Computer Ethics, Spring 2012
CMUN 009; Mon 4:15-6:45, Week 6, Feb 27
Week 6 Readings
Chapter 2
Takehome midterm: probably towards the end of the week of March 12. You will have three days (eg March 15-18).
Facebook data reapers
How about this site: Social Intelligence Corp, www.socialintel.com.
What they do is employee background screening. They claim to take some
of the risk out of do-it-yourself google searches, because they don't
include any information in their report that you are not supposed to
ask for. What they do is gather all the public Facebook information
about you (and also from other sources, such as LinkedIn), and store
it. They look, in particular, for
- racially insensitive remarks, such as that English should be the primary language in the US
- membership in the Facebook group "I shouldn’t have to press 1 for English. We are in the United States. Learn the language."
- sexually insensitive remarks or jokes or links
- displays of weaponry, such as your Remington .257 hunting rifle or your antique Japanese katana sword
While they do not offer this upfront, one suspects they also keep track
of an unusually large number (more than four?) of drunken party
pictures.
Think you have no public Facebook information? Look again: the
information does not have to have been posted by you. If a friend posts
a picture of you at a party, and makes the album world-viewable, there may have gone your chance for that job at Microsoft.
To be fair, Social Intelligence is still fine-tuning their rules; the
latest version appears to be that they keep the information for seven
years, but don't release it in a report unless it's still online at the
time the report is requested. Unless things change, and they need to go back to the old way to make more money.
In June 2011 the FTC ruled that Social Intelligence's procedure was in compliance with the Fair Credit Reporting Act.
See:
Is this a privacy issue?
While we're on the subject of data collection, consider ChoicePoint and Acxiom. (ChoicePoint is now LexisNexis.com/risk (for Risk
Solutions)
Look at the websites. Are these sites bad?
What if you are hiring someone to work with children? Do such employees
have any expectation of privacy with regard to their past?
ChoicePoint sells to government agencies data that those agencies are
often not allowed to collect directly. Is this appropriate?
ChoicePoint might argue that it is similar to a credit bureau, though
exempt from the rules of the Fair Credit Act because they don't
actually deal with credit information.
Baase p 60: "At least 35 government agencies are or were clients of
ChoicePoint". Some of the data collected (again from Baase):
- credit
data
- divorce, bankruptcy, and other legal records
- criminal
records
- employment history
- education
- liens
- deeds
- home
purchases
- insurance
claims
- driving records
- professional licenses.
(By the way, if a company offering you for a job pushes you hard to
tell them your birthdate, which is illegal for companies with four or
more employees, they are probably after it in order to search for
criminal-background data.)
Facebook and other sites
Facebook now shows up on unrelated sites. Sites are encouraged to
enable the Facebook "like" button, and here's an example of
theonion.com displaying my (edited) friends and their likes: http://cs.luc.edu/pld/ethics/theonionplusFB.html. How much of this is an invasion of privacy?
While Facebook does seem interested in data-sharing agreements with
non-FB sites, it is often not at all clear when such sharing is going
on. The two examples here, for example, do not necessarily involve any
sharing. An embedded "like" button, when clicked, sends your
information to Facebook, which can retrieve your credentials by using
cookies. However, those credentials are hopefully not
shared with the original site; the original site may not even know you
clicked "like". As for the box at theonion.com listing what my friends
like, this is again an example of "leased page space": Facebook leases
a box on theonion.com and, when you visit the site, it retrieves your
FB credentials via cookie and then fills in the box with your friends'
"likes" of Onion articles. The box is like a mini FB page; neither the
likes nor your credentials are shared with The Onion.
One concern with such pseudo-sharing sites is that they make it look
like sharing is in fact taking place, defusing objections to such
sharing. If someone does object, the fact that no sharing was in fact
invoved can be trotted out; if there are not many objections, Facebook
can pursue "real" sharing agreements with confidence. They also make it
harder to tell when objectionable sharing is occurring.
An example of a true data-sharing agreement would be if a restaurant-review site let you log into their site using your Facebook cookies, and then allowed you to post updates about various restaurants.
Facebook "connections": http://www.eff.org/deeplinks/2010/05/things-you-need-know-about-facebook
Your connections are not communications with other users, but are links
to your school, employer, and interests. It is these that Facebook
decided to make "public" in May 2010; these they did back off from.
