Privacy and Commercial and Social Interests
Baase Chapter 2.
Privacy from others
Internet Search Records
Pennsylvania School Laptops
Managing your privacy
Smyth v Pillsbury
Google Buzz was google's first attempt at a social-networking site, back in
~2009[?]. When it was first introduced, your top gmail/gchat contacts were
made public as "friends", even though the existence of your correspondence
may have been very private. For many, the issue isn't so much that yet
another social-networking site made a privacy-related goof, but that it was
Google, which has so much private
information already. Google has the entire email history for many people,
and the entire search history for many others. The Google Buzz incident can
be interpreted as an indication that, despite having so much personal
information, Google is sometimes "clueless" about privacy. At the very
least, Google used personal data without authorization.
For many people, though, the biggest issue isn't privacy per se, but the
fact that their "google profile" overnight became their buzz page, without
so much as notification.
Google search data
Consider the following site (which is an advertisement for duckduckgo.com):
To be fair, Google famously resisted a US subpoena for a large sample of
"anonymized" search records, even before the AOL search leak (below) when it
became clear to everyone that these were a bad idea.
- Every site you go to, no
matter how you found it, has your IP address (unless you attempt to hide
that); this is not new.
- When you click on a link to a site that appears in a google search,
the site gets your search term from google. You can also copy/paste the
site URL, which usually avoids this.
- third-party advertisers track you with cookies and whatever other data
(eg search data) they can obtain.
- While Google can sell your search data to others, they are under
considerable marketplace pressure not to. This does not, however, apply
to those third-party advertisers.
AOL search leak, 2006
Baase 4e pp 50-51 / 5e p 56: search-query data: Google case, AOL leak.
In August 2006, an AOL scientist released 20,000,000 queries from ~650,000
people. The data was supposedly "anonymized", and did not include IP
addresses, but MANY of the people involved could be individually identified,
Many people also searched for medical issues.
- searched for their own name
- searched for their car, town, neighborhood, etc
Mirror site for the actual data: http://gregsadetsky.com/aol-data/
What would make search data sufficiently anonymous?
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
How much of your google-search history is stored on your computer? Where is
Are these binding? (Probably yes, legally, though that is still being
Have we in any way consented to having our search data released?
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.
- Barber had recently taken out a large life-insurance policy on his
- Barber was having an affair
- Barber was heavily in debt
- April Barber's family was sure Justin did it
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)
He also searched for information on the accident itself. Harbert too was
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
Case of Casey Anthony
On the last day that two-year-old Caylee Anthony was seen alive (in 2008),
someone in Casey Anthony's house googled for "fool-proof suffication" [sic],
using Firefox. This was the browser primarily used by Casey; most other
household members used Internet Explorer.
Casey was acquitted in the case of Caylee's death. The prosecutor was not
aware of the Firefox search history, due to a police error.
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
Where is google-search-history stored on your computer? Is
it stored anywhere, anymore? Does this make you more interested in duckduckgo.com
If you have a laptop with a webcam, someone might turn it on. If your laptop
has a microphone, that can be turned on too.
On September 19, 2010, Rutgers University Tyler Clementi asked his roommate
Dharun Ravi to be out of the room for the evening. Clementi then invited a
male friend and they kissed. Ravi, meanwhile, turned on his webcam remotely
from a friend's room, watched the encounter, and streamed it live over the
Ravi told friends he would stream the video again on September 21, but
Clementi turned off Ravi's computer. That night Clementi filed an official
invasion-of-privacy complaint with Rutgers, and requested a single room. The
next day Clementi leapt to his death from the George Washington bridge. His
exact motives remain unclear; his family did know he was gay.
How much is this about invasion of privacy?
How much is this about harassment of homosexuals?
How much is this about bullying?
What about Erin Andrews, the ESPN reporter who was videoed while undressed
in her New York hotel room, allegedly by Michael Barrett, apparently now
convicted? This video too was circulated on the internet; the case made
headlines in July 2009 (though when the videos were actually taken is
unclear). Barrett got Andrews' room number from the hotel, reserved a room
next to hers, and either modified the door peephole somehow, or drilled a
hole through the wall and added a new peephole.
Is Andrews' situation any different from Clementi's? (Aside from the part
about damages to hotel property).
What should the law say here? Is
it wrong to place security cameras on your business property? Is it wrong to
place "nannycams" inside your house? What sort of notice do you have to give
When we record the ACM lectures at Loyola, what sort of notice do we have to
give the audience? The speakers?
Note that in Illinois it was a felony to record conversations
without the consent of all parties, even in a public place. Here is a note
about the New Jersey law.
Under New Jersey's invasion-of-privacy statutes, it is a fourth degree
crime to collect or view images depicting nudity or sexual contact
involving another individual without that person's consent, and it is a
third degree crime to transmit or distribute such images. The penalty for
conviction of a third degree offense can include a prison term of up to
New Jersey lists "nudity" and "sexual contact" as entitled to privacy; some
other states list "expectation of
If Clementi killed himself simply because he had been "outed", then any sex
partner could have outed him legally.
Sex partners could not legally have filmed him without his consent, but
(like most celebrity sex tapes) a lover could later release a tape that had been made with consent, or simply
release a textual narrative.
Ravi was convicted on March 16, 2012 for the invasion of privacy and for
"bias intimidation"; the latter is commonly known as the "hate crimes"
statute. He was then sentenced to 30 days in jail, plus fines and probation.
Ravi was not charged with provoking the suicide itself.
Pennsylvania school laptops
In the Lower Merion school district in Ardmore PA, school-owned laptops were
sent home with students. School officials have now been accused of spying on
students by turning on the laptops' cameras remotely, while the laptops were
in the students' homes.
The school's position is that remote camera activation was only done when
the laptop was reported lost or stolen, as part of the LANRev software
package (see also the open-source preyproject.com
site). Note that the current owners of LANRev now state:
We discourage any customer from taking
theft recovery into their own hands," said Stephen Midgley, the
company's head of marketing, in an interview Monday. "That's best left
in the hands of professionals."
Parents became aware of the incident when Blake Edwards, then 15, was called
into the principal's office:
The Robbinses said they learned of the
alleged webcam images when Lindy Matsko, an assistant principal at
Harriton High School, told their son that school officials thought he had
engaged in improper behavior at home. The behavior was not specified in
"(Matsko) cited as evidence a photograph from the webcam embedded in minor
plaintiff's personal laptop issued by the school district," the suit
states. [AP article]
Ms Matsko had seen the student ingesting something that looked to her like
drug capsules; the student in question claimed it was Mike-and-Ike
candy and there was considerable corroborating evidence that that was the
case. It is not clear whether Matsko had formally disciplined the student.
Supposedly the laptop camera was activated because the laptop was reported
as missing, but that in the case in question Robbins had, according to the
school district, been issued a "loaner" laptop because he had not paid the
insurance fees for a regular laptop. Loaner laptops were not supposed to go
home with students, but it is not clear that Robbins was ever told that.
Furthermore, there were about two weeks' worth of photos collected by the
webcam, despite Robbins' regular attendance at school.
Some technical details, including statements made by Mike Perbix of the
school's IS department, are available at http://strydehax.blogspot.com/2010/02/spy-at-harrington-high.html.
The stryde.hax article made the following claims:
The first, if true, would seem odd, in that generally students also have the
option of using school computing labs plus home computing resources; the
other points are fairly standard (though black electrical tape is
wonderfully effective at disabling what the camera can see).
- Possession of a monitored Macbook was required for classes
- Possession of an unmonitored personal computer was forbidden and would
- Disabling the camera was impossible
- Jailbreaking a school laptop in order to secure it or monitor it
against intrusion was an offense which merited expulsion
The Strydehax article also makes it clear that Perbix had gone to some
lengths to disable the camera for student use, but to still allow the camera
to be used by the administrative account. Perbix had written on https://groups.google.com/group/macenterprise/browse_thread/thread/98dd9da15da4189f/d461836b9996c4d8?lnk=gst&q=perbix+isight
(google login may be necessary):
[to disable the iSight camera] You have can
simply change permission on 2 files...what this does is prevent internal
use of the iSight, but
some utilities might still work (for instance an external application
using it for Theft tracking etc)...I actually created a little Applescript
utility and terminal script which will allow you to do it remotely, or
allow a local admin to toggle it on and off.
Some students noticed that the LED by the camera occasionally blinked or
came on. They were apparently told this was a glitch, and not that the
camera was tracking them (student testimonials in this regard are on the
Before the laptops were even handed out, Perbix had replied to another
employee's concern with the following (from wikipedia):
[T]his feature is only used to track
equipment ... reported as stolen or missing. The only information that
this feature captures is IP and DNS info from the network it is connected
to, and occasional screen/camera shots of the computer being operated....
The tracking feature does NOT do things like record web browsing,
chatting, email, or any other type of "spyware" features that you might be
Note that public schools are part of the government, and, as such, must
abide by the Fourth Amendment (though schools may be able to search lockers
on school property). (Loyola, as a
private institution, is not so bound, though there are also several Federal
statutes that appear to apply.)
Students and parents do sign an Acceptable Use policy. However, a signature
is required for the student to be issued a laptop. Also, students are
minors, and it appears to be the case that parents are not authorized to
sign away the rights of minors.
A second student, Jalil Hasan, also had his webcam activated. He had
apparently lost his laptop at school; it was found and he retrieved it a
couple days later. However, his webcam was now taking pictures, and
continued to do so for two months.
