Year: 2011

Google Book Search allows anyone to search a massive library of books that Google has scanned. A few years ago, the Authors Guild sued Google to stop the project and various settlement agreements have subsequently been proposed. Judge Denny Chin recently rejected the latest settlement agreement.^[1] Though he suggested that the opt-out provision, allowing Google to scan any work unless the right holder opts out, was the main reason for rejecting the settlement, Chin also stated that “the privacy concerns are real.”

Chin noted the concern that the settlement agreement does not limit what reader information Google can track, potentially allowing Google to create detailed profiles of its readers. Chin also noted issues as to whether and to what extent Google could share such information with others. Finally, though not in the opinion, some have voiced concern over transparency with what the privacy policies will be and how much control users will have over their privacy settings.^[2]

Despite the privacy concerns, Chin apparently does not believe “they are a basis in themselves to reject the proposed settlement.” In coming to this conclusion, Chin notes Google has obliged itself to follow voluntary safeguards. But while Google has previously offered assurances that the “principles” of its normal privacy policy would apply to Book Search, it has declined to offer specific details. Google has also suggested it cannot develop an adequate privacy policy until it finishes developing Book Search, though few would argue Book Search is currently so undeveloped that it does not require any consideration of privacy.

While privacy issues may not be the deciding factor in the Google Book Search settlement, and Google has certainly sought to downplay them, they will undoubtedly become an important issue once the legal issues are resolved and the practical problems with the project must be dealt with.

1 See http://thepublicindex.org/docs/amended_settlement/opinion.pdf.
2 See http://www.aclunc.org/issues/technology/google_don’t_close_the_book_on_reader_privacy.shtml

The Chinese Government has announced plans to track 1.7 million cellphone users in Beijing through location technology, in order to help city authorities better manage traffic (see http://www.bjjtgl.gov.cn/publish/portal1/tab165/info23222.htm). However, this raises concerns that the government may abuse this technology for surveillance purposes, infringing a variety of human rights.

China maintains a tight grip on the flow of information within and out of the country. It has already blocked sites like Youtube and Twitter, driven Google China out of the mainland and into Hong Kong, and even required telecommunications operators and internet service providers to cooperate with the State in locating leaks of state secrets:

http://www.nytimes.com/2009/07/07/world/asia/07beijing.html

http://au.ibtimes.com/articles/21189/20100428/china-telco-isps-communication-information-control-censorship-google-yahoo-facebook-twitter-internet.htm

With the Chinese government now engaging in such highly comprehensive cellphone tracking, a number of human rights concerns arises, including the possibility of political dissenters being monitored and tracked as the government clamps down on its critics. Apart from its judicial branches of government, Chinese citizens can also make claims, “petitions”, to the highest level of government seated in Beijing. Through its many tactics of getting rid of petitioners, the most heinous is tracking down these individuals, arresting them for social disturbance or throwing them in mental institutions (see http://www.unhcr.org/refworld/docid/4c05091b19.html). Cellphone tracking, although politically neutral on its face, can at best chill free speech and peaceful protests (i.e. Jasmine Rallies), at worst, allow government officials and police to have easier access to dissidents.

Of course, it could be argued that, on a daily basis, individual privacy is hardly interfered with if cellphone tracking is used for its asserted purpose – after all, each person would merely be one of 1.7 million other “trackees” in one of the most densely populated cities in the world. Furthermore, it has been well documented that Beijing has one of the world’s biggest problems with traffic (http://www.bbc.co.uk/news/world-asia-pacific-11062708). Last August, there was a nine-day traffic jam that stretched 100km just outside of Beijing. However, it is questionable what tracking cellphones can really do to aid traffic flow. The main problem is the amount of cars on the road — better solutions should target a reduction of cars, rather than simply band-aid solutions to track individuals.

Further, if tracking were really implemented concerns do arise where “targeted” rather than simply “general” cellphone tracking takes place — a capacity that both the Chinese and all other governments possess, and is highly susceptible to abuse.

For more information:

http://voices.washingtonpost.com/posttech/2011/03/china_said_it_may_begin.html

In FCC v. AT&T, AT&T argued it was a “corporate citizen” entitled to “personal privacy” and thus, entitled to the FOIA exemption that protects an individual’s private data.  AT&T was trying to block disclosure of documents pertaining to its participation in the government’s E-Rate program.  The Supreme Court  ruled corporations don’t have personal privacy rights.

Read more about this here.

Google’s Street View is a functionality that U.S. Internet users take for granted.  When we’re looking up a new restaurant to try or checking out a potential apartment, Street View allows us to get real pictures of any street or building in public view from the ground level up. Included in Street view are the people walking on the street as well as cars parked on the street.

Now entering the international market, Google is facing obstacles from the Swiss and Israeli governments, each with diverging rationales for their resistance.

Concerned from a personal privacy point of view, Switzerland contends that Street View is a breach of personal privacy because Google can’t ensure that 100% of all faces of individuals and license plates of cars are blurred. Meanwhile, Google is continuing to take “street view” pictures in Switzerland and petitioning Swiss courts to allow it to load the new images.

Also adopting a hesitant attitude towards Street View is the Israeli government, but for a different reason–national security. The Israeli government is balancing the benefits of Street View (in particular, the promotion of tourism) and the risk of exposure of information to potential terrorism. Israel argues that Street View would facilitate terrorists attack. Palestinian militants had used Google Earth previously to identify targets. Nevertheless, the government intends to work with Google to slowly introduce Street View to its citizens.

