Author: Daniel Solove

5

A Victory for Anonymous Blogging

anonymity2.jpgAnonymous bloggers received a great victory this week in a case decided by the Delaware Supreme Court — Doe v. Cahill (Oct. 5, 2005). The case involved John Doe, who anonymously posted on a blog statements about Patrick Cahill, a City Councilman of Smyrna, Delaware. Doe, in criticizing Cahill’s job performance, noted that Cahill had “obvious mental deterioration” and was “paranoid.” Cahill sued Doe for defamation.

Doe was anonymous, but his IP address could be linked to his postings, and Cahill sought to obtain Doe’s identity from Comcast, Doe’s ISP. Comcast notified Doe that Cahill was seeking his identity, and Doe immediately went to court to prevent the disclosure of his identity. The case reached the Delaware Supreme Court, which concluded that Cahill should not be permitted to obtain Doe’s identity.

The issues in this case are very important. Many of you comment here anonymously; and many comment anonymously on other blogs. Some have anonymous blogs, such as the person pretending to be Supreme Court nominee Harriet Miers on a blog or the pseudonymous “Article III groupie,” who maintains the famous blog, Underneath Their Robes. EFF has produced a manual about how to blog anonymously.

What if your identity – and those of the Miers impersonator and Article III groupie — could readily be unmasked?

The First Amendment provides for a right to speak anonymously. It does so because without anonymity, people might be chilled in saying certain things. But what happens when anonymous speakers defame people or invade their privacy? Those injured people should be able to sue. This issue has been a difficult one for courts, which have tried to balance a person’s free speech rights to speak anonymously with the injured plaintiff’s rights to proceed with a lawsuit.

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0

Now Auditioning for the Next Star Wars Kid

starwars3.jpgHave you been craving your 15 minutes of infamy? Are you not even qualified enough to make it onto reality TV? Well, you’re in luck. There’s a way for you to become a star after all. As this article explains:

Internet media outlets are striving to discover the next quirky or gripping low-budget online video so they can drive consumer demand for multimedia, bring in advertising or licensing dollars, and put their own video search engines and archives on the map.

But talent–like the 15-year-old “Star Wars” fan who inadvertently became an Internet star when a video of him staging a mock light saber battle found its way online–can be hard to find. And studios and broadcasters have yet to make much content available online due to piracy fears.

That’s why portals like Yahoo and Google, as well as start-ups such as Grouper and Veoh Networks, are attempting to create a new kind of social network. They want everyone–from upcoming filmmakers to artistic nobodies–to film videos, upload them to the Web, and let the masses decide what’s worth watching and what’s not.

The Star Wars Kid video became an Internet sensation. People from around the world downloaded it millions of times. The video was remixed with sound effects and music; and countless versions of it were created.

So pick up that video camera and channel your favorite Star Wars character. Your star on the Internet Walk of Fame awaits.

As the article notes, Internet media executives are feverishly discussing how to create compelling content that will draw large audiences like the Star Wars Kid video. That is the big question — not just for video. We here at Concurring Opinions are trying to create good content and develop an enormous audience so we can sell ads and get filthy rich. We need you to visit often and spread the word about Concurring Opinions to your friends. If you don’t, we might have to release the videos of Kaimi’s training to be a Jedi Knight.

Hat tip: Bruce Boyden

0

Snooping Landlords and the War on Terrorism

home-snoop2.jpgIn this interesting AP article, a man won an invasion of privacy lawsuit when his property manager searched his home and reported to the FBI that there were terrorist materials in the apartment. FBI officials detained, fingerprinted, and handcuffed the man, but eventually determined that the man wasn’t a terrorist:

A federal jury awarded an Egyptian-born radiologist nearly $2.5 million for invasion of privacy after a property manager searched his apartment and called police on Sept. 11, 2001.

After four days of deliberations, the jury issued the award Thursday to Basem M.F. Hussein, saying the invasion of his privacy was made with “malice of reckless indifference” to his rights.

Sherri Lynn Wilson had entered Hussein’s apartment in Coraopolis the day of the attacks to replace furnace filters, according to testimony. She told the FBI she saw Arabic literature, an airplane flight manual, a compact disc jacket that showed an exploding airplane, and chemical residue she believed to be from bomb-making activities.

What she actually saw was a popular flight simulator computer game and its CD jacket, which did not depict an exploding airplane, Hussein’s attorney said. The purported Arabic literature was an English version of the Koran; the chemical residue was household dust.