In April 2010 the school's attorneys issued a self-serving report claiming
there was no "wrongdoing", but nonetheless documenting rather appalling
privacy practices. Some information from the report is at http://www.physorg.com/news192193693.html.
The most common problem was that eavesdropping was not terminated even after
the equipment was found.
In October 2010, the Lower Merion School District settled the Robbins and
Hasan cases for $610,000. Of that amount, 70% was for attorneys' fees.
The FBI did investigate for violations of criminal wiretapping laws.
Prosecutors eventually decided not to bring any charges. While there may not
have been criminal intent, the policies of the school and its IT group
showed a gross disregard for basic privacy rights. While "accidentally"
taking pictures remotely might be a possibility, going ahead and then using
those pictures (eg to discipline students, or even to share them with
teachers and academic administrators) is a pretty clear abuse of privacy
Another school-laptop case
Susan Clements-Jeffrey, 52-year-old long-term substitute teacher at Keifer
Alternative School (K-12) in Springfield OH, bought a used laptop from
one of her students in 2008. She paid $60 for it. That's cheap for a laptop,
but the non-free application software had been removed and, well, the case
sort of hinges on whether it was preposterously
cheap. The lowest prices I could find a couple years later for used laptops
were ~$75, on eBay.
The laptop in fact had been stolen from Clark County School District in
Ohio, and on it was LoJack-for-Laptops software to allow tracking. Once it
was reported missing, the tracking company, Absolute
Software, began tracking it. Normal practice would have been to track
it by IP address (the software "phones home" whenever the computer is
online, and then turn that information over to the police so they could find
out where it was located, but Absolute investigator Kyle Magnus went
further: he also recorded much communication via the laptop (including audio
Clements-Jeffrey used the laptop for "intimate" conversation with her
boyfriend. Absolute recorded all this, including at least one nude image of
Clements-Jeffrey from the webcam. Police eventually did come and retrieve
the laptop; theft charges were quickly dropped.
Clements-Jeffrey, however, has now sued Absolute for violation of privacy,
under the Electronic Communications Privacy Act that forbids interception of
electronic communication. Absolute's defense has been that Clements-Jeffrey
knew or should have known the laptop was stolen, and if she had in fact
known this then her suit would likely fail. However, it seems likely at this
point that she did not know this.
Absolute has also claimed that they were only acting as agent of the
government (ie the school district). The school district denies any
awareness that eavesdropping might have been done. And claiming that actions
on behalf of a school district are automatically "under color of law" seems
farfetched to me.
In August 2011, US District Judge Walter Rice ruled that Clements-Jeffrey's
lawsuit against Absolute could go forwards. In September there was an
undisclosed financial settlement.
More at http://www.wired.com/threatlevel/2011/08/absolute-sued-for-spying.
More on laptops and spying
This is continuing, though schools are not involved in the exploits
Event data recorders in automobiles
Who owns the data? Should you know it is there?
What if it's explained on page 286 of the owners manual?
Should it be possible for the state to use the information collected against
you at a trial? What about the vehicle manufacturer, in a lawsuit you have
brought alleging manufacturing defects?
See wikipedia: "Event_data_recorder"
Facebook and privacy
Is Facebook the enemy of privacy? Or is Facebook just a tool that has
allowed us to become the enemies of our own privacy?
When did Facebook stop being "closed", ie access was limited to your
"network" (eg Loyola)? Did anyone care?
Facebook privacy issues are getting hard
to keep up with! For example, what are the privacy implications of Timeline?
Switching to Timeline doesn't change any permissions, but all of a sudden
it's much easier for someone to go way back in your profile.
Facebook know a lot about you. It
Here's a timeline of the progressive privacy erosion at facebook: eff.org/deeplinks/2010/04/facebook-timeline
- who your friends are
- what you are writing to whom (using facebook)
- your age
- your education
- your job (probably)
- your hobbies
- what you "like"
- whether you are outgoing (extraverted?) or not
At one time (2009?) Facebook was actively proposing "sharing" agreements
with other sites, and made data-sharing with those sites the default. The
idea was that FB and the other site would share information about what you
were doing. Some of the sites (from
Eventually Facebook has again stepped back from a full roll-out of the
sharing feature, although the shared-login feature seems to be coming back.
- yelp.com: a restaurant/shopping/etc
rating site (so you could post about restaurants to both yelp and FB?)
- docs.com: a googledocs competitor owned
by Microsoft (presumably the idea was you could post "docs" on your FB
- pandora.com (the web-radio site)
Facebook has long tinkered with plans for allowing a wide range of
third-party sites to have access to your facebook identity. Back in 2007,
this project was code-named Beacon.
Supposedly the Beacon project has been dropped, but it seems the idea behind
it has not.
Ironically, third-party sites might not need
Facebook's cooperation to get at least some information about their
visitors (such as whether they are even members of Facebook). Your browser
itself may be giving this away. See http://www.azarask.in/blog/post/socialhistoryjs
(Note that this technique, involving the third party's setting up
invisible links to facebook.com, myspace.com, etc, and then checking the
"link color" (doable even though the link is invisible!) to see if the
link has been visited recently, cannot reveal your username.)
In May 2010 Facebook made perhaps
be visible to everyone: your name, your schools, your interests, your
picture, your friends list, and the pages you are a "fan" of. Allegedly your
"like" clicks also became world-readable. (Here's an article by Vadim
Lavrusik spelling out why this can be a problem: http://mashable.com/2010/01/12/facebook-privacy-detrimental.
Lavrusik's specific concern is that he sometimes joins Facebook groups as
part of journalistic investigation, not out of any sense of shared
After resisting the May 2010 uproar for a couple weeks, Facebook once again
changed. However, they did not
apologize, or admit that they had broken their own past rules.
Here's an essay from the EFF, http://www.eff.org/deeplinks/2010/05/facebook-should-follow,
entitled Facebook Should Follow Its Own
Principles, in which they point out that Facebook's 2009 principles
(announced after a similar uproar) state
People should have the freedom to decide
with whom they will share their information, and to set privacy controls
to protect those choices.
But Facebook's initial stance in 2010 was that users always had the freedom
to quit facebook if they didn't like it. Here's part of Elliot
Schrage, FB VP for Public Policy, as quoted in a May 11, 2010 article at http://bits.blogs.nytimes.com/2010/05/11/facebook-executive-answers-reader-questions:
Facebook is a conscious choice by vast numbers of people who have
stepped forward deliberately and intentionally to connect and share. We
study user activity. We've found that a few fields of information need to
be shared to facilitate the kind of experience people come to Facebook to
have. That's why we require the following fields to be public: name,
profile photo (if people choose to have one), gender, connections (again,
if people choose to make them), and user ID number.
Later, when asked why "opt-in" (ie initially private) was not the default,
Everything is opt-in on Facebook.
Participating in the service is a choice. We want people to continue to
choose Facebook every day. Adding information -- uploading photos or
posting status updates or "like" a Page -- are also all opt-in. Please
don't share if you're not comfortable.
That said, much of your information is still public by default.
Two weeks after Schrage's claim that users would always be free not to use
Facebook if they didn't like it, Facebook CEO Mark Zuckerberg weighed in,
with a May 24, 2010 article in the
Washington Post: http://www.msnbc.msn.com/id/37314726/ns/technology_and_science-washington_post/?ns=technology_and_science-washington_post.
In the article, Zuckerberg does not seem to acknowledge that any mistakes
were made. He does, however, give some Facebook "principles":
The first principle is a step back from the corresponding 2009 principle.
- You have control over how your information is
- We do not share your personal information with
people or services you don't want.
- We do not give advertisers access to your
- We do not and never will sell any of your
information to anyone.
- We will always keep Facebook a free service for
Facebook vigorously claims that your information is not shared with
advertisers, by which they mean that your name is not shared. However, your
age, interests, and general location (eg town) are
shared, leading to rather creepy advertisements at best, and cases where
your identity can be inferred at worst.
Recall that advertisers are Facebook's real customers. They are the ones who
pay the bills. The users are just users.
Deja News, once at deja.com (now run by google): where is it now? It still
lets you search archives of old usenet posts, though the social significance
of that is reduced in direct proportion to the reduced interest in Usenet.
Think of being able to search for someone's years-old facebook posts, though
(and note that Facebook Timeline has in effect enabled just this).
Baase 4e p 76 / 5e p 69
Originally, you only saw what your friends did when you reloaded their page.
News feeds (mini-feeds) implemented active
notification to your friends whenever you change your page. Why was this
considered to be a privacy issue? Is it still considered to be a privacy
The mini-feed issue originally came up in 2006. However, modifications of
the feature still occasionally reopen the privacy issue. At this point,
though, most people have come to accept that nobody understands when their
posts appear in someone else's post feed.
Is this a privacy issue or not?
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
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
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.
- 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
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.
Is this a privacy issue?
SocialIntel was one of the first companies to harvest Facebook data, selling
it mostly to prospective employers. There are now a large number of firms
that specialize in collecting Facebook public data, analyzing it, and
selling "threat reports" to police departments and private security-related
firms. See http://littlesis.org/news/2016/05/18/you-are-being-followed-the-business-of-social-media-surveillance/.
One company, ZeroFox, allegedly
tracked Black Lives Matter protesters. A similar company, Geofeedia,
also has police contracts. Both firms do a significant amount of commercial
"reputation management" work as well.
