Situated Privacy and Trusted Spaces for Communication

Social bonds are features of the communications environment as much as walls are or as time is. We rely on other people to keep our secrets. Trust matters.289 _{We reveal more to people we trust than to people we do not.}290 _In some contexts, social trust has not been protected by law.291_{. There is a} growing academic conversation about the importance of preserving trust in communications and the relationship of trust to privacy.292

286_{See, e.g., Nussenzweig v. DiCorcia, No. 108446/05, 2006 WL 304832, at *6 (N.Y.} Sup. Ct. Feb. 8, 2006).

287_{But see Rodney A. Smolla, Privacy and the First Amendment Right to Gather News,} 67 GEO.WASH.L.REV. 1097, 1127-28 (1999) (positing that mere chasing and following for the purpose of information gathering without any physical harm or threat should not be made the subject of liability).

288_{But see Pomykacz v. Borough of W. Wildwood, 438 F. Supp. 2d 504, 506-07, 512-} 13, 513 n.14 (D.N.J. 2006) (holding that a woman who followed a town’s mayor, and whose conduct may have satisfied the actus reus elements of criminal harassment, had a First Amendment interest in her photographs as part of her political activism).

289_{See, e.g., DEP’T OF COMMERCE INTERNET POLICY TASK FORCE, COMMERCIAL DATA} PRIVACY AND INNOVATION IN THE INTERNET ECONOMY:ADYNAMIC POLICY FRAMEWORK 13 (2010),

https://www.ntia.doc.gov/files/ntia/publications/iptf_privacy_greenpaper_12162010.pdf [https://perma.cc/Z97T-RS7T] (“Privacy protections are crucial to maintaining consumer trust, which is necessary to secure full use of the Internet as a political, educational, cultural, and social medium.”); Jack M. Balkin, Information Fiduciaries and the First Amendment, 49 U.C. DAVIS L.REV. 1183, 1207 (2016); Neil Richards & Woodrow Hartzog, Taking

Trust Seriously in Privacy Law, 20 STAN.TECH.L.REV. (forthcoming 2017) (manuscript at 27), https://ssrn.com/abstract=2655719 [https://perma.cc/D76G-QQNY].

290_{Valerian J. Derlega & Alan L. Chaikin, Privacy and Self-Disclosure in Social} Relationships, 33 J. SOC. ISSUES 102, 102-15 (1977).

291_{For example, the Fourth Amendment does not protect people from disclosures by} “false friends.” See, e.g., United States v. White, 401 U.S. 745, 749 (1971). But see Cohen v. Cowles Media Co., 501 U.S. 663, 672 (1991); Balkin, supra note 289, at 1199; Richards & Hartzog, supra note 289, at 23-24 (“There is also substantial legal scholarship on the role of the law in general in generating or discouraging trust.”).

292_{See Balkin, supra note 289, at 1187 (recommending a shift in the focus of First} Amendment privacy protection to the relationships of trust and confidence); Richards & Hartzog, supra note 289, at 2 (arguing that privacy rules can be used to enable trust in essential information relationships).

Courts have recognized that privacy can be not just in conflict with but necessary for the First Amendment.293 _{Allowing individuals a legally} protected, safe space for the development of close relationships encourages them to disclose more to trusted others in those safe spaces. If the boundaries erected around a trusted conversation cannot be relied on, then individuals will disclose less.

This raises a First Amendment concern, explicitly recognized by the Supreme Court.294 _{If there are no privacy protections for certain modes of} communication, such as phone calls, then the First Amendment itself will suffer, as people will say less on the phone. In other words, if technological and environmental barriers fail to protect the privacy of individual conversations, individuals will resort to behavioral changes, disclosing less. There is a real First Amendment interest in preventing this chilling effect.295

The government interest in regulating the recording of conversations contains, within itself, a First Amendment purpose. If eavesdropping or wiretapping laws are challenged under the First Amendment, courts should recognize that such laws also enable speech, not just prevent it. As the Seventh Circuit explained in ACLU of Illinois v. Alvarez, “[t]he protection of personal conversational privacy serves First Amendment interests because ‘fear of public disclosure of private conversations might well have a chilling effect on private speech.’”296 _{The First Amendment interest in encouraging free} expression often requires the protection of privacy.

IV. PRIVACY MEETS THE RIGHT TO RECORD

Privacy laws that govern recording have already been challenged under the First Amendment. The question is: How should courts address such challenges? This Article has thus far discussed the nature of the recording right and the nature of the privacy interest at stake. This Part explains how the two might meet.

First, I briefly discuss why regulations made in the name of safety or property ownership, that nonetheless impact privacy, are inadequate to protect privacy. Next, I answer the two difficult doctrinal questions posed in the Introduction and in Part I: Why would the recording right change based on location? And if the right to record is protected by the First Amendment, how do we disaggregate the government’s interest in protecting privacy from an

293_{See, e.g., Griswold v. Connecticut, 381 U.S. 479, 483 (1965).}

294_{Bartnicki v. Vopper, 532 U.S. 514, 532-33 (2001) (recognizing that the government} has an important interest in “encouraging the uninhibited exchanged of ideas and information among private parties”).

295_{See id. at 533; White, 401 U.S. at 787 (Harlan, J., dissenting); ACLU of Ill. v.} Alvarez, 679 F.3d 583, 613-14 (7th Cir. 2012) (Posner, J., dissenting) (arguing that because private talk in public places is common, nonconsensual recording will have an inhibiting effect on the number and candor of conversations).

illegitimate interest in preventing speech? I close this Part with examples of laws and cases, discussing whether courts have gotten it right, and what they might do going forward.