scholar put it, “Facebook is unilaterally redefining the social contract—making the private now
public and making the public now private.”62 This is only possible through the willful volunteering
of private information. One conclusion to draw is that “privacy is dead”, that there is no way to
protect privacy in the digital age.63 One author asserted:
[I]t is already far too late to prevent the invasion of cameras and databases.
The djinn cannot be crammed back into its bottle. No matter how many laws are
passed, it will prove quite impossible to legislate away the new surveillance tools
and databases. They are here to stay. Light is going to shine into every corner of
our lives.64
David Brin argues that a transparent society, rather than a private society, is a good thing
if it means greater transparency in government actions.65 But Professor Solove’s rejoinder is
particularly powerful. He notes, “affording mutuality of access to information will do little to
empower ordinary individuals.”66 As he sees it, ordinary individuals lack the resources to utilize
vast amounts of information; large bureaucracies have the means to make information an effective
tool.67 Instead, “[ i]n order to solve the problem, a transparent society would have to make each
individual as competent as bureaucratic organizations in processing information into
knowledge.”68
As new technologies develop, courts tend to vindicate fundamental rights of privacy—with
one exception: social media.69 In Kyllo v. United States, the U.S. Supreme Court held thermal heat
imaging of a home unconstitutional, and noted that “[ i]t would be foolish to contend that the degree
of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the
advance of technology.”70 On a non-technological note, Justice Stevens of the Supreme Court, in
his dissent in Cruzan by Cruzan v. Director, Missouri Department of Health, advocated for a
woman’s “interest in being remembered for how she lived rather than how she died,” a nod to a
right to control one’s image.71
Rather than an all-or-nothing, public-or-private proposition, Warren and Brandeis asserted
that individuals should have control over the degree of publicity they intend for their speech to
have:
The common law secures to each individual the right of determining, ordinarily,
to what extent his thoughts, sentiments, and emotions shall be communicated to
others. Under our system of government, he can never be compelled to express
them (except when upon the witness-stand); and even if he has chosen to give them
62 ANDREWS, supra note 3, at 5.
63 SOLOVE, supra note 52, at 73 (“Some commentators suggest that there is little the law can do to protect privacy in
the Information Age.”).
