William McGeveran, Privacy, Guns, and Neutral Principles

By privacylaw | May 28, 2013 at 05:53 pm

Comment by: Larry Rosenthal

PLSC 2013

Workshop draft abstract:

Among the policy debates that arose after the Newtown school shootings, many privacy-related issues appeared. We heard about restrictions on collection and use of data by federal authorities that had been championed by the National Rifle Association. Gun control advocates called for a more comprehensive database to use in background checks of gun purchasers. New York State passed a law increasing reporting requirements for mental health issues. A newspaper posted an online map identifying the homes of gun permit holders. Yet rhetoric often related more to a speaker’s position on underlying gun issues than to any consistent view of the privacy interests at stake. This article will explore the numerous and often quirky privacy rules around firearms. It will then seek to articulate consistent neutral principles for determining the boundaries of privacy interests.

Two major professional experiences prepare me well to take on this project. First, in the mid-1990s I worked extensively on gun control issues for members of Congress including then-Rep. Charles Schumer and for a gun control group. Second, since 2003 I have argued that campaign finance disclosure rules – another liberal cause célèbre – are too cavalier about individual privacy interests. With this background as an advocate of both gun control and privacy, I hope to develop a balanced approach to firearms-related data.

The paper will argue that there are some constitutional privacy concerns, and many additional features of privacy statutes and wise policy, that require restrictions on government collection and processing of data about firearms. At the same time, as the Supreme Court found in its landmark Whalen v. Roe decision, limited and secure government databases for important purposes are permissible, practical, and necessary. Along the way, I also hope to demonstrate how privacy doctrine has yet to generate robust neutral principles. Just as First Amendment doctrine protects diverse speakers on diverse topics, from soapbox orators to Nazi marchers, privacy rules must mature to the point where protection of personal information becomes an important goal, regardless of opinions about the persons or information involved.

William McGeveran, Privacy and Playlists

By privacylaw | May 23, 2013 at 11:53 pm

William McGeveran, Privacy and Playlists

Comment by: Felix Wu

PLSC 2012

Workshop draft abstract:

Social media is not a passing fad. In response to enthusiastic user demand, companies from Amazon to the Washington Post have built “sharing” functionality into their operations, especially online. A boomlet in platforms for socially shared entertainment further underscores the trend – increasingly, we are reading, listening to music, and watching movies among our friends. For example, the popular new music streaming service Spotify, now highly integrated with Facebook, encourages users to notify their online friends of their listening choices and to post playlists for others to use.

This sudden dramatic shift challenges traditional privacy law. Many existing rules assume a data collector who redistributes personally identifiable information to third-party recipients unknown to the data subject, for use in profiling. Spotify (or Facebook or the Washington Post Social Reader) sends information to a user’s friends, not strangers, and does so as a means of creating word of mouth, not of profiling. As I have argued previously, genuine recommendations from one’s friends are immensely valuable, but illegitimate ones can both invade privacy and undermine overall information quality.

This paper considers the appropriate model for regulating privacy in socially shared reading, listening, and viewing. As a case study, it examines recent legislation passed by the House of Representatives and pending in the Senate to amend the Video Privacy Protection Act. Proponents of the legislation argue that it merely modernizes the statute for the social media age. Opponents believe it vitiates one of the only federal laws to directly protect intellectual privacy with an opt-in consent rule.

I conclude that both camps are wrong. The VPPA could and should be updated, but the current bill does not go about it in the right way. More broadly, many of the issues raised in this debate over video apply equally to books, music, web browsing, video gaming, and other pursuits. The paper will make recommendations for appropriate means to address privacy in the social media age.

Jon L. Mills, New Media-Old Law

By privacylaw | May 22, 2013 at 10:08 pm

Jon L. Mills, New Media-Old Law

Comment by: William McGeveran

PLSC 2011

Workshop draft abstract:

Throughout the evolution of what we now call “media law”, several characteristics of the media were a constant, and legal tests were based on those realities. Since the times have changed radically, should those tests and assumptions also change?

