Ethics, Week 5: Feb 12


Kindle case
student database
ethical issues with privacy
Joe the plumber
google searches as evidence
workplace email
Loyola email
ECPA
US v Warshak



Kindle case

see:
    http://online.wsj.com/article/SB123419309890963869.html
    http://www.engadget.com/2009/02/11/know-your-rights-does-the-kindle-2s-text-to-speech-infringe-au

The kindle is intended primarily for letting people read e-books.
However, it also has a feature to read the book to you, using a synthesized voice.
This potentially affects the audiobook market.

The Authors Guild has protested vehemently. They may or may not have filed a lawsuit against Amazon.

pro-kindle arguments:

anti-kindle arguments


Baase p 61: case study on federal DB on all US college students. The database would list all courses taken, with grades; it would also include loan and scholarship records.

Good example of a fairly common situation: creation of a new database containing confidential information.

Benefits:

Drawbacks:

Is such a database a good idea?

Related "database-matching" issue: should the government be able to link databases of:



Joe the Plumber

aka Samuel Joseph Wurzelbacher

He went to an Obama rally and asked a serious question about Obama's tax plan (in which he apparently confused income with profit). Obama made his "spread the wealth" remark in response. After this was in the press, McCain ran with it, and referred to him multiple times in the debate, as a symbol of middle-america and small businesses.

One reporter (in a print newspaper column I failed to save) argued that Wurzelbacher should have no expectation of privacy. At what point does this become true? Is it true of Obama? Was it true for Palin, or McCain?

Allegations about him:
Lucas county clerk of courts: http://apps.co.lucas.oh.us/onlinedockets/Default.aspx

Search for "Wurzelbacher".

Is the availability of this kind of search appropriate?

What of the above is legitimate to talk about for a private citizen?
At what point did Wurzelbacher stop being a private citizen? (It seems clear that he did eventually try to capitalize on his fame.)

Wurzelbacher asked Obama a financial question. Does this make W's income and taxes fair game?

Aw, to hell with facts: see http://www.slate.com/id/2202480


Search records and computer forensics

In 2002, Justin Barber was found shot four times on a beach in Florida. None of his injuries were serious. His wife April, however, had been shot dead. Barber described the event as an attempted robbery.

There were some other factors though:
Police searched Barber's computer for evidence of past google searches. They apparently did not contact google directly. Barber had searched for information on gunshot wounds, specifically to the chest, and under what circumstances they were less serious. Barber was convicted.

More at: http://news.cnet.com/8301-13578_3-10150669-38.html


Case of Lee Harbert:
Harbert's vehicle struck and killed Gurdeep Kaur in 2005. Harbert fled the scene. When arrested later, his defense was that he thought he had hit a deer. But his on-computer searches were for
    "auto glass reporting requirements to law enforcement"
    "auto glass, Las Vegas" (the crime was in California)
    "auto theft"
He also searched for information on the accident itself. Harbert too was convicted.
   

more at http://news.cnet.com/8301-13578_3-10143275-38.html

How does this relate to the AOL search-data leak, and Thelma Arnold?
While none of those individuals was charged with anything, some of their searches (particularly those related to violent pornography) are rather disturbing.

Articles:
http://www.techcrunch.com/2006/08/06/aol-proudly-releases-massive-amounts-of-user-search-data
href="http://en.wikipedia.org/wiki/AOL_search_data_scandal

See http://gregsadetsky.com/aol-data for the actual data.

Question: Is it ethical to use the actual AOL data in research? What guidelines should be in place?

Are there other ways to get legitimate search data for sociological research?

Where is google-search-history stored on your computer?



Workplace privacy of email

One fairly basic principle the courts have used is whether or not one has a "reasonable expectation of privacy". However, this doesn't always mean quite what it seems.

Smyth v Pillsbury, 1996

Summary: Michael Smyth worked for Pillsbury, which had a privacy policy governing emails that said Pillsbury would NOT use emails against employees, and that emails "would remain confidential and privileged". Specifically, Pillsbury promised that e-mail communications could not be use against its employees as grounds for termination or reprimand.

Smyth and his boss exchanged emails in which marketing employees were discussed in an unflattering light. The phrase "kill the backstabbing bastards" appeared.

