26 Feb 2015

That's just creepy: When privacy settings aren't enough

9:29 am on 26 February 2015

Is privacy dead, or is it just taking a nap while social etiquette and the law catch up with technology?

Illustration: Pinky Fang

I remember the day the man who was stalking me found my blog. I opened my email to find comments calling me names, detailing my movements – including when I’d arrived home the night before, and with poorly-typed transcripts of conversations we'd had.

My blog was a frippery. On a good day, 10 people might look at it – and they were all my friends. It was where I discussed frocks and feminism, and wrote more than one horrifically emo post about depression.

I didn’t link to it anywhere, it wasn't Google indexed. He'd had to go looking, trawling the Internet for mentions of my name, probably by those very same friends. I had blacklisted his phone numbers, set up rules that sent his emails straight to spam. I had blocked him on every other social network. This was the last way he had to contact me. (Not that it stopped him trying.)

I marked the comments as spam and put them into the folder I kept in case it escalated. But I felt like my last bit of control had been taken away. The last place on the Internet that I was in charge of was gone.

I wasn’t prepared for this maelstrom of hostility in a forum that I usually use to send pictures of baby shoes to friends

Our ability to control who sees what online feels a lot like that – like it's not up to us, but some different, slightly malevolent, force. It’s hard to feel ownership over something that’s constantly being taken away from you.

Jen (who doesn't want to use her last name because it makes her too searchable) knows that feeling. Just this week, someone she had blocked on Twitter private messaged her on Instagram to vent about things Jen had tweeted. “I hadn’t been following her, so I wasn’t prepared for this maelstrom of hostility in a forum that I usually use to send pictures of baby shoes to friends.”

She turned back to Twitter, and asked her followers “what's the most boundary-crossing way someone has contacted u? mine is either finding my personal email after being blocked, or insta DMs.” Again, she wasn’t prepared for the barrage of responses when the question hit a nerve.

Dozens of people replied. The stories ranged from abuses of power in employment to being sent cookies after mentioning them on Tumblr - “my IG DMs are full of unopened photos from men I didn't match with on tinder,” to “50+-year-oldr old man who interviewed me got my number off my resume and texted me”. 

She says most of the stories sounded familiar to her. “Everyone has stories of people doing messed up shit, but I’m a little bit overwhelmed by it still. I don’t know whether or not we’re conditioned to just accept our boundaries being constantly shifted, or if it’s actually wildly inappropriate and we just ignore it.

Jen has had Facebook her whole adult life and is conscious of making sure her privacy settings are tight. She tells a story of a man, who she had blocked on Twitter, tracking down her email address via a Tumblr profile, and contacting her to discuss why she’d blocked him six months before.

“I never replied, but I didn’t know what to do, because it felt so creepy,” she says. “I mean, no one’s breaking any laws. It’s hard to decide whether it’s a social etiquette thing that makes me feel uncomfortable, or whether it’s something that isn’t appropriate and that I should be talking to an adult about.”

It’s sometimes hard to know where those boundaries are, and whether what you’re doing is inappropriate and creepy – never mind illegal. Take the now-infamous “amorous couple” in Christchurch. Privacy law experts say that it’s unlikely anyone who took or shared the footage of their sexual encounter did anything legally wrong.

John Edwards, the Privacy Commissioner, told Radio New Zealand that even though publication of the images may have been extremely hurtful to those involved, the law cannot protect them.

“The people who were watching, we may criticise them for a lapse of decency in taking advantage of that, but it's unlikely there'd be any legal liability for their action.”

Legislation that is currently before parliament, the Harmful Digital Communications Bill [pdf], might give people some remedy in cases like this, because people will have some power to require platforms to delete material that is highly offensive or intrusive.

“There are issues of decency that we need to be reinforcing and education people about and having conversations about, about what the expected conduct,” he says. “If you find you’re walking past a window where the blinds haven’t been lowered and somebody has forgotten and they’re doing something which is obviously not intended for wide distribution, you might have a chuckle, and walk on. But you don’t pull out your phone and record it, and upload it you YouTube.”

“The world is far less forgiving with the technology and the ability to instantly upload, and then the complete loss of control. And [the couple in Christchurch] is a situation where, yes, you might have a right to delete, but if it has been viewed half a million times, what useful remedy is there?”

Edwards says technology is changing faster than either the law, or social norms, can keep up with. He points out that no one had even heard of Snapchat two years ago, and yet already high profile New Zealanders have run afoul of sharing intimate photos and videos there, and having them leaked.

One of them, actor Teuila Blakely was videoed sharing a sex act with Warriors rugby league player Konrad Hurrell – originally on Snapchat, but it made its way to Twitter – and then to the attention of the media.