Hussein was awarded $850,000 in compensatory damages and $1.6 million in punitive damages.

3

Why Volokh Is Wrong on Public Records and the First Amendment

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In an interesting and thoughtful post, Eugene Volokh (law, UCLA) takes issue with California’s Megan’s Law, Cal. Penal Code § 290.46(j), which places personal data about sex offenders on the Internet yet restricts the uses of this data. The law allows people to use the information “only to protect a person at risk.” It prohibits the use of the information for, among other things, purposes related to insurance, loans, credit, employment, benefits, and housing.

Volokh writes:

So California law suppresses presumptively true statements of fact about criminals based on a public record, unless one’s purpose is “only to protect a person at risk.” If one learns that a neighbor or a coworker has committed a heinous crime, and wants to tell people — not specifically to protect a person at risk, but (for instance) to urge people not to give a fellowship to someone with such bad morals, or to urge businesses not to associate with such an evil person — one risks damages liability or an injunction.

Seems like a pretty clear First Amendment violation, especially given Florida Star v. B.J.F. If it’s unconstitutional to bar speakers from revealing the names of rape victims when those names were accidentally released by government officials into the public record, I’d think that it would be unconstitutional to bar speakers from revealing the names of rapists when those names were deliberately placed by government officials into the public record. But it seems that California weighs the privacy of public-record information about sex criminals more heavily than its law-abiding citizens’ constitutionally protected free speech.

I disagree with Volokh on both legal and policy grounds. Regarding the law, Florida Star restricts liability for disclosing information after the government has made it public. However, in Los Angeles Police Department v. United Reporting Publishing Co., 528 U.S. 32 (1999), the Supreme Court concluded that the government may selectively grant access to public record information. A California law required those seeking access to records of arrestee information to promise that the data should not be used for commercial solicitation purposes. The Supreme Court concluded that the law was not “prohibiting a speaker from conveying information that the speaker already possesses” but was merely “a governmental denial of access to information in its possession” under which it had no duty to disclose.

The Court has thus created a distinction between pre-access conditions on obtaining information and post-access restrictions on the use or disclosure of the information. A law cannot establish a post-access restriction on the use of information that is publicly available. Once the information is made available to the public, Florida Star prohibits a state from restricting use.

But pre-access, the government can establish conditions upon which access is granted. In a way, this sets up a contract-like situation. The government supplies people with information if they agree to use it only in certain ways. This is similar to when the government offers other benefits and specifies how they should be used. There are some limits — the unconstitutional conditions doctrine — but these limits have generally not been very restrictive.

Regarding policy, I believe that information use restrictions are a terrific way to balance the government’s making information publicly available and protecting privacy. Otherwise, the government is caught in a difficult zero-sum trade-off between public access to information and privacy. To protect privacy, governments would have to restrict the disclosure of the information entirely, but this would make less data available to the public. With use restrictions, such as those in the California Megan’s Law, the government can make the information available to protect people but can limit uses that do not further this purpose. This can prevent undue discrimination against those sex offenders who have been released from prison and who are trying to rehabilitate themselves.

I could go on for much longer, but I’ve sketched out the basic point. If you want to read a more detailed argument, check out this article, this article, and my book, The Digital Person.

5

Miers: Is Karl Rove Chuckling?

rove.jpgFor all the talk about Harriet Miers, very little has yet been unearthed about her. Everybody seems unhappy. Many conservatives are extremely upset about the nomination. Liberals are underwhelmed but many seem to hold out hope for a Souter. There may be a lot of uncertainty about Miers, but there is some degree of certainty about how this White House operates.

The reactions about Miers certainly couldn’t have come as a surprise to the White House. I’m trying to imagine Karl Rove’s strategy. There must be, after all, some kind of strategy, unless Rove was taking a lunch break when Bush made the nomination. Could it just be cronyism? Or perhaps there’s something more. Here’s a nominee who has about as short a paper trail as a nominee can have, yet who is very well known to President Bush and others in the Administration.

After spending years cultivating the far Right, would the Administration suddenly abandon them? Or just make a really big blunder? I don’t see it. In the last presidential election, it became clear that Rove was not to be underestimated. I don’t totally understand what the Administration is doing here, but there must be a strategy to it. It’s hard for me to believe that this appointment was just a thoughtless bout of cronyism.

