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Tuesday, September 1, 2024
By Steven L. Taylor

(Update 2: Perhaps a better title is “What Constitutes a Reasonable Expectation of Privacy with Mass Electronic Communications?”)

Joe Klein of Time is upset with Glenn Greenwald of Salon:

Twice in the past month, my private communications have been splashed about the internet. That such a thing would happen is unfortunate, and dishonorable, but sadly inevitable, I suppose. I ignored the first case, in which a rather pathetic woman acolyte of Greenwald’s published a hyperbolic account of a conversation I had with her at a beach picnic on Cape Cod. Now, Greenwald himself has published private emails of mine that were part of a conversation taking place on a list-serve.

Now, I really have no specific opinion worth airing on the issue of the particulars of the feud between Klein and Greenwald at the moment. However, upon reading the above paragraph, I have to wonder: if one is posting to a listserv (what is this, 1999?), exactly what level of privacy can one really expect?

Electronic communication already makes sharing correspondence beyond the original target extremely easy. Send me an e-mail and I can forward it to dozens (if not hundreds or thousands) with a few clicks. Beyond that I can blog it, tweet it, Facebook it, etc. Sharing is all too easy. Even an honest-to-gosh handwritten letter only needs a scanner and it, too, can be ’round the world in seconds. As such, it behooves us all to be careful about what we commit to writing.

Still, there is a more than reasonable expectation of privacy even with electronic communication if one is corresponding with a one (or even a few) trusted recipients. If anything, if I e-mail you and then those contents are widely shared, I know who shared them. However, if I send an e-mail to a listserv (or if I tweet something or post it to Facebook, even if in all cases I have limited who is on the list, who can follow me on Twitter, or who my “friends” are on Facebook) can I really call that “private communication”? And even if one thinks one can, the bottom line is that by even narrowcasting one’s views, one has lost control of that information. With each additional person on a list comes the increased possibility of a leak.

Also: hasn’t this Journolist thing come up before with some other actors? It seems utterly naive to me that journalists, who often use leaked information in their reporting, can expect to be able to post e-mails to a listserv and assume that it is the same thing as having a private chat in someone’s home.

Update: A March 2024 piece at Politico.com describes Journolist thusly:

several hundred left-leaning bloggers, political reporters, magazine writers, policy wonks and academics have talked stories and compared notes in an off-the-record online meeting space called JournoList.

May I submit that even if the participants of said list state that they will treat everything as off the record, the notion that e-mails to “several hundred” individuals constitute “private communications” is a bit of a stretch, to put it kindly. I understand that technically the members of the list are supposed to keep the communications private, but since it only takes one person to violate that trust, the probably is quite good that said trust will be violated at some point.

I, personally, would respect the rules of such a list,1 but I likewise would not be so foolish as to expect that everything I posted on such a list would be guaranteed to stay private.

  1. For example, I won’t blog on things I see on my Facebook feed, as technically that is a closed community of people who are “friends”–although in the cases in question we are talking about prominent bloggers who aren’t really friends of mine, or even acquaintances. Indeed, in those cases my guess is that the bloggers in question have vast numbers of “friends” on their feeds for PR reasons. Still, I refrain from comment, because it is unclear to me if their comments are meant for broader public consumption. []
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8 Responses to “What Constitutes “Private Communications” in the Internet Age?”

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    1. Around The Sphere | The Moderate Voice Says:

      [...] issue of what is a private communication is generating a variety of reactions such as here, here, here and [...]

    2. Ratoe Says:

      Yeah, Klein’s position is ridiculous.

      My general rule of thumb is that I won’t put anything in an email that I wouldn’t mind being publicly disseminated.

    3. Kenny Says:

      Yes, but Primary Colors does enjoy anonymous, and thus private, prose now and then.

    4. shinigami-sidhe Says:

      I sort of study issues of privacy and freedom of speech on the internet, so:

      Legally speaking, emails are treated the same as mail, i.e. reading someone else’s email is a crime. Hacking into an email is a crime, actually just hacking into someone else’s computer is a crime. Despite this, the FBI runs all emails through an automatic filter that they named Barracuda, just so that we would be inspired to trust it even though it is illegal. Anything posted on the internet without privacy controls is considered public domain. Facebook is weird. A message is probably the same as an email, but everything else is iffy. In general, if you need a password to see something it should be considered private. Facebook is a problem because there is no way for you to know whether something that you can see about a person is something that other people can see as well.

      So legally speaking, I think a listserv is private. Pragmatically, of course, it may not be, but the naive still have privacy rights just like they have the right to walk down the street flashing large amounts of cash and not be robbed. Making yourself look like a good target doesn’t make crimes committed against you not be crimes anymore.

    5. Ratoe Says:

      So legally speaking, I think a listserv is private.

      I’m not convinced by your argument.

      Yes–it is a crime to hack into someone’s email or steal their mail.

      But that’s not the case here.

      It is more like if I received–say a mass mailing from a political candidate and then scanned it and posted it on the internet. Anything I receive in the mail essentially becomes my property to which I can do with it what I want.

    6. Steven L. Taylor Says:

      SS:

      I take the legal point about e-mal being private, but if you send me a letter, I can legally show it my wife, yes? Or, for that matter, discuss it on my blog. Moreover, if you e-mail me and 200 friends, it would seem that any reasonable epectation of privacy is out the door.

    7. Buckland Says:

      From the Greenwald article:

      As for Greenwald, he knows little about politics, less about journalism and cares not a whit about the national security of the United States. I find the Limbaugh-like, knee-jerk devotion of his flock depressing.

      Greenwald has conducted a persistent, malicious campaign to distort who I am and where I stand. He is a mean-spirited, graceless bully.

      Not too hot by today’s political discourse standards, but attacking a professional foe in an off-the-record forum dedicated to “stories and [comparing] notes in an off-the-record online meeting space” seem a bit tawdry in itself. If Mr Klein wanted to sling insults it would seem sporting to at least find a forum where the object of his insults has direct knowledge. It seems a bit ironic to complain about participants violating the rules about forwarding to outsiders when he’s violating the purpose of the listserve.

    8. shinigami-sidhe Says:

      Yes and no, the tricky part here is that just because you have legal access to information doesn’t mean you own it. This is clearly true in regards to, say, telephone conversations, but when you don’t have to go to any special effort to record it, it gets more fun. If, for some odd reason, I mail you all my medical records, I don’t think you have the right to show them off and publish them unless I explicitly include a signed statement saying that you can.

      Specifically about list servs, I’m on a couple of official academic ones (even though it’s no longer 1999) in which we discuss students and grading and I very definitely absolutely do not have the right to publish that stuff even though this has never been explicitly stated and it is in my mailbox addressed to me as a member of a group.

      Of course, enforcing any of this is next to impossible, because the internet was built on the assumption that all users are nice people with very specialized knowledge, and privacy cases are really hard to prosecute or sue over even if there is clearly very personal data compromised. So in general, having explicit end user license agreements and privacy statements is good. Except no one, including me, ever reads them.


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