Smyth and his boss got fired, based on the contents of their emails to each other.

Smyth sued for wrongful termination. He lost.

Federal District Court within Pennsylvania, 1996. Case was dismissed after a preliminary hearing (not a trial).
The District Court opinion is at http://cs.luc.edu/pld/ethics/smyth_v_pillsbury.html.

Whatever happened to the CONTRACTUAL issue? Hint: there is a long history of cases upholding "employment at will" doctrine. Judge: Charles Weiner

How would the case have been different if:

What are employers' interests in email exchange? Were the emails read out-of-context? (that is, were Smyth and his boss just being aggressive and competitive?)

Circumstances when you CANNOT just fire someone:

Does OWNERSHIP of the email equipment matter? No!!


Bourke v. Nissan:

California similar case: Bourke worked for Nissan; email was reviewed, it was highly personal, she got low evaluation. The email probably but not definitively contributed.

Shoars v. Epson: California

Alana Shoars was involved in email training at Epson. She found supervisor Hillseth had been printing and reading employee emails. She objected, and removed some of the printouts from Hillseth's office. She also reported the incident to Epson's general manager. Hillseth then had Shoars fired, allegedly because she had asked for a private email account that was not accessible by Hillseth. Epson had informed employees that email was "private and confidential". California had a law prohibiting tapping of telephone lines. The law may have covered other communications, but that part was dismissed on a technicality: tapping alone didn't constitute eavesdropping, and the eavesdropping issue was never brought up.

Discuss Smyth v Pillsbury:

Contract v Tort: Judge held that corporate eavesdropping is not offensive. Duh. (Could it be offensive IF the company had promised not to??)

Judge says Smyth lost because email was "utilized by entire company" and Smyth's emails were "voluntary".

Were they?

Reasonable expectation of privacy does NOT mean the search is "offensive". Only searches that are "offensive" would allow legal action regarding firing of an "at-will" employee.

Judge: Pillsbury's actions did not "tortuously" invade privacy

unstated by judge: prevention of sexual harassment as justification. This provides a legitimate "motive" for corporations to read all employee email.

Arguably, though, the Smyth kind of talk between "buddies", with the self-image projected to fit that context, is EXACTLY what some interpretations of privacy are about. Not all context is "professional".

What if Pillsbury recorded water-cooler or bathroom conversation?

What the heck is a "reasonable expectation of privacy"??? "In the absence of a reasonable expectation of privacy, there can be no violation of the right to privacy."

Could Smyth have sued for DAMAGES, instead of reinstatement?

Footnote to judge's ruling: ["estoppel" is eh-STOP-uhl]

FN2. Although plaintiff does not affirmatively allege so in his Complaint ... the allegations in the Complaint might suggest that plaintiff is alleging an exception to the at-will employment rule based on estoppel, i.e. that defendant repeatedly assured plaintiff and others that it would not intercept e-mail communications and reprimand or terminate based on the contents thereof and plaintiff relied on these assurances to his detriment when he made the "inappropriate and unprofessional" e-mail communications in October 1994. The law of Pennsylvania is clear, however, that an employer may not be estopped from firing an employee based upon a promise, even when reliance is demonstrated. [emphasis by pld] Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990).

Jurisdiction problems: what if one party to an email lives in a state that grants statutory privacy protections? This problem comes up all the time with phone calls:

Worldcom case: Plaintiffs were Kelly Kearney and Mark Levy; they worked for a company acquired by Worldcom. Their calls were recorded in Georgia, but plaintiffs were calling from California, which forbids recording without notification of ALL parties.

Massachusetts case: jurisdiction depends on where wiretapping physically took place, not where the speakers were. How does telephony relate to email? What is our expectation of privacy? 

What about use of, say, a personal gmail account while at work? If employer monitors transactions with gmail.com? If employer obtains email from google directly?

Loyola policy: luc.edu/its/policy_email_general.shtml (discussed below)

Persistence: email sticks around, although people USE it as if it were like the phone.


