F. Videos Lead to Accusations of Breaking Privacy

The video led to conflicting accounts about whether it is illegal to watch or download the video. CBS News reported through its legal analyst Lisa Bloom that such activity was illegal.¹⁶⁷ Marc Randazza, a legal analyst for the blog “Photography is Not a Crime” countered that viewing and downloading the video is completely legal.¹⁶⁸ Sam Bayard, assistant director of the Citizen Media Law Project at the Berkman Center for Internet and Society at Harvard University, believes publishing the video could lead to civil liability for invasion of privacy through the publication of private facts or violate state criminal surveillance laws that prohibit publication of “video voyeurism” images.¹⁶⁹ For example, Bayard pointed to a New York statute that criminalizes the publication of images that are known to be unlawfully obtained.¹⁷⁰

Media coverage of the incident also raised ethical questions about how to report on an incident surrounding an invasion of privacy claim. ESPN decided not to cover the issue as a news story since it had no bearing on Andrews’ work as a reporter, but several newspapers and television stations published or aired images of the video, including the New York Post.¹⁷¹ In response, ESPN banned all Post staffers from appearing on the network.¹⁷²

2. Google Executives Face Trial in Italy

Four Google executives were scheduled to go on trial September 29 in Italy on accusations of defamation and violating privacy for allowing a video of an autistic boy being bullied to be posted online. The result of the case could alter the rules for how far video-sharing Web sites must go to control content.

“What is at issue is whether or not privacy laws that apply to newspapers or to the radio also apply on the Web, or whether it is a sort of free port where anything goes,” said Alfredo Robledo, one of the prosecutors in Milan who brought the charges. “We are raising the issue to show that there are holes in Italian legislation.”¹⁷³

The charges stem from an incident at a school in Turin in 2006 when four boys were filmed teasing another boy, who has Down’s syndrome. A three-minute cell phone recording of the incident was uploaded to Google Video, where it remained for nearly two months before Google removed it after the Italian government and police intervened.¹⁷⁴

Prosecutors allege the company should have prevented broadcast of the video and that it did not have enough automatic filters in place or enough workers in Italy to react to videos flagged as inappropriate by viewers. Google countered that it removed the video as soon as the company learned of it and then cooperated with authorities to help identify the boys involved.¹⁷⁵

“We feel that bringing this case to court is totally wrong,” Google said in a statement. “It’s akin to prosecuting mail service employees for hate speech letters sent in the post. Seeking to hold neutral platforms liable for content posted on them is a direct attack on a free, open Internet.”¹⁷⁶

The trial opened in February with the court addressing procedural matters. The family of the boy withdrew from the trial, leaving Vivi Down, an advocacy group, as the lead plaintiff in a corresponding civil case. The trial was scheduled to resume June 22, but was continued when an interpreter did not show up to court.¹⁷⁷

The defendants, who are being tried in absentia, are Google’s senior vice president and chief legal officer David Drummond, former chief financial officer George Reyes, senior product marketing manager Arvind Desikan, and global privacy counsel Peter Fleischer.

Microsoft and Google launched similar personal health records services in 2007 on the promise that users can more easily control and share an electronic record with multiple health care providers. The services, Google Health and Microsoft’s Health Vault, respectively, are not alone in the industry, with Web MD and Revolution Health also offering the ability to build a personal online health record. ¹⁸⁰

David Davis, a Conservative Party Member of Parliament, blasted his own party for the idea of giving Google the reins of patients’ health information because of what he described as the company’s “cavalier approach to European privacy legislation.”¹⁸¹ Davis supported transferring health records to private companies, but under the conditions that an entity cannot profit from the venture and the data must be stored on computers within the UK to assure compliance with UK privacy laws. Peter Fleischer, global privacy counsel for Google, quickly defended Google’s commitment to privacy and the value of its health-related services, including “Flu Trends,” which “offers an early warning system for flu outbreaks based on the anonymous actions of millions of people searching for symptoms.”¹⁸²


2. Los Angeles Officials Raise Concerns

About Google Apps
The city of Los Angeles proposed replacing its outdated computer records system by moving government e-mails, reports and other internal data onto Google Apps, prompting concerns about the program’s ability to handle records securely for the nation’s second-largest city. Known as “cloud computing,” the city’s records would be housed on Google servers off city property, raising fears that hackers could gain access to confidential information, particularly of ongoing police investigations.¹⁸³

“Any time you go to a Web-based system, that puts you just a little further out than you were before,” said Paul Weber, president of the Los Angeles Police Protective League. “Drug cartels would pay any sum of money to be aware of our progress on investigations.”¹⁸⁴ Google has assured users that the application is secure and that more than 1.75 million businesses use the technology. As of July 2009, Google said Washington, D.C., was the only major city using Google Apps for its e-mail and office applications, although other cities were considering also using it.¹⁸⁵ The Los Angeles Times reported that city officials wondered whether the obligation to respond to public information requests would fall to Google as host of the city’s records. Peter Scheer, director of the California First Amendment Coalition, said the switch to Google could improve access to public information because of Google’s immense search and storage capabilities. “If you’re asking for information, it’s more likely you’ll get a more complete and accurate response to your request, sooner rather than later.”¹⁸⁶

