A teacher with 13 years experience left her unlocked cell phone on her desk. A 16-year old student, without permission, looked through the pictures on her phone. He found a racy picture the teacher took of herself for her husband for Valentines Day. The student then sent the photo to other students and posted it on social media. What happened next might surprise you. The teacher was given the choice of resigning or being fired while the student was not disciplined at all. Outrageous? Welcome to the murky world of invasion of privacy. It is often unclear whether there is a presumption of privacy when, as in this case, the teacher did not take enough precautions like locking her cell phone. 

Whether social media activity is considered private depends largely on who initiates the activity. Most of what you post on social media yourself is not considered private. If you don't want it to be shared then you shouldn't post it on social media. Even if social media activity is intended for just one other person, there is nothing to prevent that person from downloading, saving, or sharing that activity. However it is a different situation if some else invades your privacy then posts what they find on social media. If you have a reasonable expectation of privacy then there are legal remedies available to you. 

The concept of privacy varies significantly between cultures. European cultures value personal privacy far more than American culture. In Europe, privacy is a fundamental right guaranteed by the European Convention on Human Rights. The United States has a much more corporate friendly view of privacy. While free speech is in the First Amendment, privacy does not appear anywhere in the Constitution. Americans treat privacy as a consumer protection issue that can be bargained away for compensation or for free. When was the last time you read the Terms of Use when using social media or any website? If you consented to the terms then you almost certainly bargained away some privacy. This is typically in the form of being tracked. Every time you visit a website, view a product, or perform a search, your Internet habits are being compiled and used to predict your behavior. Tracking can even extend to the content of your emails, tweets, and instant messages. There is a very short list of things that are legally required to remain private in America. They include medical information, information about children, and financial information. Certain contractual agreements and trade secrets also have privacy protection.  

There are numerous cases where websites were accused of violating user privacy. Google was accused of enrolling users in Google Buzz even though they opted out. Those enrolled were also not told that people they emailed could be made public. Google settled the case by agreeing not to misrepresent how they handled data, obtaining consent to sharing data between services, and 20 years of audits. Google later cancelled Buzz. Google was also accused of circumventing Safari's cookie blocking feature with its +1 button despite Google's policy not to. The +1 button allowed Google to track a user's ad preferences, but only if cookies could be installed on user computers. The FTC fined Google $22.5 million. 

Facebook faced multiple accusations of breaking privacy promises including making private information public, accessing more information than needed to operate apps, failing to carry over "friends only" restrictions to apps, and sharing information with third party advertisers. In August 2012, Facebook reached a settlement promising not to misrepresent privacy or security for personal information, to get affirmative express consent before making changes overriding privacy controls, to remove content within 30 days of account deletion, and 20 years of audits. ​

​The bottom line here is if you want something to remain private, don’t keep it on a publicly accessible device (like an unlocked cell phone) and never post it to social media (even if it is email). If you don’t follow this rule, don’t be surprised if your private information someday goes public.

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All information on this website is for informational purposes only and is not legal advice. Ninomiya Law, PLLC and Kent Ninomiya only provide legal advice to clients when there is a valid engagement agreement signed by both attorney and clients. The principal office of Ninomiya Law, PLLC is located in Round Rock, Texas. Ninomiya Law, PLLC is responsible for the content of this website.