What Privacy Invasion Looks Like

by on October 2, 2010 · 6 comments

The details of Tyler Clementi’s case are slowly revealing themselves. He was the Rutgers University freshman whose sex life was exposed on the Internet when fellow students Dharun Ravi and Molly Wei placed a webcam in his dorm room, transmitting the images that it captured in real time on the Internet. Shortly thereafter, Clementi committed suicide.

Whether Ravi and Wei acted out of anti-gay animus, titillation about Clementi’s sexual orientation, or simply titillation about sex, their actions were utterly outrageous, offensive, and outside of the bounds of decency. Moreover, according to Middlesex County, New Jersey prosecutors, they were illegal. Ravi and Wei have been charged with invasion of privacy.

This is what invasion of privacy looks like. It’s the outrageous, offensive, truly galling revelation of private facts like what happened in this case. Over the last 120 years, common law tort doctrine has evolved to find that people have a right not to suffer such invasions. New Jersey has apparently enshrined that right in a criminal statute.

The story illustrates how quaint are some of the privacy “invasions” we often discuss, such as the tracking of people’s web surfing by advertising networks. That information is not generally revealed in any meaningful way. It is simply being used to serve tailored ads.

This event also illustrates how privacy law is functioning in our society. It’s functioning fairly well. Law, of course, is supposed to reflect deeply held norms. Privacy norms—like the norm against exposing someone’s sexual activity without consent—are widely shared, so that the laws backing up those norms are rarely violated.

It is probably a common error to believe that law is “working” when it is exercised fairly often, fines and penalties being doled it with some routine. Holders of this view see law—more accurately, legislation—as a tool for shaping society, of course. Many of them would like to end the societal debate about online privacy, establishing a “uniform national privacy standard.” But nobody knows what that standard should be. The more often legal actions are brought against online service providers, the stronger is the signal that online privacy norms are unsettled. That privacy debate continues, and it should.

It is not debatable that what Ravi and Wei did to Tyler Clementi was profoundly wrong. That was a privacy invasion.

  • Ryan Radia

    This strikes me as precisely the type of privacy violation that ought to be civilly actionable. But do Ravi's actions justify the state putting him behind bars? Should operating a webcam in your own dorm room with your roommate's bed in view but without his knowledge constitute a criminal offense punishable by imprisonment? Where should libertarians draw the line between civil and criminal actions?

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  • Jim Harper

    Your good question forces me back to my legal and libertarian roots. Historically, criminal laws seem to have appeared when there was governmental apparatus to enforce them, not because there is some category of wrongful behavior rising above civil wrong to the level of “crime.”

    Crime laws seem appropriate for punishing activity that destroys public order, like violence. This case doesn't seem to present that problem.

    We should be cautious about letting wrongful behavior that is susceptible to civil (tort) law become crime just because there are enough government officials around to enforce them.

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