Fixing the Broken Windows of Online Privacy: A Facebook Application

Andrew Jay McClurg, Fixing the Broken Windows of Online Privacy Through Private Ordering: A Facebook Application, 1 Wake Forest Law Review Online 74 (2011).

Building on a growing body of contract-based privacy scholarship, Professor Patricia Sánchez Abril has advanced a creative, concededly ambitious proposal for people to privately order their online interpersonal privacy: a system of standardized click-wrap-type confidentiality agreements in which social network users would be required to accept a content provider’s personal privacy preferences to access their online information.

The contracts would be legally binding, enforceable through traditional means, although Abril suggests that most breaches would be minor and could be addressed by a self-policed online complaint and perhaps eBay-type rating system administered by the social network host.

This reply to Abril’s article imagines how her proposal might function, or be adapted to function, in a real-world context, using Facebook as an example. Abril’s proposal is not limited to Facebook, but it is focused on online social networks.

The omnipresent force that is Facebook comes readily to mind when reading her article. With more than 500 million members as of 2010, Facebook is the undisputed heavyweight world champion of personal information-sharing. If any single entity holds the power to change the context of online social network privacy, it’s Facebook. Thinking about how Abril’s proposal might work with Facebook highlights some obstacles to it, but also illustrates the great potential of her ideas.

In the end, using Abril’s idea, the author suggests that Facebook could significantly alter the context of online privacy even without binding contracts, through a system of simple non-binding user-privacy preference icons (linked to short descriptions) that would run with all posted content.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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