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Comments to EFF: Sod Off

Originally posted 2005-01-18 20:54:00. Republished by Blog Post Promoter

This is an update on my earlier item about the EFF’s ACLU-like position in the Apple / PowerPage lawsuit. Apparently everyone (all five of ’em) who was motivated to comment on the EFF’s position in this matter (which I will paraphrase as “other peoples’ information wants to be free once someone violates their duty of confidentiality and blabs it”) agrees with Likelihood of Confusion. As we all know, rectitude is solely a function of who wins the vote, so you have to like this trend.

How would EFF climb down from this one? And assuming they don’t, how would it ever enforce any non-disclosure agreements it may have with its own employees, contractors and others?

We’re from the government, and we’re here to help

Originally posted 2013-02-12 16:34:16. Republished by Blog Post Promoter

Big Brother, here to helpWould Barack Obama’s election lead to revival of the “Fairness Doctrine” — and if so, how would that affect bloggers, who basically didn’t exist as of the last time the Fairness Doctrine governed political speech in the media?  The FCC’s chairman, Robert McDowell, suggests that bloggers wouldn’t be too happy about such a development. (Hat tip to Van Helsing.)

McDowell is a Bush appointee, and was speaking to the conservative Heritage Foundation.  Now that we’ve gotten that out of the way, what exactly is the principled defense of the Fairness Doctrine?

Congressman loses appeal

How’s that for a setup line? No, it’s another story about the use of “chilling effects” and the First Amendment in defense of illegal, usually political, acts — and this time, again, it didn’t work:

Here’s the story— remember this one?

A federal appeals court ruled Tuesday that Rep. Jim McDermott violated federal law by turning over an illegally taped telephone call to reporters nearly a decade ago.

In a 2-1 opinion, the U.S. Court of Appeals for the District of Columbia upheld a lower court ruling that McDermott violated the rights of House Majority Leader John Boehner, who was heard on the 1996 call involving former House Speaker Newt Gingrich. . . .

A lawyer for McDermott had argued that his actions were allowed under the First Amendment, and said a ruling against him would have “a huge chilling effect” on reporters and newsmakers alike.

Lawyers for 18 news organizations _ including ABC, NBC, CBS, CNN, The Associated Press, The New York Times and The Washington Post _ filed a brief backing McDermott.

But Boehner’s lawyers said McDermott’s actions were clearly illegal.

Here’s the, er, “money quote,” by the way:

The lower court had ordered McDermott to pay Boehner more than $700,000 for leaking the taped conversation. The figure includes $60,000 in damages and at least $600,000 in legal costs.

Now, who is going to pay thatWalter Olson, phone your office!  Someone just might earn a legal fee here!  (Via Drudge.)

I Read Dead People’s Email

When you reach a certain age you begin to wonder… what happens to my hard drive when I… you know. How do my Internet buddies find out that it’s, er, nothing personal that I didn’t respond to their IM — no, I’m just… you know. Not living any more.

And my email? Yale Law’s LawMeme blog has a great item about Yahoo!’s refusal to accede to the demand of the parents of a marine — who was killed in Iraq — that they be provided with his Yahoo! email password. (I found this blog on Instapundit’s blogroll. He doesn’t need another link.) They say they want more to remember him by. Yahoo!’s terms of service pretty clearly address this, and the company is sticking to it.

According to the item, it’s possible that the parents could get the password via a subpoena or, more likely in this case I think, a court order. Should a court grant such an order? It will have to consider California law on inheritance, contract and privacy. And those “public policy” factors that find their way into decision in any number of ways? I say that absent a specific compelling reason to get the email information — i.e., the location of his will or the buried treasure or something like that — it should die with the man. And, considering that, I would also require that the information ultimately revealed be narrowly-tailored as well. The court in camera, or a special master, or another neutral person should fetch the relevant information and then Yahoo! should blow taps on the account. A hero is entitled to die with his privacy and his secrets intact.

UPDATE:  More on the topic.

Google and the Privacy Obsession

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Originally posted 2005-06-03 00:00:00. Republished by Blog Post Promoter

Google is the new horseman of the ever-approaching privacy apocalpyse, according to an article in Reuters. Why? Because Google lets you keep your email (on its Gmail service) “forever,” though the article doesn’t explain what exactly the privacy risk is there. And, being fundamentally in the business of aggregating, analyzing and mining data, it keeps search, IP and other logging data for a long time, too. What’s the problem with that? Lauren Weinstein, of People for Internet Responsibility — an organization whose slick, professional website suggests it has not done or even said all that much lately (though Weinstein’s blog look somewhat active) — tells Reuters, “There’s really no good reason to hold onto that information for more than a few months. . . . [Google] seem[s] to think that because their motives are pure that everything is OK and they can operate on a trust basis. History tells us that is not the case.”

Huh? Google doesn’t have to justify its motives — which it never claimed were pure; see their stock price, thank you — and you don’t have to trust Google at all. Just don’t use it.

