In “What Privacy Invasion Looks Like,” Jim Harper writes:
The details of Tyler Clementi’s case are slowly revealing themselves. He was the Rutgers University freshman whose sex life was exposed on the Internet when fellow students Dharun Ravi and Molly Wei placed a webcam in his dorm room, transmitting the images that it captured in real time on the Internet. Shortly thereafter, Clementi committed suicide.
Whether Ravi and Wei acted out of anti-gay animus, titillation about Clementi’s sexual orientation, or simply titillation about sex, their actions were utterly outrageous, offensive, and outside of the bounds of decency. Moreover, according to Middlesex County, New Jersey prosecutors, they were illegal. Ravi and Wei have been charged with invasion of privacy.
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Jim’s commentary demonstrates how different people can look at the same set of facts and come to significantly different conclusions. Jim writes:
This event also illustrates how privacy law is functioning in our society. It’s functioning fairly well. Law, of course, is supposed to reflect deeply held norms. Privacy norms—like the norm against exposing someone’s sexual activity without consent—are widely shared, so that the laws backing up those norms are rarely violated
With great respect to Jim, I think that the laws are being violated on a growing basis, as evidenced by all the news stories about sex tapes being uploaded to the Internet or sensitive pictures involving children and teens being uploaded to the Internet by peers. The laws are not being rarely violated. The laws are being rarely invoked in prosecutions. We are more likely to see civil suits over privacy invasions (if we see anything) than we are criminal prosecutions, and a cursory look at state criminal statutes on privacy invasions show that they generally do not lead to particularly long prison terms or jail terms.
That criminal statutes should be invoked in this case is indisputable. But in our desire not to ruin teens’ lives for one “mistake,” how many times are people not being prosecuted for privacy invasions? How many times have adults who have snooped in sensitive databases gotten off with probation or a few months in jail? Do such sentences reflect a serious determination to stop privacy invasions?
How can we say that our privacy laws work well if the problems are increasing?