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Should Anyone Expect Privacy in the Cloud?

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By Mark Wilson, Esq. on September 05, 2014 7:19 AM

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.

But such a broad definition not only encompasses literally everything accessible through the Internet (as any security system can be hacked), it also doesn't make sense in terms of our expectations of privacy.

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.

No one would suggest (I hope) that our homes aren't private places. I wouldn't be remiss in leaving some money on my kitchen table just because a burglar can break into my house and take the money. Of course locks on doors, like passwords or encryption on online storage accounts, don't make a home burglar-proof; a burglar can force open a door and take the money on the table just as easily as a hacker can crack a password and steal nude selfies. But that doesn't mean that our homes aren't private. And it doesn't mean that online storage locations intended to be private aren't private, also.

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).

Placing the onus on the person seeking privacy isn't the norm; rather, the onus is on the person doing the invading of that privacy not to do it in the first place.

'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.

Brandeis posits a hypothetical: A man writes a letter that falls into someone else's hands. Or he writes in his diary, and the diary is found by someone else. Can these strangers publish the contents of the letter or diary? Of course not, says Brandeis, but not because of a property right or a copyright: "The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality."

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).

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