How long until some representative demagogues this one on Capital Hill?

Privacy rules!

Barney Google: Just looking to not be evil!

Everyone is going nuts over the changes to the Google privacy rules — so much so that the cool article to write now is, whoa, why is everyone going crazy over… you get it.

The fuss is just something people write about.  Google already owns us.  Until something gives, it hasn’t decided to destroy us… well, at least not anyone I know.  Yet.  What’s the news here?

Oh, I know what you’re worried about!  No problem —

The LIKELIHOOD OF CONFUSION® privacy policy is solid as a brick — as ever!  There will be no changes.  Yet.

 

I Read Dead Peoples’ Email: UPDATE

InboxRemember this item?  I wrote, regarding a family’s request for access to a serviceman’s email account after his death, as follows:

I say that absent a specific compelling reason to get the email information — i.e., the location of his will or the buried treasure or something like that — it should die with the man. And, considering that, I would also require that the information ultimately revealed be narrowly-tailored as well. The court in camera, or a special master, or another neutral person should fetch the relevant information and then Yahoo! should blow taps on the account. A hero is entitled to die with his privacy and his secrets intact.

Michell Malkin reports on new developments. Like her, though for different reasons set out in my original post, I’m lukewarm about this move.

UPDATE TO THE UPDATE: Deeper treatment of this issue, and specifically the Justin Ellsworth case, continues apace. Here’s one piece in IP Law & Business (the article is not available on line for free) by Mark D. Rasch, who formerly headed the Department’s efforts to investigate and prosecute computer and high-technology crime. He recommends the creation of an ‘”Internet Living Will” designating who can have access to your electronic assets in the event of death or incapacitation, and the scope of their authority to act on your behalf.”

Also, Jonathan Bick, a lawyer in New Jersey who’s an adjunct professor at Rutgers and Pace law schools, writes in the New Jersey Law Journal, available at Law.com (registration required here, too) that agrees with the argument of my interlocutor Paul Gowder in the comments to my original post (above) that this stuff ought not to stay private: “[D]efending nondisclosure of information after a person has passed away on the basis of privacy would present significant legal difficulties. A typical result was found by the district court in New Era Publications Int’l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988), aff’d, 873 F.2d 576 (2d Cir. 1989), when it dismissed a privacy argument by noting that the author of the copyrighted work was dead, thus eliminating his privacy interests. This would also be the likely outcome should a privacy argument be present in the Yahoo! matter.”

I think it’s the wrong outcome. Expectations, expectations, expectations!

UPDATE ON REPOSTING IN 2009: Recently this item about “what happens to your email when you’re dead?” got a lot of play over Twitter.  This has been dealt with, in terms of what email providers do, elsewhere, too (and in a funny, macabre way here), but the issues I raised in this post — i.e., what should happen to your emails when you’re dead? — are not really being taken to heart by lawyers, policymakers or too many other people either.  Thinking about this more, I realized that I wrote so many posts on this topic, the last of which is here, that it should be part of my backward looking categorization project, and made up a whole category for these “emails of the dead” posts.  Enjoy them… while you can.

No recourse

James C. Goodale, the former vice chairman of The New York Times, in the New York Law Journal (registration required):

Until the Internet came along, a publisher/distributor, similar to Mr. Ciolli and his Web site, would have responsibility for the content disseminated. With the advent of the Net, however, Congress passed a law that changed this age-old concept.Generally, under this law, a person who provides a site as a bulletin board for others has no responsibility for its content. If, however, such a provider actively edits content, there could be responsibility.

With little responsibility for speech, the Internet would seem to be a First Amendment paradise. But the fact that a bulletin board operator has no responsibility defies human experience. It has led directly to the dilemma of the two Yale law students.

They may have no remedy for their destroyed reputations and perhaps even careers.

As a society, we have long ago concluded that reputations of public officials, and the like, have limited protection under the First Amendment. But the Yale law students are not public officials, public figures or otherwise engaged in public discourse. They are private individuals. . . .

Court orders to unmask anonymous speakers are not slam dunks. There are excellent First Amendment reasons, in the ordinary course, not to unmask them.

The Federalist Papers were written by anonymous speakers. Dissidents’ political speeches around the world are posted on the Net by anonymous speakers.

But the law students’ case does not involve speech critical of government, or what First Amendment lawyers call “political speech.” It is, as noted above, private speech.

Causing private, but very real, harm. It’s wrong, what’s going on with Internet-based defamation.

Garbage in, garbage out

Metzenbaum Federal Courthouse, Cleveland, OhioI moan constantly about Congress’s refusal to do its job and make policy decisions about trademark and copyright via legislation that reflect the technological and economic realities of our time, instead leaving that job to judges — some of whom are up to it, many of whom are not, but none of whom are paid to do it.

