Privacy – Page 5 – Attorney Evan Brown

September 4, 2012 Electronic Discovery, Litigation, Privacy

Plaintiff has to turn over emotional social media content in employment lawsuit

Court holds that Facebook, LinkedIn and MySpace postings relating to plaintiff’s emotional state must be produced in discovery.

Robinson v. Jones Lang LaSalle Americas, Inc., 2012 WL 3763545 (D.Or. August 29, 2012)

Plaintiff sued her former employer for discrimination and emotional distress. In discovery, defendant employer sought from plaintiff all of her social media content that revealed her “emotion, feeling, or mental state,” or related to “events that could be reasonably expected to produce a significant emotion, feeling, or mental state.”

emotional on social media

When plaintiff did not turn over the requested content, defendant filed a motion to compel. The court granted the motion.

The court relied heavily on the case of E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D.Ind. 2010) in ordering plaintiff to produce the requested social media content. The Simply Storage court found that:

It is reasonable to expect severe emotional or mental injury to manifest itself in some [social media] content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress. Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant.

Consistent with the principles of Simply Storage the court in this case ordered production from plaintiff all social media communications:

that reveal, refer, or relate to any significant emotion, feeling, or mental state allegedly caused by defendant’s conduct;

The production of this category of communications was meant to elicit information establishing the onset, intensity, and cause of emotional distress allegedly suffered by plaintiff because of defendant during the relevant time period.

The court also ordered plaintif to produce all social media materials concerning:

events or communications that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct.

This second category was meant to elicit information establishing the absence of plaintiff’s alleged emotional distress where it reasonably should have been evident (i.e., under the rubric of Simply Storage, on her social media accounts).

The court observed how counsel for the parties plays an important role in the discovery of social media. As the court in Simply Storage recognized, it is an “impossible” job for the court to define the limits of social media discovery with enough precision to satisfy the producing party. To address this impossible situation, it falls to the lawyers to act in good faith to produce required materials, inquire about what has and has not been produced, make the appropriate challenges, and seek revision of the discovery order as appropriate.

Photo courtesy Flickr user xdxd_vs_xdxd under this Creative Commons license.

August 14, 2012 Computer Crime, Privacy

No Fourth Amendment violation when government looked at Facebook profile using friend’s account

U.S. v. Meregildon, — F.Supp.2d —, 2012 WL 3264501 (S.D.N.Y. August 10, 2012)

The government suspected defendant was involved in illegal gang activity and secured the assistance of a cooperating witness who was a Facebook friend of defendant. Viewing defendant’s profile using the friend’s account, the government gathered evidence of probable cause (discussion of past violence, threats, and gang loyalty maintenance) which it used to swear out a search warrant.

Defendant argued that the means by which the government obtained the probable cause evidence – by viewing content protected by defendant’s Facebook privacy settings – violated defendant’s Fourth Amendment rights. The court denied defendant’s motion to suppress.

It held that where Facebook privacy settings allowed viewership of postings by friends, the Government could access them through a friend/cooperating witness without violating the Fourth Amendment. The court compared the scenario to how a person loses his legitimate expectation of privacy when the government records a phone call with the consent of a cooperating witness who participates in the call. It held that defendant’s legitimate expectation of privacy ended when he disseminated posts to his Facebook friends because those friends were then free to use the information however they wanted, including sharing it with the government.

Photo credit: Flickr user Poster Boy NYC under this Creative Commons license.

July 3, 2012 Privacy

Can you snoop if someone has forgotten to log out?

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Need assistance? Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases.

Marcus v. Rogers, 2012 WL 2428046 (N.J.Super.A.D. June 28, 2012)

The answer to that question may depend on whether you knowingly exceed your authorization. A New Jersey court recently held that a defendant was within the bounds of the law when he accessed and printed a co-worker’s personal email after the coworker left the computer without signing out of her account.

can you snoop the email account left on the screen when someone forgets to log out

One morning when defendant, a teacher, sat down in the computer room of the school where he worked to check his email, he bumped the mouse of the computer next to him when he sat his drink down. That stopped the screen saver on the other machine, revealing the inbox of a coworker’s Yahoo account. Defendant saw that some of the emails’ subjects mentioned him, so he clicked on them, printed them out, and later used them at an adminstrative meeting to further some points in a work dispute.