While we're on the subject of data collection, consider ChoicePoint
and Acxiom. (ChoicePoint is now LexisNexis.com/risk
(for Risk Solutions)) (Baase 5e p 63ff)
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
ChoicePoint and Acxiom might argue that they are similar to a credit bureau,
though exempt from the rules of the Fair Credit Act because they don't
actually deal with credit information. Here is some of the data
collected (from Baase 3e):
(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
- credit data
- divorce, bankruptcy, and other legal records
- criminal records
- employment history
- home purchases
- insurance claims
- driving records
- professional licenses.
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://pld.cs.luc.edu/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
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:
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
- 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 several
years ago. It took a couple years for any related ads to show up, but
now they do so regularly.
- 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
Like → advertisement
FB "likes" have long been somewhat randomly displayed to Friends. But in
2012 FB added a new feature: social
advertisements, or Sponsored Stories.
If you "like" something on Facebook, it may automatically be converted to an
advertisement, paid for by the company whose product you liked.
Here's an example: http://www.nytimes.com/2012/06/01/technology/so-much-for-sharing-his-like.html?_r=2.
Nick Bergus discovered that Amazon was selling personal lubricant in
55-gallon-drum quantities, and posted a satirical "like". Actually, he
posted a comment. Much to Nick's surprise, his "comment" became part of an
ad for the product shown to his friends, paid for by Amazon; FB's policy is
that an advertiser may purchase any likes/comment it wishes and convert them
to paid ads, with no royalties to the liker. Such "social ads" are displayed
only to friends of the liker [if I understood this correctly]. Note,
however, that presumably none of Mr Bergus' friends would have been targeted
for this particular ad if Mr Bergus hadn't "endorsed" the product. Alas for
FB, Amazon and perhaps Mr Bergus, FB's ad-selection mechanism seems to be
clueless about the realities of sarcasm.
Here is the relevant part of the policy, from May 2012, still in place
About Advertisements and Other Commercial Content Served or Enhanced
In June 2012, Facebook agreed to make it clearer to users when this is
happening. The above policy is presumably the "clearer" policy.
Our goal is to deliver ads that are not
only valuable to advertisers, but also valuable to you. In order to do
that, you agree to the following:
- You can use your privacy
settings to limit how your name and profile picture may be
associated with commercial, sponsored, or related content (such as a
brand you like) served or enhanced by us. You give us
permission to use your name and profile picture in connection with
that content, subject to the limits you place.
- We do not give your content or information to advertisers without
- You understand that we may not always identify paid services and
communications as such.
Conversely, if you do not use your
privacy settings to limit how your identity may be used in ads, you have
agreed to such use!
Here are FB's
rules for social ads:
I tried setting my social-ad preferences. I found them at Privacy Settings →
Ads, Apps and Websites → Ads → Edit Settings. My settings were "no one"; I
have no idea why.
Social ads show an advertiser's message alongside
actions you have taken, such as liking a Page
Your privacy settings apply to social ads
We don't sell your information to advertisers
Only confirmed friends can see your actions alongside
If a photo is used, it is your profile photo and not
from your photo albums
Some have argued that Facebook privacy issues have shifted: the data you
post is no longer the real issue at all (after all, more and more users are
comfortable with the control they have over that data). The real issue is
the data that Facebook collects from you in their role as an advertiser.
They know what you like, what you "like", and what you actually click on. In
some ways, this is similar to Google. In other ways, Facebook has those
pictures, and arguably even more metadata to play with.
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:
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
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.
That said, some people are quite successful at using FB's privacy features
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 big disappointment.
Facebook and Facial
Does this matter?
Here's an article from August 2012: http://news.cnet.com/8301-1023_3-57502284-93/why-you-should-be-worried-about-facial-recognition-technology/,
and related articles linked to that.
Even today, Facebook appears to be using this technology to suggest how to
tag people in photos. Is this a concern? If the technology catches on, might
other uses make it become a concern? Could Facebook also be using this
technology to identify those who create Facebook accounts not using their
Here's a 2015 article: FaceBook
will soon be able to ID you in any photo
The article here is from the publishers of Science.
FaceBook is way ahead of the FBI in this regard.
Facebook has claimed that this new feature will protect your
privacy: "you will get an alert from Facebook telling you that you appear in
the picture,.... You can then choose to blur out your face from the picture
to protect your privacy." Is that likely? After all, if you're tagged
in the picture then they don't need facial recognition, and if you're not
tagged, is this a serious issue?
FaceBook's DeepFace system was trained on all those FB pictures in which
people are tagged. Did you know you agreed to that?
Police could use such a system to identify people on the street, or
participants at a rally. Stalkers could use it to find out the real identity
of their chosen victim.
Facebook does not make their entire face library public, though they do make
profile pictures public. Vkontakte, in Russia,
apparently makes more images public, and a facial-identification app
FaceFind has been created using Vkontakte's image library. Given a picture
of a person (even in a crowd), it supposedly can identify the person around
70% of the time. See https://www.theguardian.com/technology/2016/may/17/findface-face-recognition-app-end-public-anonymity-vkontakte.
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
You get free email, free websites, and free spying too!
- Do I have a date this Saturday?
- Who do I have a crush on (whose page am I obsessively reloading)?
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.
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?
Google+ circles do seem easier to use.
Facebook 2010 settings
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
At the time I collected these, the issue was that FB provided explanations,
and defaults. In retrospect, the issue is what happened to all these
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.
* 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.
* Send me messages
This lets friends you haven't connected with yet send you a message before
adding you as a friend.
* 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.
* See my education and work
This helps classmates and coworkers find you.
* See my current city and hometown
This helps friends you grew up with and friends near you confirm it's
* See my interests and other Pages
This lets you connect with people with common interests based on things
you like on and off Facebook.
Here are some more settings, from privacy settings => customize settings
(sharing on facebook)
* Things I share
|Posts by me (Default setting for posts, including status updates
||Friends of Friends
|Interested in and looking for
|Bio and favorite quotations
||Friends of Friends
|Religious and political views
||Friends of Friends
* Things others share
|Photos and videos I'm tagged in
||Friends of Friends
|Can comment on posts
|Friends can post on my Wall
|Can see Wall posts by friends
* 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.
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
- 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
Facebook 2013 Settings
Facebook's current (2013) settings are, if anything, a step
towards greater inscrutability, though the new settings are
briefer. You are only given options to control who can see your posts
and who can look you up. (Photo albums have their own controls.)
Whether others can see your friend lists, or your personal information, is
no longer something you can control directly.
Later in 2013, a section "Who can contact me" was added, with options for
controlling who can send you Friend requests and who can send you messages.
The mechanism for limiting people from seeing past posts on your
timeline turns out never to be explained, and there are dire warnings
against even using it:
Limit The Audience for Old Posts on Your Timeline
If you use this tool, content on your timeline
you've shared with friends of friends or Public will change to
Friends. Remember: people who are tagged and their friends may see
those posts as well. You also have the option to individually change
the audience of your posts. Just go to the post you want to change
and choose a different audience.
Limit Old Posts
If you click the last thing, you get
You are about to limit old posts on your
timeline without reviewing them. Note: This global change can't
be undone in one click. If you change your mind later, you'll
need to change the audience for each of these posts one at a time.
You do now have a rather different way to review posts and photos by others
that you are tagged in.
You also have greater control over visibility of specific posts.
You can set the visibility of your friends list by going to friends =>
You can set the visibility many of 2010's "Things I share" by going to the
individual shared item and editing its sharing status. That is, sharing
policy is no longer all in one place; it is associated with each separate
item shared instead.
As far as I can tell, there is no longer a distinction between permission to
"post on your wall" and permission to "comment on a post".
And see http://www.facebook.com/help/204604196335128/,
for other lists of friends, including your "close friends" list. (Who can
see your "close friends" list?)
Facebook called for a policy-change election in December 2012. 79,731 voted
for the policy change; 589,141 voted against. Facebook officially declared,
however, that they required 30% participation (~300 million people!) to make
the vote binding.
Facebook decided to ignore the Will Of The Users.
They also, as part of the process, abandoned user voting.
Security researcher Suriya Prakash
discovered how to get your phone number from Facebook.
It turns out that Facebook allows by default a search for your page given
your phone number. You can turn this off, but (once again) only
if you know it is on. (It is in the privacy-settings category "How
you connect", which is rather misleading.)
So the idea is to search for all numbers, 000-000-0000 to 999-999-9999 and
get the name of each user. Then sort the table by name. All this is quite
practical; Prakash has said he has a table of about 5 x 108
(Normally, if you're going to allow looking people up using an identifier
that isn't meant to be public, you implement a rate-limit on searches
per second, to disable Prakash's idea. Facebook failed to do this.)
If you know the area code, you can refine the search easily.
Get Your Loved Ones Off Facebook
That's the title of a famous
blog post by Salim Virani. Does he overstate the case? Or is Facebook
Facebook does appear to follow your privacy preferences when you post
things. But that's not the whole story.
It is true that Facebook changes their Terms of Service and Privacy Rules
regularly. You don't get notifications of these changes. Is that bad?
Here are some things that Virani documents, though, that not everyone is
- Facebook collects a lot of information about you outside of
what you upload or post. This information they are much freer to use
(and misuse). Generally, Facebook appears to keep "Like" clicks in this
category. Facebook has long created "social advertising" based on your
- If a non-Facebook page has an embedded Facebook "Like" button (or any
other FB applet), then Facebook can track that you've been to that page.
