Privacy – Page 6 – Attorney Evan Brown

April 11, 2012 Electronic Discovery, Employment, Evidence, Privacy

Employer not allowed to search for porn on employee’s home computer

Former employee sued her old company for subjecting her to a sexually hostile workplace and for firing her after she reported it. She claimed that she had never looked at pornography before she saw some on the computers at work. During discovery in the lawsuit, the company requested that employee turn over her home computer so that the company’s “forensic computer examiner” could inspect them.

The trial court compelled employee to produce her computer so that the forensic examiner could look for pornography in her web browsing history and email attachments. The employee sought mandamus review with the court of appeals (i.e., she asked the appellate court to order the lower court not to require the production of the hardware). The appellate held that she was entitled to relief, and that she did not have to hand over her computer.

The appellate court found that the lower court failed to consider an appropriate protective order that would limit inspection to uncover specifically-sought information in a particular form of production. In this case, the company had merely asked for the hardware without informing employee of the exact nature of the information sought. And the company provided no information about the qualifications of its forensic examiner. Though the trial court tried to limit the scope of the inspection with carefully chosen wording, the appellate court found that was not sufficient to protect the employee from the risks associated with a highly intrusive search.

In re Jordan, — S.W.3d —, 2012 WL 1098275 (Texas App., April 3, 2012)

February 25, 2012 Computer Crime, First Amendment, Privacy

Video: This Week in Law Episode 150

Had a great time hosting This Week in Law Episode 150, which we recorded on February 24. (Thanks to Denise Howell for handing over the hosting reins while she was off for the week.) It was a really fun conversation with three very smart panelists — Mike Godwin, Greg Sergienko and Jonathan Frieden. We talked about copyright and free speech, encryption and the Fifth Amendment, and the state of internet privacy.

If you’re not a regular listener or viewer of This Week in Law, I hope you’ll add it to your media diet. I’m on just about every week (sometimes I’m even referred to as a co-host of the show). We record Fridays at 1pm Central (that’s 11am Pacific, 2pm Eastern). The live stream is at http://live.twit.tv and the page with all the past episodes and various subscription options is http://twit.tv/twil.

February 9, 2012 Employment, Privacy

Teacher fired over Facebook post gets her job back

Court invokes notion of “contextual integrity” to evaluate social media user’s online behavior.

Rubino v. City of New York, 2012 WL 373101 (N.Y. Sup. February 1, 2012)

The day after a student drowned at the beach while on a field trip, a fifth grade teacher updated her Facebook status to say:

After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!

Three days later, she regretted saying that enough to delete the post. But the school had already found out about it and fired her. After going through the administrative channels, the teacher went to court to challenge her termination.

The court agreed that getting fired was too stiff a penalty. It found that the termination was so disproportionate to the offense, in the light of all the circumstances, that it was “shocking to one’s sense of fairness.” The teacher had an unblemished record before this incident, and what’s more, she posted the content outside of school and after school hours. And there was no evidence it affected her ability to teach.

But the court said some things about the teacher’s use of social media that were even more interesting. It drew on a notion of what scholars have called “contextual integrity” to evaluate the teacher’s online behavior:

[E]ven though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable.

So while the court found the teacher’s online comments to be “repulsive,” having her lose her job over them went too far.

February 1, 2012 Copyright, Defamation, Miscellaneous, Privacy, Right of Publicity, Section 230, Trademarks

Six interesting technology law issues raised in the Facebook IPO

Patent trolls, open source, do not track, SOPA, PIPA and much, much more: Facebook’s IPO filing has a real zoo of issues.

The securities laws require that companies going public identify risk factors that could adversely affect the company’s stock. Facebook’s S-1 filing, which it sent to the SEC today, identified almost 40 such factors. A number of these risks are examples of technology law issues that almost any internet company would face, particularly companies whose product is the users.

(1) Advertising regulation. In providing detail about the nature of this risk, Facebook mentions “adverse legal developments relating to advertising, including legislative and regulatory developments” and “the impact of new technologies that could block or obscure the display of our ads and other commercial content.” Facebook is likely concerned about the various technological and legal restrictions on online behavioral advertising, whether in the form of mandatory opportunities for users to opt-out of data collection or or the more aggressive “do not track” idea. The value of the advertising is of course tied to its effectiveness, and any technological, regulatory or legislative measures to enhance user privacy is a risk to Facebook’s revenue.

