this need. They have often been relatively unconcerned with social variation and historical change and so have not adequately reflected the varieties of possible legal experience. Juristic theory must be sociologically informed. But, equally, socio-legal studies must examine the nature of law as ideas as well as focusing on behaviour in legal contexts. Legal ideas need sociological interpretation. Social theory is essential to inform legal inquiries, and the long tradition of social theories of law is important. Alongside recent theories, the classics of socio-legal theory give deep perspective for studies of present-day law in society.

Cotterrell goes on to comment that -

I am optimistic that socio-legal theory can do what legal philosophy has failed to do; that it can be relevant in the law school world in ways that perhaps some legal philosophy is not. But I’m also aware of obstacles. Legal theory – theory aimed as explaining the nature of law – depends on empirical socio-legal research to keep it grounded in experience and sensitive to social variation. And most academic lawyers in Britain still have relatively limited awareness of or exposure to empirical socio-legal research, except perhaps where it relates directly to their legal specialism and where they have the sort of favourable conditions for wide-ranging scholarship that the best law schools allow. 

American legal scholars have sometimes claimed that ‘We are all legal realists now’ (Singer 1988: 467; Schlegel 1995: 2) and it might be tempting to say ‘We are all socio-legal scholars now.’ It seems true that legal scholars in the English-speaking world are often reluctant today to label themselves as ‘black letter lawyers’. What once was a label of pride to denote single-minded, rigorous and precise analysis and systematisation of legal doctrine, now more often gets treated as an admission of myopia, which no one wants to make. But socio-legal research cannot be said to have invaded the law school. In this country, unlike some continental countries, it is surely generally viewed sympathetically by academic lawyers of most persuasions. But socio-legal research has not modified the most basic patterns of legal thinking. It has not much disturbed the jurists. 

Its value certainly does not depend of whether it has influence in the lawyers’ world of doctrinal argument, dispute processing and practical regulatory design, but its long-term security probably does, to some considerable extent. In recent years, in Britain, posts in socio-legal research have been created in law schools, and part of the motivation for this – apart from any intellectual arguments – may have been that SLS is seen in some university environments as a promising focus for attracting external grants to support research. Funding from sources other than the usual state higher education support (for example, from charities, industry or European institutions) is increasingly valued in British universities for its own sake, quite apart from its financial value, as a mark of external recognition and esteem. In such a climate, support for socio-legal research in research-active law schools may make good practical sense. Yet this is a fragile foundation for the development of SLS inlaw schools, because external funding opportunities can disappear and fashions in academic planning can change. SLS remains vulnerable unless it becomes more clearly integrated with doctrinal law teaching and research. That means that it must engage with the idea of law as doctrine directly. 

Insofar as SLS focuses on law it has to compete with juristic studies of law and in some way impose itself upon them. Hans Kelsen’s (1945: 175-7) famous claim to relegate sociology of law to the periphery of legal concern as a dependent study should have outlived its relevance, yet it still haunts us. As Kelsen saw, if sociology of law does not find space to address the meaning of law in something like a ‘juristic sense’ – that is, as ideas and doctrine – it has no central concept of law except insofar as it borrows this from lawyers. No one can really believe that a concept such as – to use Donald Black’s (1976) term – ‘governmental social control’ captures the full meaning many people attach to the idea of law. So the intellectual situation seems parallel to that in criminology. ‘Crime’ seems to be what law says it is; and ‘law’ seems to be what the state and the lawyers say it is. 

So where do the social scientists stand in relation to concepts of crime and law? Are they just bystanders waiting for the lawyers to clarify founding concepts of their intellectual field? The way out of this problem is surely to admit that SLS has to engage seriously with theoretical ideas about the nature of law, it has to take its own stand theoretically on the nature of law as ideas, practices and experiences; and that theory must take careful account of (but certainly not be limited by) juristic legal theory. Juristic theory provides part of the ‘raw’ material (indicators of legal experience and legal practice) available for empirical socio-legal theory to work with.

Murk and Mitty

Posts in this blog over several years have noted incidents of 'stolen valour', ie people appropriating military honours and illicitly enjoying the respect due to those who have served under fire.

