The details of Tyler Clementi’s case are slowly revealing themselves. He was the Rutgers University freshman whose sex life was exposed on the Internet when fellow students Dharun Ravi and Molly Wei placed a webcam in his dorm room, transmitting the images that it captured in real time on the Internet. Shortly thereafter, Clementi committed suicide.
Whether Ravi and Wei acted out of anti-gay animus, titillation about Clementi’s sexual orientation, or simply titillation about sex, their actions were utterly outrageous, offensive, and outside of the bounds of decency. Moreover, according to Middlesex County, New Jersey prosecutors, they were illegal. Ravi and Wei have been charged with invasion of privacy.
This is what invasion of privacy looks like. It’s the outrageous, offensive, truly galling revelation of private facts like what happened in this case. Over the last 120 years, common law tort doctrine has evolved to find that people have a right not to suffer such invasions. New Jersey has apparently enshrined that right in a criminal statute.
The story illustrates how quaint are some of the privacy “invasions” we often discuss, such as the tracking of people’s web surfing by advertising networks. That information is not generally revealed in any meaningful way. It is simply being used to serve tailored ads.
This event also illustrates how privacy law is functioning in our society. It’s functioning fairly well. Law, of course, is supposed to reflect deeply held norms. Privacy norms—like the norm against exposing someone’s sexual activity without consent—are widely shared, so that the laws backing up those norms are rarely violated.
It is probably a common error to believe that law is “working” when it is exercised fairly often, fines and penalties being doled it with some routine. Holders of this view see law—more accurately, legislation—as a tool for shaping society, of course. Many of them would like to end the societal debate about online privacy, establishing a “uniform national privacy standard.” But nobody knows what that standard should be. The more often legal actions are brought against online service providers, the stronger is the signal that online privacy norms are unsettled. That privacy debate continues, and it should.
It is not debatable that what Ravi and Wei did to Tyler Clementi was profoundly wrong. That was a privacy invasion.