Quantifying Privacy Harms in the Age of Social Media and AI

Content including text and images © Aditya Mohan. All Rights Reserved. Robometircs, Amelia, Living Interface and Skive it are trademarks of Skive it, Inc. The content is meant for human readers only under 17 U.S. Code § 106. Access, learning, analysis or reproduction by Artificial Intelligence (AI) of any form directly or indirectly, including but not limited to AI Agents, LLMs, Foundation Models, content scrapers is prohibited. These views are not legal advice but business opinion based on reading some English text written by a set of intelligent people.

Justice Stephen Breyer, who served on the U.S. Supreme Court from 1994 until his retirement in 2022, consistently highlighted the difficulty in addressing privacy concerns. He emphasized the challenges, particularly as they pertain to evolving digital landscapes like social media and, more recently, AI technologies. Breyer often stressed that the effects of privacy violations may not be immediate or tangible, making them difficult to quantify. In the digital age, especially with the rise of AI and generative AI models, this challenge becomes even more pronounced, as personal data shared across social media platforms or collected by AI systems is exposed to potential misuse or exploitation in ways that are hard to trace and assess financially.

Breyer’s views were prominently illustrated in the 2001 Supreme Court case Bartnicki v. Vopper, which involved the broadcast of an intercepted cell phone conversation between a union official and a negotiator. This case is significant because it highlights the ongoing struggle to balance privacy rights with freedom of speech, particularly in instances where public interest is at stake. The conversation, containing details relevant to a public labor dispute, was intercepted illegally by an unknown third party and provided to a local radio host who broadcast it. The Supreme Court ultimately held that the First Amendment protects the disclosure of such intercepted communications, provided the information is of significant public concern and the disclosing party did not participate in the illegal interception. This case underscored the tension between privacy rights and freedom of speech—a tension that has only become more complex as AI models are increasingly used to analyze and disseminate personal information.

The challenges Breyer raised are still evident today. For example, incidents such as the unauthorized sharing of user data by Cambridge Analytica through Facebook illustrate how personal information can be exploited for political gain, leading to significant public backlash and a loss of trust in social media platforms. This scandal also spurred new discussions about data privacy regulations, highlighting the inadequacies in current privacy protections. Today, generative AI tools like ChatGPT and DALL-E have added another layer to this complexity. These models, capable of generating text, images, and other content, raise significant concerns about privacy, as they can inadvertently produce or replicate private information from their training datasets. This has prompted additional concerns about data breaches and the ethical implications of AI development. For example, incidents where generative AI has replicated personal details, such as names and addresses, have led to ethical discussions regarding data handling practices in AI development.

Breyer argued that courts should avoid rigid rules and instead adopt flexible approaches to adapt to changes brought by digital and AI technologies. He believed that privacy issues must be addressed in a manner that acknowledges their fluid nature, especially considering the rapid advancements in technology. For instance, generative AI systems trained on extensive datasets sometimes lack the ability to differentiate between publicly available information and private data. This complicates the legal and ethical landscape around AI, as users may find their personal information used to train these AI models without consent.

Breyer’s pragmatism, which refers to a judicial approach that emphasizes practical outcomes over strict adherence to legal texts, is particularly relevant when considering the complexities of privacy in the digital age. It is an approach that values outcomes grounded in real-world applications over strict textual interpretations. Unlike originalism, which seeks to interpret the Constitution based on the meaning of its text at the time it was written, pragmatism considers the broader consequences and real-world implications of judicial decisions. This allows for more flexibility in addressing contemporary issues, such as privacy in the era of social media and AI, where strict adherence to historical interpretations might fall short. For example, originalist approaches may struggle to adapt to AI technologies that did not exist at the time the Constitution was drafted, whereas pragmatism encourages adaptive responses to these new challenges.

The Importance of Legislative Flexibility in Privacy Protection

Breyer’s perspective has led him to advocate for judicial caution when dealing with privacy laws that might prematurely or overly restrict legislative flexibility. This is crucial when considering platforms like Facebook or Twitter, where personal data is not only widespread but can be manipulated to create long-lasting, sometimes unforeseen harm. The introduction of generative AI, such as large language models, further complicates this scenario by enabling the creation of deepfakes, the manipulation of information at scale, and the potential misuse of personal data in highly sophisticated ways. Deepfake technology, for instance, has already been used to create misleading videos and audios that damage reputations or manipulate public opinion. Breyer warned that while privacy violations on social media and AI platforms may cause emotional and reputational damage, these harms are inherently intangible. For example, the spread of false information or damaging rumors—whether by individuals or AI algorithms—can severely impact an individual's career prospects or relationships, even if the content is later removed. These harms are elusive to quantify precisely, complicating the process for victims seeking redress.

Other Judicial Perspectives on Privacy Challenges

Similar concerns have been echoed by other notable judges, such as Justice Sonia Sotomayor and Justice Ruth Bader Ginsburg, who have both expressed apprehension about privacy issues in cases involving digital technology and surveillance. For instance, Justice Sotomayor, in her concurrence in United States v. Jones, warned that advancements in surveillance technology could erode individual privacy rights, emphasizing the need for updated legal protections. She argued that the Fourth Amendment should evolve to consider the realities of modern surveillance, noting that people may not expect that every aspect of their lives could be tracked without meaningful oversight. Justice Ginsburg also spoke frequently about the importance of privacy, noting that the right to privacy is foundational to individual dignity and autonomy. In Carpenter v. United States, the Supreme Court ruled that accessing historical cell phone location data constitutes a search under the Fourth Amendment, reflecting the Court's acknowledgment of privacy challenges in the digital age. More recently, cases involving AI, such as those debating facial recognition and algorithmic decision-making, continue to illustrate how the judiciary grapples with balancing privacy rights with technological advances. For example, facial recognition technology has raised significant concerns about government surveillance and the potential for misuse, leading to debates on how such tools should be regulated to protect citizens' rights.

The Role of Legislative Bodies in Addressing Privacy Issues

By emphasizing the need for adaptability, Breyer argues that legislative bodies, rather than the judiciary, should primarily address privacy issues to develop more effective solutions that can keep pace with technological advancements. Legislative solutions have the capacity to be more comprehensive and responsive, adapting to the evolving nature of technology and privacy concerns in a way that judicial rulings, constrained by precedent, may struggle to achieve. As AI continues to advance, new privacy frameworks will be essential to mitigate the risks posed by generative AI, ensuring that these technologies serve the public interest without compromising individual rights. For instance, legislation could require AI developers to implement stricter data handling practices, enforce transparency in how training datasets are built, and establish accountability standards to address misuse. Such measures would help ensure that generative AI tools are used ethically and that individuals' privacy rights are protected as technology evolves.

Further read

LLM, Us and Neuroplasticity

"Are you sure?": Unveiling the Quest for Human-Like Artificial Intelligence

Designers, creativity and AI

A LLM as a reflection of our inner most desires

Should AGI be a she, he, or a it?