Privacy and the right to know

Does the fact that information is publicly available mean news outlets should use it?

At the Deadline Club’s panel on privacy and the right to know on Tuesday, the discussion began with guns and ended with The New York Times’s Bill Keller flashing a picture of Anthony Weiner (in this one, he had his shirt on). 

The panel of four journalists and one lawyer—the Hearst Corporation’s senior vice president and general counsel, Eve Burton—had been asked asked to consider how technology was impacting the right to free speech, a very old one in America, and the right to privacy, which, as moderator Jessica Seigel pointed out, is a relatively new one—scarcely more than 100 years old. They covered the Journal News’s decision to publish online the addresses of gun permit holders, erasure laws that delete records of arrests for minor crimes, and oversharing on the Internet. In all these areas, journalists face the same challenge: the problem of judging what should be published, and where, and why? 

The place that information—even public information—appears does make a difference, for instance. “When somebody puts our name in the newspaper in a context that isn’t flattering, we freak out,” said Keller. It happened when people were tagged in the Journal News’s gun map. 

Just because data is public—available at a courthouse or a government agency—doesn’t necessarily mean that it should be published online or in a newspaper, the panelists agreed. 

“These are editorial decisions we make every day,” like not to publish the names of crime victims, said Jennifer LaFleur, ProPublica’s director of computer-assisted reporting. And just because the information is appearing in a map or a chart doesn’t mean editors can relax their standards. 

“We need to edit for these things. We need to treat them with the same care and quality that we treat text,” said Susan McGregor, a professor at Columbia University’s Graduate School of Journalism who specializes in visual and online journalism. (She made a similar point for CJR back in January.)

The ease with which information can be found on the Internet makes decisions about whether to publish even trickier. Burton, the Hearst counsel, spoke about her organization’s legal struggles with statutes that direct courts to erase records of minor crimes if the alleged offender defeats the case or the charges are dropped. “It’s as if it didn’t take place,” Burton said. Hearst has been fielding calls across the country telling papers that they need to remove from their online archives articles containing information—now “false information”—about those arrests. In a case filed last June, for instance, a woman is suing Hearst for defamation because its archives contain articles about her 2010 arrest.

From a news organization’s point of view, that request doesn’t make much sense. The information, when reported, “was clearly true and accurate,” said Burton. “It’s now wrong because of the erasure statute and what happened in the intervening time.”

At the same time, Burton says, she understands that it’s a problem if a false charge sits atop a person’s Google search results. The company’s compromise is to work with individuals to keep articles containing this sort of information from Google’s crawlers. But Hearst is defending its right to keep that information available to the public on its own site.

The importance of making these distinctions in where and how information is made available is exacerbated by the ease with which a Google search can surface a fact. There is a difference, McGregor said, “between forgetting”—as the erasure laws would have it—“and not having something presented to you immediately.” McGregor’s own ideas about these distinctions, she said, have been influenced by philosopher Helen Nissenbaum’s ideas about contextual privacy.

“Just because I share something in one context doesn’t mean I want to share it in every context,” she said. 

That is exactly what former congressman Anthony Weiner might have said about the provocative pictures he sent over Twitter to a young, female admirer. Although the Internet does encourage sharing—Jeff Jarvis, the fourth journalist on the panel, mentioned his own decision to publicly talk about his prostate cancer—there still aren’t strong barriers that keep information from sneaking off to places it wasn’t intended to go. That’s why picking the right place to publish—and exercising editorial judgment—matter even more. 

Keller, for instance, made a better choice than Weiner about how to share a tantalizing picture. A question from an audience member had turned the discussion to the wayward congressman and, in the wrap-up, Keller couldn’t resist flashing the cover of this weekend’s New York Times Magazine—which features Weiner and his wife, Huma Abedin, on the cover. It was just the briefest of glimpses, enough to provoke interest, but not giving too much away. And really, he wasn’t giving anything away: by the following morning, the cover was also available online, already, if you knew where to look. 

Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.

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Sarah Laskow is a writer and editor in New York City. Her work has appeared in print and online in Grist, Good, The American Prospect, Salon, The New Republic, and other publications.