One example was Rex Crane, who received both esteem and substantial Commonwealth support. Michael Nicholson pretended to be a colonel and, using fake identity papers, gained entry to Randwick Barracks.  Reg Newton spun tales of derring do as a secret agent. Gordon Tisdell was recurrently but undeservedly featured in The Australian, the Sydney Morning Herald and even in the London Independent as a heroic Vietnam veteran.

Tisdell was quoted by AAP on Anzac Day 2010 (as a self-identified survivor of the Battle of Long Tan) as stating "You remember the times you had in the army and the mates you went away with. Some of them didn't come back". Later that year he was revealed to have not served in Vietnam – or indeed in any war. Rather than participating in fighting against the Vietcong, he spent his time on a dairy farm at Gloucester, New South Wales. I've commented elsewhere that dairy cows are fierce beasts, no doubt, but we can reasonably assume that they do not attack you with knives, grenades and other things that kill.

In his response to queries by SMH journalists Tisdell explained that -

I've never been a fraud in my life. I was just wearing my relatives' medals ... Defence came here today to see me. They said I'm not allowed to say anything. They brought the photographs out and showed them to me. They said not to say anything otherwise I get six months in jail.

There is now a large literature about people who have preyed on our good nature (or our howling credulity) in concocting ‘extreme memoirs’, including supposedly factual accounts of how they were victims of satanic rituals or other horrors, were fed by wolves or otherwise deserve our compassion and our dollars. An example of such identity exploitation is Norma Khouri, whose Forbidden Love: A Harrowing True Story of Love & Revenge in Jordan (Random House, 2002) recounts the author's life in Jordan, from which she fled after the honour killing of her closest friend. The book was an international best-seller, with Khouri touring the world after gaining temporary residence in Australia, appearing on network television in the US and in numerous interviews when not "in hiding" out of supposed fear for her life. Alas for the truth. Khouri was revealed to have a US passport (having lived in Chicago from 1973 until 2000 after leaving Jordan when she was three), a husband and two children (rather than being a virgin) and several US siblings.

In 2001 a panel of special masters from the California Commission on Judicial Performance (CJP) found that Judge Patrick Couwenberg of the Los Angeles County Superior Court "misrepresented his educational and military backgrounds to various sources, including the governor who appointed him". Couwenberg was charged with

(1) misrepresenting his educational background on his Personal Data Questionnaires when seeking judicial appointment; (2) falsely representing, in the course of seeking a judicial appointment in 1996, that he was a Vietnam veteran; (3) misrepresenting his educational background, legal experience and affiliations on his 1997 Judicial Data Questionnaire; (4) falsely representing to the judge who was to introduce him at the public enrobing ceremony that he was a Vietnam veteran who had received a Purple Heart; (5) falsely representing to attorneys that he went to Vietnam, had a master’s degree in psychology and had shrapnel in his groin received in military combat; (6) falsely telling a newspaper reporter that he was in Vietnam in 1968 and 1969; and (7) making false statements about his education and military experience in letters and in testimony to the commission during its investigation of his conduct. 

Couwenberg’s lawyers said that he deserved an opportunity to remain in office on the basis that his statements were not malicious but were "the product of a psychological impairment". The CJP found that Couwenberg lied to the commission in sworn testimony by claiming to have participated in covert operations with the CIA in Southeast Asia in 1967 and 1968. Couwenberg claimed that some of his misstatements were intended to be humorous and that others were typed onto official forms by his wife, based on statements he had made to her 20 years earlier

In the latest incident the Brisbane Times reports that the Hines twins - John and George - have been charged under the Defence Act 1903 (Cth) with falsely representing to be a returned soldier, sailor or airman and improper use of service decorations.

John Hines is reported as indicating that he will contest the charges, on the basis that he served in a specialist unit titled Military Assessment Surveillance Keep (MASK) in the 1960s. That unit was supposedly secret, advanced as the reason for why Hines does not appear in conventional Defence records about surveillance activity in Australia, Vietnam, Borneo, Mozambique, Cambodia, Nigeria and Thailand. Hines also claims to have spied on former prime minister Harold Holt. "I wasn't really comfortable with doing surveillance on the Prime Minister but those were my orders."

