Abstract
Free expression rights often come into conflict with other rights: The rights of a free press can conflict with the right to a fair trial by an impartial jury; the right of free speech can conflict with someone’s right to maintain a good reputation, or; the subject of this book, the right of free expression and its battle with the right to privacy.
Author Mark Tunick believes that the United States may have gone too far in its defense of free expression at the expense of privacy rights. He does not call for the balance to be reversed in favor of privacy, but rather that the apparent imbalance in favor of free speech needs to be tempered. Sometimes, the value of free speech may not be as great as the value behind privacy.
Tunick, a professor of political science at Florida Atlantic University, has been writing about political theory for more than 20 years. This book, like his earlier books and articles, combines an analysis of both the ethical and legal arguments. With undergraduate degrees from MIT and graduate degrees from the University of California, Berkeley, Tunick’s analysis includes not only “old favorites” like Plato, Mill, and Kant, but also contemporary theorists like Daniel Solove and Adam Moore.
Free expression zealots may quickly dismiss Tunick’s arguments, but they shouldn’t. It is hard to argue with some of the examples he provides, both real and hypothetical. One of his most compelling arguments is the challenge he makes to the universally accepted premise that there is no privacy for anything that occurs in a place where it can be seen by the public. Under current U.S. law, if someone in a public place has an accidental “wardrobe malfunction,” anyone who happens to snap a photo of that has virtually no restriction on the noncommercial use of the photo even if it means the genitalia of a high school student is published in a newspaper. The ability to distribute the picture online, and in perpetuity, can result in significant injury to the victim. The people at the event may or may not have seen something, but if they did it was only fleeting. Widespread dissemination of the picture is significantly different from what someone at the event might have seen, and the permanence of the image can add to the embarrassment years into the future. Tunick asserts that sometimes people should reasonably expect privacy, even at events that occur in public.
Critics of increased protection for privacy often assert that people don’t need a right of privacy if their behavior is not suspect, or that a condition of the modern world should be a recognition that privacy doesn’t exist or is limited, at best. Tunick states that violating privacy is tantamount to disrespecting a person: . . . failing to respect someone’s privacy by giving them unwanted attention can fail to respect them as a person and affront their dignity, diminish their ability to control how they present themselves to the world, and to manage their intimate relationships, subject them to unjust punishment and other reputational injuries, and expose them to psychological and economic harm, and we should be sensitive to the interests people have in not being treated in these ways when doing so does not keep us from adequately pursuing our own aims.
The fact that new technologies have made it more likely that people will be subjected to “unwanted attention” will come as a shock to no one, but this book challenges the notion that we must all accept this as if it is some fated outcome. Facial recognition technology can provide tremendous advantages, but there are also great risks to personal privacy. Tunick refuses to believe that we must accept intrusions that new technology allows and instead argues for legal, ethical, technological, and market limits on what is allowed.
This book examines the significantly different approaches to the right of privacy taken by the United States and Europe. While the United States tends to favor free expression over privacy, the European equation usually favors privacy, especially when the people involved are not public figures. Europe’s controversial “right to be forgotten” law allows individuals to request that search engines stop providing links to old information about them. In the United States, someone arrested for a crime who is exonerated by having the charges dropped, by winning a case in court, or even serving jail time, will forever have the arrest show up every time a Google search is done. Tunick would not have all records expunged but suggests that there must be some position between the extremes. “If we adopted a blanket rule that individuals forever forfeit their good reputation because of their past misdeeds we would violate a principle of justice that requires that punishment be proportional to the offense and therefore have an endpoint.”
This book will serve as great fodder for anyone wanting to argue about privacy in the 21st century.