Lots of advertisers can track you this way, but only Facebook (and
Google, if you're logged in to your google account) can identify
- Facebook is pushing to have most posted videos within the Facebook
system. This way Facebook can track exactly how much you watched, and
doesn't give up any advertising revenue to YouTube.
- Facebook's facial recognition system appears to be impossible to opt
out of. Even if you're not a Facebook user.
- The Facebook smartphone app tracks your location. It also enables
the microphone (at least, you have to grant it that permission to
install the app on Android). Lots of apps demand the ability to enable
the microphone. What are they all using it for? What is Facebook using
this for? The original theory was that they wanted to monitor what TV
shows you had on in the background.
- Facebook has a very accurate personality model for you.
- Facebook sometimes shows you little surveys
that look legitimate but are really intended to discover if any of your
friends are using fake names. But Facebook does not necessarily close
- If you're not on Facebook, they probably maintain an account for you
anyway, so they have a single identifier by which to index all those
photos of you that other people post. And any other information other
people post about you.
Some of the concerns expressed by Virani are unproven. But they all are
definitely plausible. Do you care?
Managing Your Online Privacy
The article linked to here is about the idea that younger adults --
so-called Generation Y -- might (or might not) be more aware about how to manage
their FaceBook privacy, and by the same token to be less strict about what
they expose online.
The article closes with these questions:
Some further things to think about:
- According to studies, Millennials are more aware of how to control
their online reputations. Does that offset their allowing more access to
information deemed sensitive by older adults?
- It is almost assured what is released to the Internet is public
knowledge forever. Why does this scare parents and older adults, but not
- Do you think parents and older adults are alarmed at the openness of
Millennials because they feel Millennials are naïve about future fallout
from their openness online?
1. Are younger people more likely to allow more access?
2. In a practical sense, is it really true that what's on the
Internet is there forever?
3. Are some people (perhaps older people) unnecessarily conservative about
Joe the Plumber
aka Samuel Joseph Wurzelbacher
This is something of a parable of the problems with online public records
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
Allegations about him:
Lucas county clerk of courts: http://apps.co.lucas.oh.us/onlinedockets/Default.aspx
- 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
- related to Robert Wurzelbacher (not!), son-in-law of Charles Keating
& convicted of Savings & Loan fraud; RW served 40 months in
Search for "Wurzelbacher".
Is the availability of this kind of search
See also Baase, 4e §2.4.2 / 5e §2.4.3, on Public Records. Her examples
- 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
Theories of Privacy
Is it obsolete? See Baase 5e Section 2.6.
Is it true that "young people of today" are not as concerned about privacy?
Or did this change with Facebook etc?
Warren and Brandeis, 1890
(Louis Brandeis later became a Supreme-court justice.) In a Harvard Law
Review paper, they argue for the principle of "inviolate
personality" that gives everyone specific rights regarding their
personal information. For them, privacy is the right "to be let
alone". Their primary concern was with publication of private
information by the press, especially by newspaper gossip columns. Their
argument was that repeating "private" information about someone violated a
fundamental right. Baase, 4e p 100 / 5e p 109.
Problems arise here because Warren and Brandeis did not 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.
Judith Jarvis Thomson argued against the Warren-Brandeis position (www.eecs.harvard.edu/cs199r/readings/thomson1975.pdf).
Her paper begins "Perhaps the most striking thing about the right to privacy
is that nobody seems to have any very clear idea what it is." She goes on to
claim that every time a privacy right is violated,
there is in fact some other, more concrete, right being violated.
The implication is that we do not need special privacy rules. One of her
examples (section IV) is the Picture Scenario: if a man has a picture he
doesn't want people to see, he can keep it private. If they break into his
house, they have broken the law. If they view the picture remotely, using
X-rays, they have violated the man's property rights in
the picture. The man can waive this right if he displays
the picture publicly. If Alice interrogates Bob violently and thus obtains
Bob's private information, the real issue is the violence and not the
privacy invasion. If a company reveals information about you in a way that
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" (section V). The same applies to her Marital
Argument scenario: if a couple doesn't want people to hear their argument,
they can close the window, at which point someone using eavesdropping
equipment to listen is violating this same right. Thomson felt the right to
ones person was, if anything, even stronger than the right to ones property.
But is this just a Warren-Brandeis-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?
On 4e p 103 / 5e p 112, 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
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?
Transaction privacy is a major conceptual underpinning of the legal
Third-party Doctrine: if someone else has access to a record, you do not
have a privacy interest in it.
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 (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
- tenant payment information or activism
- driving records
- credit information
[Baase 4e p 107 / 5e p 117] 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 Shopper Surveillance 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.
Or is it just that companies don't want the bad publicity that comes with a
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
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
Consumer protection and privacy
[Baase 4e p 109 / 5e p 118] 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
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".
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
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
Smyth and his boss exchanged emails in which marketing employees were
discussed in an unflattering light. The phrase "kill the backstabbing
Smyth and his boss got fired, based on the contents of their emails to each
Smyth sued for wrongful termination. He
Bourke v. Nissan:
This was a similar California case: Bonita Bourke worked for Nissan. One of
her email messages was reviewed, somewhat accidentally, by management. It
was highly personal. Bourke received a low evaluation; this was mostly
likely due almost entirely to her email. She sued for invasion of privacy,
and lost, though the California state court of appeals did not "publish" its
decision, meaning it is not to be used as a precedent.
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, and requested a
private Epson email account not accessible by Hillseth. Hillseth then had
Shoars fired. 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.
Smyth v Pillsbury, 1996
Federal District Court within Pennsylvania, 1996. Case was dismissed
after a preliminary hearing (not a trial).
The District Court opinion is at http://pld.cs.luc.edu/ethics/smyth_v_pillsbury.html.
Judge: Charles Weiner
Whatever happened to the contractual
issue? How could Pillsbury ignore an official written policy that emails
would not be used as grounds for termination or reprimand? Hint: there is
a long history of cases upholding "employment at will" doctrine. Still,
there is also a long list of situations where at-will employment is
- when the employee has contractual or union protections
- dismissal for refusal to do illegal acts
- dismissal for racial, ethnic, & religious discrimination (civil
- dismissal for age discrimination
- whistleblower protection
- Americans with Disabilities Act protections
- employees were engaging in protected conversation about workplace
- employees object to offensive
conduct on the part of the employer
Judge Weiner simply did not think Pillsbury's conduct was offensive, or
offensive enough, to warrant
application of the last exception above. But parts of the decision suggest
Weiner was simply not very sympathetic to privacy concerns, and perhaps
did not entirely understand the case.
The case is a good example of how the "reasonable expectation of privacy"
doctrine can fail completely, if someone thinks you do not have such an
expectation. How can you argue?
One way to view this case is that Smyth simply sued for the wrong thing.
Reinstatement was governed by the at-will employment doctrine, and
requires a very high burden of proof. Financial damages for invasion of
privacy might have been another thing entirely.
Note that ownership of the email system does not
matter. Consider the following:
- ownership of a phone
- ownership of stationery
- ownership of an apartment building
None of these ownership categories give the owner the right to listen to
phone calls / read letters / snoop in apartments!
How would the case have been different if:
- Pillsbury had an email policy allowing supervisor access?
- Pillsbury had no policy at all?
Contract v Tort: If you
harm someone with whom you have a contract, it falls under contractual
law. If you harm someone without a contract, it falls under tort law.
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 expectation. Smyth was alleging that Pillsbury violated the
tort of substantial and highly offensive invasion of
Judge Weiner, however, held that corporate eavesdropping is not
offensive. Period. (Could it
be offensive because the company
had promised not to? Weiner did not consider that.)
Weiner said Smyth lost because email was "utilized by entire company"
and Smyth's emails were "voluntary". Neither of these points necessarily
changes the privacy issue, though. From the decision:
we do not find a reasonable expectation of
privacy in e-mail communications voluntarily
made by an employee to his supervisor over the company e-mail system
notwithstanding any assurances that such communications would not be
intercepted by management.
The use of the word "voluntary" is in contrast to mandatory urinalysis
cases; see below for further discussion. But note that all
communication would appear to be voluntary.
Weiner also stated above that employees do not have a "reasonable
expectation of privacy". He may have been overstating this, for emphasis; he
goes on though to clarify:
even if we found that an employee had a reasonable expectation of
privacy in the contents of his e-mail communications over the company
e-mail system, we do not find that a reasonable person would consider the
defendant's interception of these communications to be a substantial
and highly offensive invasion of his privacy.
That is, maybe Weiner might agree that in some cases one might
have a REoP regarding email, but regardless of that the interception of
email is not "substantial and highly offensive". A violation of a
"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. Weiner is
arguing here that the search did not even
violate a REoP, let alone rise to the level of being offensive. Weiner
might have been willing to compromise if the only issue had been some
degree of REoP, but that was not the issue at hand.
In other words, the Judge felt that Pillsbury's actions did not
tortiously (that is, in violation of some tort,
or general non-contractual duty) invade privacy.
An unstated justification for this is the prevention of sexual
harassment. This provides a legitimate "motive" for corporations to read
all employee email, though of course actual harassment can always be
reported by the recipient. But the recipient may be reluctant to complain.
The judge did state
Moreover, the company's interest in
preventing inappropriate and unprofessional comments or even illegal
activity over its e-mail system outweighs any privacy interest the
employee may have in those comments.
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 spoken water-cooler or bathroom conversation?
