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Category: Privacy

16

Using Lawsuits to Unmask Anonymous Bloggers

anonymity-1a.jpgAn interesting recently-filed lawsuit raises the issue of whether a company can file a lawsuit just to find out the identity of an anonymous blogger in order to fire him.

The case involves an employee of Allegheny Energy Service who posted an anonymous comment to a Yahoo! message board devoted to his company. He made the posting from his home computer. In the post, he attacked the company’s management as well as the company’s diversity program, using a racial slur in the process.

The company filed a “John Doe” lawsuit against the anonymous blogger for a tort claim of “breach of fiduciary duty and breach of duty of loyalty.” The employee was completely unaware that a lawsuit had been filed against him.

Three months after filing the lawsuit, the company filed an emergency motion to prevent “John Doe” from posting more messages. It claimed that Doe’s posting violated the company’s anti-harassment policy. The company obtained a subpoena and served it on Yahoo. Yahoo sent an email to the employee that Yahoo would respond within 15 days unless the employee filed a motion to quash. The employee claimed he never received the email. Yahoo subsequently turned over the employee’s identity to Allegheny Energy. Afterwards, Allegheny Energy filed papers to discountinue its civil action against the employee. The employee was then fired for making the racial slur.

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1

Information Privacy Law (2nd Edition)

casebook2.jpgShameless Self-Promotion Alert: Within the next week or two, the second edition of my casebook, Information Privacy Law (with Marc Rotenberg & Paul Schwartz) will be out in print. This book is a significant revision from the first edition, and it covers most topics in greater depth. Click here for the book’s website (where updates and other information are posted) and here to peruse the table of contents.

For those professors interested in adopting the book for their spring 2006 information privacy law courses, the book’s ISBN is 0735555761. To obtain a free review copy as soon as possible, contact Daniel Eckroad at Aspen Publishers via email or by calling 617-349-2937. If you have any questions about the book or the course, I’d be delighted to answer them.

For those law professor readers who have never taught a course in information privacy law before, I’ve reposted here an earlier post at PrawfsBlawg where I explain why I believe information privacy law is a rewarding course to teach.

For those of you who are interested in the book, but are not law professors, you’ll unfortunately have to shell out a small fortune to buy the book, which you can do here.

2

Teaching Information Privacy Law

privacy1a.jpgThis post was originally posted on PrawfsBlawg on May 10, 2005. I have made a few small edits to this post.

For the law professor readers of this blog, especially newer professors (or professors-to-be) who are still figuring out the courses they want to teach, I thought I’d recommend information privacy law as a course you might consider teaching. (I have a casebook in the field, so this is really a thinly-disguised self-plug.)

Information privacy law remains a fairly young field, and it has yet to take hold as a course taught consistently in most law schools. I’m hoping to change all that. So if you’re interested in exploring issues involving information technology, criminal procedure, or free speech, here are a few reasons why you should consider adding information privacy law to your course mix:

1. It’s new and fresh. Lots of media attention on privacy law issues these days. Students are very interested in the topic.

2. Lively cases and fascinating issues abound. There’s barely a dull moment in the course. Every topic is interesting; there is no rule against perpetuities to cover!

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2

Beware of the Big Bad Bloggers

forbes.jpgIt’s Halloween, and who is the biggest scariest monster on the block? Me. That’s because I’m one of them “bloggers” according to a sensationalistic article published in Forbes Magazine.

The article, written by Daniel Lyons and entitled “Attack of the Blogs,” has been drawing the ire of the blogosphere. A stew of fear and vitriol, the article begins with the sentence:

Web logs are the prized platform of an online lynch mob spouting liberty but spewing lies, libel and invective.

He also writes:

Blogs started a few years ago as a simple way for people to keep online diaries. Suddenly they are the ultimate vehicle for brand-bashing, personal attacks, political extremism and smear campaigns. It’s not easy to fight back: Often a bashing victim can’t even figure out who his attacker is. No target is too mighty, or too obscure, for this new and virulent strain of oratory.

Bloggers should certainly be responsible and law-abiding, and bloggers shouldn’t (and don’t) have an immunity from lawsuits for defamation or invasion of privacy.

What is most ironic, however, is that after attacking bloggers for being lawless brigands, Lyons proceeds to offer some tips for “fighting back” against the bloggers that are equally as unethical and lawless as the bloggers in his caricature:

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11

Free Credit Reports: My Exciting Adventure

Under the federal Fair and Accurate Credit Transactions Act of 2003, the credit reporting agencies must provide a yearly free credit report to individuals who request it. This was one of the benefits given to consumers by the law in return for extending the federal preemption of certain state law regulations.