Facebook and advertising
Facebook claims that user data is not turned over to advertisers, and
this seems true (with a couple slip-ups): advertisers supply criteria
specifying to whom their ads will be shown, and Facebook shows the ads
to those users. For example, if I see an ad for "Illinois drivers age
54", it doesn't mean that Facebook has turned over my age; it is more
likely that the advertiser has created an ad for each age 30-65,
perhaps, and asks Facebook to display to a user the one that matches
his or her age.
Once you click on the ad, however, the advertiser does know what ad you
are responding to, and thus knows your age if you choose to give them
your name. There was a slip-up a couple years ago where game sites
(often thinly veiled advertising) were able to obtain the Facebook ID
of each user. Here's what they say:
In order to advertise on Facebook, advertisers give us an ad they want
us to display and tell us the kinds of people they want to reach. We
deliver the ad to people who fit those criteria without revealing any
personal information to the advertiser.
For more information on how to do this, see http://www.facebook.com/adsmarketing/index.php?sk=targeting_filters. Facebook supports targeting based on:
- Location, as determined from your IP address
- Language (eg Spanish-speaking residents of the Chicago area)
- Age and sex
- Likes and Interests. I decided to "like" horseback riding a few
months ago, but have yet to see an ad relating to this. Other people
have had new ads appear almost instantaneously.
- Connections: did someone Like your page? Did someone rsvp to your event? Play your game? You can also target their Friends.
- Advanced Demographics: birthdays, schools and professions
Note that you don't get to choose what attributes advertisers can use,
because advertisers do not see them! And Facebook itself has access to
everything (duh).
Facebook and privacy more fine-grained than the Friend level
What if you've Friended your family, and your school friends, and want
to put something on your wall that is visible to only one set? The
original Facebook privacy model made all friends equal, which was
sometimes a bad idea. Facebook has now introduced the idea of groups: see http://www.facebook.com/groups.
Groups have been around quite a while, but have been repositioned by
some (with Facebook encouragement) as subsets of Friend pools:
Have things you only want to share with a small group of people? Just
create a group, add friends, and start sharing. Once you have your
group, you can post updates, poll the group, chat with everyone at once,
and more.
For better or worse, groups are still tricky to manage, partly because
they were not initially designed as Friend subsets. When posting to a
group, you have to go to the group wall; you can't put a message on
your own wall and mark it for a particular group. News feeds for group
posts are sometimes problematic, and Facebook does not make clear what
happens if a group posting is newsfed to your profile and then you
Comment on it. You may or may not have to update your privacy settings
to allow group posts to go into your newsfeed. Privacy Settings do not
mention Groups at all (as of June 2011).
Maybe the biggest concern, however, is that Facebook's fast-and-furious
update tradition is at odds with the fundamental need to be meticulous
when security is important.
Google+ came out with circles,
which promptly changed all this. FB has now introduced new competitive
features (groups), which I have been too lazy to bother with. (Part of
the issue is that FB groups were invented to deal with larger-scale
issues; as originally released they were an awkward fit for subsets of
Friends.)
But the issue is not really whether they work.
Here's a technical analogue: are NTFS file permissions better than
Unix/Linux? Yes, in the sense that you can spell out who has access to
what. But NTFS permissions are very difficult to audit and to keep
track of; thus, in a practical sense, they have been a huge disappointment.
Finally, here is a lengthy essay by Eben Moglen, author of the GPL, on
"Freedom in the Cloud: Software Freedom, Privacy, and Security for Web
2.0 and Cloud Computing": http://www.softwarefreedom.org/events/2010/isoc-ny/FreedomInTheCloud-transcript.html.
Mr Moglen adds some additional things that can be inferred from
Facebook-type data:
- Do I have a date this Saturday?
- Who do I have a crush on (whose page am I obsessively reloading)?
You get free email, free websites, and free spying too!
Mr. Zuckerberg has
attained an unenviable record: he has done more harm to the human
race than anybody else his age.
Because he harnessed Friday night. That
is, everybody needs to
get laid and he turned it into a structure for degenerating the
integrity of human personality and he has to a remarkable extent
succeeded with a very poor deal. Namely, “I will give you
free web hosting and some PHP doodads and you get spying for free
all the time”. And it works.Takehome midterm
Later:
I’m not suggesting it should be illegal.
It should be
obsolete. We’re technologists, we should fix it.
Did Google+ fix anything? Does anyone trust google more than Facebook?