The brothers were reported to police after attending this year's Anzac Day parade in Brisbane in an unconventional uniform and medals.

Hines is reported as stating that it would be ridiculous for someone to make up his background.

I have nothing to hide ... to know about us you would have to be at a pretty high level," he said. "What sort of person would write a 1700 page manuscript over a couple of years, get uniforms made up, wear all these medals and go and stand out like a beacon at an Anzac Day parade purporting to be a regular Australian soldier? "I have never said and I have never written anywhere that I was part of the regular Australian army. MASK was backed by the Australian government, not the ADF, the UK government and the American government.

What sort of person indeed.

I'm a sensible type of person, I'm not a thief or a bloody axe murderer, I lead a normal life, I'm not a frustrated person, I've been a policeman I know the law, I'm not about to break the law and do something on such a grand scale and purport to be service man from the regular army.

The Times reports that

Hines said it took him so long to emerge with his story because he signed a "40 Year Secrecy Act" when he first joined MASK. 

There is of course no such Act in Australian law.

The ANZMI imposters watchdog site quotes Hines as stating that -

I had a Pension Hearing before the DVA where I produced an old rusty Battle Axe in a glass frame (which was MASK’s primary close quarter fighting weapon) with the words embossed into the metal ‘M.A.S.K. Special Forces – 1966’. It was a training axe. I spoke about MASK for quite a while, but the Female Chairperson hardly looked at me and the case was over before it started. 

Unofficially I have been told that I'm the highest decorated soldier in Australia - ever. CARO and MAS don't have anything past my CMF records and even some of them have been altered.

Certificates

'Does the Right to Birth Registration Include a Right to a Birth Certificate?' by Paula Gerber, Andy Gargett & Melissa Castan in 29(4) Netherlands Quarterly of Human Rights (2011) 434-459 notes that -

International human rights law has long recognised the right of every child to have their birth registered. However, what is less clear is what this right encompasses. For example, does the normative content of the right to birth registration include a right to a birth certificate? This is a question that has become very relevant to Indigenous Australians many of whom are experiencing difficulties acquiring a birth certificate. This article argues that the right to birth registration, as set out in the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, implicitly includes the right to a birth certificate. This conclusion is reached following an analysis of the work of the Human Rights Committee and the Committee on the Rights of the Child.

The authors conclude -

Both the HRC and the CRC Committee have indicated that the purpose of the right to birth registration is to ensure an individual can attain other human rights. in light of this, it is logical that the right to a birth certificate is a necessary component of the right to birth registration, because it is the certificate that is the essential evidence of birth registration, and therefore opens the gateway to the realisation of other rights. For this reason, the right to birth registration without a birth certificate is hollow, theoretical and illusory. 

This article has canvassed a significant array of authority that indicates that the HRC and CRC Committee both support this interpretation of the scope of the right to birth registration. implying a right to a birth certificate as part of the content of the right to birth registration is not just logical, but also principled. applying a teleological approach to interpretation would suggest that the right to a birth certificate is incorporated into the right to birth registration, in order to realise object and purpose of this norm. Furthermore, the extensive work of the CRC Committee and HRC, canvassed in this article, should inform the context and subsequent practice of the right, as it arguably amounts to subsequent interpretation. Nevertheless, there is a lack of explicit and unequivocal articulation of the legal justification for the inclusion of a right to a birth certificate as part of the right to birth registration. The sheer weight of authority suggests that the authors’ assertion that a right to a birth certificate forms part of the right to birth registration is a sound one. However, the CRC Committee should consider developing a thoroughly analysed General Comment that clearly articulates the precise content of the right to birth registration, as set out in article 7 of the CRC. Such an enunciation should expressly recognise that the right to a birth certificate is a necessary part of the right to birth registration. Some might argue that the ‘reading in’ of a right to a birth certificate is inconsistent with the text of article 24(2) of the ICCPR and article 7 of the CRC, however, such an interpretation would be theoretical and illusory, and inconsistent with a principled interpretation of the right. 