Paul v Lankenau Hospital
    524 Pa. 90, 93, 569 A.2d 346,348 (1990) 
    (PA court Atlantic Reporter reference 2nd Series, vol 569 Starts page 346, actual reference on page 348)

Dr Parle Paul, MD, would take home discarded hospital equipment. He would sell it or send it to clinics in Yugoslavia, his homeland. He got permission to take five discarded refrigerators. Unfortunately, he apparently did not have the RIGHT permission.

Oops.

He was fired, and filed suit in state court for reinstatement and for defamation.

A jury trial resulted in a verdict in Paul's favor, both for damages and reinstatement. Superior court affirmed. The appellate court reversed the reinstatement order.

From the appellate decision:

Equitable estoppel is not an exception to employment at-will. The law does not prohibit firing of an employee for relying on an employer's promise.

Exceptions to the [at-will firing] rule have been recognized in only the most limited curcumstances, where discharges of at-will employees would threaten clear mandates of public policy. [some such: racial/ethnic discrimination, whistleblowing, refusal to commit illegal acts, unionizing, ...]

Look at this another way. Smyth and his lawyers knew that he could be fired for any reason, regardless of Pillsbury's promises to the contrary.

Smyth was asking for application of the TORT of invasion of privacy to be applied. A "tort" is essentially a common-law right that has been breached, as opposed to a contractual right. Tortious invasion of privacy exists, but the standards are high and privacy must be a reasonable exception.

In court cases, you can't add 30% of an argument for equitable estoppel and 70% of an argument for tortious invasion of privacy to get 100% of a case. ONE argument must be 100% sound.


Who decides when we have a "reasonable expectation of privacy"? If most people think email privacy is easy to breach, does it lose protection? Is this case about the judge not "getting it" that email privacy is not about "whoever owns the equipment can do what they want"? Is email any easier to spy on than the phone?


Review of Smyth v Pillsbury:

Bottom line, there is "no reasonable expectation of privacy for work email" and they can read it even if they promise not to.

That last part fits in with longstanding law regarding employment-at-will.

The main issue is really the "no reasonable expectation" part, since that blocks civil tort suits. Even if "reasonable expectation" is highly subjective.



Loyola's policy on email

Privacy on University electronic mail systems [1997-1998] http://www.luc.edu/its/policy_email_general.shtml

In the section subtitled "Privacy on University electronic mail systems", seven reasons are given why someone else might read your email:

The University community must recognize that electronic communications are hardly secure and the University cannot guarantee privacy. The University will not monitor electronic mail messages as a routine matter. But the University reserves the right to inspect, access, view, read and/or disclose an individual's computer files and e-mail that may be stored or archived on University computing networks or systems, for purposes it deems appropriate. There may arise situations in which an individual's computer files and e-mail may be inspected, accessed, viewed, read and/or the contents may be revealed or disclosed. These situations include but are not limited to:

  1. During ordinary management and maintenance of computing and networking services,
  2. During an investigation of indications of illegal activity or misuse, system and network administrators may view an individual's computer files including electronic mail,
  3. During the course of carrying out the University's work, to locate substantive information required for University business, e.g., supervisors may be need to view an employee's computer files including electronic mail,
  4. If an individual is suspected of violations of the responsibilities as stated in this document or other University policies,
  5. To protect and maintain the University computing network's integrity and the rights of others authorized to access the University network.
  6. The University may review and disclose contents of electronic mail messages in its discretion in cooperating with investigations by outside parties, or in response to legal process, e.g., subpoenas,
  7. Should the security of a computer or network system be threatened

Some possible protections (not actually implemented):

Protection against items 5,7: If your email is examined because we believe your account has been compromised, any contents implicating you on other matters and associated with your legitimate use of your account will NOT be held against you (except in cases of ????)

Protection against 1: If your email is examined accidentally or as part of routine system maintenance, any contents implicating you on any matters will not be held against you (exceptions???)

[While these would not be enforceable for staff, they WOULD be for

]

Legit: 2, 3 [maybe], 4 [but what grounds for suspicion?] Item 6 could be clearer that outside investigations must be part of law enforcement;


Electronic Communications Privacy Act, 1986

The ECPA has three exceptions that serve to limit its applicability to employer monitoring
  1. The provider exception;
  2. The ordinary course of business exception
  3. The consent exception.