What 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". (Bourke v
Could Smyth have sued for damages, instead of
reinstatement? Maybe. Could Smyth have sued for contractual
obligations? Only if he could convince the court that the employee manual
constituted a contract.
The judge essentially ignored Smyth's complaint that Pillsbury had
promised not to use the contents
of emails in disciplinary actions. Here is a footnote to his 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) [pld: summary below].
[Generally, estoppel means prohibiting ("estopping") a party to a lawsuit
from doing something they had promised not to do; in this case, firing
In other words, this footnote states there is legal precedent for
rejecting a lawsuit for reinstatement that hinged on the fact that
Pillsbury had promised not to examine employee email. Smyth
was careful to phrase his argument in terms of invasion of privacy, but
perhaps the judge thought that was really just trying an end run around
this estoppel rule.
Here is a possible approach to Weiner's decision:
Is there a problem here?
- The estoppel argument means that Pillsbury's promise not to eavesdrop
cannot matter, and so we can ignore this promise
- Once you ignore Pillsbury's promise not to eavesdrop, employees no
longer have a reasonable expectation that eavesdropping won't be done.
Judge Weiner spelled out that exceptions to the employment-at-will
doctrine may only be made for compelling public-policy reasons; the
closest Smyth came to one of them was that Pillsbury's conduct was offensive. Smyth had claimed that
preventing violations of privacy would indeed be a sufficient
public-policy reason. Pennsylvania law defined a tort of "intrusion upon
seclusion" (not exactly the form of privacy Smyth was concerned with, but
close enough), but defined it to mean "intrusion [that] would be highly offensive to a reasonable person".
The judge then felt that Smyth's situation simply did not rise to this
level. In fact, the judge stated that Smyth did not even have a "reasonable
expectation of privacy".
Judge Weiner did make two somewhat unusual points about private communications.
First, as appears in a quote above, the email was voluntary
and Weiner writes:
[W]e find no privacy interests in such
What kinds of communication are involuntary? This would also seem
to strip email and telephone conversations of privacy rights. This sentence
can be read as meaning no forms of communication are subject to
privacy protections, because communication is always voluntary.
Second, Weiner also stated:
once [Smyth] communicated the alleged
unprofessional comments to a second person (his supervisor),... any
reasonable expectation of privacy was lost.
In other words, something is private only if you keep it
entirely to yourself; no transaction or communication with
another person can ever be private! Perhaps the judge had the
"third-party doctrine" in mind, but if so this is an odd application of
Do you think this is an example of a case where the judge did not "get
it"? Or was Judge Weiner onto something? Or did he have a view of privacy
that was very different from freedom from surveillance?
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?
So do we have a reasonable expectation of privacy in email for personal
use, if not in the workplace? Arguably more people do now than in
1996. Did a lack of understanding of email privacy back then saddle us with
the permanent idea that we had no reasonable expectation of privacy in
workplace email? Or was this inevitable, as soon as people had reasonable
alternatives for personal email?
The bottom line of Judge Weiner's ruling is that there is "no reasonable
expectation of privacy for work email" and they can read it even if they
promise not to. Alternatively, such a privacy invasion is not offensive
enough to warrant interference with the employment-at-will doctrine.
That "even if they promised not to" part fits in with longstanding law
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.
He was fired, and filed suit in state court for reinstatement and for
A jury trial resulted in a verdict in Paul's favor, both for damages and
reinstatement. Superior court affirmed. The appellate court reversed the
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 circumstances, 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, ...]
In other words, the court ruled that Dr Paul's firing was not "offensive"
enough to warrant an exception, just as judge Weiner ruled regarding
According to this precedent, Smyth (and his lawyers) knew
that he could be fired for any reason, regardless of Pillsbury's promises
to the contrary. Pillsbury cannot be estopped
from firing him just because they promised not to.
In court cases, you can't add 30% of an argument for equitable estoppel
("hey, they promised!") and 70% of an argument for tortious invasion of
privacy ("they listened in!") to get 100% of a case. ONE argument must be
Jurisdiction and Privacy
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. They sued the
Georgia company that made the recordings, in California. They lost at the
trial-court and appellate-court levels, but the California Supreme Court
found in their favor, in principle.
The court found that recording of calls involving Californians that
violated California law could be prosecuted in California no matter where
the recording took place, but also declared that, because this was a close
issue, it would only apply to future cases.
Illinois law similarly makes it illegal to record a phone conversation
(or any conversation, until a
2012 Seventh Circuit decision) without the consent of all parties.
The California Supreme Court finally found in Kearney and Levy's favor,
but only granted an injunction prohibiting this behavior in the future.
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
Persistence: email sticks around, although people traditionally use
it as if it were like the phone.
Loyola's policy on email
Policy until 2012:
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 were 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:
- During ordinary management and maintenance of computing and networking
- During an investigation of indications of illegal activity or misuse,
system and network administrators may view an individual's computer
files including electronic mail,
- 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
- If an individual is suspected of violations of the responsibilities as
stated in this document or other University policies,
- To protect and maintain the University computing network's integrity
and the rights of others authorized to access the University network.
- 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,
- Should the security of a computer or network system be threatened
Official E-Mail-Voice Mail Use and Disclosure Policy: luc.edu/its/policies/policy_email_voicemail.shtml
Some more general guidelines for email use: luc.edu/its/itspoliciesguidelines/policy_email_general.shtml.
Confidentiality of electronic mail
From the first policy:
Loyola cannot guarantee the confidentiality or
privacy of electronic or voice mail messages and makes no promises
regarding their security. Decisions as to what information to include in
such messages should be made with this in mind. The following elements
guide the administration of electronic and voice mail at Loyola as it
relates to confidentiality:
1. Administrative Activities: Loyola
reserves the right to conduct routine maintenance, track problems, and
maintain the integrity of its systems. As is the case with all data kept
on Loyola's computer systems, the contents of electronic or voice mail
messages may be revealed by such activities.
2. Monitoring: Loyola does not monitor the contents of electronic or voice
mail messages as a routine matter. However such monitoring may be
conducted when required to protect the integrity of the systems or to
comply with legal obligations.
3. Directed Access: Loyola does reserve the right to inspect the contents
of electronic and voice mail messages in the course of an investigation
triggered by indications of impropriety or as necessary to locate
substantive information that is not more readily available by some other
less intrusive means. Loyola will comply with all legal requirements for
access to such information.
Some possible protections (not actually implemented):
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???)
Protection against rule 2: If your email is examined because of concerns
about system integrity, 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 ????)
While these would not be enforceable for staff, as at-will employees, they would be for
- students: really customers
- faculty: if tenured (that is a contract)
The new policy is definitely more focused!
For another, it means that Google can use your search history when targeting
ads at you in Gmail/Google+/Google_Earth, etc. They've long used not only
your current search but also your search history when targeting ads for you
from within Google's search site. Arguably this is the main issue with the
change: all the data collected by Google as you interact with any Google
product can be pooled and used from any Google site.
Google does allow users to block the use of their Google-search data (in
Google Web History). You can also log out of your Google account before
Online Privacy and Advertising
The Amazing Dave: https://www.youtube.com/watch?v=F7pYHN9iC9I
Why are advertisers so determined to spy on you? Didn't print and television
advertising succeed without knowing much at all about the viewers?
An excellent summary of the history of online advertising is found in the
Internet's Original Sin, by Ethan Zuckerman, now at MIT and
once the developer of the first pop-up ad:
Along the way, we ended up creating one of
the most hated tools in the advertiser's toolkit: the pop-up ad. It was a
way to associate an ad with a user's page without putting it directly on
the page, which advertisers worried would imply an association between
their brand and the page's content.
Here are a couple amazing numbers from Facebook in 2014:
|profit per user
|time spent per user
Facebook, in other words, makes one penny for each hour its users spend
So what works in online advertising? Zuckerman's next point is debatable,
but it's a good first approximation:
Targeting to intent (as Google's search ads
do) works well, while targeting to demographics, psychographics or stated
interests (as Facebook does) works marginally better than not targeting at
But the takeaway for advertisers (and the websites supported by them) is
that if only we had a little more information about our users,
targeted advertising would finally get its big break.
Standard browser cookies consist of ⟨name,value⟩ pairs, each associated with
a domain (eg luc.edu). Both name and value are provided by
the website; cookies do not contain your own personal information.
Cookies may also have an expiration date. If there is no date then the
cookies are deleted when you exit your browser and are called session
cookies; cookies with expiration dates are thus persistent
Secure cookies have a bit set that
limits access to secure (https) connections.
All these are forms of HTTP cookies. A specialized form of cookie is the
HttpOnly cookie; these can be requested by the server but not accessed
Accessing cookies: in theory a page
from domain foo.org can only access cookies sent from a host matching
*.foo.org. Mostly this is correct, though there are some peculiarities of
domain naming that make this not completely secure. For example, a host
under the control of foo.org may have name bar.com; alternatively, DNS
cache poisoning may make host bad.com appear to be good.foo.org.
Another threat is top-level-domain cookies. Browsers disallow the use of
.com or .org as a cookie's domain, because then bad.com could set one that
might interfere with cookies from good.com. However, the list of
top-level-domains keeps growing, and only the most up-to-date browsers will
recognize all of them.
Cookies were introduced to provide stateful
browser sessions, eg for a shopping cart or an authenticated login.
Every time the server sends you a page, it can first retrieve its cookies,
which identify you and thus identify your shopping cart or the fact that you
are logged in. Alternatives to cookies for stateful browsing include long
Another use for cookies support of site personalization.