(2) Data security. No one knows exactly how much information Facebook has about its users. Not only does it have all the content uploaded by its 845 million users, it has the information that could be gleaned from the staggering 100 billion friendships among those users. [More stats] A data breach puts Facebook at risk of a PR backlash, regulatory investigations from the FTC, and civil liability to its users for negligence and other causes of action. But Facebook would not be left without remedy, having in its arsenal civil actions under the Computer Fraud and Abuse Act and the Stored Communications Act (among other laws) against the perpetrators. It is also likely the federal government would step in to enforce the criminal provisions of these acts as well.

(3) Changing laws. The section of the S-1 discussing this risk factor provides a laundry list of the various issues that online businesses face. Among them: user privacy, rights of publicity, data protection, intellectual property, electronic contracts, competition, protection of minors, consumer protection, taxation, and online payment services. Facebook is understandably concerned that changes to any of these areas of the law, anywhere in the world, could make doing business more expensive or, even worse, make parts of the service unlawful. Though not mentioned by name here, SOPA, PIPA, and do-not-track legislation are clearly in Facebook’s mind when it notes that “there have been a number of recent legislative proposals in the United States . . . that would impose new obligations in areas such as privacy and liability for copyright infringement by third parties.”

(4) Intellectual property protection. The company begins its discussion of this risk with a few obvious observations, namely, how the company may be adversely affected if it is unable to secure trademark, copyright or patent registration for its various intellectual property assets. Later in the disclosure, though, Facebook says some really interesting things about open source:

As a result of our open source contributions and the use of open source in our products, we may license or be required to license innovations that turn out to be material to our business and may also be exposed to increased litigation risk. If the protection of our proprietary rights is inadequate to prevent unauthorized use or appropriation by third parties, the value of our brand and other intangible assets may be diminished and competitors may be able to more effectively mimic our service and methods of operations.

(5) Patent troll lawsuits. Facebook notes that internet and technology companies “frequently enter into litigation based on allegations of infringement, misappropriation, or other violations of intellectual property or other rights.” But it goes on to give special attention to those “non-practicing entities” (read: patent trolls) “that own patents and other intellectual property rights,” which “often attempt to aggressively assert their rights in order to extract value from technology companies.” Facebook believes that as its profile continues to rise, especially in the glory of its IPO, it will increasingly become the target of patent trolls. For now it does not seem worried: “[W]e do not believe that the final outcome of intellectual property claims that we currently face will have a material adverse effect on our business.” Instead, those endeavors are a suck on resources: “[D]efending patent and other intellectual property claims is costly and can impose a significant burden on management and employees….” And there is also the risk that these lawsuits might turn out badly, and Facebook would have to pay judgments, get licenses, or develop workarounds.

(6) Tort liability for user-generated content. Facebook acknowledges that it faces, and will face, claims relating to information that is published or made available on the site by its users, including claims concerning defamation, intellectual property rights, rights of publicity and privacy, and personal injury torts. Though it does not specifically mention the robust immunity from liability over third party content provided by 47 U.S.C. 230, Facebook indicates a certain confidence in the protections afforded by U.S. law from tort liability. It is the international scene that gives Facebook concern here: “This risk is enhanced in certain jurisdictions outside the United States where our protection from liability for third-party actions may be unclear and where we may be less protected under local laws than we are in the United States.”

You have to hand it to the teams of professionals who have put together Facebook’s IPO filing. I suppose the billions of dollars at stake can serve as a motivation for thoroughness. In any event, the well-articulated discussion of these risks in the S-1 is an interesting read, and can serve to guide the many lesser-valued companies out there.

January 31, 2012 Privacy

On the radio: Mobile devices and the Fourth Amendment

I was honored to be a guest on this morning’s episode of Oregon Public Broadcasting’s show Listen Out Loud, talking with host Dave Miller about the recent case of Schlossberg v. Solesbee.

Listen to the interview here:
MP3

We talked about the Fourth Amendment and, more specifically, the exceptions to the warrant requirement for searches made incident to lawful arrests. Some courts have given special treatment to mobile devices when considering whether the information contained on them may be searched without a warrant, because of the vast amounts of personal information that is present.

