Of the legal stories that surfaced around privacy and our digital identity Twitter comes to mind, in a New York case against another Occupy organizer, Malcolm Harris. In this instance, Judge Matthew Sciarrino bulldogged Twitter with contempt charges to get information the prosecution needed to win their case against Harris. The case is under appeal.
The legal debate has a couple of different sides. One side has to do with whether or not Harris could legally be compelled to produce evidence against himself, which would logically seem to fit under the fifth amendment protection. This will end up being highly relevant to the idea of our social digital identity being used in a court of law.
But that brings up another side of the legal debate: does Harris own his social digital identity?
Twitter weighed in on the question, pointing out that the user agreement bluntly tells all users they own their tweets, and are responsible for the content. From a legal perspective, that's just common sense – otherwise Twitter would have to go to court any time one of their users got in trouble for something they Tweeted – and that would represent a daunting legal bill to foot. In other words, Twitter says Harris owns that portion of his digital identity.
With that logic in mind, Harris mounted the defense that he had the right to not provide the information under the fifth amendment.
Judge Sciarrino rejected the argument, and told Twitter to provide the information. Twitter filed its own motion to quash the subpoena, but that was smacked down, too. In September, Sciarrino ordered Twitter to cough up the data or face contempt charges and hefty fines. Twitter provided the information, but is appealing the ruling.
Whether Harris owns his tweets or not, the company has ended up in court trying to get the matter resolved for its own reasons. It really doesn't have much choice but to do so.
Perhaps it would be wise to put a copy of our Miranda rights up on our web browser when we first log into the internet, because the trend seems to be toward the notion that whatever we have ever said online can be used against us. In a court that might be called a "slippery slope". Sciarrino's ruling leans more toward supporting the idea that the website owns what you say. But this mindset is only the legal perspective – site owners are leaning the other way. Just ask Instagram.
Instagram posted a update to their terms of service that seemed to say they could use your photos and identity without compensating you, which brought the crowd to their feet in protest. The company quickly clarified. The "language" of the ToS did not really reflect what the company wanted to do, which was to use your likeness similar to how Facebook does. (If you look at a page Facebook suggests, you can see who among your friends are already following the page – complete with their picture. The idea certainly isn't new.) Instagram agreed with the complaints, that the language wasn't really reflecting what they were wanting to do, and changed the wording.
Just like Twitter, Instagram co-founder Kevin Systrom made itt a specific point to say so in a blog post, under the heading of Ownership Rights:
Instagram users own their content and Instagram does not claim any ownership rights over your photos. Nothing about this has changed. We respect that there are creative artists and hobbyists alike that pour their heart into creating beautiful photos, and we respect that your photos are your photos. Period.
So the debate about our social digital identity summarizes in a simple conversation:
- Courts: Turn over your digital identity.
- Consumer: I have a right not to do so.
- Courts (to company): Turn over their digital identity.
- Company: It's not ours to turn over, it's the Consumers.
- Courts (to company): No it's not, turn it over.
- Company: *shrug*
- Courts (to consumer): *gasp* Do you really dress your cat up like this?
- Consumer: …er…?...
Alright, maybe that's a little over-simplified, but it drives home the point that a lot of information is tied up in our digital identity. And something else that comes to light is the fact that if consumers are upset about it, the company will respond – at least in cases where they are allowed to.
Finally, many consumers would agree that there is probably a lot of stuff they post online that they may not necessarily want brought up in a court – especially how they dress their cat.