There are three major credit reporting agencies: Equifax, Experian, and Trans Union. You may have heard that there’s a new website where you can conveniently get your credit report from all three agencies. Since I pay attention to this field of law, I knew the name of the website, but many people I’ve spoken to don’t know what it is called.

But we live in the age of Google, so most people would just do a Google search for “free credit report.” Here’s what you pull up in your search:

annualcreditscore3a.jpg

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0

Debate on Privacy and Security Regulation

cnet1.jpgThere is an interesting set of debates going on this week over at CNET about information privacy and security regulation.

Participants include: Orson Swindle (former FTC commissioner); Jim Harper (director of information policy studies at the Cato Institute; member of the Department of Homeland Security’s Data Privacy and Integrity Advisory Committee); Chris Hoofnagle (Director, Electronic Privacy Information Center West Coast Office); James Van Dyke (Founder and Principal of Javelin Strategy & Research); and California Senator Joe Simitian.

There are new topics each day. Today’s topic is state versus federal regulation of privacy and security, and the debate has also addressed the issue of whether common law tort regulation is preferable to legislative statutory regulation.

5

Genetic Testing: Further Debate with Richard Epstein

dna7.jpgRichard Epstein has posted a reply continuing our debate over whether employers should be able to use genetic testing information to make employment decisions regarding employees. Here are the posts in our debate so far:

1. Solove, IBM vs. NBA: Using Employee Genetic Information

2. Epstein, Two Cheers for Genetic Testing

3. Solove, A Reply to Richard Epstein on Genetic Testing

4. Epstein, A Third Cheer for Genetic Testing

Epstein’s latest reply, A Third Cheer for Genetic Testing, slips in another cheer for genetic testing. He asserts that my argument that genetic information only reveals propensities, not the presence of certain conditions, actually cuts in favor of employers using genetic information:

That information should not make the employer instantly hand out a pink slip. It is one factor among many to be taken into the overall assessment. The insurance could be supplied, but in exchange for an additional premium that reflects that additional risk. Or the health insurance could be supplied subject to an exclusion for the risky condition. Judgments like that are made all the time in the insurance business, and there is no reason why they cannot be made with the processing of genetic information.

Epstein is certainly correct that genetic information is helpful in assessing risk, and he is right that employers need not just fire or refuse to hire people with genetic predispositions. But there are larger normative issue at stake: What risks ought people to bear? Who ought to bear these risks? How ought these risk to be distributed throughout society?

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2

FBI Intelligence Violations

fbi2a.jpgThe Washington Post is reporting on documents obtained by Marcia Hofmann at the Electronic Privacy Information Center that demonstrate a number of FBI intelligence surveillance violations:

The FBI has conducted clandestine surveillance on some U.S. residents for as long as 18 months at a time without proper paperwork or oversight, according to previously classified documents to be released today.

Records turned over as part of a Freedom of Information Act lawsuit also indicate that the FBI has investigated hundreds of potential violations related to its use of secret surveillance operations, which have been stepped up dramatically since the Sept. 11, 2001, attacks but are largely hidden from public view.

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2

Making Universities Pay for Government Surveillance

computer-surveillance.jpg.gifIn 1994, Congress passed a law called the Communications Assistance for Law Enforcement Act (CALEA), which requires telecommunication providers to build wiretapping and surveillance capabilities for law enforcement officials into their new technologies.

A recent rulemaking by the Federal Communications Commission (FCC) significanty expands the reach of CALEA beyond telephone companies and ISPs:

The federal government, vastly extending the reach of an 11-year-old law, is requiring hundreds of universities, online communications companies and cities to overhaul their Internet computer networks to make it easier for law enforcement authorities to monitor e-mail and other online communications.

The action, which the government says is intended to help catch terrorists and other criminals, has unleashed protests and the threat of lawsuits from universities, which argue that it will cost them at least $7 billion while doing little to apprehend lawbreakers. . . .

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0

Good Media, Bad Media

media1.jpgA 4-year old girl’s mother was murdered, and the girl was left abandoned. She was put on TV, and people’s calls helped her and lead to her mother’s killer. But now it is hard to get the media to leave the girl alone. From the New York Times:

But now, those caring for the girl . . . say coverage by the news media has become a curse. She is trapped inside her relatives’ home on Long Island, they say, unable to play outside or ride the new bicycle she received as a gift.

Eighteen days have passed since [the girl] talked about pizza, pickles and her cat on television, after child welfare officials made her available to the cameras in an extraordinary effort to find out who she was. Reporters have followed every step of her story and, until last night, had been camping outside the home of [the girl’s] temporary guardians, hoping for a new photograph or a word from them. . . .

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