The coworkers whose email communications defendant had accessed in this way sued him for violation of New Jersey’s equivalent of the Stored Communications Act (N.J.S.A. 2A:156A–27). The plaintiffs moved for summary judgment on their claim, but the court let the question go to the jury. That jury found defendant had not violated the statute.

Plaintiffs appealed the denial of their motion for summary judgment. On appeal, the court affirmed, holding that the jury properly got the question to consider.

Under the New Jersey statute, a plaintiff has a cause of action if, among other things, another person knowingly:

accesses without authorization a facility through which an electronic communication service is provided, or
exceeds an authorization to access that facility

The court briefly discussed whether the term knowingly applies both to “access without authorization” and “exceeds an authorization”. It held that it does.

Then the court went on to evaluate whether the jury should have gotten the question in the first place.

The court held that as a matter of law, defendant did not access the email account without authorization. Because the “index to the inbox” of the co-worker’s Yahoo account was displayed on the screen when the coworker left the computer, defendant did not access the “facility” without authorization. The accessing of the facility had been accomplished by coworker. There was no evidence of hacking or other unauthorized access to her account.

As for whether defendent exceeded his authorized access, the court held that the lower court properly submitted the question to the jury. The court held that the facts could not preclude a jury finding that defendant did not exceed his authorized access. Indeed, six of the seven deliberating jurors found that defendant had not exceeded his authorization. And all of the jurors found that the coworker had provided “tacit authorization” for him to access the account. (The case does not specify what that evidence of tacit authorization was.)

So the jury’s finding that defendant did not exceed his authorized access stood.

An obvious pro-tip from the case is to remember to log out of shared computers. But the decision is potentially relevant to contexts other than email accounts on desktop computers. Does a person who finds another’s mobile device have the right to rummage through all the accounts (e.g., social media, email, dating sites) that the phone’s owner is logged into? This case underscores that the answer will be, frustratingly, “it depends.” It’s best to put some facts into play — like even the simple requirement of a 4-digit password — to establish contours for authorization which, when exceeded, are clear.

May 30, 2012 Privacy

Is there a constitutional right of privacy in a family member’s autopsy photos?

Marsh v. County of San Diego, — F.3d —, 2012 WL 1922193 (9th Cir. May 29, 2012)

Yes, there is now. At least in the Ninth Circuit. Since the defendant was found to be not liable for violation of that right because of qualified immunity, an appeal is unlikely and the ruling will probably stand.

autopsy table

Background

When defendant Coulter retired from the district attorney’s office, he kept a photocopy of an autopsy photo (of a 2-year old boy with head injuries) from one of the cases he tried in 1983. What’s even more bizarre is that defendant turned over the photo and a memo to a newspaper and television station.

When the mother of the deceased little boy who appeared in the photo heard about this, she sued the district attorney and the county for violation of her due process rights under the Fourteenth Amendment of the United States Constitution.

The trial court threw out the case on summary judgment. Plaintiff sought review with the Ninth Circuit. Though the court found defendant was not liable for a constitutional violation because of qualified immunity, it held that plaintiff had a constitutionally protected right to privacy over her child’s death images.

Due Process

The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution has been held to protect “a right of personal privacy, or a guarantee of certain areas or zones of privacy.” Carey v. Population Servs. Int’l, 431 U.S. 678, 684 (1977) (quoting Roe v. Wade, 410 U.S. 113, 152 (1973)). This privacy right is of two types: (1) the individual interest in avoiding disclosure of personal matters, and (2) the interest in independence in making certain kinds of important decisions concerning, for example, family relationships and child rearing.

In this case, the court observed that other courts, including the Supreme Court, had recognized a common law (but not constitutional) protection against the disclosure of a deceased family member’s death scene photos. But this case was the first time a court held that protection against public disclosure of such photos was a constitutionally protected right under substantive due process.