There is precedent for a treaty committee to use a General Comment as a vehicle to elaborate on the normative content of a right. For example, in 2002, the Committee on Economic, Social and Cultural Rights published General Comment 15 determined that a right to water should be read into article 11 (right to an adequate standard of living) and article 12 (right to the highest attainable standard of health) of the International Covenant on Economic, Social and Cultural Rights. In General Comment 15 the Committee set out a detailed legal justification for the conclusion that a right to water was ‘inextricably related’ to the right to adequate food, the highest attainable standard of health and the right to life.This is analogous to the inextricable relationship between birth registration and a birth certificate. a similar initiative by the CRC Committee would ensure that the right to birth registration expressly includes the right to a birth certificate. 

The express recognition of a right to a birth certificate in international law would assist in redressing the problems faced by many indigenous australians as highlighted above. Such recognition would affirm that in order to be consistent with international human rights law australia’s current birth registration systems should be altered to ensure there is ready access to a birth certificate. international human rights law provides governments with the normative standards to which they must adhere. The australian state and territory governments are more likely to re-structure their birth registration systems if it can clearly be demonstrated that their current practices do not comply with international human rights norms. Furthermore, it will help the Registrars of Births, deaths and marriages to see their work as impacting on fundamental human rights, rather than being a mere administrative process. Finally, for those indigenous australians who have been unable to obtain a birth certificate, the express recognition of a right to a birth certificate, as part of the right to birth registration, empowers them to pursue remedies for breaches of their human rights. Such action may ultimately culminate in them being able to obtain a birth certificate and all the benefits and entitlements that flow from having such a document.

Show and Tell

'The academic online: Constructing persona through the World Wide Web' by Kim Barbour and David Marshall in (2012) 17(9) First Monday  argues that an online persona is essential for academics.

This paper explores the way individuals are part of the prestige economy generated by universities as institutions. It explores how the construction of online identities or persona is now an essential activity for the academic both from the perspective of university value and individual/career value. Five distinct types of academic persona are explored primarily through academics working in digital communication areas; through these cases and examples this new communication environment is explored. This paper concludes that institutions and individuals need to develop in the most pragmatic sense, online academic persona and ensure that these online ‘selfs’ are connected with authenticity to the professional work of the academic.

Five distinct types of academic persona in "the creation of authentic, intentional, constructed personas that extend the boundaries of an academic’s individual influence beyond institutional boundaries, and allows them to work more effectively in the radically changed worldwide academic environment"?

They are -

• The formal self — The static self
• The public self — The networked self
• The comprehensive self
• The teaching self
• The uncontainable self

One colleague, underwhelmed with that bizspeak taxonomy, asked "what about the blase elf?".

The authors conclude -

There is little question that the landscape for the contemporary academic has shifted in a virtual way. As we have outlined here, the nature of academic life has become in many ways surrounded by online and mobile media culture as much as there continues to be patterns of engagement and activity that resemble previous eras of scholarship. These transformations in the way that academics conduct themselves could be seen invasively as a threat to the structures of institutions surrounding a given individual. There is an invasion from below with students increasingly structuring their study and personal lives through digital technologies. In other words, the classroom has altered, the lecture theatre has a different disturbing electronic cacophony, and the ‘conversation’ between academic and student has mutated into various online and off–line forms. Implied in this invasion are new communication technologies that have become more prevalent. Web sites, social networks, online videos, and the invigorated capacity in student life to make links and connections between various sources of information accelerate changes in communication ecology. This movement of information to knowledge is critical to both the student and academic experience. 

As we have indicated in this paper, the academic is negotiating a new intercommunicative environment and must navigate these spaces. It is precisely this communication terrain that now occupies center stage in the movement of ideas and information. This process is not solely student driven. The academy itself has moved online as well with online journals, virtual conferences, YouTube submissions, and collective peer assessment techniques analyzing academic work. Moreover, university Web sites are advancing in their sophistication and links to other forms of interactivity and structures of social networks. These changes are redefining institutional identities and the manner in which individuals construct their identities within higher education. In effect, higher education communication is increasingly being reorganized through patterns of online personal identity construction, publicity and dissemination. 

