Today, the ABA gave the go-ahead to attorneys to look at “publicly available musings” of citizens called for jury service and in deliberations, but stopped short of allowing them to “follow or friend” jurors. Such “musings” may even impact the outcomes of legal proceedings; the article cites a case in which a defense attorney asked for a new trial on the basis of a juror’s post. There is a clear tension here between the privacy of jurors and the right of defendants to have their case heard by impartial jurors, but it is certainly not the first time an online user’s digital footprint has led to repercussions in the real world.
For years, college admissions officers have been using the digital footprints of applicants to help make their admissions decisions. In 2008, only 10% used social media during the admissions process. By 2011, 24% of surveyed admissions officers admitted to using Facebook or another social networking page to learn more about applicants, while 20% had Googled the applicants.
It is well known that what you post online can get you fired. Employees at Taco Bell, Wendy’s, Burger King, and many other fast food restaurants have lost their jobs when photos of their disgusting actions were either leaked or posted online deliberately. If a picture is worth a thousand words, a mere 140 characters could cost you your job in the age of Twitter. In 2013, Justine Sacco, a communications director at InterActive Corp., was fired for a single, racist tweet. At the time she made the tweet, she only had about 200 followers.
The consequences of a single tasteless post may not stop at mere financial loss. In November 2013, Alicia Ann Lynch not only lost her job, but received rape and death threats for Instagramming a picture of herself dressed as a Boston Marathon bombing victim for Halloween. In a later Tweet, she implored the public to stop spreading around her parents’ home address and phone number, arguing that they had done nothing wrong.
While many of these individuals expressed remorse or at least regret when public outrage ensued, it would be a mistake to believe that netizens are completely oblivious to the consequences of their online posts. Snapchat, which declined a $3 billion acquisition offer from Facebook in November 2013, was used to share 700 million photos per day as of last month. The popularity of such apps indicates a growing awareness that a single misguided post could come back to haunt its author.
But can we really depend on these apps to protect our privacy? Can we push that “send” button and expect a picture to disappear within 10 seconds of being viewed? Renowned security expert Bruce Schneier doesn’t think so. Among other factors, he points out that Snapchat may fail to delete pictures as advertised, save metadata for advertisers, and even succumb to legal pressure from the government to hand over data.
Despite the negative consequences of exercising poor judgment when Tweeting, e-mailing, or otherwise posting information online, complete obscurity may not be a viable option in today’s environment. Not having a social media account may alienate you from friends, while a potential employer may offer you a job after coming across your LinkedIn profile.
In an age when a single video or Tweet can go viral within minutes or hours of being posted, it is easy to forget that we still have full control over what information we make public. For example, although attorneys may be scouring the social networking profiles of potential jurors, they will only find what a juror has chosen to reveal. If you don’t upload a picture or make a post, there is simply nothing to see.
Users are often advised to understand their privacy settings and set them accordingly, but this advice simply doesn’t go far enough. Even the most conscientious users who know their privacy settings inside and out are subject to the limitations of Facebook, Twitter, or whichever site they have a profile at. For example, to my knowledge, Facebook does not currently allow you to make yourself invisible to friends of friends unless you explicitly block that individual. Relying completely on privacy settings also fails to rule out the possibility that a software bug or rogue employee will leak details that were intended to remain confidential.
Thus, the best way to protect your privacy against increasingly inquisitive employers, attorneys, and other individuals who take an interest in your online life is to limit and carefully filter what you post. If you aren’t comfortable with the whole world seeing and reposting what you are about to send, don’t even think about pressing that button.