If you make some settings and expect them to be present the next time you
return, it is cookies that make this possible.
Persistent cookies also enable automatic login, eg to facebook.com after you
restart your browser. Persistent cookies, however, also enable support for tracking. Originally this meant tracking
you as you returned to the site, so that the site managers could tell how
many people returned multiple times; the original argument that cookies
couldn't be used to track you across multiple sites was based on the idea
that site foo.com could not request the cookies set by site bar.com.
However, nothing prevents sites foo.com and bar.com from sharing information
Browsers have allowed users from the late 1990s to refuse to accept cookies,
or to accept them selectively. Generally, however, this makes sites either
completely unusable (eg shopping sites) or practically unusable (eg because
of the need to click OK incessantly).
Third-party cookies are cookies from
a site other than the one in the location bar (either typed by you or from a
link). They arise from some embedded component (image or frame) from the
third-party domain, or simply because the site (eg loyolaramblers.com) had
an affliated or parent corporation (eg luc.edu) send a cookie. When the
third party is advertising.com, or doubleclick.net, or adwords.google.com,
they may be on a lot of other pages as well.
It is third-party cookies that are the dangerous ones, as these can tie
multiple web pages together.
Originally, third-party cookies were used to limit popup ads to one per
visit, or to show ads in a particular sequence, or to audit the ads. But now
visited. Or at least that your browser session has visited.
There are also other types of cookies; for example, there are flash
cookies sent when you visit sites with embedded flash content, and
Document Object Model (DOM) cookies.
Adobe provides an online Settings Manager at http://www.macromedia.com/support/documentation/en/flashplayer/help/settings_manager07.html.
This is, officially, the only way to remove flash cookies, though on my
linux system they are in domain-named subdirectories of
on winXP they appear to be in C:\Docs&Sets\%USER%\Application
The term zombie cookies refers to
cookies that are recreated (as HTML cookies) from scripts, based on data
found in DOM and Flash cookies. This seems a little intrusive; zombie
cookies are a clear violation of the user's expressed intent.
Where are your cookies? Where are
your flash cookies (*.sol files)? How do you get rid of them?
dictionary.com is famous for installing
flash cookies, but in my own test the site just installed three or four.
Plus some number of regular cookies.
It seems clear that the only reason advertisers use flash and DOM cookies is
to get around users who delete cookies regularly, or who use
anti-advertising tools. But see also panopticlick, below.
Firefox has apparently backed off of supporting these. See http://blog.mozilla.org/privacy/2013/02/25/firefox-getting-smarter-about-third-party-cookies/.
If third-party cookies are not supported, however, that does not end
tracking. If you go to loyolaramblers.com and there's an ad from
doubleclick.net, then without third-party cookies doubleclick.net can't send
you one. One option is for doubleclick.net to be promoted to a first-party
participant on the site; that is, it would appear to Firefox that you
What advertisers really want (or
think they want) is to display ads on your pages that are related to your
interests. To this end, so-called "ad tech" attempts to find out as much as
possible about your interests, both short-term and long-term. Facebook is a
master at discerning your long-term interests; so is Google, by analyzing
the kinds of things you search for.
But advertisers are also happy with short-term interests (and Facebook and
Google both excel here too). One thing they try to do is to create ads that
track you (or at least your interests) across sites. So that if you go to
vw.com to look at cards, and then to cnn.com, the latter will show you ads
for VW (hopefully immediately, but at least eventually).
This is so important to advertisers that it has largely taken over the
industry; clicks may pay twice as much if you can show the client that the
user has clicked previously on related content. Industry wants ads that follow you around as you browse.
For this reason, when you go to a site with forms, or with a search engine,
the site may share with its third-party advertisers some information about
what you have typed in. Generally they do not
share names, addresses, or email addresses, but search content (or what
products you looked at) is generally fair game. For conventional consumer
products this is a no-brainer. If you go to a medical site, the site may
share your interest in arthritis remedies with advertisers, but perhaps not
your interest in herpes or bipolar disorder. But there are no guarantees.
Google does not share what you enter in the google.com search box with
third-party advertisers, but only because there are
no third-party advertisers: google is a first-party advertiser.
Here's the question: do you care?
In the WSJ article cited below, an ad executive makes the statement
When an ad is targeted properly, it ceases
to be an ad, it becomes important information
If the information's use was restricted to more advertising, would any
amount of information really matter? Or are there advertising approaches
that, by "knowing what strings to pull to get you to buy", are
fundamentally unacceptable? Or is it simply that you don't want ads for
alcohol showing up at routine sites, or for ads for a birthday surprise for
another family member showing up when that family member had a turn on the
And is there a special concern if this kind of information became available
directly to interested parties? For example, if employers could look up your
magazine subscriptions? Or get a general report on your browsing habits?
(This could happen only if the sites were very sure of your identity.)
The Wall Street Journal ran a series of articles documenting this
ads-following-you-around phenomenon; it is at http://online.wsj.com/article/SB10001424052748703940904575395073512989404.html.
With the cooperation of Lotame Solutions, an advertiser, the cookie ID of
Ashley Hayes-Beaty, 4c812db292272995e5416a323e79bd37, describes her as
But Lotame did not have Hayes-Beaty's name,
apparently, until the WSJ story.
- The Princess Bride
- 50 First Dates
- 10 Things I Hate About You
- Sex and the City
The Journal also makes the claim (http://blogs.wsj.com/digits/2010/07/30/analyzing-what-you-have-typed)
that Lotame has website additions ("beacons") that can actually read what a
user types into text fields not "owned" by Lotame. It is not clear if this
is actually true, but if it is, it means that advertisers can harvest your
name, email address, passwords and any credit-card information. No technical
Arguably, keystroke logging is
illegal, under the ECPA.
Concerned users should consider installing noscript.
Experiment: with a "clean-slate"
browser, go to a car site (eg vw.com or pontiac.com),
and then to one of cnn.com / msn.com
/ chicagotribune.com. The goal is
to see if any ads follow you.
Can they get your name?
Sometimes it is easy to believe that, while sites know pretty much your full
browsing history, they at least don't actually have your name. In the Wall
Street Journal series (see previous notes), Lotame Solutions knew everything
about Ashley Hayes-Beaty except her name.
But sometimes they can get that too. If you go to site X and log in with
your real identity, X knows who you are. X's page may also have subobjects
from advertising site Y, who sends you a cookie and has you in their
tracking database. X may now agree to share your name with Y, and at this
point your name is likely everywhere.
Or perhaps X does not share your name with Y, but Y shares your browser
history with X. In this case your name may not be everywhere, exactly, but X
has everything about you.
good TIME Magazine article about online tracking. This article has
more examples of wrong or misleading information in advertiser/tracker
databases. Note that some tracking is "soft" (tied only to our computer, and
based on browsing history) while some is "hard" (specific business records
involving our name/address or ssn or both).
Microsoft and IE10 privacy settings: MS has decided to make "do not track"
the default in IE10. Advertisers, naturally, are upset.
Targeted Advertising Considered Harmful
That's the title of an article http://zgp.org/targeted-advertising-considered-harmful/,
written by Don Marti. The core of Marti's theory is that essentially nobody
trusts ads at face value. The one piece
of evidence we do have as to the trustworthiness of advertisers is
the money they spend. Full-page ads in upscale magazines, or television ads,
are not cheap, and the very existence of such an ad campaign means that
whoever is selling the product has reasonably deep pockets.
This kind of reasoning was analyzed by economist George
Akerlof, who observed that someone selling a car knows much more about
its condition than a prospective buyer. This "information asymmetry" also
holds for advertisers. One way we try to equalize the asymmetry is through
evidence of expenditures.
Under this theory, advertising should be most effective not when
it is targeted, but in fact when the opposite is true: when the
advertising appears on a reputable (hence expensive?) site.
It is not clear the extent to which this theory has been tested in the real
world. But even nontechnical computer users have started installing
ad-blocker software, so something has to give.
Check out https://panopticlick.eff.org.
They don't need cookies to track you!
What do you think can be done about this? What aspects of the fingerprint
here contribute the most to identifying you? Can they be disabled?
Baase 5e has a new section (2.5.3) on ad blockers. The core question: are
they ethical? The argument against ad blocking is that ads are what pay for
almost all free journalistic content out there. If the difference between
filesharing (bad?) and radio (good) was that the latter has ads, then do we
in fact have some obligation to leave the ads in place.
For a Utilitarian approach, we start with the tradeoffs. Lost ads may mean
loss of free content (and we may miss out on discovering products that we
could really use!). But the gorilla in the room is that ads are not just
passive displays: we are actively being tracked with them.
Is there a deontological obligation to refuse to block ads? If not, why is
listening to the radio (or Spotify) ok, but filesharing is not?
It is harder (but not impossible) to block ads from Facebook because their
content and their ads come from the same source. At some point websites may
become the source of the ads they display as well, to make ad-blocking more
Target and Pregnancy
Here's a link to Charles Duhigg's New York Times article: http://www.nytimes.com/2012/02/19/magazine/shopping-habits.html?_r=1&pagewanted=all.
The issue was this:
... once consumers' shopping habits are
ingrained, it's incredibly difficult to change them. There are, however,
some brief periods in a person's life when old routines fall apart and
buying habits are suddenly in flux. One of those moments -- the
moment, really -- is right around the birth of a child....
