Month: November 2011

“The Android developer who raised the ire of a mobile-phone monitoring company last week is on the attack again, producing a video of how the Carrier IQ software secretly installed on millions of mobile phones reports most everything a user does on a phone.”  Read more here.

Facebook has announced its long-rumored privacy settlement with Facebook. The complaint focuses on several allegedly deceptive acts by Facebook, as listed in the press release:

• In December 2009, Facebook changed its website so certain information that users may have designated as private — such as their Friends List — was made public. They didn’t warn users that this change was coming, or get their approval in advance.
• Facebook represented that third-party apps that users’ installed would have access only to user information that they needed to operate. In fact, the apps could access nearly all of users’ personal data — data the apps didn’t need.
• Facebook told users they could restrict sharing of data to limited audiences — for example with “Friends Only.” In fact, selecting “Friends Only” did not prevent their information from being shared with third-party applications their friends used.
• Facebook had a “Verified Apps” program & claimed it certified the security of participating apps. It didn’t.
• Facebook promised users that it would not share their personal information with advertisers. It did.
• Facebook claimed that when users deactivated or deleted their accounts, their photos and videos would be inaccessible. But Facebook allowed access to the content, even after users had deactivated or deleted their accounts.
• Facebook claimed that it complied with the U.S.-EU Safe Harbor Framework that governs data transfer between the U.S. and the European Union. It didn’t.

The proposed settlement would impose various privacy obligations on Facebook, including the quickly-becoming-standard 20 years of privacy audits.

Edited to add: Mark Zuckerberg’s statement.

Edit 2: My colleague Joe Hall points out Count 3 of the FTC’s complaint:

As described in Paragraphs 19–26, by designating certain user profile information publicly available that previously had been subject to privacy settings, Facebook materially changed its promises that users could keep such information private. Facebook retroactively applied these changes to personal information that it had previously collected from users, without their informed consent, in a manner that has caused or has been likely to cause substantial injury to consumers, was not outweighed by countervailing benefits to consumers or to competition, and was not reasonably avoidable by consumers. This practice constitutes an unfair act or practice.

This continues a recent trend of the FTC asserting its authority over “unfair” trade practices, even when they’re not “deceptive.” This also came up in the FTC’s settlement with Frostwire over unfair default settings, which prompted the FTC to warn companies to “spend some time thinking through [their] default settings” and consider questions like “Do your defaults keep users safe from making serious inadvertent errors?” and “Does your application work in ways consumers would reasonably expect?”

Joe Hall here.

An intriguing story flew past my Twitter stream, that begins:

“MINNEAPOLIS (WCCO) — Detailed medical information discovered on the back of a first-grader’s school drawing sent Minneapolis school officials scrambling.

Jennifer Kane was tidying her dining room when she found the drawing by her daughter, Keely, who goes to Hale Elementary School. On the back of the paper was the name, birth date and detailed medical information for a 24-year-old St. Paul woman named Paula White.” –(“Recycled Medical Records Used As Scrap Paper At School”)

Long story, short: Ms. White’s records that she voluntarily gave to a law firm representing her after a car accident were donated by a paralegal to Ms. Kane’s daughter’s elementary school.  These records, and those of presumably many others, were found by school officials after being used as scrap paper and have since been secured, probably waiting disposal (or, cynically, placed in escrow until the new team of lawyers Ms. White might hire to sue her old lawyers get a chance to look at them!).

Ms. White expresses concerns that we see often in cases of privacy breaches, especially medical breaches: “It’s got my account number, my birth date, my job … I’m outraged. I am embarrassed. I don’t want anyone to know my personal information.”

What recourse does she have?  Likely, the only thing she can do is hire another law firm to sue the first law firm; that is, there’s no federal health privacy issue here. Because the law firm is not a “covered entity” under the federal law and accompanying regulations known as the Health Insurance Portability and Accountability Act (HIPAA), the responsible enforcement agency, the department of Health and Human Services, can’t seek corrective action.  In fact, you may be surprised how little HIPAA and HHS can do in situations like these. Our friends at the World Privacy Forum keep a very useful FAQ about HIPAA and also point out how medical identity theft, where people use medical information about others to obtain services or make fraudulent claims, is on the rise and an increasing concern for patients.

What can you do? Be vigilant, as always. Make sure you monitor and understand your health insurance claims information and that you let your health care providers know if you suspect funny business. Of course, if a law firm you hire screws up this bad, find a new one and teach the old one a lesson with a good old fashioned legal malpractice lawsuit.

Updated on 11/22 to make clear that Ms. White can sue the original law firm for malpractice. –JLH

That’s quite an interesting article!

Court makes it official: You have no privacy online

Eleni Gessiou

Orin Kerr ponders oral arguments in United States v. Jones (reposted from The Volokh Conspiracy):

As a follow-up to Helen’s post about Verizon’s new privacy practices, EPIC has filed an FTC complaint alleging that the move amounts to an unlawful trade practice.