We see these changes in the movement of ideas as less invasive and more as an opportunity to present and build academic personae individually and institutionally. Although there are other forms of power operating within and between universities, at the core of higher education is a very elaborate prestige economy. Academic personas are the linchpin in this system of prestige that often have clear multiplier effects for departments, colleges and universities. We have mapped in this paper an array of possible academic personas that are already in play in the online world and demonstrate ways in which reputation and ideas are conveyed. We have linked this development of persona to other systems of presentation of the self that are now ubiquitous in contemporary culture. The presentational media forms of social network sites, such as Facebook, have become the models for micro–social networks such as Academia.edu that are involved in shaping the presentation of the academic. 

Our characterization of five types of online academic personas provides a path for understanding how these new constructions of professional academic identity can be both charted and conceived as exemplary for other academics to imagine their online selves. Critical to this imagination of an online professional self is to realize that there is not one technique or pathway. The academic persona, like other online persona, also has to connect authentically to an individual’s professional work. It is not hype or spin, but more an elaboration of what one is conceptualizing or thinking about, developing, and achieved. In the micro–publics of academia, the online persona will resemble other peer reviewed systems of knowledge production and be primarily judged on its merits.

'Law Faculty Blogs and Disruptive Innovation' (University of Denver Legal Studies Research Paper No. 12-27) by J. Robert Brown Jr. hails the blawg, commenting that

The role of blogging in legal academia has been much debated. Some view the discipline as the antithesis of scholarship, a medium that allows faculty to broadcast ignorant or confused opinions. Others have viewed blogging by law faculty more favorably, focusing on the approach as a means of promoting traditional scholarship. 

While the debate has been ongoing, the matter has largely been resolved by actual practice. In the realm of legal scholarship, faculty law blogs are a disruptive innovation. Disruptive innovation usually connotes the introduction of a new technology that eventually destabilizes an existing market. Often, the technology, when introduced, is inferior and not perceived as a threat. Over time, however, the technology improves and migrates from a market niche and becomes the reigning standard. 

Law faculty blogs arose in a state of nature and were often perceived as inferior technology used by faculty to convey random, often personal, views. Over time, however, a recognized class of law faculty blogs emerged, with at least one having been cited 45 times in court opinions and another having been cited by over 700 times in assorted legal publications. Widely read and regularly cited, they offered a superior method for the rapid dissemination of some types of legal analysis and facilitate the introduction of ideas into an ongoing debate. They also provide a form of intermediation that discourages low quality posts. Law faculty blogs provide a form of scholarship that fills a gap left by traditional law reviews. 

Law faculty blogs overcome the slow publication process and dense analysis that often prevents traditional law review articles from playing a role in an ongoing debate. Said another way, law faculty blogs have altered the continuum of legal scholarship and reduced the role of traditional law reviews. Efforts by law reviews to fight back through the implementation of online supplements has so far failed. 

Law faculty blogs have also had a disruptive impact on the determination of faculty reputation. Blogging allows law professors to route around the traditional indicia of reputation such as the frequency of publication in elite law journals. Providing a “prominence” dividend, faculty who blog are able to advertise their expertise through substantive posts and become better known to practitioners, academics and decision makers. This type of reputational benefit can be seen from the correlation between sustained blogging and SSRN downloads. 

Blogging can also disrupt law school rankings. With reputation the single largest component in the rankings, law blogging can be used by some law schools to increase name recognition in a cost effective manner. In other cases, blogging can increase awareness of a law school’s faculty, elevating the overall reputation of the institution. Both can improve a law school’s relative rank.

Echoes

'Facebook's Afterlife' by Jason Mazzone in (2012) 90(5) North Carolina Law Review 1643-1685 comments

 People spend an increasing part of their lives using Facebook and other online social networking sites. However, virtually no law regulates what happens to a person’s online existence after his or her death. This is true even though individuals have privacy interests in materials they post to social networking sites; such sites are repositories of intellectual property, as well as materials important to family members and friends; and historians of the future will depend upon digital archives to reconstruct the past. In the absence of legal regulation, social networking sites determine on their own what, if anything, to do with a deceased user’s account and the materials the user posted to the site. Yet allowing social networking sites to set their own policies with respect to decedents’ accounts does not adequately protect the individual and collective interests at stake. The law, particularly federal law, can and should play a stronger role in regulating social networking sites and in determining the contours of our digital afterlives. 