A trio of privacy watchdogs urged Google to implement strict privacy controls in Google Books, a service that would make a wide variety of books readily available online. The groups were concerned that Google can track the books people browse and read in the virtual library and that the record could be turned over to the government or another third party. To combat the concern, the group that included the American Civil Liberties Union of Northern California, urged Google to adopt several measures. These include releasing browsing information only in response to a court order, not keeping logging information for more than 30 days, and giving users the ability to delete their records.¹⁸⁷ Google assured potential users that it has a strong privacy policy in place for Google Books. The company said it could not publicize the policy until the U.S. District Court for the Southern District of New York approves a preliminary settlement with book publishers and authors that would enable Google to provide access to the books.¹⁸⁸ However, the Department of Justice informed the court on July 2, 2009, that it had opened an antitrust investigation into the proposed agreement. ¹⁸⁹

A Michigan high school student is a lead plaintiff in a proposed class action suit against Amazon.com after the company deleted George Orwell books from customers’ Kindles. The student, Justin Gawronski, purchased a Kindle copy of Orwell’s “1984” in early June 2009 and took notes in the electronic novel as part of a summer homework assignment, according to the complaint filed July 30 in federal court in Seattle where Amazon Digital Services, the distributor of the Kindle device, is headquartered.¹⁹⁰ At some point in July, Gawronski powered into his Kindle to find that his copy of “1984,” including his notes, had been deleted, according to the complaint.

Amazon has explained that it deleted copies of “1984” and “Animal Farm” after it discovered they were added to the Kindle store by a company that did not own the rights to distribute the novels. Amazon says it gave customers a refund for the price of the books.¹⁹¹

In addition to those who had digital content deleted, the suit proposes to represent all people who have owned a Kindle and seeks an injunction prohibiting Amazon from accessing customers’ Kindles. The suit alleges various contract claims, including that Amazon violated its own terms of use by revoking a promise that users can keep a permanent digital copy of their purchases. The suit also seeks damages for the loss of work product sustained by the deletion.

Prior to the federal charges, Turner had surrendered to Connecticut authorities on state charges of inciting violence against two state lawmakers – Sen. Andrew McDonald (D-Stamford and Darien) and Rep. Michael Lawlor (D-East Haven) – who introduced a controversial bill that would have given lay members of Roman Catholic churches more control over their parishes’ finances. Law enforcement officials believe Turner violated Conn. Gen. Stat. § 53a-179a(a), which criminalizes “inciting injury to persons or property.”

Michael Orozco, Turner’s defense attorney, said Turner worked for the Federal Bureau of Investigation from 2002 to 2007 during which time the FBI taught him how to purposefully make comments that would incite others to act and lead to their arrest. Prosecutors have acknowledged Turner spied on radical right-wing organizations, but that he was not working for the FBI when he made the comments that led to the criminal charges in Illinois and Connecticut.¹⁹⁵

It is unclear whether the charges against Turner will hold up in court. Gene Policinski, vice president and executive director of the First Amendment Center, mentioned in a June 14 post on the center’s Web site that the principles in Brandenburg v. Ohio, 395 U.S. 444 (1969), should prevent any criminal charges against pundits such as Turner.¹⁹⁶ In Brandenburg, the Court held that the First Amendment protected statements advocating use of force or illegal activity “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”¹⁹⁷

Too Much Media, a computer software company that provides advertising programming for the online pornography industry, sued Hale for statements she made in an Internet forum that accused the company, and two of its officers, of engaging in criminal behavior, including making physical threats, and profiting from a security breach that jeopardized the privacy of subscribers to pornography Web sites. The company planned to compel her to reveal her sources in a deposition.

Locascio wrote that Hale’s online forum statements did not display accepted practices of journalism that the law was meant to protect. “There is no fact-checking required, no editorial review and so little accountability for the statements posted that it is virtually impossible to discern the author or source of the posts,” Locascio wrote. “To extend the newspaper’s privilege to such posters would mean anyone with an email address, with no connection to any legitimate news publications, could post anything on the internet and hide behind the Shield Law’s protections.” On July 22, 2009, Hale filed a motion for reconsideration in Monmouth County Court.