1. Gatekeepers — Since the invention of writing there have been barriers to mass distribution of information. With the advent of the printing press and broadcast media there continued to be practical, legal and financial barriers to mass communications. The barriers have included cost, government licenses and editors. Those barriers are gone because of the internet and the new press.

2. Community Standards and Mores — Legal tests for obscenity and privacy intrusions, such as public disclosure of private facts, include references to community standards. But, who is the community for judging internet distributions? The courts are struggling to determine whether the test should still be community based to a limited geographic area. For example, parts of opinions in Ashcroft v. ACLU suggest that a national standard may be appropriate because the community is now national. Is that appropriate and how would that standard work?

3. Anonymity — Free speech and press policies have protected and respected anonymity from the earliest times. Whistle blowers and anonymous political commentary are part of our culture. Should that protection change based on wide distribution of intrusive comments on the internet. There are cases where courts have protected the identity of bloggers even when the statements were highly offensive and intrusive. In the Krinsky case out of California an anonymous poster on a financial message board insulted a number of officers of a Florida corporation, calling them names that included “cockroach,” “mega scum bag,” and “boobs, losers and crooks.” The court protected the identity of the blogger

The new media has no gatekeepers, amorphous community standards and allows total anonymity. Add to this an instant news cycle and the Shirley Sherrod incident occurs. An innocent person is slandered and fired by the President of the United States within twenty four hours. The reports are based on an altered YouTube distribution. How should the law react?

As a further example of the evolution of media, I will describe the media involvement in five high profile cases that have occurred over the last twenty years. I served as counsel in four of those cases.

1. Rolling Student Murders — Danny Harold Rolling murdered seven University of Florida students in 1990. He tortured and mutilated the bodies. Media sought access to the crime scene photos and autopsy photos.

2. Death of Dale Earnhardt — NASCAR star Dale Earnhardt died during the Daytona 500 race in 2001. National, global and electronic media sought access to his autopsy photos.

3. Murder of Gianni Versace — In 1997, world famous designer Gianni Versace was murdered on Miami Beach. Press sought autopsy photos and investigatory materials.

4. Death of Nicole Catsouras — Teenager Nicole Catsouras died in an auto crash in 2008. Graphic accident scene photos were distributed by members of the California Highway Patrol.

5. Death of SeaWorld Trainer Dawn Brancheau- In February 2010, Dawn Brancheau was killed at SeaWorld by a killer whale. The incident was recorded on video cameras. The media sought access to the videos.

Each of these instances involved all of the legal issues described above and involved a balancing of privacy and press interests.

Woodrow Hartzog, Privacy in an Age of Contracts

By privacylaw | May 17, 2013 at 05:43 pm

Woodrow Hartzog, Privacy in an Age of Contracts

Comment by: William McGeveran

PLSC 2010

Workshop draft abstract:

Traditionally, contracts have been most relevant in transactional contexts. Yet, as websites became ubiquitous, so did terms of use, which brought communication and information into an age of contracts. How have these digital agreements impacted our privacy? Contracts require direct interactions constituting privity of contract, yet many technologies can be used to violate an individual’s privacy without such a relationship. Under this logic, Warren and Brandeis dismissed contracts as a viable remedy for harms to privacy. Essentially, contacts provided no remedies against strangers. With each advancement in communication technology, the potential distance between the individual and those who would violate their privacy has grown, seemingly culminating with the Internet’s obliteration of the ability to negotiate privacy. This article attempts to organize and analyze the contemporary impact of contracts on privacy, both as binding agents and as evidence in extra-contractual contexts. I argue that the reciprocal communication of the participatory web could actually alleviate the problem Warren and Brandeis identified: The web allows us greater control over self-disclosed information and gives us the ability to “dicker” for confidentiality. If courts would legitimize explicit attempts by an individual to protect her privacy as part of an online agreement – such as taking advantage of offered website features like untagging photos, deleting personal information and increasing privacy settings – they would move one step closer to reclaiming contracts as a “meeting of the minds.” This recognition would also revitalize contracts as a method for protecting privacy.

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