Archive for the ‘Privacy (Consumer Privacy)’ Category

Stanford Law Review Online: The Privacy Paradox 2012 Symposium Issue

posted by Stanford Law Review

Our 2012 Symposium Issue, The Privacy Paradox: Privacy and Its Conflicting Values, is now available online:

Essays

• A Reasonableness Approach to Searches After the Jones GPS Tracking Case by Peter Swire (64 Stan. L. Rev. Online 57);
• Privacy in the Age of Big Data by Omer Tene & Jules Polonetsky (64 Stan. L. Rev. Online 63);
• Yes We Can (Profile You): A Brief Primer on Campaigns and Political Data by Daniel Kreiss (64 Stan. L. Rev. Online 70);
• Paving the Regulatory Road to the “Learning Health Care System” by Deven McGraw (64 Stan. L. Rev. Online 75);
• Famous for Fifteen People: Celebrity, Newsworthiness, and Fraley v. Facebook by Simon J. Frankel, Laura Brookover & Stephen Satterfield (64 Stan. L. Rev. Online 82); and
• The Right to Be Forgotten by Jeffrey Rosen (64 Stan. L. Rev. Online 88).

The text of Chief Judge Alex Kozinski’s keynote is forthcoming.

  February 13, 2012 at 1:04 pm   Posted in: Law Rev (Stanford), Law Rev Contents, Law School, Law School (Scholarship), Media Law, Military Law, Politics, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (Medical), Privacy (National Security), Social Network Websites, Supreme Court, Technology, Tort Law   Print This Post   No Comments

Updated Privacy Intrusions

posted by Danielle Citron

A classic intrusion on seclusion case, Hamberger v. Eastman, 206 A.2d 239 (N.H. 1964), involved a couple whose landlord placed a recording device in their bedroom to listen to their conversations and sounds.  The couple’s privacy tort claim sought recovery for their mental distress and humiliation after discovering the device.  The husband explained that he could not perform his normal duties as husband and father.  According to the wife, the experience curtailed the couple’s sex life.

A more recent case reminded me of just these sorts of psychic wounds — embarrassment and shame accompanying feelings of exposure and intrusion on sacred activities — and the ways that networked technologies can exacerbate them.  A Louisiana city planner hid a camera inside his workplace’s urinal to photograph and film coworkers (over 50 men worked at the city planning office).  In July 2011, his co-worker discovered the tiny camera, which had been duct taped to the urinal.  The camera’s memory device contained images of several men with their private parts exposed.  (Check out this video reenactment of what happened). The city turned over the employee to the local police who charged him with video voyeurism.  It’s unclear how long the camera recorded the goings on in the urinal or what the city planner did with the photos and videos captured on the device.

Although the camera-in-the-urinal case involved criminal charges and no tort claims have been filed, it involves just the sort of intrusions and harms in classic intrusion case.  One imagines that some of the city planner’s co-workers felt embarrassed that a co-worker might have recorded their bathroom activities.  More to the point, they no doubt worried about what the city planner did and could do with those videos.  Now, there’s no evidence that the city planner posted the pictures and videos online or in other ways distributed them.  But networked technologies change the stakes of recorded intrusions.  With today’s technologies, memory decay has all but disappeared, at least in the United States.  (See Jane Yakowitz’s Forbes commentary on the proposed European Commissions’s right to delete proposals; I will have more to say on those proposals too, and Viktor Mayer-Schonberger’s Delete is an excellent read).  If the city planner posted the videos on a site like Private Voyeur (or anywhere), then the material could remain indexed and searchable far into the future, an “eternal return” of private embarrassing information.  Of course, posting the information online would implicate another privacy tort — the public disclosure of private fact — whose reach, though narrow, would likely include what happened here (pictures of bathroom activity hardly seems newsworthy).  But it’s important to recognize the changing stakes of privacy intrusions and disclosures in our networked environment and perhaps put into context proposals like that of the European Commission.