Generally, most employer monitoring falls under one of these. Note that the "provider" exception is a specific feature of ECPA; ownership of the hardware does not create a general right of access and in particular ownership of a telephone system does not create a right to eavesdrop.

Phone surveillance in the workplace
Keystroke monitoring
Location monitoring

Do computers empower workers, or shackle them?

While we're on the topic of ECPA, there is:
    Title I, covering electronic communications in transit
    Title II, the Stored Communications Act.
The latter has much less stringent restrictions.

ECPA amended the Wiretap Act of 1968.

In the case US v Councilman, the government had argued that interception of email as stored on servers temporarily while being routed to their final destination did constitute "interception" for the purposes of the Wiretap Act. The District Court and a 3-judge panel of the Appellate Court ruled that, no, it did not. In 2005 the 1st Circuit court ruled en banc that, yes, it applied to data stored temporarily on disks (filesystems) as well.

Note that the issue here is not government access to electronic communications.

Case is at http://www.ca1.uscourts.gov/pdf.opinions/03-1383EB-01A.pdf



United States v Warshak, 6th circuit decided June 2007, redecided July 2008

Warshak: spammer promoting "Enzyte" for "natural male enhancement" He was a suspect in a fraud case. The gov't got an order from a US Magistrate asking for his email records. The emails were turned over to him.

Eventually Warshak found out about this:
Warshak: get a search warrant!
US: all we need is subpoena (much weaker)

Are subpoena rules for email overly broad?
US argument: users of ISPs don't have a reasonable expectation of privacy.

This is clear for employer-provided email, though there's no reason to suppose loss of privacy extends to the government.

But what about commercial email? Here's an imaginary Yahoo Terms-of-service by Mark Rasch, from securityfocus.com/columnists/456/3 :

Because a customer acknowledges that Yahoo! has unlimited access to her e-mail, and because she consents to Yahoo! disclosing her e-mail in response to legal process, compelled disclosure of e-mail from a Yahoo! account does not violate the Fourth Amendment.

The point here is that because Yahoo has access to your email, the gov't thinks that all your email should be treated just like any other commercial records. You have no "expectation of privacy".

Govt' argued that this case was like the 1976 _US v Miller_ case, where bank records were found NOT to be protected

Stored Communications Act, part of ECPA
    email stored 180 days or less: gov't needs a warrant
    more than 180 days: warrant, subpoena, or court order
See http://www.usdoj.gov/criminal/cybercrime/ECPA2701_2712.htm
§2703 (a): less than 180 days (b): more than 180 days

Warshak was arguing that the gov't should need a warrant for ANY of his email.

District court Warshak won. (Quote from full 6th circuit decision)

The court reasoned that Warshak likely would succeed on his Fourth Amendment claim because internet users have a reasonable expectation of privacy in e-mails, and because the orders authorized warrantless searches on less than probable cause.

3-judge panel of 6th circuit appellate court: Warshak won, June 2007. The decision was far-reaching, not specific to the facts at hand. The decision was by a 3-judge panel. From the ruling:

[W]e have little difficulty agreeing with the district court that individuals maintain a reasonable expectation of privacy in e-mails that are stored with, or sent or received through, a commercial ISP. The content of e-mail is something that the user "seeks to preserve as private," and therefore "may be constitutionally protected."

October 2007: 6th circuit agrees to _en banc_ review (whole court)

July 2008: full court ruled that the case was not "ripe": broad question was not ready to be addressed.

The ripeness doctrine serves to "avoid[] . . . premature adjudication" of legal questions and to prevent courts from "entangling themselves in abstract" debates that may turn out differently in different settings.

Conventional wisdom as to why the supreme court is not likely to hear the case: they would have to find that the case was "ripe", and they are much more likely to wait for a case where "ripeness" is more evident. (See Eugene Volokh, volokh.com/posts/1176832897.shtml) Traditionally, the courts consider 4th-amendment cases "after the fact".

Gmail: all gmail is "read" at google. Just not necessarily by people.


What if your ISP examined your email? Would it make a difference if the reason was:

gmail

All gmail is read at google. Just not necessarily by people. Does this matter?

What could google do with the information it learns about you?

What could the government do, if they had access to any of it?