More than one billion people currently use social networking sites. They will all die. As people spend an increasing part of their lives in online communities, what happens to a person’s online existence after his or her death is of increased importance. For one thing, individuals have privacy interests in materials they post to social networking sites. For another, such sites are the repositories of photographs and other intellectual property. In addition, a social networking site may hold materials important to family members and friends of the deceased. Further, when we post to Facebook instead of writing diaries and letters, historians of the future will depend upon digital archives to reconstruct the past. 

There is virtually no law that determines how a decedent’s account at a social networking site is to be handled. In the absence of any governing legal rules, social networking sites are in the midst of figuring out on their own what, if anything, to do with a deceased user’s account and materials the user posted to the site. With more than 800 million users, Facebook is the largest of the social networking sites. Since it launched in early 2004, Facebook has taken different approaches to handling the accounts of deceased users. Currently, Facebook “memorializes” a deceased user’s Facebook page. This allows confirmed friends of the decedent to post comments to the page, with the idea that the page will serve as a tribute site to the decedent. Memorialization, however, deactivates access to other materials, notably those posted by the account holder during his or her life and previously accessible to the decedent’sfriends. Facebook users have registered a variety of complaints about the company’s handling of deceased users’ accounts. For example, some users would like to be able to determine in advance what will happen to their own Facebook pages when they die. Friends and family members of deceased Facebook users have complained that memorialization removes too much content from the decedent’s page and expressed the desire to have continued access to everything the deceased user posted during life. On the other hand, memorialization has also been criticized for providing a forum for commentary that lingers in cyberspace and remains associated with the deceased user’s name. 

Drawing particularly upon the experience with Facebook’s treatment of deceased users’ accounts, this Article examines whether and how the law should play a greater role in regulating our digital afterlives. Part I provides an overview of social networking sites and identifies the individual and collective interests that these sites implicate. Part II examines Facebook’s approach to deceased users’ accounts. It also discusses briefly the policies of other social networking sites, as well as those of other types of online services. Part II then turns to reactions among users to Facebook’s policy and some of the difficulties that the policy has created. Part III discusses the small number of laws that govern the disposition of a deceased user’s social networking account and identifies their shortcomings. Part IV offers some proposals for regulating a deceased user’s account, shows how these proposals could be implemented, and discusses their benefits.

Sidis

'The Sidis Case and the origins of modern privacy law' by Samantha Barbas in Columbia Journal of Law & the Arts (forthcoming) notes that

In the years before World War I, William James Sidis was widely regarded as the most impressive child prodigy the world had ever seen. Sidis attended Harvard at age, ten spoke several languages, and was a mathematical genius. Between 1910 and 1920, he was an international celebrity, publicized in media around the world and renowned for his intellectual feats. Headlines pronounced him a “boy wonder.” 

Yet as an adult, Sidis’s life took a different turn. He neglected his mathematical talents and entirely retreated from public life. By the age of twenty, Sidis had become a recluse.  At 39, he was an adding-machine operator living alone in a shabby Boston rooming house. Sidis was awkward and unkempt. He devoted his free time to collecting streetcar transfers and trivia about an obscure Native American tribe. The New Yorker tracked him down in his apartment, interviewed him, and wrote a story about his “prodigious failure” in the magazine in 1937. The piece described his personal eccentricities in vivid detail. Humiliated and outraged, Sidis sued under the tort of invasion of privacy by public disclosure of private facts - the original Warren and Brandeis conception of the “right to privacy,” which permits damages to be awarded for the dignitary harms caused by the publication of true but embarrassing private information. Sidis lost; according to the Court, he had no right to conceal his private life from a public that was curious about him. “Regrettably or not,” wrote the Second Circuit Court of Appeals in a groundbreaking opinion that celebrated freedom of the press over privacy, “the misfortunes and frailties of neighbors and ‘public figures’” were subjects of interest to the public, “[a]nd when such are the mores of the community, it would be unwise for a court to bar their expression in the newspapers, books, and magazines of the day.” 