 

  January 28, 2012 at 9:45 am   Posted in: Privacy, Privacy (Consumer Privacy)   Print This Post   No Comments

The E.U. Data Protection Directive and Robot Chicken

posted by Derek Bambauer

The European Commission released a draft of its revised Data Protection Directive this morning, and Jane Yakowitz has a trenchant critique up at Forbes.com. In addition to the sharp legal analysis, her article has both a Star Wars and Robot Chicken reference, which makes it basically the perfect information law piece…

  January 25, 2012 at 4:32 pm   Posted in: Advertising, Architecture, Civil Rights, Consumer Protection Law, Current Events, Cyber Civil Rights, Cyberlaw, Google and Search Engines, Innovation, Politics, Privacy, Privacy (Consumer Privacy), Social Network Websites, Technology, Web 2.0   Print This Post   No Comments

BRIGHT IDEAS: Anita Allen’s Unpopular Privacy

posted by Danielle Citron

Lucky for CoOp readers, I had a chance to talk to Professor Anita Allen about her new book Unpopular Privacy, which Oxford University Press recently published.  My co-blogger Dan Solove included Professor Allen’s new book on his must-read privacy books for the year.  And rightly so: the book is insightful, important, and engrossing.  Before I reproduce below my interview with Professor Allen, let me introduce her to you.  She is a true renaissance person, just see her Wikipedia page.  Professor Allen is the Henry R. Silverman Professor of Law and professor of philosophy at the University of Pennsylvania Law School.  She is also a senior fellow in the bioethics department of the University of Pennsylvania School of Medicine, a collaborating faculty member in African studies, and an affiliated faculty member in the women’s studies program.  In 2010, President Barack Obama named Professor Allen to the Presidential Commission for the Study of Bioethical Issues. She is a Hastings CenterFellow.  Her publications are too numerous to list here: suffice it to say that she’s written several books, a casebook, and countless articles in law reviews and philosophy journals.  She also writes for the Daily Beast and other popular media.

Question: You began writing about privacy in the 1980s, long before the Internet and long before many of the federal privacy statutes we take for granted. What has changed? 

 I started writing about privacy when I was a law student at Harvard in the early 1980s and have never stopped. Unpopular Privacy, What Must We Hide (Oxford University Press 2011) is my third book about privacy in addition to a privacy law casebook Privacy Law and Society (West Publishing 2011).  My original impetus was to understand and explore the relationships of power and control among governments, individuals, groups, and families.  In the 1970s and 1980s, the big privacy issues in the newspapers and the courts related to abortion, gay sex, and the right to die.  Surveillance, search and seizure, and database issues were on the table, as they had been since the early 1960s, but they often seemed the special province of criminal lawyers and technocrats.

To use a cliché, it’s a brave new world.   Since my early interest in privacy, times have indeed changed, the role of electronic communications and the pervasiveness of networked technologies in daily life has transformed how personal data flows and how we think about and prioritize our privacy.  Terms like webcam, “text messaging,” “social networking,” and “cloud computing” have entered the lexicon, along with devices like mobile, personal digital assistants, and iPads.

The public is just beginning to grasp ways in which genetics and neuroscience will impact privacy in daily life—I have begun to reflect, write, and speak more about these matters recently, including in connection with my work as a member of President Obama’s Presidential Commission for the Study of Bioethical Issues.

Question: Your book coins the phrase “unpopular privacy.”  In what way is privacy unpopular?  

First let me say that I think of “popular privacy” as the privacy that people in the United States and similar developed nations tend to want, believe they have a right to, and expect government to secure.  For example, typical adults very much want privacy protection for the content of their telephone calls, e-mail, tax filings, health records, academic transcripts, and bank transactions.