Here are some of the June 2010 Facebook privacy settings (that is, a month after the May 2010 shift), taken from privacy
settings => view settings (basic directory information). Note that
there is by this point a clear Facebook-provided explanation for why some things are best left visible
to "everyone".
Your name, profile picture, gender and
networks are always open to everyone. We suggest leaving the other
basic settings below open to everyone to make it easier for real world
friends to find and connect with you.
* Search for me on Facebook
This lets friends find you on Facebook. If you're visible to fewer
people, it may prevent you from connecting with your real-world friends.
Everyone
* Send me friend requests
This lets real-world friends send you friend requests. If not set to
everyone, it could prevent you from connecting with your friends.
Everyone
* Send me messages
This lets friends you haven't connected with yet send you a message
before adding you as a friend.
Everyone
* See my friend list
This helps real-world friends identify you by friends you have in
common. Your friend list is always available to applications and your
connections to friends may be visible elsewhere.
Everyone
* See my education and work
This helps classmates and coworkers find you.
Everyone
* See my current city and hometown
This helps friends you grew up with and friends near you confirm it's
really you.
Everyone
* See my interests and other Pages
This lets you connect with people with common interests based on things
you like on and off Facebook.
Everyone
Here are some more settings, from privacy settings => customize
settings (sharing on facebook)
* Things I share
o Posts by me
(Default setting for posts, including status updates and photos)
Friends Only
o Family:
Friends of Friends
o Relationships:
Friends Only
o Interested in
and looking
for:
Friends Only
o Bio and
favorite quotations:
Friends of Friends
o Website:
Everyone
o Religious and
political views:
Friends Only
o Birthday:
Friends of Friends
.
* Things others share
o Photos and
videos I'm tagged
in:
Friends of Friends
o Can comment on
posts:
Friends Only
o Friends can
post on my Wall:
Enable
o Can see Wall
posts by friends:
Friends Only
* Contact information
o Friends Only
The core problem here is not that these settings are hard to do, or
that the defaults are bad. The core problem is simply that you keep
having to make new settings, as things evolve. Examples:
- whether you can be tagged in other people's photos
- whether FB facial-recognition software is applied to other people's photos of you
- whether you appear in other people's mini-feeds on you
- how far can friends search back in time on your wall
Another issue is whether the settings options are user-friendly.
Here's a technical analogue: are NTFS file permissions better than
Unix/Linux? Yes, in the sense that you can spell out who has access to
what. But NTFS permissions are very difficult to audit and to keep
track of; thus, in a practical sense, they have been a huge disappointment.
SCOTUS cases on privacy -- Baase pp 69ff
1928: Olmstead v United States
The 4th amendment does NOT apply to wiretaps
1967: Katz v United States
The 4th amendment does too apply to wiretaps! Privacy may still exist in a
public area.
Katz was using a pay phone; the FBI had a microphone just outside the
phone booth. To the appellate court, the fact that the microphone did
not intrude into the phone booth was significant in finding for the
FBI, but the supreme court reversed.
Doctrine of "reasonable expectation of privacy" (REoP) replaced the
doctrine of "physical intrusion"
Problem with REoP: as technology marches on, isn't our reasonable
expectation diminished? And does this then give the government more
license to spy?
1976: US v Miller
information we share with others (eg our bank) is NOT private.
Government can ask the bank, and get this information, without a
warrant. (However, the bank could in those days refuse.)
1979: Smith v Maryland
Reduction of REoP by the police is not SUPPOSED
to diminish our 4th-amendment rights. However, in that case the supreme
court ruled that "pen registers" to record who you were calling did NOT
violate the 4th amendment.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=442&page=735
Application of the Fourth Amendment
depends on whether the person
invoking its protection can claim a "legitimate expectation of privacy"
that has been invaded by government action. This inquiry normally
embraces two questions: first, whether the individual has exhibited an
actual (subjective) expectation of
privacy; and second, whether his
expectation is one that society is prepared to recognize as
"reasonable."
First, we doubt that people in general
entertain any actual expectation
of privacy in the numbers they dial. All telephone users realize that
they must "convey" phone numbers to the telephone company, since it is
through telephone company switching equipment that their calls are
completed. All subscribers realize, moreover, that the phone company
has facilities for making permanent records of the numbers they dial....
If you want to keep a number private, don't call it!
Note the crucial issue that the defendant voluntarily shared the number with the phone company!