The court noted that “the well-established cultural tradition acknowledging a family’s control over the body and death images of the deceased has long been recognized at common law.” Because such sensibility is so deeply-rooted in our culture, the test for both types of substantive due process were met in this case. Protecting the interest would serve to avoid the disclosure of the graphic details of a family member’s tragic death (which reveals much about the manner of death and extent of suffering). In the context of a child’s autopsy photos, the right of a parent to determine the “care, custody and control” of the child is protected by a federal privacy right against public disclosure.

State Law – Procedural Due Process

The court held that plaintiff’s procedural due process rights were violated by the disclosure of the autopsy photo. California has a statute — Cal.Civ.Proc.Code § 129 — that codifies the state’s public policy against the reproduction of post-mortem photos for improper purposes. This served to create a liberty interest in plaintiff that could not be taken away without due process. The court found that plaintiff had sufficiently alleged a claim of violation of the statute and, therefore, a deprivation of a state-created liberty interest.

Photo credit: atluxity under this license.

May 21, 2012 Copyright, Privacy

Social media legal best practices: some problems and solutions with uploading photos and tagging people

Facebook, Flickr, 500px and mobile sharing applications such as Instagram have replaced the hard copy photo album as the preferred method for letting others see pictures you have taken. Now photos are easy to take and easy to share. This easiness makes a number of legal questions potentially more relevant.

Embarrassing photos

Let’s be honest — every one of us has been in photos that we do not want others to see. It may be just bad lighting, an awkward angle, or something more sinister such as nudity or drug use, but having a photo like that made public would cause embarrassment or some other type of harm. Sometimes the law affords ways to get embarrassing photos taken down. To the same extent the law can help, the one posting the embarrassing photo puts himself at risk for legal liability.

Invasion of privacy. If someone takes a picture of another in a public place, or with a bunch of other people, the subject of the photo probably does not have a right of privacy in whatever he or she is doing in the photo. So the law will not be helpful in getting that content off the internet. But there are plenty of situations where the subject of a photo may have a privacy interest that the law will recognize.

“Intrusion upon seclusion,” as its name suggests, is a legal claim that one can make when someone has intentionally intruded — physically or otherwise — upon their solitude or seclusion. Surreptitiously taken photos of a person in her own home, or in a place where she expected privacy (e.g., in a hotel room or dressing room) would likely give rise to an unlawful intrusion upon seclusion.
“Publication of private facts” is another form of invasion of privacy. A person commits this kind of invasion of privacy by publishing private, non-newsworthy facts about another person in a way that would be offensive to a reasonable person. Posting photos of one’s ex-girlfriend engaged in group sex would be considered publication of private facts. Posting family pics of one’s nephew when he was a kid would not.

Photoshop jobs

Some people enjoy using Photoshop or a similar advanced photo editing application to paste the head of one person onto the body of another. (Reddit has an entire category devoted to Photoshop requests.) This can have drastic, negative consequences on the person who — through this editing — appears to be in the photo doing something he or she did not and would not do. This conduct might give rise to legal claims of infliction of emotional distress and defamation.

Infliction of emotional distress. We expect our fellow members of society to be somewhat thick-skinned, and courts generally do not allow lawsuits over hurt feelings. But when it’s really bad, the law may step in to help. One may recover for infliction of emotional distress (sometimes called “outrage”) against another person who acts intentionally, and in a way that is extreme and outrageous, to cause emotional distress that is severe. Some states require there to be some associated physical harm. A bride who sued her photographer over the emotional distress she suffered when the photographer posted pictures of her in her underwear lost her case because she alleged no fear that she was exposed to physical harm.

Defamation. A person can sue another for defamation over any “published” false statement that harms the person’s reputation. Some forms of defamation are particularly bad (they are called defamation per se), and are proven when, for example, someone falsely states that a person has committed a crime, has engaged in sexually immoral behavior, or has a loathsome disease. A realistic Photoshop job could effectively communicate a false statement about someone that is harmful to his or her reputation.