I wrote this book because I think we need to think more about “unpopular” privacy. “Unpopular” privacy is the kind that people reject, despise, or are indifferent to.  My book focuses on the moral and political underpinnings of laws that promote, require, and enforce physical and informational privacy that is unpopular with the very people that those laws are supposed to help or control.  (I call such people the beneficiaries and targets of privacy laws.)  “Don’t Ask, Don’t Tell,” for instance, was an unpopular government mandated privacy for military service members.  My book suggests that some types of privacy that should be popular aren’t and asks what, if anything, we should do about it.

Question: If people don’t want privacy or don’t care about it, why should we care?

We should care because privacy is important.  I urge that we think of it as a “foundational” good like freedom and equality.  Privacy is not a purely optional good like cookies and sports cars.  Since the 1960s, when scholars first began to analyze privacy in earnest, philosophers and other theorists have rightly linked the experience of privacy with dignity, autonomy, civility, and intimacy. They have linked it to repose, self-expression, creativity, and reflection. They have tied it to the preservation of unique preferences and distinct traditions.  I agree with moral, legal and political theorists who have argued that privacy is a right.

I go further to join a small group of theorists that includes Jean L. Cohen who have argued that privacy is also potentially a duty; and not only a duty to others, but a duty to one’s self.  I believe we each have a duty to take into account the way in which one’s own personality and life enterprises could be affected by decisions to dispense with foundational goods that are lost when one decides to flaunt, expose, and share rather than to reserve, conceal, and keep.

If people are completely morally and legally free to pick and choose the degrees of privacy they will enter, they are potentially deprived of highly valued states that promote their vital interests, and those of their fellow human beings. For me, this suggests that we need to restrain choice—if not by law, then by ethics and other social norms.  Respect for privacy rights and the ascription of privacy duties must comprise a part of a society’s formative project for shaping citizens. Read the rest of this post »

  January 13, 2012 at 9:24 am   Posted in: Bright Ideas, Feminism and Gender, Privacy, Privacy (Consumer Privacy), Race, Technology, Web 2.0   Print This Post   No Comments

Neil Richards on Why Video Privacy Matters

posted by Danielle Citron

Our guest blogger Neil Richards, a Professor of Law at Washington University School of Law, turns his sights on video privacy in this guest blog post.  It whets our appetite for his forthcoming book on Intellectual Privacy.  So here is Professor Richards’s post:

The House of Representatives recently passed an amendment to a fairly obscure a law known as the Video Privacy Protection Act.  This law protects the privacy of our video rental records.  It ensures that companies who have information about what videos we watch keep them confidential, and it requires them to get meaningful consent from us before they publish them.  The House, at the urging of Netflix and Facebook, has passed an amendment that would allow these companies to share our movie watching habits much more easily.  The Video Privacy Act was passed after the Washington City Paper obtained the video rental records of Supreme Court nominee Robert Bork and published them in order to politically discredit him.  It worked.  The Video Privacy Act rests on the enduring wisdom that what we watch is our own business, regardless of our politics.  It allows us to share films we’ve watched on our own terms and not those of video stores or online video providers.

What’s at stake is something privacy scholars call “intellectual privacy” – the idea that records of our reading habits, movie watching habits, and private conversations deserve special protection from other kinds of personal information.  The films we watch, the books we read, and the web sites we visit are essential to the ways we make sense of the world and make up our minds about political and non-political issues.  Intellectual privacy protects our ability to think for ourselves, without worrying that other people might judge us based on what we read.  It allows us to explore ideas that other people might not approve of, and to figure out our politics, sexuality, and personal values, among other things.  It lets us watch or read whatever we want without fear of embarrassment or being outed.  This is the case whether we’re reading communist or anti-globalization books; or visiting web sites about abortion, gun control, cancer, or coming out as gay; or watching videos of pornography, or documentaries by Michael Moore, or even “The Hangover 2.”