She says there’s a culture of photographing and filming and then sharing it with friends in rugby league, but she was shocked when the video got out of that small circle. “At the same time, I also thought ‘I did know about the videos, I did know that they weren’t entirely private’ so you kind of have to take responsibility for that.”

She says when people are filmed doing anything, or send naked selfies, there’s always a chance that it’ll get out. “You do have to go ‘if it did come out, could I live with that?’ and I did.”

A portrait of actress Teuila Blakely

“I feel like I have a right to a private life. I also feel like in this day and age, is there any way of actually protecting that?" - Teuila Blakely Photo: Supplied

Teuila is aware that because she’s in the public eye – and shares aspects of her life with the media – some people believe that means she’s not entitled to any privacy. “I feel like I have a right to a private life. I also feel like in this day and age, is there any way of actually protecting that? I’m prepared for anything I do to come out, whether I share it or not.”

But she says there are things that she wants to keep private – as do we all, whether it’s who we’re crushing on, or our real feelings about our boss.

It isn’t just “intimate recordings” that can cause trouble.

Rebecca Matthews is a trade unionist, and during one of the recent Labour party leadership battles, wrote this on Facebook: “And another thing, anybody who implies, in even the most coded way, that Grant Robertson shouldn’t be Labour leader because there are homophobic voters/Labour members/whatever needs to drink a big glass of STFU.”

Blogger Chris Trotter, then a Facebook friend, copied the status, and used it in a post on The Daily Blog. That led to comments about her being a “destructive and evil person”. 

“I know that it’s not private, but I think for me there was for a me a gap between someone who is a journalist, taking what I said in a private, and friends-only context, taking that and putting it out in the world.”

Matthews had written her own blog post on the matter and the comment was off the cuff, not what she wanted to be ‘on the record’ as saying. She unfriended Trotter, but thinks people need to be more respectful of what’s being shared.

“I am on Twitter as well - where all bets are off. But because I have my Facebook settings at friends only, I’m doing it consciously. So I expect some consciousness back, about whether it’s respectable about what’s happening in different media.”

Matthews is conscious of what she shares – she doesn’t say anything about her employer or her personal life. But she has friends who do share those things, and believes people need to have some ethics about how they interact with other people’s social media.

“Maybe I’m being a little naive, but I expect people I interact with to treat me respectfully. I wouldn’t do it to somebody else,” she says.

Kate Iselin is a 27-year-old writer based in Sydney. She’s currently doing a challenge called ‘Thirty Dates of Tinder’, during which, she will go out on a date with anyone who asks on the dating app. Last year, Forbes likened using Tinder to “playing with privacy fire”.

She believes that as much as Tinder is a public network everyone is entitled to the same respect and decency that they show other people. “As a woman, a lot of these things are second nature,” she says by email. “I'm of course conscious of privacy and safety – I don't give out my full name, my address, even my phone number until I'm relatively sure someone's not a creep! Equally I also meet my dates in public spaces and never allow them to pour me a drink, for example, unless I'm watching.”

She does, however, occasionally share screenshots of Tinder profiles on Twitter. But she has strict rules around that. “Often when I'm sharing profiles it is to make fun of it, but I never mock the person, only their behaviour. Things like rude or inappropriate profile descriptions and disrespectful messages are things I believe it's totally okay to share, as that is a conscious behaviour the user is choosing to engage in.”

A selfie of Kate Iselin - complete with fuschia hair

Kate Iselin's Tinder picture - I used Reverse Google Image search to find his Facebook profile and forward the messages on to his girlfriend, who had no idea about his Tinder behaviour! I believe he is single now.” Photo: Supplied

Kate says she would never mock someone’s appearance, relationship goals, or English abilities. “That's simply unfair and unkind. I've seen other tweeters and bloggers do this and I think it's disgusting.” On her blog, when she writes about the dates, she makes a huge effort not to identify people – she changes names, the suburb the date happened in, even the colour of the shirt her date wore.

As a woman who talks online about women’s rights, feminism and sex online, she’s used to harassment – saying it’s one negative side of being a woman who communicates in the public space. She’s only had two situations in which she’s come across someone really nasty on Tinder. One man had set up a profile just to send abusive messages to women.

It turned out that some of Kate’s friends had run into the same man. “He sent me over 20 messages explaining how fat and disgusting I was, so I used Reverse Google Image search to find his Facebook profile and forward the messages on to his girlfriend, who had no idea about his Tinder behaviour! I believe he is single now.”

But what is one person’s gross creeper story is another’s “meet cute”.