Copied photos

Since copying and reposting images is so easy, a lot of people do it. On social media platforms, users often do not mind if a friend copies the photos from last night’s dinner party and reuploads them to another account. In situations like these, it’s simply “no harm, no foul.” Technically there is copyright infringement going on, but what friend is going to file a lawsuit against another friend over this socially-acceptable use? The more nefarious situations illustrate how copyright can be used to control the display and distribution of photos.

In most instances, the person who takes a photo owns the copyright in that photo. A lot of people believe that if you appear in a photo, you own the copyright. That’s not true unless the photo is a self portrait (e.g., camera held at arm’s length and turned back toward the person, or shot into the mirror), or unless the person in the photo has otherwise gotten ownership of the copyright through a written assignment (a much rarer situation).

A person who finds that his or her copyrighted photos have been copied and reposted without permission has a number of options available. In the United States, a quick remedy is available under the notice and takedown provisions of the Digital Millennium Copyright Act. The copyright owner sends a notice to the platform hosting the photos and demands the photos be taken down. The platform has an incentive to comply with that demand, because if it does, it cannot be held responsible for the infringement. Usually a DMCA takedown notice is sufficient to solve the problem. But occasionally one must escalate the dispute into copyright infringement litigation.

Some other things to keep in mind

With the protections afforded by free speech and the difficulties involved in winning an invasion of privacy or infliction of emotional distress lawsuit, one can get away with quite a bit when using photos in social media. One court has even observed that you do not need a person’s permission before tagging him or her in a photo.

A person offended by the use of a photo by him or of him may have recourse even in those situations where it is not so egregious as to give him a right to sue. Social media platforms have terms of service that prohibit users from harassing others, imitating others, or otherwise engaging in harmful conduct. The site will likely remove content once it is made aware of it. (I have sent many requests to Facebook’s legal department requesting content to be removed — and it has been removed.) The norms of social media communities play an important role in governing how users treat one another, and that principle extends to the notions of civility as played out through the use of photos online.

Evan Brown is a Chicago technology and intellectual property attorney. He advises businesses and individuals in a wide range of situations, including social media best practices.

Photo credit: AForestFrolic

May 18, 2012 Governance, Miscellaneous, Privacy

Are network neutrality and freedom from government surveillance incompatible?

The FBI would like to see Congress amend CALEA (the Communications Assistance for Law Enforcement Act). FBI director Mueller recently testified that his agency wants legislation that will assure internet service providers “have the capability and the capacity to respond” to court orders allowing the eavesdropping on a person’s internet communications.

CALEA currently requires that telecommunications companies expeditiously make their equipment, facilities, and services available to the government for wiretapping. Presumably, federal law enforcement would like to see this expanded to bind ISPs and other non-telecom entities.

We see a similar division of the world into telecom and non-telecom in the discussion of network neutrality. Many in favor of network neutrality laud the FCC’s efforts to bring ISPs into the agency’s scope of power to help ensure those providers of internet infrastructure do not discriminate on the basis of content source.

But do you see the potential problem here? If an individual is in favor of network neutrality and also wary of overzealous government wiretapping, he or she must be careful to not allow advocacy of federal power in one arena (enforcing network neutrality) to bleed over, even by analogy, to advocay of federal power in the other arena (surveillance). Participants in these discussions are advised to keep the ideological origins of the respective positions in mind.

May 17, 2012 Privacy

Is transparency the best norm for user privacy?

Discussions about how companies handle privacy are metadiscussions, because data use policies provide information about information, namely, how platforms collect, use and share it. It’s easy to come up with platitudes when operating in such an abstract realm. People like the catchy norm of “transparency.” It suggests that our dignitary ills are cured when we know how companies such as Facebook use the information about us that they hoard.

But transparency as a norm suffers from a hobbling flaw when put into practice — it is antithetical to the proprietary interests companies hold dear and which the law protects. At a fundamental level, the exploitation of big datasets is how most online social platforms make money. Granular knowledge about the user equals more targetedness of the ad. Targeted-er ads can be sold at a premium. The fact that a platform can collect so much information about a user is one thing. The method for the information’s use is another. It’s the face of the latter aspect into which transparency flies.

