No Expectation of Privacy

Last year a Pittsburgh couple sued Google in federal court for invasion of privacy because photographic images of their home appeared in Google’s Street View.  They claimed $25k in damages for “mental suffering” and sought removal of the images.  Yesterday the trial court threw out their suit for failing to state a claim–in other words, the facts underlying the suit, even if true, did not violate any legal rights.  The Street View images “capture images of their house beyond signs marked ‘private road.'”  The problem is that if the pictures were taken from someplace where the public has a right to be, there is no reasonable expectation of privacy for anything captured in the pictures.  This is not new law, and I hope their lawyer advised them this case was a loser.  I don’t blame the couple for not knowing the law.  U.S. privacy law is a patchwork quilt that leads to much confusion about the scope of protection.  In an ironic corollary–if something totally predictable can be ironic–filing the lawsuit eroded the couple’s privacy more than the Street View images.  The lawsuit contained their home address and a photo of their home appeared on the property assessor’s web site.

Speech versus Privacy

The Boston Sunday Globe Ideas section carried a longer article by Drake Bennet, titled “Time for a Muzzle,” asking whether it is “time to rethink free speech” online.  Bennet focuses on privacy interests affected by “[t]he online world of lies and rumor [that] grows ever more vicious,”  rooting his discussion in the famous Brandeis/Warren Harvard Law Review article “that served as the foundation for most of the state laws that today protect privacy.”  (Students in my upcoming privacy law seminar should take note.)   He cites one proposal, to give people greater control over their personal information; he also cites the concern that such control could “lead[] to an almost comical set of limits.”  The article should interest anyone following the  issues I’ve raised here in a recent posts.

Gated Online Communities

Inspired in part by concerns raised by the Conficker worm the New York Times posed a question in Sunday’s Week in Review:  Do We Need a New Internet? The issues are not new to anyone who has read Larry Lessig’s Code (either the original or Code 2.0) or Jonathan Zittrain’s The Future of the Internet–And How to Stop it, or anyone who has taken my Internet law course.  The Internet was built to facilate sharing research among scientists, academics, and defense researchers.  It valued openness, decentralization, and ease of use over security.  Then the world discovered this wonderful communications network and brought to it all of the best and all of the worst humans can offer.  John Markoff wrote in the Times that

there is a growing belief among engineers and security experts that Internet security and privacy have become so maddeningly elusive that the only way to fix the problem is to start over.  What a new Internet might look like is still widely debated, but one alternative would, in effect, create a “gated community” where users would give up their anonymity and certain freedoms in return for safety. Today that is already the case for many corporate and government Internet users. As a new and more secure network becomes widely adopted, the current Internet might end up as the bad neighborhood of cyberspace. You would enter at your own risk and keep an eye over your shoulder while you were there.

We just cannot stop ourselves from screwing up a good thing.

CMLP on Juicy Campus’s Demise

Citizen Media Law Project says farewell to, wistfully noting that the site’s passing means there will be no lawsuit to test the scope of Section 230.  As the CMLP post notes, the 9th Circuit’s decision in Fair Housing Council v provides an argument that JuicyCampus’s encouragement of defamatory postings mades it a co-developer or co-creator of actionable content.  We’ll never know.  Internet law students from a few semesters back will recall the thinly-disguised exam question posing this very issue.  Their consensus, by a narrow margin?  My hypothetical website would lose its immunity from liability, based on facts somewhat more pro-plaintiff than the real site.

Limits on Limited Liability?

On the other hand . . . the Internet is filled with nasty stuff.  Juicy Campus is gone–it was “launched as a cesspool, and it died because it never evolved into anything else” (source)–but it was never more than a pimple on the Internet’s hate-spewing, vicious, inane, juvenile, lowest-common-denominator underbelly.  Comments on most every site that allows them and unmoderated discussion threads devolve with numbing rapidity into the worst of human discourse.  Two laws, the First Amendment and Section 230 of the Communications Decency Act, enable this environment by shielding the speakers of all but actionable speech (primarily defamation and obscenity) from liability and the websites hosting the speech from liability for all speech, actionable or not, as long as they are not responsible in whole or in part for creating or developing the speech.

Section 230 may be vulnerable.  Parents and school administrators concerned about cyber-bullying and persons victimized by defamatory or otherwise offensive anonymous speech that enters the queue of the Internet’s permanent playlist, among others, wring their hands and wail “can’t someone do something?”  Responding to this question invariably yields bad results. If we do “something” it is usually what is easiest, what is most popular, what produces the best feeling of short-term accomplishment.  We rarely attack the problem’s root or think clearly about whether no action is better than misplaced action.

Section 230 is neither perfect nor sacrosanct but I am wary of any attempts to limit its scope, whether they come in through the front door or the back.  The lawsuit by two former Yale Law School students against their anonymous defamers and attackers on may, as this article from states, “forc[e] internet intermediaries to bear greater responsibility for what they carry.” The lawsuit may also be “an all-expenses-paid elitist temper tantrum . . . [that fails] to differentiate between the really wicked and some of the tamer flamers.”  The linked article by David Margolick recounts the events leading up to the lawsuit and the results so far.  This suit suffers from a weakness common in  defamation suits against anonymous online posters. The posts are disgusting, shocking, and offensive, but they are opinion and not defamatory.  Even putative statements of fact (such as allegations that one of the AutoAdmit plaintiffs had herpes) can be non-actionable if the context in which they are made is “juvenile and hyperbolic.”

It is the plaintiffs’ “meager catch” that threatens website immunity:  “[t]he fact that so few prey were netted could prompt calls to modify Section 230(c), if only to give victims of internet abuse more of a chance.”

Critique of Herring

How to Ensure Police Database Accuracy is an essay from security expert Bruce Schneier about the Supreme Court’s recent decision in Herring v. U.S. limiting application of the exclusionary rule.  Police found illegal drugs and a gun when they searched Herring’s residence after arresting him on a warrant they later learned had been withdrawn.  The Supreme Court allowed the search to stand because the search was not a result of police misconduct but of a database error. Schneier argues that the Supreme Court got it wrong: excluding evidence is “the only way to ensure police database accuracy.”

A Gun for Everyone

While making an argument that it was foreseeable for a gun to be introduced into a hostile crowd confronting a person they thought to be a car thief, I said in class  that there were more guns in the U.S. than people.  No one tracks gun ownership so it is impossible to say, but I was probably wrong.  The best estimate appears to be that there are about 200 million privately owned guns in the U.S.  That’s still a lot of guns.  I stand by my argument.

She Got Game

I love this story.  Varsity basketball player Bilqis Abdul-Qaadir is a devout Muslim, the top-ranked student in her senior class, a 5 foot 3 inch high school senior, and the top high school scorer in Massachusetts state history. With her legs and arms covered and a hajib covering her head Bilqis “dazzles every night with a game that is a nonstop whir of creative fury. She darts into the lane against much bigger players, flicking in layups and reverses and hitting teammates with no-look passes. She drains pull-up jumpers and step-back 3-pointers. Despite a steady diet of double-teams and box-and-one defenses designed to stop her, she is averaging, this season, an astonishing 41.3 points per game.” She has a full scholarship to the University of Memphis “and will become the first player at a top tier Division 1 school to compete in full Muslim dress.”