Justices Stewart & Brennan dissented
The telephone conversation itself must
be electronically transmitted by
telephone company equipment, and may be recorded or overheard by the
use of other company equipment. Yet we have squarely held that the user
of even a public telephone is
entitled "to assume that the words he utters into the mouthpiece will
not be broadcast to the world." Katz v. United States
What do you think of this distinction? Is there a difference
between sharing your phone number with the phone company and sharing
your actual conversation with them?
2001: Kyllo v United States
Thermal imaging of your house IS a 4th-amendment search! This is a very
important case in terms of how evolution in technology affects what is
a REoP
http://www.law.cornell.edu/supct/html/99-8508.ZS.html
Held: Where, as here, the
Government uses a device that is not
in general public use, to explore details of a private home that would
previously have been unknowable without physical intrusion, the
surveillance is a Fourth Amendment “search,” and is presumptively
unreasonable without a warrant.
How long into the future will this hold? Could it be that part of the
issue was that the general public was not very aware of the possibility
of thermal imaging? If thermal imaging were
to come into not only general public awareness but also general public use (eg by equipping cellphones with
IR cameras), would the situation change?
I believe there was a trial-level civil case in which a judge ruled
that eavesdropping on someone else's phone call made on an
old-fashioned cordless phone (remember those?) was not an invasion of
privacy because no one had a "reasonable expectation of privacy" when
using a cordless phone because "everyone" knew that it was easy to
listen in to someone else's call simply by playing with the channel
button. However, I cannot find this case.
2012: United States v Antoine Jones
Jones was an alleged cocaine dealer in the Washington, DC area. Police
attached a GPS tracker to his car while it was parked in the driveway.
By following him over a 30-day period, the police were able to build a
strong case against him. But Jones argued that such tracking was
unreasonable warrantless search, despite a 1983 Supreme Court ruling
that allowed wireless tracking for single trips. The Department of
Justice argued that no one has a REoP regarding his or her movements on
public streets. The DoJ also pointed to the 1983 US v Knotts case in
which police had the manufacturer attach a radio beeper to a drum of
chloroform. When Knotts purchased the drum, police used the beeper to
track him to his cabin in the woods.
In August 2010, the DC Court of Appeals agreed with Jones, and overturned his conviction.
The ninth circuit and the seventh circuit (including Illinois) had ruled otherwise, however.
The Supreme Court ruled unanimously in January 2012 that "the Government’s attachment of the GPS device to the vehicle, and its
use of that device to monitor the vehicle’s movements, constitutes a
search under the Fourth Amendment." As such, a warrant would be required.
However, by 5-4 the court also
ruled that the issue here was the government's trespass onto private
property to install the GPS tracker. That is, the court did not
rule broadly (by explicit choice!) on the question of whether sustained
GPS tracking itself violated a person's reasonable expectation of
privacy. Justice Scalia wrote the majority opinion, arguing that rules
against government trespass should coexist with the REoP approach, and
that this particular case could be decided on trespassing grounds
without the need to consider REoP (which others on the court agreed was
a problematic standard). Note that the trespass ruling makes the
decision consistent with Knotts.
Jones will be tried again, but this time without the GPS evidence.
The FBI and cellphone
location records
nearest-tower (cell-handoff) records v GPS records
Supposedly the Justice Department gets warrants for GPS data (nearest few feet), but usually does not for nearest-tower data (which positions you to within a few miles at worst, a few hundred feet at best).
Another distinction is between realtime data (where you are now) and "historical" data (where you were).
The federal government has tried to claim that nearest-tower data simply amounted to "routine business records". Are they?
Note that the Jones opinion does not apply here as the police do not trespass when they acquire GPS phone records.
Video surveillance -- Baase p 72
This is a big issue in Chicago, where there are both "obvious" and
"hidden" cameras.
2001 Super Bowl: Tampa police used facial-recognition software on all
100,000 fans. It didn't work terribly well.
London: heavy camera use to:
- charge tolls for driving into central London during rush hour
- enforce
youth curfews
London in 2005:
- report indicating cameras had little effect on crime
- (after
the report) cameras helped identify subway bombers
What about the rate of false positives?
Should the London cameras be used to track lesser crimes, such as
pickpocketing? Supposedly the Chicago street cameras have been quite effective in handling minor crimes.
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:
- tracking graduation records
- tracking how programs & funding affect student
performance
Drawbacks:
- cradle-to-grave tracking of behavior issues, sometimes
unsubstantiated
- potential availability to employers, etc
- identity theft
- errors
Is such a database a good idea?