No company that has invested substantially in developing effective methods for utilizing its collected data is going to have an authentic incentive to lift the hood on its data-utilizing methods. The protection of the law of trade secrets would evaporate in any instance where a company were to do that.

Any reluctance to transparency on the part of the platform betrays this misalignment of incetives between platform and user. Calling on transparency as the norm will only exacerbate the misalignment. What people are actually looking for when they call for transparency are reasons to trust. The metadiscussion needs a new pathway to get to trust, because the path that transparency affords is, ironically, blocked.

Photo credit: motoyen

May 15, 2012 Computer Crime, Privacy

Alleged voyeur boss cannot pursue Computer Fraud and Abuse Act claim

Bashaw v. Johnson, 2012 WL 1623483 (D.Kan. May 9, 2012)

Some employees filed suit after they learned that their boss — who required them to wear skirts to work — allegedly installed the Cam-u-flage video surveillance app on his iPhone and iPad to surreptitiously capture upskirt shots of plaintiffs at work.

The boss filed a counterclaim under the Computer Fraud and Abuse Act (CFAA), claiming that plaintiffs deleted data from his iDevices without authorization. Plaintiffs moved to dismiss this counterclaim. The court granted the motion.

The court held that the boss failed to allege the nature of his alleged damages within the meaning of the CFAA, and that he failed to sufficiently allege a qualified loss as defined by the statute.

As for damage, the court found that the mere allegation that data had been erased, without identifying which data, did not meet the plausibility requirement to survive a motion to dismiss. (Hmm. I wonder what data the plaintiff-employees would have wanted to delete?)

On the question of loss, the employer alleged that such calculation “would exceed” the CFAA threshold of $5,000. But he did not allege that he actually incurred losses in that amount. He did not mention any investigative or response costs, nor did he allege any lost revenues or other losses due to an interruption in service.

Photo credit: Magic Madzik

May 11, 2012 Governance, Miscellaneous, Privacy, Spam

Why be concerned with social media estate planning?

The headline of this recent blog post by the U.S. government promises to answer the question of why you should do some social media estate planning. But the post falls short of providing a compelling reason to plan for how your social media accounts and other digital assets should be handled in the event of your demise. So I’ve come up with my own list of reasons why this might be good both for the individual and for our culture:

Security. People commit identity theft on both the living and the dead. (See, for example, the story of the Tennessee woman who collected her dead aunt’s Social Security checks for 22 years.) While the living can run credit checks and otherwise monitor the use of their personal information, the deceased are not so diligent. Ensuring that the dataset comprising a person’s social media identity is accounted for and monitored should reduce the risk of that information being used nefariously.

Avoiding sad reminders. Spammers have no qualms with commandeering a dead person’s email account. As one Virginia family knows, putting a stop to that form of “harassment” can be painful and inconvenient.

Keeping social media uncluttered. This reason lies more in the public interest than in the interest of the deceased and his or her relatives. The advertising model for social media revenue generation relies on the accuracy and effectiveness of information about the user base. The presence of a bunch of dead peoples’ accounts, which are orphaned, so to speak, dilutes the effectiveness of the other data points in the social graph. So it is a good thing to prune the accounts of the deceased, or otherwise see that they are properly curated.

Preserving our heritage for posterity. Think of the ways you know about your family members that came before you. Stories and oral tradition are generally annotated by photo albums, personal correspondence and other snippets of everyday life. Social media is becoming a preferred substrate for the collection of those snippets. To have that information wander off into the digital ether unaccounted for is to forsake a means of knowing about the past.

How big a deal is this, anyway? This Mashable article commenting on the U.S. government post says that last year about 500,000 Facebook users died. That’s about 0.0006% of the user base. (Incidentally, Facebook users seem much less likely to die than the general population, as 0.007% of the world’s entire population died last year. Go here if you want to do the math yourself.)

I say it’s kind of a big deal, but a deal that’s almost certain to get bigger.