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Law in Contemporary Society
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American adolescence has become an interactive online experience. The majority of American teens who are online use social networking sites like MySpace or Facebook. Unfortunately, few commentators have attempted to accurately explain how and why young people use social networking sites. Instead, most seem to have responded to the popularity of social networking by concluding that young people do not value personal privacy and that they are distinguished by “a willingness bordering on compulsion to broadcast the details of their private lives to the general public.” Warren St. John, When Information Becomes T.M.I., N.Y. Times, Sept. 10, 2006, § 9, at 8. This viewpoint is, however, both misleading and inaccurate. Based on how young people actually use social networking cites, it is clear that young people have been attracted to them because they provide “free space” in which individuals can gather together and interact with their peers in personally meaningful and socially valuable ways. Instead of criticizing online youth culture, adult society should learn from it and seek out ways to protect personal freedom and privacy online.
Though online social networking is technologically novel, Facebook groups and online networks of friends are simply voluntary associations formed by individuals. Voluntary associations such as civic organizations, churches and social clubs have played critical roles in social movements throughout American history. Historians studying the history of social change in America coined term “free space” to refer to voluntary associations “with a relatively open and participatory character” that provide “environments in which people are able to learn a new self-respect” and develop a “deeper and more assertive group identity.” Sarah Evans & Harry Boyte, Free Spaces: The Sources of Democratic Change in America 17 (The University of Chicago Press, 1992). During the civil rights movement, churches in the South served as free space in which blacks could congregate and communicate “free from elite control.” Id., 188. They were training grounds for leaders in which “the aspirations of the black community could find collective expression.” William Chafe, Civilities and Civil Rights: Greensboro, North Carolina, and the Black Struggle for Freedom 20 (Oxford University Press, 1981). Though different in form, it is clear that voluntary associations formed on social networking sites have the potential to perform similar social functions.
Young people have already realized this because youth culture has always flourished in free spaces. For young people, free space exists in places where they can congregate and communicate with little or no adult supervision. In the past, young people found free space in clubs and student organizations or at skate parks and malls. Now that free space can be found online, teens are taking advantage of it in the same ways that they always have. Though teens are often accused of broadcasting the intimate details of their lives to strangers, a recent study by the Pew Internet and American Life Project found that most teens protect their privacy by restricting access to their profiles, posting false information or not posting identifying information. This reflects the fact that teens are actually “using the networks to stay in touch with people they already know” and selectively associate with peers. Id. Though adult commentators mistakenly compare Facebook profiles to “the little key-locked diary of the past,” it is clear that they represent something more. Harlan Coben, The Undercover Parent, N.Y. Times, March 16, 2008, § WK, at 14. Since well managed online profiles are neither fully public nor entirely private, they allow young people to freely express themselves, receive feedback from peers and identify others with similar interests. Though this kind of interaction is immensely valuable, Facebook groups and other electronic associations represent something even more valuable because they are institutions that belong to teens and that teens can “experiment with and shape.” Evans and Boyte, 190 (quoting Casey Hayden, a founding member of Students for a Democratic Society). Though it is easy to disparage voluntary associations formed by young people regarding childish things, it is impossible to deny the potential power that electronic associations could wield once the youth of today become the voting adults of tomorrow.
Nevertheless, recent history has proven that the potential power of electronic associations will not be fully realized unless privacy is protected and individuals in positions of power are prevented from acting as though “[a]nything and everything online can be held against you.” Susan Dominus, Doing Something Sketchy? It’s Harder to Cover Up Now, N.Y. Times, March, 21, 2008 § B, at 6. Though twenty-three states have laws prohibiting employers from discriminating on the basis of whether or not an employee smokes, only five states extend any kind of statutory protection to other forms of lawful off-duty conduct. Timothy A. Gudas, State Lawful Product Statues (2005). This means that employers fearful of scandal can fire employees and reject job applicants on the basis of almost anything found online. See Randall Stross, How to Lose Your Job on Your Own Time, Dec. 30, 2007, § 3, at 3. Though the companies operating social networking cites could take additional measures to protect privacy, they have every incentive to perpetuate the myth that people no longer value privacy. This is because they are actively attempting to profit from “compiling and selling personal data.” Adam Cohen, Op-Ed, One Friend Facebook Hasn’t Made Yet: Privacy Rights, N.Y. Times, Feb. 18, 2008, § A, at 14. Nevertheless, one could imagine a social networking site with an end-user licensing agreement that requires individual users to agree to clear rules regarding the use and release of information on the network. This kind of agreement could enable individual users to claim rights as third-party beneficiaries to bring breach of contract claims against users who harm them by misusing their personal information. By finding new ways to enable individuals to protect their privacy and extending anti-discrimination laws, our society could create real electronic free space in which young people could develop during adolescence and adults could organize to bring about social change.
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