January 27, 2012 Electronic Discovery, Litigation, Privacy

There is no “generalized right to rummage” through an adversary’s Facebook account

Tompkins v. Detroit Metro. Airport, 2012 WL 179320 (E.D. Mich. January 18, 2012)

Plaintiff filed a personal injury lawsuit against defendants claiming she was impaired in her ability to work and enjoy life. One of the defendants filed a motion with the court asking it to order plaintiff to authorize access to her entire Facebook account. The court denied the motion. Finding that defendant had not made a “sufficient predicate” showing that the sought-after information was relevant, and that the request was overly broad, the court held that defendant “[did] not have a generalized right to rummage at will through information that [plaintiff had] limited from public view.”

The court distinguished two other well-known social media discovery cases, Romano v. Steelcase and McMillen v. Hummingbird Speedway. In those cases, the Facebook users had posted photos of themselves engaged in activities that were inconsistent with their claimed injuries (e.g., going fishing and traveling to Florida). The publicly-visible photos that plaintiff in this case posted, which defendant argued made the rest of her account relevant, were of her holding a 2-pound dog, and standing with friends at a birthday party. “If [her] public Facebook page contained pictures of her playing golf or riding horseback,” the court noted, “[defendant] might have a stronger argument for delving into the nonpublic section of her account.”

The court made clear that its decision did not address the question of whether a Facebook user has a reasonable expectation of privacy in so-called private pages. (And there’s nothing in the decision to suggest that inquiry should be answered in the affirmative.) The court also noted that it was not answering the question of whether one could challenge a subpoena to Facebook under the Stored Communications Act (18 U.S.C. 2701 et seq.) as contemplated by Crispin v. Christian Audigier, 717 F.Supp.2d 965 (S.D. Cal. 2010).

Other coverage from Eric B. Meyer.

January 24, 2012 Computer Crime, Privacy

Ordering defendant to decrypt hard drive did not violate her Fifth Amendment rights

U.S. v. Fricosu, 10-CR-00509 (D. Colo. January 23, 2012)

Pursuant to a warrant, federal agents seized defendant’s laptop from her home. When investigators turned it on, they saw the hard drive’s contents were encrypted using PGP Desktop. Defendant would not voluntarily turn over the password to decrypt the drive, so the Government filed an application under the All Writs Act to require defendant to “assist” in the execution of the search warrant. Defendant objected, asserting her privilege against self-incrimination under the Fifth Amendment.

The court rejected defendant’s arguments, granted the Government’s application and ordered defendant to provide an unencrypted copy of the hard drive. It found that the situation did not implicate defendant’s Fifth Amendment rights.

The Fifth Amendment provides that no person shall be compelled in any
criminal case to be a witness against himself. For the most part, this privilege only covers testimony. But an act that implicitly communicates a statement of fact may be within the purview of the privilege as well. For example, producing a document (or electronic data, for that matter) is an acknowledgment that the material:

exists
is in the possession or control of the producer
is authentic (i.e., is what it purports to be)

The court held that defendant’s Fifth Amendment rights were not implicated because providing an unencrypted copy of the hard drive did not serve to accomplish any of the three points listed above.

The feds had confiscated the computer, so they knew of the location and existence of the computer files. (The court found that the fact that investigators did not know the specific content of any specific files on the computer did not matter.) And as for the authenticity of the computer files, the government would presumably be able to do that in other ways. Among other things, the computer was found in defendant’s bedroom. Information on the screen that showed up when it was turned on contained defendant’s first name. And perhaps most damningly, investigators had a taped phone conversation between defendant and her ex-husband discussing the computer and the fact it was password protected.

January 23, 2012 Privacy

Supreme Court: GPS device attached to car was an unconstitutional search

U.S. v. Jones, 565 U.S. ___ (2012)

Decision looks to 18th century sensibilities on the sanctity of personal property to resolve modern day legal problem occasioned by technology.

Today the Supreme Court issued its opinion in U.S. v. Jones, which addresses the question of whether it was a “search or seizure” under the Fourth Amendment when the police attached a GPS tracking device to a drug suspect’s car. The information gathered from the device was used to convict defendant and send him to prison for life.