And regarding Supreme Court justices, David Bernstein of the VC has dubbed his new baby girl “a future Supreme Court Justice.” If the Harriet Miers nomination doesn’t work out, I think that Bernstein’s daughter would definitely be on the short list. After all, she has no paper trail and would serve on the Supreme Court for a very long time, which seem to be the leading qualifications to be on the Court these days.

6

Do Traffic Cameras Work?

trafficcam.jpgThe answer appears to be no – at least according to one study in DC. According to a Washington Post article:

The District’s red-light cameras have generated more than 500,000 violations and $32 million in fines over the past six years. City officials credit them with making busy roads safer.

But a Washington Post analysis of crash statistics shows that the number of accidents has gone up at intersections with the cameras. The increase is the same or worse than at traffic signals without the devices.

Three outside traffic specialists independently reviewed the data and said they were surprised by the results. Their conclusion: The cameras do not appear to be making any difference in preventing injuries or collisions.

“The data are very clear,” said Dick Raub, a traffic consultant and a former senior researcher at Northwestern University’s Center for Public Safety. “They are not performing any better than intersections without cameras.” . . . .

The Post obtained a D.C. database generated from accident reports filed by police. The data covered the entire city, including the 37 intersections where cameras were installed in 1999 and 2000.

The analysis shows that the number of crashes at locations with cameras more than doubled, from 365 collisions in 1998 to 755 last year. Injury and fatal crashes climbed 81 percent, from 144 such wrecks to 262. Broadside crashes, also known as right-angle or T-bone collisions, rose 30 percent, from 81 to 106 during that time frame. Traffic specialists say broadside collisions are especially dangerous because the sides are the most vulnerable areas of cars. . . .

The results were similar or worse than figures at intersections that have traffic signals but no cameras. The number of overall crashes at those 1,520 locations increased 64 percent; injury and fatal crashes rose 54 percent; and broadside collisions rose 17 percent.

Hat tip: EPIC West Blog

5

Notice of Privacy Practices

privacy-policy1.jpgA friend recently asked why we don’t have a privacy policy for this blog. We have a registration statement, after all, so why not a privacy policy? So without further ado, I present to you our shiny new privacy policy:

Notice of Privacy Practices

1. Our Commitment to Your Privacy. We at Concurring Opinions respect your private information deeply, which is why we want to gather and use every last bit of it. By visiting www.concurringopinions.com, you are accepting the practices described in this Privacy Notice. Moreover, even by hearing about this site, thinking about this site, or attempting to forget about this site, you hereby fully consent to everything described hereinafter in this Privacy Notice.

2. Our Promise to You. You hereby agree to be unilaterally bound by all terms stated in this Privacy Notice. However, this Privacy Notice is not binding on us in any way. We reserve the right to change, amend, or revoke this Privacy Notice at any time, without providing notice to you beforehand or in the future. Indeed, our privacy practices may currently be entirely different from those stated herein.

3. The Data We Collect and Share. Concurring Opinions gathers the maximum possible information about you to better understand you and to provide you with the content you so enjoy. We harvest your email addresses, track your IP addresses, and we provide them to numerous commercial data brokers in exchange for further information about you. We construct extensive dossiers about all of our visitors. We use this information to better customize Concurring Opinions so that we can deliver content suited to your interests, hobbies, and needs. We also share your information with our trusted as well as our non-trusted business partners. We do, however, take steps not to sell the data to identity thieves unless they pay us a higher rate. In the event of bankruptcy, we will sell your personal data to the highest bidder.

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3

Symmetrical Privacy and Musings on Site Meter

friendster.jpg

Lior Strahilevitz (law, Chicago), has an interesting post at the Chicago Faculty Blog on what he calls “symmetrical privacy.” He begins by discussing Friendster, a social networking website where individuals post profiles and look up the profiles of others. Strahilevitz’s post was inspired by a post by Tara Wheatland at Boalt.org, who wrote:

Friendster suddenly and without notice changed a fundamental assumed feature of the community–that you could look at anybody’s profile you wanted to, while remaining anonymous yourself. Before this change, people who did not want random people to look at their profiles could change their settings accordingly. To apply this new feature retroactively and without notice really feels like a serious invasion of privacy. I don’t like it. . . .

