Social Networks, Privacy, and Freedom of Association: Data Empowerment vs. Data Protection

This article examines the tension between social networks as enablers of political mobilization (sharing information is good) and as threats to privacy (sharing information is bad). A central theme is that social networks are platforms to create associations. Linguistically, “networks” and “associations” are close synonyms; they both depend on “links” and “relationships.” This article introduces the idea that limits on such networks can deeply implicate the freedom of association. Part I sets forth the facts of the tension between mobilization and association (Arab Spring, 2008 Obama campaign) and privacy (enforcement actions against social networks in Europe and the U.S.). Part II introduces the doctrinal structure in the U.S. for addressing the tension. If and when state action limits information sharing in social networks, individual users, political associations, and the networks themselves may have valid claims for violation of First Amendment freedom of association rights. Part III applies the proposed doctrine to three concrete examples of possible state action, including “privacy by design” and “do not track” proposals that have featured in recent privacy debates. Part IV moves beyond doctrine to examine more generally the tension between “data empowerment,” which relies on sharing of information, and “data protection,” which relies on limits to such sharing. As illustrated by our eagerness to use social networks, access to the personal data of others is often a benefit to individuals, rather than the threat assumed by the data protection approach. These benefits notably include our right to associate, to reach out to people to effect political change and realize ourselves as individuals. The old paradigm for debates about personal information was rights vs. utility; the discussion here shows that data empowerment increasingly makes the debate one of rights vs. rights.