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7. A HISTORY OF PRACTICAL OBSCURITY: CLARIFYING AND CONTEMPLATING THE TWENTIETH CENTURY ROOTS OF A DIGITAL AGE CONCEPT OF PRIVACY.

Author

FILE, PATRICK C.

Subjects
DATA security lawsuits, PUBLIC records, RIGHT to be forgotten
Abstract

Practical obscurity--the idea that a privacy interest exists in information that is not secret but is nonetheless difficult to obtain--animates an active discussion about data privacy, including the much-debated "right to be forgotten." But where does practical obscurity really come from? Scholars often point to United States Department of Justice v. Reporters Committee for Freedom of the Press, a landmark 1989 U.S. Supreme Court ruling that sought to balance personal privacy and public records, as the concept's birthplace, but we know that the Court almost never creates legal concepts out of the blue. Rather, the Court's opinions give form and force to existing ideas by incorporating them into their reasoning. This article provides a history of practical obscurity as a concept of privacy in law and society, drawing on the decisions, motions and briefs that preceded the Reporters Committee ruling as well as discourse on information privacy that provided the social background for the case. It shows how the Reporters Committee ruling gave a name to concerns about a "surveillance society" that emerged and evolved between the 1960s and 1980s. It argues that although the ruling might be seen as an ironic departure from the concept's roots and a problematic justification to obscure truthful information already in the public sphere, the concept may still be useful as a means to think beyond a simplistic public/private binary as we consider the legal and ethical responsibilities of various institutions that gather, share, and publish personal information. [ABSTRACT FROM AUTHOR]

Published
2017

12. 'Bad' news travels fast: the telegraph, syndicated libel, and conceptualizing freedom of the Press, 1890-1910

Author

File, Patrick C.

Subjects
History, Journalism, Law, Libel, Telegraph
Abstract

This dissertation explores the historical implications of an unprecedented series of libel cases that arose out of false news reports spread by news wire services at the turn of the twentieth century. The industrialized speed and scale of the news industry, along with growing concern about sensationalism and the value of reputation had created tension in the press' relationship with society at the time the cases arose. The scale of the cases, in which single plaintiffs sued hundreds of newspapers for publishing the same libelous story, raised new challenges for the press and for libel law doctrine. This study argues that through the serial libel cases the press articulated a new legal conception of press freedom that called on courts to tip the analytical balance to be more protective of its social role in using the telegraph to deliver timely news to the public. Moreover, because the cases involved plaintiffs of varying social prominence, from virtually anonymous to world-famous, the cases also offer new insights into how libel plaintiffs' status and identity could influence the legal analysis of protecting reputational rights at a time before libel law prompted constitutional consideration. The study uses an interdisciplinary conceptual framework of the cultural history of journalism and critical legal history to illuminate the role of law and legal consciousness in the social process of regulating the role of journalism in a democratic society. The study examines legal discourse surrounding the cases both inside and outside of courtrooms and newsrooms, drawing on appellate opinions and legal treatises as well as newspaper and trade press coverage of the cases.

Published
2013

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