Some argue that the decision regarding Google Street View should not be made wholesale by the Israeli government and suggest the default for each community should be no Street View with the ability to opt-in if the community decided to grant permission.

http://blogs.discovermagazine.com/80beats/2011/02/24/google-street-view-runs-into-controversies-in-switzerland-and-israel/

Kathryn Stockett, author of the bestselling book The Help, is being sued by a former babysitter for her family for invasion of privacy and intentional infliction of emotional distress.  Ablene Cooper, the former babysitter, claims she was the basis of the character “Aibileen” since they have similar names, both worked for a white family in Jackson, Mississippi and are both middle-aged black women with a gold tooth and a deceased son.  Cooper claims she asked Stockett not to portray her in the book prior to publication, but Stockett refused.  As such, she is suing for “appropriation of another’s identity for an unpermitted use.”

Cooper also claims to be highly embarrassed by the portrayal of the character Aibileen in The Help, which is a novel about Southern domestic workers and their white employers.  She claims to be offended by the ethnic vernacular the character uses and that the character’s skin color is compared to a cockroach.  She claims this “portrayal of Ablene in such a false light is highly offense to a reasonable person” and “has caused Ablene to experience severe emotional distress.”  Cooper has filed suit in Hinds County Circuit Court in Mississippi and is seeking damages of $75,000.  Although Stockett has yet to respond to the suit, her publisher contends that The Help is purely a work of fiction.  Therefore, it seems likely that Stockett will argue that the suit should be dismissed on First Amendment grounds.

Full Complaint: http://kingfish1935.blogspot.com/2011/02/maid-sues-author-of-help.html

WSJ article: http://online.wsj.com/article_email/SB10001424052748703561604576150731091505132-lMyQjAxMTAxMDEwODExNDgyWj.html

A bill has been introduced to Congress that would give consumers a right to block certain companies from tracking consumer Internet activities, and the Federal Trade Commission (FTC) Chairman is predicting congressional action on Internet privacy if industry doesn’t make progress on self-regulation.  The bill, titled the “Do Not Track Me Online Act,” was introduced to the House on February 11 by Rep. Jackie Speier (D-CA).  It directs the FTC to establish regulations that would prohibit the collection or use of information relating to online activities if a consumer “opts out” of such tracking.  Industry observers believe the opt out mechanism would most likely take the form of signal, or “flag,” from customers’ Internet browsers to commercial entities.

FTC enforcement is the heart of privacy regulation in online commercial dealings in the United States, but the agency’s activity has been confined primarily to action against companies for breach of their own privacy promises.  Regulations under “Do Not Track” would expand the FTC’s reach and effectively give consumers—backed by FTC enforcement—the ability to control companies’ privacy practices via an opt out.

The control offered under the proposed bill would be subject to several limitations however.  The prohibition on tracking would not apply to federal and state governments or to certain smaller-scale commercial entities.  Due to the FTC’s limited statutory jurisdiction, the regulations would also not apply to many financial institutions, to telecommunications carriers, and to airlines.  In addition, the bill gives the FTC authority to exempt certain “commonly accepted commercial practices” from the regulations.  As such, the opt-out requirement may not apply to tracking that takes place on “primary” websites, such as Facebook, visited by a customer (“first-party” tracking), as opposed to tracking by third-party advertisers or data collectors.

Also notable is the bill’s choice of an opt-out model, rather than a default rule that would bar consumer data retention unless a consumer opts in.  When put to the choice, industry generally favors an opt-out, instead of opt-in, rule.  Opt-out rates are historically very low, despite an apparently overwhelming consumer preference for greater online privacy.

Recently, the U.S. Court of Appeals for the Eleventh Circuit has ruled that plaintiffs suing the producers of the “Girls Gone Wild” videos for filming them engaging in sexually explicit acts while minors may proceed anonymously in court (Plaintiff B v. Francis, 11th Cir., No. 10-10664, 2/1/11).  The District Court for the Northern District of Florida had previously held that the plaintiffs would not be able to proceed anonymously because their conduct was “casual and voluntary.”  The Court of Appeals held that the district court abused its discretion in determining that the sexual acts depicted in the videos were “casual and voluntary” and in failing to properly consider the potential harms to the plaintiffs if they were not allowed to proceed anonymously.

The decision shows a willingness to deem most sexual conduct as not “casual” and thus a matter of “utmost intimacy” which can defeat a presumption of openness in the courts.  The Court also recognized that modern technology could very well lead to a life-long branding of the plaintiffs as “sluts” and “stars” of the videos, given the ease of information flow over the internet.  That ease of information flow seems to have pushed the Court to protect the alleged victims of reputational damage from the release of depictions of sexual conduct, even as slight as one minute of “flashing.”

The case is currently on remand to the district court to determine if allowing the plaintiffs to proceed anonymously comprises an unconstitutional prior restraint on speech.

79 U.S.L.W. 2012

Full Court text at http://pub.bna.com/lw/10664.pdf

Additional links:

http://news.bna.com/lwln/LWLNWB/split_display.adp?fedfid=19598219&vname=lw1notallissues&fn=19598219&jd=19598219

http://www.firstamendmentcoalition.org/2011/02/girls-gone-wild-suit-allowed-to-proceed-anonymously/

http://www.waltonsun.com/news/girls-90554-newsherald-gone-panel.html

Professor Ira Rubinstein’s comments to the FTC:

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Professor Helen Nissenbaum’s comments:

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