No right of privacy in IP case
11.09.11
Judge Young in Liberty Media Holdings,
LLC v. Swarm Sharing Hash File & Does 1 through 38, held "the
constitutional presumption of openness of judicial proceedings"
trumps the privacy claims of defendants, who swarmed to illegally
download and distribute gay pornography. The film (with the winsome
title “Corbin Fisher Amateur College Men Down on the
Farm”) was downloaded illegally; the IP addresses of the
downloaders was used to track and identify them. Young did leave an
opening for defendants: “Nevertheless, should individual
defendants be concerned about being publicly 'outed' as discovery
proceeds, the Court will entertain those arguments on an individual
basis.”
Yahoo joins Google: We want to stalk Americans for 18 months
04.19.11
Yahoo has announced that it will join Google in
stalking Americans electronically in some form for 18 months (Yahoo
had in 2008 reduced the amount of time it retained users’
Internet search data to a mere 90 days). Yahoo plans to extend the
retention period this summer. Retained search data will include
user’s IP addresses and cookies, which means data can be
linked to individual devices or people. After 18 months, Yahoo will
retain most of the data, but anonymize it so it cannot be linked to
individuals.
Google has a slight variation in their policy which is being misreported in wake of this story: From Google: “We believe anonymizing IP addresses after 9 months and cookies in our search engine logs after 18 months strikes the right balance.” Stalkers do have some sense of decorum after all.
Google has a slight variation in their policy which is being misreported in wake of this story: From Google: “We believe anonymizing IP addresses after 9 months and cookies in our search engine logs after 18 months strikes the right balance.” Stalkers do have some sense of decorum after all.
Case on scope of DPPA appealed to Supreme Ct.
02.21.11
A Texas case, Taylor v. Acxiom et al.
is under appeal to the Supreme Court to clarify opposing rulings in
federal courts about the scope of the Driver’s Privacy
Protection Act (18 U.S.C., Chapter 123, §§ 2721-2725. While the
DPPA has specific provisions for law enforcement and private
investigators to access the data, the state of Texas has allowed
mail order businesses to purchase driving records. The plaintiffs
in Taylor argue that neither type of defendant has access to the
records.
Lumping the two types together seems a weak position given the specific exceptions of the statute. The crux of the dispute lies in the Taylor court’s determination that an authorized recipient of DMV records is not required to show that it is also an authorized user of the data. “Instead, an authorized recipient is authorized to resell to individuals for one or more of the specific purposes under section 2721 (b),” Judge William L. Garwood wrote on behalf of the 5th Circuit. The interpretation allows for an “authorized recipient to mean something different than one who has a permissible actual use.”
A case going the other direction was in Missouri. In 2008, Judge Nanette K. Laughrey found in Roberts, et al. v. The Source for Public Data, et al., that defendants did not qualify as “authorized recipients” of DMV records under the DPPA.
Lumping the two types together seems a weak position given the specific exceptions of the statute. The crux of the dispute lies in the Taylor court’s determination that an authorized recipient of DMV records is not required to show that it is also an authorized user of the data. “Instead, an authorized recipient is authorized to resell to individuals for one or more of the specific purposes under section 2721 (b),” Judge William L. Garwood wrote on behalf of the 5th Circuit. The interpretation allows for an “authorized recipient to mean something different than one who has a permissible actual use.”
A case going the other direction was in Missouri. In 2008, Judge Nanette K. Laughrey found in Roberts, et al. v. The Source for Public Data, et al., that defendants did not qualify as “authorized recipients” of DMV records under the DPPA.
Old news becomes new again depending on who won
09.01.10
Interesting note showing the national media misreporting the
ongoing controversey in GPS privacy cases: "Media discovers August
27th that Pineda-Moreno was decided January 11th"
Supreme Ct. ready to settle GPS surveillance - privacy issue?
08.23.10
The 4th Amendment right to be free
from unreasonable searches by the government continues to clash
with technology as judges seem to be deciding cases, not on any
objective standard, but more on former Justice Potter Stewart's
hopelessly subjective "But I know it when I see it" standard.
Latest case is United States v. Maynard, where a Washington DC court struck down a man's conviction in a drug case on the grounds the police unlawfully tracked his movement with a GPS device for 24 hours per day--a device installed without a warrant. Thus the court contradicted decisions GPS-related cases by appellate panels in Chicago, St. Louis and San Francisco.
Courts have held that the Fourth Amendment does not cover surveillance of a suspect because people have no expectation of privacy for actions exposed to public view. But the DC appeals court held that people expect their overall movements to be private because most people see only isolated moments of someone's life. Contrast that to a police department’s GPS technology that inexpensively tracks someone’s comings and goings for weeks at a time: "A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individual or political groups — and not just one such fact about a person, but all such facts.”
