The Privacy Implications of “Friending” the White House (Part II)
posted by Danielle Citron
Since I last wrote about President Obama’s Facebook friends, Government 2.0 has steadily progressed. Since early May, our Commander-in-Chief has added more than 150,000 new friends. The FDA has initiated its Transparency Blog and will soon add a Twitter feed and Facebook page. More state agriculture agencies reach the public through social networking sites. Of course, the government social-networking phenomenon is not brand new: since 2007, the Commerce Department’s National Oceanic and Atmospheric Administration has maintained a virtual island in Second Life and the CDC has had a MySpace page. Nonetheless, it is a particularly auspicious time to think about this trend’s privacy implications especially in light of the GSA’s recent agreement with video-sharing and social networking sites to permit agencies to use their services.
What are the public’s privacy expectations when using government social media? It is surely too early to identify a clear sense of our expectations, at least in any well-studied way. But the Obama Administration has provided some sense of what we should expect when we join a future Facebook group sponsored by OMB or engage in virtual conversations with agency officials in Second Life. How so? The current push for agencies to use Web 2.0 platforms stems from President Obama’s January 21, 2009 Open Government memorandum. The memorandum urges executive departments and agencies to be more transparent, participatory, and collaborative. Agencies “should harness new technologies to put information about their operations and decisions online and readily available to the public.” They should “offer Americans increased opportunities to participate in policymaking and to provide their Government with the benefits of their collective expertise and information.” And they should use “innovative tools, methods, and systems to cooperate” and collaborate with the public and private sectors in making policy. USA.gov’s Sheila Campbell has explained that agencies will appoint directors of new media to determine how they can use social networking tools to meet mission goals and comply with President Obama’s Open Government directive. As White House CIO Vivek Kundra has noted, public comment on programs will hopefully be a “two-way interaction between government and its citizens.” White House spokesperson Moira Mack clarified the point: “we are focused on opening government to the people (and not the other way around), and like with any other online friends, the individual users can still choose to keep information private using their privacy settings.”
So what does all of this signal about our privacy when interacting with government agencies via Facebook, MySpace, Twitter, You Tube, etc.? The Open Government directive tells us that government wants to shine light on its activities and get our opinions and expertise on policy matters. It says nothing about government’s interest in our personal lives, i.e., what we write on our friends’ walls, the 25 things you don’t know about us, our network of friends, etc. Our personal lives seem downright out of place in any discussion of the Open Government directive. This seems to create a presumption of openness as to policy-related matters and a presumption of privacy as to individuals’ personal matters.
In other words, the Government has created a one-way mirror: the public can peer into agency workings, data, and policymaking but the agency behind the mirror cannot glance back into our personal lives. And why would we even think that President Obama, the CDC, or NASA has the time or policy-driven motive to see the movies we love, the albums we bought, or the amount of money we spent at a bar? As a commentator on eParticipation noted: “While the UK Home Office is planning to gain access to social networking sites to snoop on its citizens, the Obama administration seeks to use the same technology to engage with voters and find out what they want.” Agencies’ recent forays into Facebook environment reflect this intuition. Agencies have created Facebook “fan pages” that allow Facebook users to join, receive updates (transparency), and conduct discussions on the wall or in forums (participatory/collaborative). Agencies, however, cannot peer inside the lives of their fans: it is a one-way mirror of sorts.
Tomorrow I will discuss the normative implications of the one-way mirror and would love your feedback on my intuitions.
H/T to the ever-insightful Paul Ohm who shared with me his insights on the one-way mirror.
June 18, 2009 at 10:41 am
Posted in: Administrative Law, Google & Search Engines, Privacy, Privacy (Consumer Privacy), Technology, Uncategorized
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Responses (7)
Woody - June 18, 2009 at 1:23 pm
Excellent post, Danielle. I wonder if its worth parsing out expectations of privacy into two different categories: 1) government social media (say, a candidate’s own webpage or any kind of social media hosted by the government) and 2) government using social media. The difference being that a third-party business/company can play the intermediary, most noticeably with a terms-of-use agreement. When we join Facebook, is there some kind of expectation that FB will “protect” our data, even from the government (as a member of the community)? Would that be a reasonable expectation if we were to examine the terms of use? Does the TOS even differentiate in those instances?