If Target could figure out how to identify pregnant women early on, earlier
than anyone else, they might be able to "lock them in" as long-term
customers. So Target statistician and marketer Andrew Pole was assigned the
task. He pretty much succeeded. One flag turns out to be purchases of larger
quantities of unscented lotion; another is dietary supplements.
Pole presumably figured this out by identifying women who had recently had
babies, through the usual way of consulting birth records, and then going
back to look at what they had been purchasing three, four and five months before delivery.
Target's second problem was how to make use of this; customers who received
baby ads early in their second trimester were likely to take offense. So
Target mixed in baby ads with ads for kitchen stuff, lawn & garden
stuff, towels, and everything else. But the baby products were carefully
chosen. And the ads -- individually prepared but designed to look
mass-produced -- might also include those products that the woman was known
to be already purchasing at Target.
At some point, Target got cold feet about Duhigg's article and forbade Pole
to speak further.
Duhigg's article contains a famous anecdote: that one father objected to his
teenage daughter's receiving baby ads from Target, only to find out later
that his daughter was pregnant. This story is probably fictitious;
(This incident may be why Target told Pole not to talk to Duhigg.)
You can see Andrew Pole giving a presentation on Target data analytics here,
or go here
and follow the links.
Car insurance companies figured out ~20 years ago that credit reports were a
remarkably good predictor of driving risk; most automobile-insurance
underwriting now uses these reports.
Now it's the turn of life insurance.
The goal was to replace traditional blood & urine screening (which costs
close to $100 to do) with data mining.
Regulators are concerned; one points out that a subscription to a magazine
about a high-risk activity (the example in the article is "Hang Gliding
Monthly") may be linked to dangerous behavior but also may be simple
entertainment. However, if the data-mining results were used only to exempt
people from the medical screening, it might be ok.
Here's a core example from the article:
What do you think of this data? Which of it may have come from grocery-store
Using readily available data, the consultant said, an insurer could
learn that "Beth" commutes some 45 miles to work, frequently buys fast
food, walks for exercise, watches a lot of television, buys weight-loss
equipment and has "foreclosure/bankruptcy indicators," according to
slides used in the presentation.
"Sarah," on the other hand, commutes just a mile to work, runs, bikes,
plays tennis and does aerobics. She eats healthy food, watches little TV
and travels abroad. She is an "urban single" with a premium bank card
and "good financial indicators."
Deloitte's approach, the consultant said, indicates Sarah appears to
fall into a healthier risk category. Beth seems to be a candidate for a
group with worse-than-average predicted mortality. The top five reasons:
"Long commute. Poor financial indicators. Purchases tied to obesity
indicators. Lack of exercise. High television consumption indicators."
Should medical insurance
companies have access to this data?
Automobile insurance companies are
working hard at using this kind of data to figure out which drivers
(especially younger drivers) are the better risks.
That leaves home insurance as an
area where, so far, the risk seems unrelated to your online life.
All gmail is read at google. Just not necessarily by people. Does
this matter? (Google is currently being sued about this;
The case led Google to declare that gmail users do not have a
"reasonable expectation of privacy". However, in March 2014 the plaintiffs
were denied class-action status, meaning the suit is unlikely to
Note that gmail has access to the full text of your email itself. This
means Google knows more about you than any regular web advertiser, with
the possible exception of Facebook (which tends to have slightly different
What if Bradford Councilman, of the email-scanning scheme, had had
automated software read the email, and this software then updated
Councilman's book-pricing lists? Is this different from what gmail does,
or the same?
What if Google searched gmail for insider stock tips, and then invested?
What could Google do with the
information it learns about you? What could they do beyond learning of
your areas of interest?
What could the government do, if they had access to all your email?
Once Upon A Time, some people laced their emails with words like "bomb" and
"terrorist", intended as a troll for the NSA. If you're doing that today
you're most likely trolling gmail instead of the NSA. Try lacing your google
email with words related to a single hobby with substantial commercial
presence (eg tennis), and see what ads you get. (Perhaps the most
interesting test would be to choose a socially stigmatized hobby.)
- to detect criminal activity
- to detect hacking targeting the ISP
- to detect protests about lack of "net neutrality", and slow down your
service as retribution?
Original reading: Simson
Garfinkel, Adopting Fair Information
Practices to Low Cost RFID Systems.
RFID (Radio Frequency IDentification) tags were, for a while, considered
to be a looming new privacy threat. Now very few people worry much about
them. At this point we are looking at them as an example of a
privacy-threatening technology that has not come to much. Why is
"Active" RFID tags -- more accurately called devices -- are
things like cellphones and iPass transponders that enter into radio
communication with outside receivers.
"Passive" tags are like the chip in a CTA Ventra card or other
contactless payment card or in your Loyola ID card. They are activated by
being in the presence of a radio field, which (very) temporarily powers
Some stores (notably Wal*Mart) have pushed to have everything in the
store delivered with an RFID tag. The tag would be like the usual
inventory/shoplifting tag, but it could also do the following:
- Allow merchandise to "tell" stockers exactly where it should go
- Greatly expedited one-pass checkout
- Shoplifting detection
- act as a receipt after the sale
Consider RFID and bar codes. In one sense, both types work by being
"illuminated" by a source of electromagnetic radiation. In practice, most
ordinary materials are not opaque to RFID frequencies, and more
information can be stored.
creeping incursions: when do we take notice? Is there a feeling that
this "only applies to stores"? Are there any immediate social
consequences? Is there a technological
How do we respond to real threats to our privacy? People care about SSNs
now; why is that?
Are RFID tags a huge invasion of privacy, touching on our "real personal
space", or are they the next PC/cellphone/voip/calculator that will
revolutionize daily life for the better by allowing computers to interact
with our physical world?
Imagine if all your clothing displays where you bought it: "Hello. My
underwear comes from Wal*Mart"
(Once upon a time, RFID chips didn't take well to laundering, but this has
changed; hotel towels now often have embedded RFID chips to discourage
theft. See http://jerrygamblin.com/2016/03/01/please-scan-my-towel/.)
RFID tags on expensive goods, signaling that I have them: iPods,
Loyola RFID cards
RFID v barcodes: unique id for each item, not each type readable
remotely without your consent
Active and passive tags
Are there ways to make us feel better about RFID??
Garfinkel's proposed RFID Bill of Rights:
Users of RFID systems and purchasers of products containing RFID tags
- The right to know if a product contains an RFID tag.
- The right to have embedded RFID tags removed, deactivated, or
destroyed when a product is purchased.
- The right to first class RFID alternatives: consumers should not lose
other rights (e.g. the right to return a product or to travel on a
particular road) if they decide to opt-out of RIFD or exercise an RFID
tag's "kill" feature.
- The right to know what information is stored inside their RFID tags.
If this information is incorrect, there must be a means to correct or
- The right to know when, where and why an RFID tag is being read.
What about #3 and I-Pass? And cellphones?
- Inventory management
- Store checkout
- Access control (eg of people into Lewis Tower, or of cars into a lot)
- Personnel tracking (knowing where people are)
- Computer interface to real world
- Tracking exposure to viral illness
- embedded in currency as anti-counterfeiting measure [!]
- Getting electronic devices to detect each other, and interoperate;
compare with BlueTooth
- Self-guided museum tours (where you wear the tag)
- Smart refrigerator: keeps track of expiration dates
- refrigerator + TV: you get grocery ads on TV for things currently in
- Smart laundry
- Where are my keys? (useful in theory, but perhaps not so practical
with passive tags)
- Where is my copy of War and Peace
- consumer recalls
- compliance monitoring for medications
- theft reduction
Technological elite: those with access to simple RFID readers? Sort of
like those with technical understanding of how networks work?
2003 boycott against Benetton over RFID-tagged clothing: see boycottbenetton.com:
"I'd rather go naked" (who, btw, do you think is maintaining their site?
This page is getting old!)
Some specific reasons for Benetton's actions:
- Their stores carry only their own brands, so they can guarantee 100%
- Returns are a chronic problem in retail clothing.
- Allows rapid re-stocking of clothing taken for trying on but not
- Products are expensive enough to warrant a then-$0.25-and-more chip
Is the real issue a perception of control? See Guenther
& Spiekermann Sept 2005 CACM article, p 73 [not assigned as
reading]. The authors developed two models for control of RFID information
on tagged consumer goods:
Bottom line: Guenther & Spiekerman found that changing the privacy model
for RFID did not really change user
- User-control. User implements, in effect, a password
- Agent model: you delegate access decisions to a software package that
understands your privacy preferences
Is there a "killer app" for RFID? Smart refrigerators don't seem to be
I-Pass is maybe a candidate for active
RFID, despite privacy issues (police-related). Speedpass (wave-and-go
credit card) is another example. And cell phones do allow us to be tracked
and do function as RFID devices. But these are all "high-power" RFID, not
What about existing anti-theft tags? They are subject to some of the same
Eckfeldt: focuses on benefits RFID can bring. Airplane luggage,
security [?], casinos, museum visitors
Does RFID really matter? When would
tracking people within a fixed zone, eg tracking within a store:
- Gillette razor customers photographed (is RFID even necessary?)
- cosmetics customers photographed
cell-phone tracking: when can this be done?
Are there implicit inducements to waive privacy? If disabling the RFID
tag means having to take products to the "kill" counter and wait in line,
or losing warranty/return privileges, is that really a form of pressure to
get us to leave the tag alone?