As Strahilevitz notes: “Now Friendster users could quickly satisfy their curiosity by finding out who had viewed their profiles, but were mortified to learn that other users could do the same thing to them. Friendster was deluged with outraged user emails.”

Strahilevitz agrees that Friendster made a big gaffe by not informing people in advance, but he applauds Friendster’s “initial instincts” for devising a system of symmetrical privacy, which is a kind of privacy tit-for-tat. If you access my data, I get to access yours:

If an employer, identity thief, health insurer, or credit card company wants to access my credit report, at least let me know about it. If someone makes a FOIA request for government documents that reveal something about me, I should be notified of this request by the government. If someone goes to Fundrace.org or a similar site to see which political candidates I have donated to, I have no right to stop them from doing so, but I ought to have the right to be informed of their snooping. Symmetrical privacy might or might not be a solid foundation for a social networking site, but it seems to me that it is an excellent starting point for the law’s treatment of private information.

This is an interesting idea. We have something like that here, and so do many blogs. It’s called Site Meter. We can see how many of you are visiting and learn information about you. It’s quite interesting. Although we don’t learn your names, we can see what institutions you belong to, where you’re located, how many pages you’ve viewed, and more. Is this “symmetrical privacy” – we give you information on this blog and we get to see information about you? Actually, everybody can see this information at our Site Meter. You can too by clicking here. We’re all in a big fishbowl, and visits to this blog (and many blogs) are not totally private. Now, that’s symmetrical! I’ve always felt ambivalent about Site Meter. I am fascinated by the information about the visitors to this site, but it has always made me feel a bit like a voyeur.

I generally agree with Strahilevitz that people should be more aware of who is accessing their data. But the devil’s in the details. How far should this go? For example, I just posted about Harriet Miers’ donations to political candidates. Indeed, people can look up anybody’s contributions. Should Miers get a notice anytime somebody looks up this information?

9

Airport Screening Stories

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Once upon a time, in an airport far far away, some people had problems with passenger screening. Nice people found themselves on lists of naughty people. Some called or emailed their complaint to the TSA Contact Center, in the hopes of fixing their problems or getting off the naughty lists (the Selectee or No Fly lists). The Electronic Privacy Information Center obtained the logs of their complaints, which contain many interesting tales.

From the call logs:

Consumer called and stated that

she was on a no fly list.  She would like to know what she would have to do or

who do [sic] she have to talk to to get off the list.  She stated that she was

informed at the airport that she was on a list.  I informed Mrs.

******* that since she’s allowed on the

plane after secondary screening, she isn’t on the No Fly List.  Mrs.

******* spoke to local detectives

stationed at FLL.  They informed her that she may be on the No Fly List.  But

the case is out of their jurisdiction.  She was referred to Homeland Security. 

Info has been forwarded to the appropriate source.  No accurate timeframe for

response.

* * * * * * *

Dr. ******* complains that every time he tries to fly commercial airlines, especiall United and Continental, he is “submitted to the most embarrassing and humiliating security checks at the counter even before they take my luggage.  It takes up to 25 minutes standing up.”

From the email logs:

I would like to know why my name is on the No Fly List and how I can get it removed. When I fly Continental for business, I have to have an airline representative check my identification and a TSA representative clear the reservation so my ticket can be issued for me to fly. This seems to only happen at Continental Airlines, but frequently I have had to go through the additional search at other airlines. The Continental agent did tell me that my name was on the No-Fly List and that it would be next to impossible to get if off, but I shall try anyway. I have not had any run-ins with the law or nor the airline, so I do not understand the reason for being on this list and subject to additional security when I fly for business or personal reasons. . . .

* * * * * * *

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4

The USA-PATRIOT Act: A Fraction of the Problem

usa-patriot1.jpgOver at Legal Affairs Debate Club, Geoffrey Stone and Judge Richard Posner are debating the USA-PATRIOT Act. The focus of the debate thus far is on Section 215 of the USA PATRIOT Act, which states:

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

Further, this section requires that the person ordered to turn over the materials shall not “disclose to any other person . . . that the Federal Bureau of Investigation has sought or obtained tangible things under this section.”

Stone calls for curtailing Section 215 and Posner comes out in favor of a modified version of it.

The problem with this debate, as with many debates over the USA-PATRIOT Act, is that it is focused only on the USA-PATRIOT Act. Many of the issues that people are debating about already existed in federal electronic surveillance law before the USA-PATRIOT Act.

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