Regarding privacy settings, if a government official were to have a “friend” profile instead of a “page,” (thus giving him all the access “friend” level provides) would there be a presumption of openness when the government has the same level of access to our personal information as our actual best friend?
Danielle Citron - June 19, 2009 at 8:30 am
Woody, Great feedback and questions. Thanks for helping me clarify what I am talking about: government’s use of social media run by third parties such as Facebook, MySpace, Twitter, Flickr, etc. The GSA has entered into terms of service agreements, but has refused to produce those TOSs on the grounds that the 3P providers don’t want them to do so. GSA has said that the TOSs speak to indemnification issues, FOIA, intellectual property among other issues; privacy wasn’t on the list. Hence, the Department of Homeland Security workshop on the privacy practices of Government 2.0 where I will be speaking next week. I will update you (and our readers) about the workshop. It looks fantastic given the line up of speakers and participants.
As to your second point about when we friend President Obama on MySpace, I don’t believe there should be a principle of openness on the other side of the mirror (i.e., government peering into personal lives). This is so for various reasons. First, it is not what government is telling us with the Open Government Directive and other public statements no matter what users seemingly agree to when friending the President as they do any other friend. Second, recent studies suggest that people don’t protect their privacy on online social networking sites, i.e., they go with the default settings which is often the least privacy protective of other alternatives, especially on MySpace. This is not to say that this is an informed decision. Indeed, we often go with the default and that is why privacy scholars have been so concerned about opt out versus opt in regimes. Last, it would be normatively unappealing for reasons I will soon post about.
Thanks so much!
Jacqueline Lipton - June 19, 2009 at 4:40 pm
By the way, Patricia Sanchez Abril – whom you cite in your later post – has a forthcoming piece in the Vanderbilt Journal of Entertainment and Technology Law which is a comparative empirical piece in which she and Canadian co-author Avner Levin survey a group of college students about their attitudes and expectations of online privacy. I don’t know if the piece is yet available on SSRN, but it’s called “Two Notions of Privacy Online” and when it comes out could be very helpful in these kinds of discussions. (Great posts, Danielle.)
Weekly Web Watch 06/15/09 – 06/21/09 « EXECUTIVE WATCH - June 21, 2009 at 6:55 pm
[...] Greenwald seconds that and notices that congressional oversight remains lax. And Danielle Citron worries about the privacy implications of “friending” the White House on [...]
Jules Polonetsky - June 22, 2009 at 11:24 am
Nice piece Danielle. But that presumption of one way probably needs enforcement, as the opportunities for “peeping”, or for investigation may yet prove appealing. Most in government would be appalled to go as far as the city of Bozeman in requesting passwords of appliants for jobs. But how many might think it fair game to use data that was now accessible to them via a “legitimate” Facebook relationship? No reason why not to ask Facebook or others for restrictions to be built in if they are to be an approved outlet – of to self impose some.
Woody - June 23, 2009 at 11:21 am
Danielle,
It seems government is certainly embracing social media:
http://www.pogowasright.org/?p=593
Danielle Citron - June 24, 2009 at 3:25 am
Thanks for the great comments, all. Jules, at the superb DHS workshop, Peter Swire and I both emphasized the need for new rules on this issue, either from agencies or Congress. You are indeed right about the enforcement issue, though clear policy letting agencies know that they cannot peer into individuals’ personal pages would prevent quite a bit of peeping though not all as you astutely note and as Peter Swire writes about in his “Peeping” piece (think: the State Department’s employees looking at Barak Obama and Hillary Clinton passports last summer). Interesting note on our expectations: at our panel, the ACLU’s Jay Stanley underscored the power differential between civilian friends and federal government friends as supporting my “one-way mirror” thesis. And aside from our reasonable expectations, it is a wise policy as it will encourage more people to participate and hence fulfill the goals of the Open Government Directive, which spawned the recent efforts for Government to use social media tools.
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