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.
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://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:
Professor Helen Nissenbaum’s comments:
At a recent conference on information ethics, organized by the Uehiro Center at Oxford University, I met David Erdos, who presented work on challenges confronting the EU approach to data protection. Really interesting, particularly for those who believe that the EU has all the answers on privacy protection. Here is some background on the project and its institutional home:
DP@CSLS is a research strand within Oxford University’s Centre for Socio-Legal Studies which brings together scholars and practitioners interested in data protection, privacy and the regulation of information. The Centre hosts the three-year Data Protection and the Open Society (DPOS) project funded by the Leverhulme Trust. This project explores and seeks to help resolve the tension between data protection and the fundamental values of freedom of expression and information. Four overlapping sub-projects within DPOS look at data protection foundations, media and internet, research governance and transparency initiatives. Student projects on social networking sites and surveillance are also ongoing. These projects examine the relationship technology, privacy and copyright as well the interaction between data protection and general human rights law. In addition, DP@CSLS organizes seminars, study groups and other initiatives designed to promote dialogue on these emerging issues. Currently our events are focused on making a contribution to the debate surrounding the rewriting of the European Data Protection Directive. For further information please visit http://www.csls.ox.ac.uk/dataprotection and http://www.twitter.com/oxondataprotect. To get in touch with DP@CSLS please contact Dr. David Erdos at david[.]erdosATcsls[.]ox[.]ac[.]uk.
On December 16, 2010, the U.S. Commerce Department released its report, Policy Framework for Protecting Consumer Privacy Online While Supporting Innovation. It will be interesting to compare and contrast.
From the FTC: “The Federal Trade Commission, the nation’s chief privacy policy and enforcement agency for 40 years, issued a preliminary staff report today that proposes a framework to balance the privacy interests of consumers with innovation that relies on consumer information to develop beneficial new products and services. The proposed report also suggests implementation of a “Do Not Track” mechanism – likely a persistent setting on consumers’ browsers – so consumers can choose whether to allow the collection of data regarding their online searching and browsing activities.”
Find the report here.
Find the full release here.
Interesting Network World article posted in mid September: “As privacy seems harder to hold onto in this digital age, privacy expert Frank Ahearn can help you legally poof and fall off the grid….”