What if in 2012 a law is passed giving prospective employers access
to the data, if the job applicant signs a consent form? What do you
think would happen if you refused to sign?
Related "database-matching" issue:
should the government be able to link databases of:
- men receiving student aid
- men registered with the selective service (draft)?
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? Wurzelbacher did try to
capitalize on his sudden fame, and some might argue that in doing so he
lost his expectation of privacy. But suppose he had tried to remain a
private citizen?
Allegations about him:
- no license (but he wasn't a contractor; he might need a journeyman's license; this is unclear)
- back
taxes: $1,182 to Ohio
- child
support: Helen Jones-Kelly: director of Ohio Dept of Job & Family
Services, authorized a probably-illegal check on Wurzelbacher's child-support
payments.
Julie McConnell, of the Toledo Police Dept, was charged also.
Apparently neither case went anywhere, but Jones-Kelly later
resigned.
- divorce records: 2006 income was $40K
- voter records:
he's registered, but his last name was misspelled "Worzelbacher"
- related
to
Robert Wurzelbacher (not!), son-in-law of Charles Keating &
convicted of Savings & Loan fraud; RW served 40 months in prison
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?
See also Baase, §2.3.5, on Public Records. Her examples include:
- records on everyone who gave more than $100 to a political candidate
- records
on flight plans of executive aircraft, as a way of tracking the
position of the CEO
- judges financial-disclosure forms. Formerly,
you had to show your
ID to get access; now it's online. These forms show where judges'
family members work and go to school.
What of the above is legitimate to talk about for a private citizen?
At what point did Wurzelbacher stop being a private citizen?
Wurzelbacher asked Obama a financial question. Does this make W's
income and taxes fair game? What about his child-support records?
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:
- Barber had recently taken out a large life-insurance policy on his
wife
- Barber was having an affair
- Barber was heavily in
debt
- April Barber's family was sure Justin did it
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
Case of Wendi Mae Davidson
Police found her husband's body in a pond at the ranch where Davidson
boarded her horse. Police found the ranch itself by attaching a GPS
recorder to her car. Davidson also used an online search engine to
search for the phrase
"decomposition of a body in water".
More at http://news.cnet.com/Police-Blotter-Murderer-nabbed-via-tracking,-Web-search/2100-7348_3-6234678.html
Case of Neil Entwistle
Entwistle's wife Rachel and daughter Lillian were found shot to death
in January 2006. Neil had departed for England. Besides the flight,
there was other physical evidence linking him to the murders. However,
there was also the google searches:
A search of Entwistle's computer also revealed that days before the murders, Entwistle looked at a website that described "how to kill people" ....
More at http://en.wikipedia.org/wiki/Neil_Entwistle
How do such cases relate to the AOL search-data leak, and Thelma Arnold?
While none of the AOL individuals was charged with anything, some of
their searches (particularly those related to violent pornography) are
rather disturbing.
Where is google-search-history stored on your computer? Is it stored anywhere, anymore?
Theories of Privacy
Is it obsolete?
See Baase, p 92. Is it true that "young people of today" are not as
concerned about privacy?
WHY?
Warren and Brandeis, 1890
(Louis Brandeis later became a supreme-court justice.) They argue for
the principle of "inviolate personality"
that gives everyone specific
rights regarding their personal information. Their primary concern was
apparently newspaper gossip columns. Their argument was that repeating
"private" information about someone violated a fundamental right.
Baase, p 106.
Problems arise here because Warren and Brandeis were not able to
formulate precisely what was meant by an "inviolate personality", or to
explain at what point your rights to your inviolate personality give
way to the Public's Right To Know. For government officials, for
example, the right of the voters to know what they are really like
might be very important.
Another issue is that WB seemed most concerned with publication
of data that violated our privacy. What if it is just made available to
a selected few? Employers? People on some committee at our church?
Car-rental agencies? People with some self-defined Need To Know, such
as our annoying neighbors? This is not normally understood to be
publication.
