LEE BURGUNDER

1
LEE BURGUNDER

• LEGAL ASPECTS of MANAGING TECHNOLOGY
• Third Ed.

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Chapter 14

• Intrusions on Privacyand Other Personal Rights

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Preliminary Look at Privacy

• Sources of Laws Regulation Privacy.
• U.S. Constitution.
• State Constitutions.
• Common Law.
• Common Law.
• Federal and State Statutes.
• Administrative Agency Rules and Actions.

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INTRUSIONS ON PRIVACY
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The Privacy Balance
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The Privacy Balance

• Vernonia School District v. Acton.
• Privacy analysis weighs the reasons for the
  intrusion with the degree of the intrusion on
  reasonable expectations of privacy.
• Reasons for the testing.
• Procedures to protect privacy.
• Expectations of privacy under the circumstances.
• Polygraphs.
• Genetic Testing.

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Monitoring Communications and Personal Activities

• Monitoring for Efficiency.
• Monitoring Internet activity.
• Notice to Employees.
• Computer Use Policy.
• Web Filtering Technologies.

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Monitoring E-mail Conversations

• Electronic Communications Protection Act
• Applies to cellular and cordless phones.
• E-mail on interstate communication systems.
• Smyth v. Pillsbury ?.

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Smyth v. Pillsbury

• Issues Did Pillsbury violate Smyths right to
  privacy? Was Smyth wrongfully discharged?
• Decision Pillsbury did not violate Smyths right
  to privacy. Smyth was not wrongfully discharged

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Electronic Communications Privacy Act

• Wiretap Act.
• Exceptions (1) Interception is not unlawful if
  one of the parties consents. (2) Interception is
  done in the ordinary course of business.
• Statutory Damages.

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Fraser v. Nationwide Mutual Ins. Co.

• Issue Did Nationwide violate the Wiretap and
  Stored Communication Act?
• Decision No. These laws only cover acts in the
  course of transmission. Here, Frasers emails
  were already stored.

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Recommendations

• Notice that e-mail may be intercepted and read
• Company policy -- E-mail system only to be used
  for business purpose
• Or limit scope of permissible personal uses
• Written consent for interception

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Measures to Protect Privacy

• Anonymity
• Encryption
• Public key/ Private key
• Certificate authorities
• Export controls

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Collection of Personally Identifiable Information

• Off the Web.
• On the Internet.
• Cookies.
• Benefits.
• Fears.

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FTC Fair Information Principles

• Notice
• That information is collected.
• Purposes of collection.
• Duration of retention.
• Third parties who may have access.
• Choice
• Control over how information may be used.
• Opt out.
• Opt in for sensitive information.

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FTC Fair Information Principles

• Access.
• Ability to correct inaccurate information.
• Security.
• Is the information safe from unauthorized access
  and disclosure.

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Childrens Online Privacy Protection Act

• COPPA prohibits website owners from collecting
  information from children under 13 years of age
  without parents consent.
• Requires parental notice.
• Obtain verifiable parental consent for collection
  or use of information.
• Establish reasonable procedures to protect
  security and confidentiality.

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Industry Initiatives

• Self-Regulation.
• TRUSTe.
• Platform for Privacy Preferences (P3).
• EU Directive on Information Privacy Protection.
• Prevents transmission of data to countries having
  inadequate levels of privacy protection.
• EU Safe Harbor.

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Measures to Protect Personal Privacy

• Anonymity.
• Encryption.
• Public/Private keys.
• Digital Certificates.
• Clipper Chip.
• USA Patriot Act.

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Content Control and the Regulation of Indecent
Speech

• Communications Decency Act of 1996.
• Reno v. ACLU.
• Issue Is the Communications Decency Act
  unconstitutional?
• Decision Yes, the CDA abridges the freedom of
  speech guaranteed by the First Amendment.
• The definition of prohibited speech too vague.

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Content Control and the Regulation of Indecent
Speech

• Pornographic speech not protected.
• Three-prong test.
• Other speech.
• Compelling justifications to regulate.
• Protection of children from harmful speech often
  qualifies.
• Narrowly tailored so legitimate purpose achieved
  in least burdensome way.

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Private Control Through Labels and Filters

• Platform for Internet Content Selection.
• Universal internet communications language that
  allows software to filter objectionable material.
• Self or independent ratings.

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Child Online Protection Act of 1998

• Government tried again in 1998 to regulate speech
  on the web, but specifically focused on minors.
• Only applies to the web (not chat, email)
• Only commercial speech.
• Only civil penalties.
• Prohibits speech that is harmful to minors
  (obscene) defined by community standards.

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Defamation

• Requirements
• False statement.
• About another person.
• In the presence of others (public).
• That harms the persons reputation.
• Defense
• False statement about public figure must be made
  with reckless disregard for truth.

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Publisher v. Distributor Liability

• Publisher Liability.
• Magazines, newspapers
• Strictly liable for defamatory statements made by
  others in publications.
• Liable even without notice about the defamatory
  statements.
• Distributor Liability.
• Bookstores, libraries.
• Generally not liable for defamatory statements
  made by others in distributed publications.
• Liable only with notice of the defamatory
  statements.

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ISP Liability for Defamation

• Cubby, Inc. v. CompuServe Inc.
• CompuServe treated as a distributor.
• ISP not liable for defamatory statements of user
  unless it had notice of defamation.
• Stratton Oakmont v. Prodigy Services Co.
• Prodigy treated as publisher.
• ISP may be strictly liable for defamatory.
• Statements of user even without notice.
• Based on existence of content guidelines and some
  enforcement.

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ISP Liability for Defamation

• Communications Decency Act.
• ISP not treated as publisher or speaker.
• ISP not liable for defamatory statements made by
  others.
• Even if it exercises editorial control.
• Even if it has notice of defamation?

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Blumenthal v. Drudge

• Issues Can AOL be held liable for defamation?
  Does the court have jurisdiction over Drudge?
• Decision AOL cannot be held liable for Drudges
  allegedly defamatory remarks.
• Rationale The CDA states that ISPs cannot be
  treated as a publisher or speaker of information
  provided by others.

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Intrusion on Publicity Rights

• Intrusions on Computer Systems.
• Viruses and worms.
• Manipulative and coercive devices.
• Spamming.
• Intrusions on Publicity Rights.