Herman Visagie had travelled to New Plymouth for work, and on his return to Wellington, someone randomly followed him on Facebook. Assuming it was someone he had met in the course of his work, he accepted it.

“I think you missed my message last week,” came the message. “This guy had sent me a message saying ‘I found your profile on NZ Dating, and I had been wanting to message you and then your profile disappeared, so I found you on Facebook. If you’re not creeped out by now. It’d be great to catch up.’”

It turned out that the man had reverse image searched his dating profile photo, which led him to Herman’s Facebook profile. “So my flatmate and I rapidly went online to see ‘oh my God you can Google photos’ which I had had no idea you could do.”

There was a bit of ‘this is weird, but kudos to you for trying, and a bit of ‘well, let’s meet in public

“I’m a bit of a hopeless romantic, so I was a bit ‘wow, that’s a lot of effort to go to. I have to give you props for that.’ Also, because I didn’t know you could do that, I was in learning mode. We chatted a bit and he seemed fairly normal. We went out for a drink, and the rest was history…”

The couple has now been together for 14 months. “There was a bit of ‘this is weird, but kudos to you for trying, and a bit of ‘well, let’s meet in public,” Herman says.

With his unusual name, anything on the internet is probably him, so he goes by the rule “don’t put anything online you wouldn’t want plastered on the side of a bus.”

But he’s more concerned with other people’s privacy. “You would never put an unflattering photo of a friend on Facebook. There is an ethical code….You don’t want certain things about you going public, so likewise you wouldn’t so the same to anyone else.”

Jen points out that it can feel like once you’ve hit post, send, or tweet, that thought or image no longer belongs to you. Not in terms of ownership (although it’s worth checking Facebook’s latest T&Cs to see exactly how much of your soul it owns), but because people can take what you’re posted on and do what they like with it.

“Several years ago, after I was sexually assaulted, I wrote about it on my Tumblr, because that’s what you do when you’re 24 and freaking out,” she says. People she never interacted with before emailed her private email to express their condolences. “It just hadn’t occurred to me that once you put something on the internet, it isn’t just personal to you anymore, even if it feels like it obviously should be.”

She says people can be very careful about privacy settings, but people circumvent them. “More than one person told me about people contacting me via LinkedIn, or job interviews…Not necessarily always in a romantic situation, but in a way that made people feel deeply unsafe.”

Facebook founder Mark Zuckerberg famously said in 2010 that privacy is no longer a social norm – people no longer have an expectation of privacy.  John Edwards disagrees. He says people have both the right to expect privacy, and the autonomy to forgo it if they choose.

“People are actually quite selective about what they put on those platforms. Some overshare, and maybe regret it later. Some overshare and don’t. And some are very thoughtful about what they choose to put out there.”

A hand holding an iphone with the screen showing an image from snapchat.

"Some overshare, and maybe regret it later. Some overshare and don’t. And some are very thoughtful about what they choose to put out there." - John Edwards Photo: Alexander Robertson/The Wireless

He says there are some remedies under the current law: if images are of underage people they could be considered indecent; if they were taken or filmed covertly, the crimes act could apply; or if they were filmed secretly at home, that could be an “actionable breach of privacy” whether they are published or shared or not. If someone shares something you had limited the distribution of – a Twitter DM for example – and someone breaches that confidence, you could sue them in the courts, as model Naomi Campbell did.

But that takes time, effort, and money. And, John Edwards says, the platforms themselves are recognising demand around this. He points to the recent statement by the CEO of Twitter, Dick Costolo, that they “suck at dealing with abuse and trolls

 “I don’t think to talk about regulation or legal rights in this area is to be kind of bowdlerising the social media platforms, and censoring. We’re just actually saying ‘how would you feel about it if this was your mother?’”

Or yourself? “That’s right. It’s the golden rule, isn’t it? Do unto others. Unless you’re an exhibitionist.”

you know that you have no control of where that goes the moment that you send it, or the moment that you allow it to be filmed.

Teuila Blakely doesn’t understand the fascination people have with other people’s personal lives. She says videos like her own, and the ones of the couple in Christchurch, hold no interest for her.

“[People] get this enjoyment out of publicly shaming people, which is what it comes down to. But again, it’s not like everybody hasn’t had sex. I am sure there would be more than a few corporates that could tell you after-hours stories that have gone on.

“I was trying to understand the fascination because It’s kind of like ‘what is lacking in your life that this is something of interest to you’?” And she warns about sharing things – even with people you’re close to.

 “If you do that, you know that you have no control of where that goes the moment that you send it, or the moment that you allow it to be filmed. So, as part of that choice, you must be prepared that if it does come out, you can live with it.”