The American press, it has been said, is freer to invade personal privacy than perhaps any other in the world. The tort law of privacy, as a shield against unwanted media exposure, is very weak. The media in the U.S. have a degree of latitude to report on intimate matters, without the threat of legal liability, that would be unimaginable in many other countries. In England, model Naomi Campbell won damages against a magazine when it published the details of her treatment for drug addiction. Princess Caroline of Monaco obtained a judgment from the European Court of Human Rights preventing the German press from publishing paparazzi photos of her. In the U.S., by contrast, public figures have been held to have almost no legal right to privacy. Courts have considered almost anything that takes place in a public place, or that could be said to shed light on an issue of public curiosity or significance, to be exempt from liability for invasion of privacy. The personal details and photographs of a rape victim, images of the extrication of a woman from a crashed car and a photograph of a soccer player with his genitalia exposed are among the intimacies that have been held to be newsworthy “matters of public interest” and thus nonactionable under privacy law. The failure of American law to protect personal life from unwanted publicity has been poorly explained. The standard reason given for the weakness of American privacy law as a bar on the publication of private information is the strong tradition of First Amendment freedom. But freedom of the press alone cannot explain why the right to publish has been interpreted as a right to print truly intimate matters or the right to thrust people into the spotlight against their will. Especially during a time of heightened concerns with privacy and Internet overexposure, we need a better explanation as to why the law has struck the balance between media exposure and privacy in the way that it has. One answer, this Article argues, can be found in the case of William James Sidis. 

The 1940 case Sidis v. F.R. Publishing, one of the best-known privacy cases in U.S. history, represents a foundational moment in the development of American privacy law. Sidis established the normative and doctrinal bases for the tort law of privacy as it currently exists. Sidis was the first case since the origin of the privacy tort in the 1890s to address the conflict between the right to privacy and freedom of the press and to come out on the side of free expression. In a conclusion that became the guiding principle of modern privacy doctrine, the Second Circuit held that the loss of Sidis’s privacy was an inevitable sacrifice to be made for The New Yorker’s right to publish freely and the public’s “right to know”—its right to access a broad range of information, a domain of knowledge nearly as expansive as its curiosities. In an insight that is now unexceptional but that was forward-looking at the time, the Sidis Court suggested that the ability to obtain facts of all kinds through the mass media, from serious news to even gossip and trivia, is the right and prerogative of a democratic people. 

The Sidis case represented a bridge between earlier, nineteenth century views and modern, twentieth century perspectives on the legitimacy and constitutionality of legal restrictions on publishing private information. The Court’s subordination of Sidis’s privacy to freedom of the press revealed the influence of a nascent civil libertarian First Amendment jurisprudence in the 1930s and 1940s, as well as an emerging social philosophy in that era- now common to the discourse on democracy and mass communications - that access to the “news,” broadly defined, is a prerequisite to social and political participation in a democratic society. In its suggestion that the public’s right to learn about the private life of the former genius was more valuable than his right to be let alone, and in its celebration of the free flow of facts, no matter how trivial or banal, the Second Circuit articulated what have, over time, become the ground rules for the modern information society. 

The story of the Sidis case has something to tell us not only about the development of privacy law but also about the culture of privacy, the public attitudes and sensibilities that have framed and shaped the law of privacy. It has often been said that Americans - exhibitionists to the core - do not really want privacy and are indifferent about having their secrets revealed. We are voyeurs who are happy to peer into others’ personal lives and care little about the privacy rights of others. The public reaction to the Sidis decision belies this conclusion. Despite enthusiasm for the kind of gossip and human interest journalism purveyed by The New Yorker, the outcome in Sidis was attacked by the public. Critics argued that The New Yorker and the courts had deprived Sidis of core personal rights - his right to control his public identity, his right to seek anonymity and his right to be forgotten. The public response to Sidis thus illustrates not so much public distaste for privacy, but rather confusion and tension - we want our gossip and our privacy too.