Overview
It is imperative to understand and strictly adhere to all federal and state privacy and free speech laws and regulations. But businesses should be aware that the current laws are often unclear; moreover, these laws may not always provide consumers with the level of privacy and free speech protections that they expect and demand.
Outdated privacy laws can leave companies in an impossible situation, forced to choose between maintaining the trust of users and responding to subpoenas and other demands for information from the government or third parties.
Although many users believe that the letters, diaries, spreadsheets, photographs, videos, and other personal documents and materials that businesses encourage them to store online are as private as those stored in a file cabinet or on their computer’s hard drive at home, the legal requirements for the government and third parties to demand access to these documents are uncertain. The "business record" doctrine, which was established in pre-Internet Supreme Court cases and has not been reconsidered in light of the new reality of online communication and commerce, holds that there is no reasonable expectation of privacy, and thus no Fourth Amendment privacy protection, when a user turns over information to a third-party business. Law enforcement officials thus claim that they can demand information about online activities of Internet users without a search warrant, at least without violating the Constitution.
However, other laws, such as the California state constitution and federal and state statutes protecting health records, financial records, electronic communications, video rentals records, and other specific information, provide additional sources of privacy protection for personal information. This patchwork of laws, along with the grey areas in Fourth Amendment doctrine, may leave companies exposed to demands for information whose legal validity is difficult or impossible to determine. Even where the law is relatively clear, there may be a significant disparity between what users expect and what the law requires. Only companies that develop robust privacy policies that anticipate potential conflict and lay out procedures to safeguard user privacy to the greatest extent possible will meet user expectations during these difficult situations; those that do not risk paying the price by alienating both existing and potential users.
Consumers have come to rely on the Internet and other new technologies as crucial platforms for the distribution and discussion of news and current events, creative expression, and other socially valuable speech. When a user’s political video is removed from a site, when an individual posts an anonymous message and his identity is revealed, or when a company censors information that should be delivered to users, there is often a free speech firestorm regardless of the nuances of what a company is legally required to do. Although its technology may be cutting-edge, a company must be careful to ensure that its business plan and policies do not interfere with long-established free speech expectations.
Companies that meekly comply with every request for customer information, whether from the government or a third party, may find themselves subject to a barrage of such requests, which can consume resources while alienating customers. Companies that stand up for their customers' rights to privacy and free speech will earn customer loyalty and may even reduce the administrative burden of dealing with such requests.
Moreover, weak privacy and free speech laws hurt companies that want to build trustworthy services. Companies should push for new laws that will build consumer confidence and protect them from being caught between the privacy interests of customers and government and third-party demands for information.