For generations, librarians have understood this.  Libraries were the Internet before computers – they presented the world of reading to us, and let us as patrons read (and watch) freely for ourselves. But librarians understood that intellectual privacy matters.  A good library lets us read freely, but keeps our records confidential in order to safeguard our intellectual privacy.   But we are told by Netflix, Facebook, and other companies that the world has changed.  “Sharing” as they call it is the way of the future.  I disagree.  Sharing can be good, and sharing of what we watch and read is very important.  But the way we share is essential.  Telling our friends “hey – read this – it’s important” or “watch this movie – it’s really moving” is one of the great things that the Internet has made easier.  But sharing has to be done on our terms, not on those that are most profitable for business.  Sharing doesn’t mean a norm of publishing everything we read on the Internet.  It means giving us a conscious choice about when we are sharing our intellectual habits, and when we are not.

Industry groups are fond of saying that good privacy practices require consumer notice and consumer choice.  The current Video Privacy Act is one of the few laws that does give consumers meaningful choice about protecting their sensitive personal information.  Now is not the time to cut back on the VPPA’s protections.  Now is the time to extend its protections to the whole range of intellectual records – the books we buy, our internet search histories, and ISP logs of what we read on the Internet.  As a first step, we should reject this attempt to eviscerate our intellectual privacy.

  January 4, 2012 at 11:42 am   Posted in: Legal Theory, Privacy, Privacy (Consumer Privacy), Web 2.0   Print This Post   No Comments

The Year in Privacy Books 2011

posted by Daniel Solove

Here’s a list of notable privacy books published in 2011.

Previous lists:

Privacy Books 2010

Privacy Books 2009

Privacy Books 2008

 

Saul Levmore & Martha Nussbaum, eds., The Offensive Internet (Harvard 2011)   This is a great collection of essays about the clash of free speech and privacy online.  I have a book chapter in this volume along with Martha Nussbaum, Cass Sunstein, Brian Leiter, Danielle Citron, Frank Pasquale, Geoffrey Stone, and many others.
Daniel J. Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security (Yale 2011)   Nothing to Hide “succinctly and persuasively debunks the arguments that have contributed to privacy’s demise, including the canard that if you have nothing to hide, you have nothing to fear from surveillance. Privacy, he reminds us, is an essential aspect of human existence, and of a healthy liberal democracy—a right that protects the innocent, not just the guilty.” — David Cole, New York Review of Books
Jeff Jarvis, Public Parts: How Sharing in the Digital Age Improves the Way We Work and Live (Simon & Schuster 2011)   I strongly disagree with a lot of what Jarvis says, but the book is certainly provocative and engaging.
Daniel J. Solove & Paul M. Schwartz, Privacy Law Fundamentals (IAPP 2011)   “A key resource for busy professional practitioners. Solove and Schwartz have succeeded in distilling the fundamentals of privacy law in a manner accessible to a broad audience.” – Jules Polonetsky, Future of Privacy Forum
Eli Pariser, The Filter Bubble (Penguin 2011)   An interesting critique of the personalization of the Internet.  We often don’t see the Internet directly, but through tinted goggles designed by others who determine what we want to see.
Siva Vaidhyanathan, The Googlization of Everything (U. California 2011)   A vigorous critique of Google and other companies that shape the Internet.  With regard to privacy, Vaidhyanathan explains how social media and other companies encourage people’s sharing of information through their architecture — and often confound people in their ability to control their reputation.
Susan Landau, Surveillance or Security? The Risk Posed by New Wiretapping Technologies (MIT 2011)   A compelling argument for how designing technologies around surveillance capabilities will undermine rather than promote security.
Kevin Mitnick, Ghost in the Wires (Little Brown 2011)   A fascinating account of the exploits of Kevin Mitnick, the famous ex-hacker who inspired War Games.  His tales are quite engaging, and he demonstrates that hacking is often not just about technical wizardry but old-fashioned con-artistry.
Matt Ivester, lol . . . OMG! (CreateSpace 2011)   Ivester created Juicy Campus, the notorious college gossip website.  After the site’s demise, Ivester changed his views about online gossip, recognizing the problems with Juicy Campus and the harms it caused.  In this book, he offers thoughtful advice for students about what they post online.