Thomson, 1975
Judith Jarvis Thomson argued against the WB position, claiming that
every time a privacy right is violated,
there is in fact some other,
more concrete, right being violated. Hence, we do not need
special
privacy rules. One of her examples is the Magazine Scenario: if you
don't want people to read it, you can keep it private. If they break
into your house, they have broken the law. If someone interrogates you
violently and thus obtains private information, the real issue is the
violence and not the privacy invasion. If a company reveals information
about you in a way that is contrary to their own privacy policy that
you accepted, they are violating your contractual rights. A less-clear
example is the Shower Scenario: she argues that if someone peeps at you
while you shower, they have violated your "right to your person". Is
this just a WB-style privacy right, or is the "right to your person"
more concrete and limited?
Others have tried to find examples where your right to privacy was
violated, but no other rights were. What if someone reads your email?
Are there other rights involved besides your right to privacy?
Transactions
On pp 108-109, Baase describes a scenario involving Joe, Maria, and
some potatoes. Joe buys the potatoes from Maria; Maria sells the
potatoes to Joe. Who owns the information about the transaction? Either
party might want the
information kept private; does the other party then have an obligation
to keep it so? Or does the privacy-concerned party have to add that
into the contract up-front, so that if Joe wants it private then he
might have to pay more, or if Maria wants it private then she might
have to charge less?
Who is the transaction about?
Another example is the making of "connections" visible to Everyone on Facebook: which party is in charge here?
In the real world, sellers are often large corporations. When we as
individuals buy things, the balance of power is skewed in favor of the
larger seller. Does this change things?
Property Rights to Personal Information
Do we have such rights? What about "negative" information, such as
- tenant payment information or activism
- driving records
- credit
information
One immediate issue is the transactions
one: is a tenant's late-payment history their
property, or the landlord's? Judge Richard Posner (Seventh Circuit appellate judge who has written several opinions involving economic arguments) has said that personal
information that is not "expensive" in the economic sense should
receive more protection.
Theories of Privacy 2
Free-market privacy
[Baase 114] The argument here is that our information is something we
have a right to sell. We are informed consumers, and if we want to sign
up for a Dominick's Preferred Card, we have a right to. Similarly, we
have the ability not to share our personal information with websites
that do not have good privacy policies, and Baase has argued that many
websites have as a result of this become very interested in their
privacy policies [Baase p 77, p 104].
Or is it just that companies don't want the bad publicity that comes
with a bad privacy policy plus
an incident?
This approach to privacy means that we just accept that we can't get the
lowest prices and privacy, or
we can't get certain websites without
advertising, or certain jobs without
waiving our rights to certain private information, or use certain
social-networking sites without sharing some of our private information
with the world.
In terms of protection of our personal data in the hands of
corporations, this approach suggests that businesses will protect our
data because they don't want the liability that comes with accidental
release. Specific regulations are not necessary.
Our right to privacy here is the negative
right, or liberty, not to share our personal information.
Question: is it wrong to offer poor people the option of selling away
their fundamental rights? We do not, for example, allow poor people to
sell their kidneys, and we do not allow them to let their children go
to work at age 14. W e do not allow workers covered by Social Security
to take the money and invest it privately.
But we do allow better-off consumers to "sell" some of thethoseir privacy in
exchange for lower grocery prices; why should worse-off consumers be
denied this? Or should everyone
be denied this?
Consumer protection and privacy
[Baase 115] The alternative approach is that we need lots of government
regulations to protect ourselves, because we just can't keep track of
all the implications of revealing each data item about us. There should
be rules against keeping certain data, even
with our consent, because society can't be sure such consent is
freely given.
A central idea of regulations is that we are denied
the right to do certain things (eg sell some of our private
information), on the theory that most people will not understand the
full scope of the transaction, and there is nothose practical way of
separating those who don't from those who do.
Large corporations with our data have an unequal share of the power. We
need fundamental positive rights that say others have an
obligation to us not to do certain things with our data (like share it).
This approach is likely to lead to an "opt-in" requirement for use of private data, rather than an
"opt-out".
Are we hiding something?
Well, are we? If we do not consent to surveillance of everything we're
doing, are we hiding something? The obvious answer is "yes", but are we
hiding something that our neighbors or
the government have a right to know?
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.
Circumstances when you CANNOT just fire someone:
- contractual or union protections
- firing for refusal to do illegal acts
- firing for racial, ethnic, & religious discrimination
(civil rights act)
- firing for age discrimination
- whistleblower protection
- Americans with Disabilities Act protections
- employees object to offensive conduct on the part of the employer
- employees were engaging in protected conversation about workplace conditions
Does OWNERSHIP of the email equipment matter? No!!
- ownership of a phone
- ownership of stationery
- ownership of an apartment building
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.