And that’s just intellectual property.  How about liberty, and the pursuit of happiness?  Scott Greenfield nails this point, as he does with alarming regularity, in this post. He shows how bad — really, really, awfully bad — judicial analogizing (undoubtedly propelled in no small part in the particular event by equally bad judicial rationalizing) often begets a generation of really bad law. The result has been the thoughtless cession of a stunningly significant piece of constitutional real estate — privacy — as applied to the digital world which, if you haven’t noticed, is mainly where our privacy issues reside these days.  Excerpt:

When it comes to technology, the question of which precedent to apply is based largely on which analogy a judge prefers, which in turn is based on either a judge’s grasp of technology, which is not always the same as, say, more attuned users, or the analogy that produces the desired result.

At Volokh Conspiracy, Orin Kerr has dredged up an old Kentucky opinion from 2003, United State v. Morgan, denying suppression of child porn. Yes, child porn was there even back then.  Morgan tried to eliminate the images from his computer, using a program called “Internet Eraser.”  His wife, who suspected what he was up to, used a program of her own that took a screen shot every 10 seconds. She wasn’t pleased with what she learned, and ratted her husband out.

While Morgan’s wife turned over his computer, and as a common user, consented to the search, the court added this:

By attempting to delete the images, Defendant relinquished any expectation of privacy he had in the images themselves. See California v. Greenwood, 486 U.S. 35, 37 (1988) (Defendant has no reasonable expectation of privacy in his curb-side trash). . . . [B]y attempting to delete the pornographic images, Defendant was in essence, trying to throw out the files. In that regard, the facts are similar to Greenwood and its progeny. For these reasons, the Court concludes that Defendant’s relinquishment of any reasonable expectation of privacy in the pornographic images by attempting to delete the images is an alternative basis for denying the suppression motion.

Yes, remember the old abandoned trash approach of Greenwood, except that the object there was actually abandoned trash? Are deleted computer files the same? Obviously not, but the problem is the resort to analogy to pigeonhole technology.

Whenever these issues arise, the geeks want to argue technical jargon while the government wants to pull out analogies involving horses and buggies. The reaction is often an approach that suggests that technology has killed any expectation of privacy regardless of who is engaged in the debate. . .

Tech changed. It changes constantly. Because of this, the courts can take the position that precedent can’t keep pace, that old analysis can’t be adequately applied, and that new changes in technology change everything.  In other words, there is a conceptual edge to stop our sliding down the slippery slope.

Or we can just throw privacy out with the deleted computer files.  But we didn’t have both in 2003, and if nothing changes, we will never have privacy in the age of technology again.

Unfortunately, if anything the legal trend — legislatively, judicially and administratively — is mostly in the other direction, for which we can thank the 9/11 attacks.   Read More…

Fools’ Blog Responds to "I Read Dead Peoples’ Email"

Actually responding to my post on the topic, Fools’ Blog: After Death E-Privacy [Link is now dead, sorry! — RDC]:

With regard to the Marine’s privacy, does it apply now that he has passed? Many courts have held that privilege (legal, medical, confessional) does not survive death. Why should the privacy of an e-mail account? Why is the e-mail account afforded any greater status than the Marine’s U.S. Postal Service mail, which presumably his survivors are entitled (if not obligated) to check?

Great question. I guess to make my point, I have to enunciate a new rule. I am comfortable doing so, because this is all judge-made law anyway. There is plenty of good reason to ask, as Fool says later in his post, whether there is an expectation of great privacy here, and I think the answer is in the affirmative. It’s a brave new world. Because, on the Internet, no one knows you’re a dog, and by gosh that is something new and different, and people’s expectations are that it will be treated that way.

The analogy to the found letters (and the very disturbing Seinfeld episode Fool talks about) is a fair one. I will say this: When physical correspondence is kept, regardless of where they are hidden, the person keeping them knows there is a finite possibility that they will someday be found — and not only someday but today. You can even make the psychological argument that they want them to be found (if you want to). But people who use email rationally expect that if they do not reveal their passwords to anyone that their email will remain confidential. It’s a different medium, a different mindset. And yes, expectations are critical to this examination.

If so, though, an interesting question arises if you posit a case where the email owner would, retrospectively, want his heirs to have access to the email. Suppose there’s an email in which a person to whom the email owner lent money to finally admits he owes it. Or where the email owner discusses with a doctor friend his recent discovery, which he has not yet discussed with others, that he has an inheritable disease. These examples, however, are addressed by my proposed solution: a qualified right to access. Given, of course, that the does not, in these examples, know what he is looking for, more discretion is admittedly placed on the third person who, I have posited, is to be given permission to poke his nose into the email of the deceased. Undoubtedly this requires the imposition of a fiduciary duty on that person, as well.

Complicated, yes. Perhaps I will amend my estate plan to instruct my heirs that this is the procedure to follow, and name an email exector. But absent that, and these fairly far-out scenarios, I am inclined to put the burden on the heirs to make the showing as to why a deceased person’s email should be their business.

And if the first judge to get this one disagrees with me, I wouldn’t be surprised to find a legislature weighing in on my side — and the California legislature is just the bunch to do it.