Computer Ethics, Summer 2010

Week 3, Wednesday (class 8)
Corboy Law Room 323

Midterm: to be released Sunday June 13, due Tuesday June 15 by ~midnight.

legal cases
surveillance
data companies
online legal data
theories of privacy
workplace email
ECPA
RFID
price discrimination


http://pleaserobme.com, listing twitter/foursquare announcements that you will not be At Home (now "off"; I wish I'd kept some sample data)

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 the papers, I looked for a Fair Use argument and an ethical argument, although one could predominate. Ethical arguments could be deontological or utilitarian, but I also accepted "practical ethics" arguments along the lines of "musicians have certain responsibilities to one another" without spelling out a grand theoretical framework.

The Bridgeport decision is controversial, in part because it attempts to establish a "bright line" rule in an arena (copyright law) where lines are generally muddy for a good reason: the tension between content owners and society at large can seldom be reduced to a simple rule.

An article at http://www.slate.com/id/2153961 amounts to a (perhaps justified) rant against Bridgeport's actions; the author labels Bridgeport a "copyright troll".

A more legally sedate rant appears in http://www.law.indiana.edu/ilj/volumes/v81/no1/22_Mueller.pdf.

Personalization

We understand that all sorts of online purchasing information is collected about us in order for the stores to sell to us again. Whenever I go to amazon.com, I am greeted with book suggestions based on past purchases. But at what point does this information cross the line to become "personalized pitches"?

What if the seller has determined that we are in the category "price-sensitive shopper", and they then call/mail/email us with pitches that offer us the "best price" or "best value"? (See the box on Baase, p 78, for a related example.)

Political parties do this kind of personalization all the time: they tailor their pre-election canvassing to bring up what they believe are the hot-button issues for you personally.


SCOTUS cases on privacy -- Baase pp 69ff

1928: Olmstead v United States: 4th amendment does NOT apply to wiretaps

1967: Katz v United States
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.


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".

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:

London in 2005:
What about the rate of false positives?

Should the London cameras be used to track lesser crimes, such as pickpocketing?


Facebook/MySpace:
 
When did Facebook stop being "closed", ie access was limited to your "network"? Did anyone care?
 
Facebook, MySpace, google, deja news, and dating
 
deja.com (now run by google)
 
Facebook mini-feeds, Baase p 55
Allowed active notification to your friends whenever you change your page. Why is this a privacy issue?

I note that lots of people have left these enabled.

Whatever one says about Facebook as a source of privacy lost, it is pretty clear to everyone that posting material to Facebook is under our control, though perhaps only in the sense that we participate in Facebook voluntarily. Thus, the Facebook privacy question is really all about whether we can control who knows what about us, and continue to use Facebook.


ChoicePoint and Acxiom


Look at the websites. Are these sites bad? (ChoicePoint is now LexisNexis.com/risk (for Risk Solutions)

What if you are hiring a youth worker?

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):

From the Acxiom website (http://www.acxiom.com/products_and_services/background_screening/faq/Pages/FAQs.aspx)

Must I supply applicants’ dates of birth?

Date of birth is critical to the criminal record search process. The majority of courts use date of birth as a primary identifier, but please note that a handful actually require this piece of information to process requests. However, Acxiom offers alternative options to customers who are unable to supply this information. Our toll-free Applicant Date of Birth Line allows applicants to call and register date of birth information via a touchtone answering system. Acxiom then retrieves this information for use in the search process, subsequently reporting “match” or “non-match” record results to the customer while never divulging the specifics of the date of birth. Additionally, date of birth information may be confidentially submitted via a specially dedicated URL (www.acxiomdob.com) that forwards applicants to an internal 128-bit SSL encrypted website where they are prompted to enter the needed information.

Why is this an issue?

You can not legally ask age in a job interview in the US, if you have four or more employees.
    http://smallbusiness.findlaw.com/employment-employer/employment-employer-hiring/employment-employer-hiring-interview-legal.html

You can ask the candidate to authorize the release of a credit report (you can't get the credit report without asking). However, several states are considering banning this practice (except for jobs involving responsibility for money), on the theory that applicants can't say no, and that it makes it much harder for those who have had credit problems ever to recover.


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?

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:


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:
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:

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:
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


How do such cases 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.


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


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 prinicple 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
One immediate issue is the transactions one: is a tenant's late-payment history their property, or the landlord's? Judge Richard Posner argued 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. We 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 their 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 no 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.

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.