In other privacy cases, courts have recognized that aggregating information can lead to practices that, without technological improvements, are not a burden on privacy (for example, state databases that aggregate criminal records may have limited access, even while each court docket is considered public record).
Latest case is United States v. Maynard, where a Washington DC court struck down a man's conviction in a drug case on the grounds the police unlawfully tracked his movement with a GPS device for 24 hours per day--a device installed without a warrant. Thus the court contradicted decisions GPS-related cases by appellate panels in Chicago, St. Louis and San Francisco.
Courts have held that the Fourth Amendment does not cover surveillance of a suspect because people have no expectation of privacy for actions exposed to public view. But the DC appeals court held that people expect their overall movements to be private because most people see only isolated moments of someone's life. Contrast that to a police department’s GPS technology that inexpensively tracks someone’s comings and goings for weeks at a time: "A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individual or political groups — and not just one such fact about a person, but all such facts.”
In other privacy cases, courts have recognized that aggregating information can lead to practices that, without technological improvements, are not a burden on privacy (for example, state databases that aggregate criminal records may have limited access, even while each court docket is considered public record).
Massachusetts Wiretap Act Governs Out of State Telephone Recording Massachusetts Wiretap Act Governs Out of State Telephone Recording
03.19.10
A Massachusetts Superior Court judge
ruled in In Heffernan v. Hashampour that the state Wiretap Act
applies when a party outside of Massachusetts secretly records a
telephone call to a party in this state. Thus Massachusetts
continues to provide its citizens with protection (some say
over-protection) from secretive audio recordings. The flip side of
this protection can be seen in the case of Simon Glik, who was
arrested for video recording police officers making an arrest near
Boston Common in 2007. The criminal charges were dropped and Glik
has filed a civil rights lawsuit against the City of Boston and
three Boston police officers, arguing that public space is not
covered by the wiretap law (ie. there is no expectation of privacy
in a public place).
Privacy is dead and no one cares
11.22.09
Recently, we tracked down a number of
witnesses using the usual armada of investigative databases.
However, some witnesses had moved recently and did not appear to
have current addresses in the data. No problem: many witnesses
between the ages of 21 and 30 had conveniently plastered their
entire personal life on Facebook, Twitter, Bebo, etc. making follow
up relatively easy. One witness when called on her "private" cell
phone expressed dismay at the intrusion. Later, she realized that
she had provided the cell phone to a numer of retailers who, to her
surprise, resold her "private" cell number database firms.
The modern American: willing to give private contact information to grocery clerks in exchange for "special offers" on mustard.
The modern American: willing to give private contact information to grocery clerks in exchange for "special offers" on mustard.
Surveillance and privacy - Massachusetts private investigators
07.16.09
The Massachusetts Bar Association
hosts a good summary of privacy laws and surveillance in
Massachusetts. written by lawyers Joseph M. Desmond & David
Viens. One of the leading cases in Mass. is DiGirolamo v. D.P.
Anderson & Associates, Inc., The court wrote that
investigators may generally observe, or photograph a person in
public places. A gray area arises when a person enters the privacy
of their own home. The court looked at 4 scenarios as to whether a
private investigator violates a person's statutory right to
privacy:
~ the investigator looks through a window into an apartment with the naked eye;
~ the investigator looks with the naked eye when a person walks out onto a balcony;
~ the investigator photographs, or looks at the person on a balcony with enhanced vision
~ the investigator photographs or looks at a person inside the home with enhanced vision.
The Mass. court concluded that only the fourth scenario would constitute an unreasonable and substantial interference with the plaintiff’s right to privacy. The court adopted the United States Supreme Court’s Fourth Amendment analysis from Oliver v. United States. It also quoted a Second Circuit Court of Appeals’ case United States v. Taborda: “Observation of objects and activities inside a person’s home by unenhanced vision from a location where the observer may properly be does not impair a legitimate expectation of privacy. However, any enhanced viewing of the interior of a home does impair a legitimate expectation of privacy.”
~ the investigator looks through a window into an apartment with the naked eye;
~ the investigator looks with the naked eye when a person walks out onto a balcony;
~ the investigator photographs, or looks at the person on a balcony with enhanced vision
~ the investigator photographs or looks at a person inside the home with enhanced vision.
The Mass. court concluded that only the fourth scenario would constitute an unreasonable and substantial interference with the plaintiff’s right to privacy. The court adopted the United States Supreme Court’s Fourth Amendment analysis from Oliver v. United States. It also quoted a Second Circuit Court of Appeals’ case United States v. Taborda: “Observation of objects and activities inside a person’s home by unenhanced vision from a location where the observer may properly be does not impair a legitimate expectation of privacy. However, any enhanced viewing of the interior of a home does impair a legitimate expectation of privacy.”