In the wake of the celebrity-actress-nude-selfie-hack scandal, should anyone store private things in places like iCloud and Dropbox, that are susceptible to hacking?

Absolutely. Internet commenters – including Ricky Gervais – blamed the actresses themselves for putting such private photos online. But “online” is a big place. Certainly they wouldn’t have published them to Facebook or Instagram, which are, by now, public places by definition. These objectors seem to be saying that any location accessible via the Internet is necessarily a public place because it can be hacked.

Social Conventions of Privacy

I’m not talking about the Katz “reasonable expectation of privacy” test. I’m talking about social conventions. To suggest that every place is public because every place can become public discounts the agency of the person doing the transforming – in this case, the hacker.

To suggest otherwise would be to give anyone capable of breaking a lock or a password a veto over when and where we can store our intimate things. “You shouldn’t store your money at home because I can’t resist breaking into your house” or “You shouldn’t store your photos in iCloud because I can’t resist break into it” can be walked back and back until we can’t store things in safes (they can be cracked), in computers (they can be physically stolen), in locked car trunks (cars can be stolen), or on our person (we can get mugged).

‘The Right to Be Let Alone’

This isn’t just me talking – it’s also Justice Louis Brandeis. As a student at Harvard Law School in 1890, he co-authored “The Right to Privacy,” a law review article dealing with where “the right to be let alone” comes from.

Were Justice Brandeis alive and – for some unknown reason, given what he could be spending his time doing – called on to decide whether the cloud contained both a legal and a societal expectation of privacy, he would probably say “yes” to both. And so should we, or else we run the risk of having the scope of our privacy dictated to us by the very people who seek to abridge it.

What are your thoughts on expectations of privacy in the cloud? Let us know via Twitter (@FindLawLP) or Facebook (FindLaw for Legal Professionals).

Related Resources:

  • Security Trade-Offs (Daring Fireball)
  • Opinion: Let’s Make A Deal About Those Jennifer Lawrence Nude Photos, Ok? (Gizmodo)
  • License Plate Scanners: When Should Public Information Be Private? (FindLaw’s Technologist)
  • Google Likes Encryption; Joins Yahoo in ‘Spy-Free’ Email Project (FindLaw’s Technologist)

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