Clementi And The Nature Of Privacy Harm

Ann Bartow once criticized Daniel Solove for not providing enough “dead bodies” in his discussion of privacy. I tend to disagree that such proof is necessary. But privacy has seen a dead body recently—that of Rutgers University student Tyler Clementi.

The narrative around Clementi’s tragic suicide continues to shift. The press originally reported that Clementi killed himself after his roommate invited the entire campus to view footage of Clementi having sex with another man. The Associated Press is now reporting that, according to the roommate’s defense attorney, no one but he and his friend ever saw the video.

The question of whether the defendants recorded or broadcast the web cam is highly relevant to whether there has been a privacy violation. Yet it is hardly relevant at all to the question of whether there has been a privacy harm.

What matters is what Clementi believed. If it turns out that Clementi killed himself because he believed the entire campus watched him have gay sex, then he suffered a severe subjective privacy harm. This is true whether or not the belief was accurate. Just as likely is that Clementi had no idea one way or another who saw the footage. The uncertainty could have been nearly as horrible to this desperate, mortified young man as an affirmative belief.

Clementi’s suicide forces us to confront the dual nature of privacy harm. Privacy harm is the objective consequences that flow from the loss of control over personal information. But it is also the subjective experience of that loss of control. This is so not only in the terrible case of Clementi, but in the everyday experiences of the consumer who is worried she will suffer identity theft following a data breach or the citizen who avoids making jokes about terrorism for fear that the NSA is reading his emails.

Thanks to UNC PhD candidate and CIS Junior Affiliate Scholar Woodrow Hartzog for pointing out the connection between the latest developments in Clementi and my theory.

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