Sam Bayard, Assistant Director of the Citizen Media Law Project at Harvard’s Berkman Center for Internet and Society, wrote in a July 9 blog post that it would be “a mistake … to read Judge Locascio’s opinion broadly as saying that New Jersey’s shield law categorically does not protect bloggers.”¹⁹⁸ Bayard pointed to several “peculiar facts” in Locascio’s ruling, including that the judge appeared to discount some of Hale’s testimony because she could not provide specifics about articles in newspapers and trade journals she claimed to have published, and because she apparently lied in a previous court document in the case.

The Associated Press reported that the incident occurred after Etisalat, an Abu Dhabi-based mobile service provider, sent text messages to BlackBerry customers asking them to follow a link to update their phones. Customers who installed the software complained that it quickly drained their batteries. Research in Motion, the Canadian company that makes the BlackBerry, distanced itself from the request to install the software and said the application users installed was a surveillance program that could have possibly allowed access to personal or private information.²⁰⁰

Google Voice allows users to make free or low-cost calls and provides free text messaging, call routing and a universal voice mailbox. The feature users may find the most beneficial is the ability to consolidate multiple phone numbers – home, cell phone, office – into one Google Voice number. Users can then decide which devices will ring depending on the caller. For example, calls from a boss could be set to ring only a BlackBerry while calls from a mother-in-law could be sent straight to voice mail.²⁰³ Google Voice was already on BlackBerrys prior to Apple’s decision to block the application.²⁰⁴

Technology analyst Martin Pyykkonen suggested that Apple’s move was likely a means to protect its business partner, AT&T Inc., from losing money from subscribers who would use Google Voice instead of its services.²⁰⁵ A New York Times blogger later reported that Google said it was looking to replace the Voice application with a specialized Web page that would perform the same functions.²⁰⁶
J. Redaction Methods May Not Serve Their Purpose
A thick black marker used to suffice for redacting information in legal documents. Some attorneys may still use that tool even though electronic redacting technology is available. Both methods, however, may not accomplish the goal of keeping sensitive information from view. During a 2008 sexual discrimination suit in Connecticut,²⁰⁷ it was discovered that the black bars intended to serve as a redaction tool in PACER’s federal court filing system would disappear when the bars were copied and then pasted into Microsoft Windows’ Notepad or Microsoft Word, allowing the underlying words to be read.²⁰⁸

Redaction remains an important part of many legal offices, particularly in the public sector as the Obama administration makes a push for a more transparent government. The Federal Bureau of Investigation has a redaction tool in its own document management system that allows judges to privately view redacted information. The tool reveals the initials of the person who made the redaction along with margin notes that indicate why the information was hidden.²⁰⁹ Readily-available automated redaction software can search for words that may need to be redacted and automatically obscure certain material such as Social Security numbers, but the software does have its limitations. It may miss words in a document that has been scanned and it often cannot read embedded items in a document such as tables and spreadsheets.

Those who commonly redact information say that human review should remain a part of any successful redacting process. “Tools can help, but you can never assume it’s foolproof,” said Christine Musil, vice president of communication for Informative Graphics Corp., which makes Redact-It, a redaction tool. “Using a redaction tool can help demonstrate a good-faith effort to redact information, but you still need to use it properly.”²¹⁰

IV. DATA PRIVACY IN THE WORKPLACE AND

ON CAMPUS
A. Requests for Passwords to Social Networking Sites
1. Bozeman, Mont., Stops Asking Job Applicants for Facebook Passwords
On June 22, 2009, the city of Bozeman, Mont., eliminated its policy of asking job applicants to give their passwords for all personal and business Web sites, including social networking sites such as Facebook and MySpace, during the hiring process.²¹¹ Applicants were required to sign a waiver agreeing to a criminal background and references check. The bottom of the waiver included this request: “Please list any and all, current personal or business websites, web pages or memberships on any Internet-based chat rooms, social clubs, or forums, to include, but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc.”²¹² The request for passwords to Google and Yahoo meant city officials had the ability to read applicants’ e-mails.

Bozeman had previously checked job applicants’ social networking sites for about three years. City administrators first began asking for the passwords of police and fire department applicants, but that procedure was never presented to the city commission for approval because that body does not typically set hiring policies.²¹³ Bozeman City Manager Chris Kukulski said the city viewed personal Web sites in order to make sure applicants were honest and reputable as part of its background check that includes checking credit reports, criminal history, references and past employment.²¹⁴ City officials recalled one instance in which content of an applicant’s social networking site was a factor in the person not being hired.

News of the city’s hiring practice prompted a wave of attention by media outlets and bloggers when it became widely known in June, prompting the city to revisit the practice. At the meeting to rescind the practice, city Commissioner Jeff Krauss apologized for not acting more quickly to avoid “wandering down a road that violated basic rights of our citizens.”²¹⁵ The city commission has since approved spending up to $10,000 to hire an outside investigator to examine the former hiring practice, including whether an applicants’ refusal to submit the information negatively affected their chances of being hired and how the city used its reviews of the Web sites.²¹⁶