Legal Ramifications of Facebook Privacy Settings

Facebook and its privacy settings are always a hot topic, occasionally for very good reasons.  People always worry about their personal privacy, but (for whatever reason) that concern often doesn’t translate to many people’s online life.  People will post all kinds of things they shouldn’t on a variety of social media

A case from Georgia recently illustrated this phenomenon.  Chaney v. Fayette County Public School District involves a school using a photo of a female student dressed in a bikini next to a cardboard cut-out of Snoop Dogg in a lecture on internet safety.  The school mostly used the picture as an example of the sort of photos that one should not share with the wider public, because these pictures would be embarrassing later in life.  The IT director had access to the picture in the first place because Chaney’s Facebook settings allowed for friends of friends to view her pictures.  Chaney sued the district on a wide variety of personal privacy claims, including Fourth and Fourteenth Amendment grounds (as well as some Georgia specific claims, which I won’t go into). 

Not surprisingly, both Chaney’s Fourth and Fourteenth Amendment claims failed.  In regard to the Fourth Amendment claim, Chaney tried to argue that her pictures were only available to people whom she had chosen (which created a reasonable expectation of privacy).  This claim fails for a couple of reasons.  First, it fails to acknowledge that she cannot select the friends of her Facebook friends and thus cannot control access of her photos to those additional people.  This would bring up the third party doctrine (no reasonable expectation of privacy when one turns over information to third parties) and negate any argument on Chaney’s part.  The court also cited US v. Meregildo, which held that information posted on Facebook has no expectation of privacy.  The court further noted, on page 4, that the settings Chaney chose were the most inclusive settings available to a minor.  That last bit was probably not overly important to the court’s analysis, but it does serve to show that Chaney took no additional pains to make her information more private.

The Fourteenth Amendment claim was almost laughable.  Chaney tried to claim a violation of the Fourteenth Amendment’s right to privacy, but the court stated that such a right does not extend to situations where the person shares a picture of themselves with a broad audience.  The Fourteenth Amendment potentially protects certain types of disclosures (such as personal matters) but it also doesn’t give a person the right to prevent personal embarrassment caused by pictures they made public.  

The lesson from all of this?  Users should take great pains to know about Facebook’s (or any other social media site’s) privacy settings.  Any information posted to a site like Facebook has the potential to get widely disseminated in ways that the initial poster cannot control.  Eric Goldman (the famed internet law professor at Santa Clara Law) points out in his take on this case that if a person has 200 friends, and those people have 200 unique friends (as in, no overlap between friend lists), then a picture or status could potentially get shared with up to 40,000 people.  That number of people almost ensures that a few of them will not be trustworthy with the original poster’s information.  That almost precludes any notion of “privacy” as understood by the legal system.  People should understand that, first and foremost, nothing posted on any of these sites is private.  When combined with the often permanent nature of the internet content, this lack of privacy indicates that a user should be very careful with what they post (not posting an imagine of oneself in a bikini next to a cut out of Snoop Dogg would definitely be a start).

Such privacy issues have implications that go far beyond silly pictures posted to Facebook.  Even privacy focused apps like Snapchat are less secure than their users might think.  Since these images last a long time, they could potentially have major ramifications for the work prospects or even legal health of people not thinking through the long term consequences of posting.  The bottom line?  Educate yourself on the privacy settings for your site of choice, and don’t post anything you wouldn’t want to share with the world.

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