An originalist kind of opinion

Justice Scalia authored an opinion (which four other justices, including Roberts and Thomas, joined) holding that the placement of the GPS device on defendant’s car was a “physical intrusion [which] would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Because the device was placed on the car outside the scope of the warrant authorizing it (after the warrant’s expiration and outside its geographic jurisdiction), defendant’s Fourth Amendment rights were violated.

Property is key

Key to Court’s opinion was the Fourth Amendment’s close connection to property. Historically, Fourth Amendment jurisprudence has been tied to the concept of common-law trespass. Later cases, such as Katz v. United States, 389 U.S. 347 (1967) deviated from that approach, looking more to a personal interest, namely one’s “reasonable expectation of privacy.”

Reasonable expectation of privacy does not matter here

The Government had argued that there was no search here because defendant had no reasonable expectation of privacy in the underbody of his car, nor in the information about the public places he went. The court rejected that argument. Instead, it observed that “[a]t bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”

This “at bottom” analysis meant looking to the property interest defendant had (as informed by principles of common law trespass). By attaching the device to defendant’s car, the officers encroached on a protected area.

Open questions about information tracking

The case involved more than the mere transmission of electronic signals. In dicta, the court noted that in cases that do not involve physical intrusion, the Katz “reasonable expectation of privacy” analysis would apply. And the court was able to skirt the thorny question of whether the pervasive gathering of information while assisted by technology (something that it would take an army of agents and vehicles to accomplish) would be unconstitutional:

It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.

Many commentators have observed that the case bears similarities to United States v. Knotts, 460 U. S. 276 (1982) which involved a location-transmitting “beeper” that was placed in a canister of chloroform, which made its way into the defendant’s trunk. In Knotts, the Court held that the gathering of location information in such a fashion did not violate the Fourth Amendment. The Jones case is different — in Knotts, the cops were not reponsible for placing the canister into the vehicle. Here, the cops actually had to encroach on defendant’s property (and even changed the batteries on the device at a later date).

The Court’s decision comes as a relief to those who worried about the Orwellian-like consequences of a Government victory. It appears that all of us — including the Justices of the Supreme Court themselves — are free from indiscriminate government surveilance of this sort. It will be interesting to go back and watch This Week in Law Episode 137, where we discussed this case and its issues.

What do you think? Was the court correct in looking at 18th century doctrines to solve a 21st century problem? Let’s have a conversation below.

January 22, 2012 Privacy

Cops violated Fourth Amendment in warrantless search of digital camera

Schlossberg v. Solesbee, 2012 WL 141741 (D.Or. January 18, 2012)

Plaintiff was being questioned by defendant police officer when defendant noticed plaintiff was using a digital camera to capture the exchange. The cop got enraged and took the camera away. He arrested plaintiff and looked through the files on the camera without getting a warrant.

So plaintiff filed a civil rights lawsuit. Before trial, the court asked the parties to file briefs on whether plaintiff’s Fourth Amendment rights were violated. The court found that the warrantless search of the camera was an unlawful search incident to an arrest, thereby violating the Fourth Amendment.

In its decision, the court noted that cases which have allowed warrantless searches of electronic devices incident to arrest established a dangerous new rule, namely, that any citizen committing even the most minor arrestable offense is at risk of having his or her most intimate information viewed by an arresting officer. The court recounted the case of some cops who, in a warrantless search of a drunk driving suspect’s cell phone, found and shared some naked photos of the suspect’s girlfriend. See Newhard v. Borders, 649 F.Supp.2d 440 (W.D. Va 2009).

The court disagreed with the rationale of previous cases that held electronic devices such as phones and cameras were like “closed containers” and were thereby subject to warrantless searches. It found that warrantless searches of electronic devices are not reasonable when they are incident to a valid arrest absent a showing that the search is necessary to:

prevent the destruction of evidence
ensure officer safety, or
address other exigent circumstances

The court further found that all electronic devices should be subject to this broad protection — police should not have to distinguish between laptops, traditional cell phones, smart phones and cameras before deciding whether to proceed with a search of the device incident to arrest.

In sum, the court found that because plaintiff had a high expectation of privacy in his camera’s contents, defendant should not have reviewed its contents in a search incident to the arrest. He should have gotten a warrant instead.

So what do you think? Did the court get this one right?