5 Privacy
Beth Cate and Rachael Samberg
Introduction
Digital humanities scholars are often surprised that TDM questions seeming to present problems of legal privacy often wind up not being governed by U.S. privacy laws, but by professional or disciplinary ethical norms. Because of the specific scope of U.S. federal privacy laws and the strong privacy exceptions under state privacy laws, when TDM digital humanities researchers face privacy concerns, they are often matters of “privacy,” but not “legal privacy.”
The Gamergate case study highlights this phenomenon well. In Applying an Ethics of Care to Internet Research: Gamergate and Digital Humanities,[1] authors Suomela et al. overview the Gamergate scandal involving the harassment of women who spoke out on Twitter on the topic of misogyny within video game development culture. In collecting Tweets from the women as well as their harassers, Suomela and team needed to consider whether their analysis and republication of such materials violated posters’ privacy. What they discovered was that privacy concerns related to the ethical issue of reamplifying hate messages, but not legal privacy because the voluntary disclosure of personal information—such as in someone’s own public postings—waives any legal privacy rights even if the subject content had been protected by laws.
In the next chapter, we’ll address the ethical challenges embedded in TDM research. But here, we’ll detail the kinds of privacy laws that scholars confront in the U.S., and the very powerful exceptions that often render concerns as ethical rather than legal.
What is “private” under the law?
When we think of privacy law and TDM, we often think about cleaning our data so as not to reveal personal information about individuals. But what personal information is actually protected by privacy law, and what are we allowed to publish? And specifically, how do privacy law challenges come up in the context of text data mining? In other words, what do we mean when we say “privacy”?
In the U.S., and unlike with copyright law which is basically just a matter of federal statute, there are actually multiple sources of privacy law.
Constitutional privacy
First, there’s the constitutional right of privacy, which protects personal privacy against unlawful government invasion. Note that the Constitution does not explicitly include the right to privacy, but the Supreme Court has found that it implicitly grants a right to privacy against governmental intrusion — and it does this through the First, Third, Fourth Amendment, and Fifth Amendments. These Constitutional rights to privacy, however, are typically not what we’re dealing with in the context of humanities text data mining. If you, a researcher or TDM professional, are doing the work, you are not a government actor, so you’re not likely violating someone’s constitutional right to privacy with the research you’re doing. You may be violating their privacy rights, but not those privacy rights arising