“Social Networks, Privacy and Freedom of Association” Professor Peter Swire Ohio State University Center for American Progress TPRC September 25, 2011

Overview 1. Linguistics: “network” and “association” 1. Growing practice of associating through social networks 2. 1 st Amendment doctrine 3. NAACP v. Alabama 4. Rights vs. Rights in personal information

“Network” & “Association” 1. Linguistics: “network” and “association” 1. Also, “links”, “relationships” 2. Online networks as locus of political mobilization 1. Egypt, Tunisia, Arab spring 2. Obama campaign: New Media, and get friends to get friends to knock on doors 1.A different “progressive” view of privacy 3. Tea Party 1.Senator Brown; not a left/right split

1 st Amendment Doctrine 1. “Expressive” rather than “Intimate” association 2. Strict scrutiny. State action ok if 1. Compelling state interests 2. Unrelated to the suppression of ideas 3. That cannot be achieved through means significantly less restrictive of associational freedom 3. To date, no holding that have the wider range of state action permitted under the “time, place, and manner” aspects of free speech 4. Issue: legal mandate of “privacy by design” 1. Challenge: Plaintiff is a political campaign or non-profit, and wants “outreach by design” 5. Issue: Do Not Track 1. Exception for political campaigns and non-profits, as with Do Not Call?

NAACP v. Alabama 1. A different branch of freedom of association law 1. State of Alabama wanted membership list of NAACP members 2. Alabama lost due to freedom of association of the NAACP members 3. This holding reinforced privacy 4. Topic of new paper: when association law in conflict with privacy

Rights vs. Rights 1. Usual statement, in E.U. and more broadly 1. Fundamental/human right to privacy protection 2. Rights of the data subject 2. Form of the argument: the individual’s rights should outweigh utility (cost/benefit) arguments, and privacy should win 3. Additional point today 1. Fundamental right of freedom of association can be limited if the state protects privacy 2. Form of the argument: the individual’s rights to privacy (limit social networking sharing) are contrasted with an individual’s right to form and further associations (expand social networking sharing) 4. Similar to Volokh’s “right to speak truthfully” about another person 5. Here, the distinct “right to associate effectively” is at issue