RFID shopping carts in stores: scan your card and you get targeted ads
as you shop. From nocards.org:
"The other way it's useful is that if I have
your shopping habits and I know in a category, for instance, that you're a
loyal customer of Coca Cola, let's say, then basically, when I advertise
Coca Cola to you the discount's going to be different than if I know that
you're a ... somebody that's price sensitive." Fujitsu representative
Vernon Slack explaining how his company's "smart cart" operates.
RFID MTA hack? We'll come to this later, under "hacking". But see http://pld.cs.luc.edu/ethics/charlie_defcon.pdf
(especially pages 41, 49, and 51) and (more mundane) http://pld.cs.luc.edu/ethics/mifare-classic.pdf.
RFID and card-skimming
Card-skimming is the practice of reading information on magnetic-stripe
cards (usually ATM cards) by attaching a secondary reader over the primary
card slot. Readers can be purchased (illegally) to blend in with almost
any model of ATM. Together with a hidden camera to capture your PIN
number, these systems can be used to max out the withdrawals of dozens or
even hundreds of accounts each day.
At first sight, RFID seems like it would make this situation even worse:
your card (but not PIN) can be skimmed while
in your wallet. However, RFID can easily be coupled with "smart
card" technology: having a chip on the card that can do public-key
encryption and digital signing. (Interfacing such a chip with
magnetic-stripe readers is tricky.) With such a smart card, and
appropriate challenge-response infrastructure, skimming is useless.
See also http://getyouhome.gov
US passports have had RFID chips embedded for some years now. In the
article at http://news.cnet.com/New-RFID-travel-cards-could-pose-privacy-threat/2100-1028_3-6062574.html,
it is stated that
Homeland Security has said, in a government
procurement notice posted in September [2005?], that "read
ranges shall extend to a minimum of 25 feet" in RFID-equipped
identification cards used for border crossings. For people crossing on a
bus, the proposal says, "the solution must sense up to 55 tokens."
The notice, unearthed by an anti-RFID advocacy
group, also specifies: "The government requires that IDs be read under
circumstances that include the device being carried in a pocket, purse,
wallet, in traveler's clothes or elsewhere on the person of the
traveler....The traveler should not have to do anything to prepare the
device to be read, or to present the device for reading--i.e., passive and
The article also talks, though, about how passports (as opposed to the
PASS cards usable for returning from Canada or Mexico) now have
RFID-resistant "antiskimming material" in the front (and back?) cover,
making the chip difficult to read when the passport is closed.
Currently, passport covers do provide moderately effective shielding.
Furthermore, the data stream is encrypted, and cannot be read without the
possession of appropriate keys (although it may still identify the
passport bearer as a US citizen). An article in the December 2009 Communications
of the ACM by Ramos et al
suggested that the most effective attack would be to:
The actual information on the passport consist of your name, sex, date of
birth, place of birth, and photograph. Note that to be in the vicinity of
the customs counter, you generally have to have a paid international
airplane ticket (though eavesdropping at highway crossings might also be
possible), and forged blank passport books are also relatively expensive. In
other words, this is not an easy scam to pull off. Risks to US citizens
abroad seem pretty minimal.
- eavesdrop on passport transactions at the customs counter
- decode the session later
- decrypt the session
(potentially possible, though this is not certain)
- use the data to create a physical duplicate passport
- use the duplicate passport to obtain a duplicate social security card
for the original passport owner.
Tracking: Printer tracking dots; word .doc format
Privacy Act of 1974: govt entities can't require its use unless:
- federal law specifically
allows its use (as it does for tax info, social security, drivers
- use was required prior to 1/1/1975 (Virginia required SSN for voter
registration under second exception; overturned in ???)
- phone/electric/other accounts
- health insurance
- student records [!]
There had been a trend against
using the SSN for student records; some students complained that no
federal law authorized its collection for student records and therefore state schools could not require it.
Alas, while this idea was gaining traction Congress introduced the Hope
education tax credits and now it is required
that students give their SSN to colleges. Even if they don't intend to
claim the credit.
What exactly is identity theft?
National Identity Card: What are the real issues? tracking? matching
between databases? Identity "theft"? See Baase 4e p 91 / 5e p 95
Starting on 4e page 54 / 5e p 57, there's a good section in Baase on
stolen data; see especially the table of incidents. What should be done
about this? Should we focus on:
You have to give your SSN when applying for a marriage license, professional
license, "recreational" license, and some others. Why should this be? For
the answer, see http://www4.law.cornell.edu/uscode/42/usc_sec_42_00000666----000-.html.
This is a pretty good example of a tradeoff between privacy and some other
societal goal, with the latter winning out. What do you think about this
- punishing companies that are the source of the stolen data?
- requiring data leaks be publicized immediately, allowing affected
consumers to monitor their own situation?
- providing everyone with free information on their own credit reports,
to detect misuse?
- technological fixes for making data more secure?
- making stolen data less useful for bad guys; ie making it harder to
profit with online data alone?
Old-fashioned examples of government privacy issues, now kind of
Matching: Should the government be able to do data mining on their
databases? In particular, should they be able to compare DBs for:
Should the following kinds of data be available to the government for
- taxes & welfare
- taxes & social security
- bank records & welfare?
- student aid and draft registration?
- tax & immigration
- criminal databases; problem of how corrections are made
- library records - threatened by Patriot I
- records of incoming and outgoing phone calls
- PATRIOT act: bank records, ISP logs are all things gov't can now
demand without a warrant
- What are our "effects"???
Government data collection: what does this
really have to do with computing? The government has resources to keep
records on "suspects" even with pencil and paper.
Government and e-privacy:
- matching between government databases
- eavesdropping on internet communications
- eavesdropping on the phone (including VOIP)
- obtaining commercial records (bank, credit, grocery)
- getting search-engine records (google)
- transponders: I-Pass, cellphone, RFID
- facial recognition
- databases of suspicions (Terrorist Information Agency)
What if FACIAL RECOGNITION were to really take off? What would be the
consequences? There are all those cameras already.
Most arguments today against facial recognition are based on the idea
that there are too many false positives. What if that stopped being the
What about camera evidence of running lights or speeding?
E-bay privacy - Ebay has (or used to have) a policy of automatically
opening up their records on any buyer/seller to any police department,
without subpoena or warrant.
This one is quite remarkable. What do you think? Is this ethical?
Medical Privacy - the elephant in the room?
- insurance availability
- social (ED, SSRI, therapy, any serious illness)
HIPAA (Health Insurance Portability & Accountability Act) has had a
decidedly privacy-positive effect here.
However, HIPAA does not apply at all to website data collection. Timothy
Libert wrote a paper Privacy Implications of Health Information
Seeking on the Web in the March 2015 Communications of the ACM.
This is summarized by Merchant, Looking
Up Symptoms Online? These Companies Are Tracking You.
It turns out that the vast majority of medical-information websites ()
pass your search query on to third parties.
When an html page is downloaded, it will ask your browser to grab
additional page components from other sites, eg for images, advertising or
other embedded content. When your browser requests this additional
content, its GET request usually contains "referer" [sic] information that
identifies the page you originally requested. It is these referer requests
that leak information about your search to companies who may want to
harvest the information.
the CDC's HIV page, third-party requests are made to the servers of
Facebook, Pinterest, Twitter, and Google. In the case of the first three
companies, the requested elements are all social media buttons, which
allow for the sharing of content via the "Recommend," "Tweet," or "Pin It"
icons .... It is unlikely that many users would understand the presence of
these buttons indicates that their data is sent to these companies. In
contrast, the Google elements on the page are entirely invisible and there
is no Google logo present.
referer field for all the requests likely contains "cdc.gov/hiv",
informing all four sites that you might have AIDS. All four sites may now
send cookies, and/or engage in browser fingerprinting.
Advertisers have a well-understood interest in knowing who has HIV, or
herpes, or acid reflux or allergies (there is a lot of money in treating
long-term conditions). The Libert paper, however, discovered that two data
brokers -- Experian and Acxiom -- were also present on a small but
substantial number of pages (about 5%). These companies often resell data,
often to insurers and prospective employers and often after identifying
the name of the user involved. That is concerning.
Andrew Odlyzko's 2003 survey paper on price discrimination is at http://pld.cs.luc.edu/ethics/odlyzko.pdf.
What is the real goal behind the collection of all this commercial
information? Especially grocery-store discount/club/surveillance cards.
There are many possible goals, but here's one that you might not have
thought about, in which your privacy can be "violated" even if you are
To create a basic supply/demand graph, one draws curves with price on the
horizontal axis, and quantity on the vertical. The supply curve is
increasing; the higher the price the greater the supply. The demand curve,
on the other hand, decreases with increasing price. However, these are for
Now suppose you set price P, and user X has threshold Px.
The demand curve decreases as you raise P because fewer X's are willing to
- P <= Px: user X buys it
- P > Px: user X does not buy it
But what you really want is to charge user X the price Px.
Example: Alice & Bob each want a report. Alice will pay $1100, Bob
will pay $600. You will only do it for $1500. If you charge Alice $1000
and Bob $500, both think they are getting a deal.
But is this FAIR to Alice?
In one sense, absolutely yes.
But what would Alice say when she finds out Bob paid half, for the same
Possible ways to improve the perception of value:
- give it to Alice earlier give her bonus tracks, too
- delete some features from Bob's copy, or disable them
What do computers have to do with this?
Airline pricing: horrendously complicated, to try to maximize revenue
for each seat.
Online stores certainly could
present different pricing models to different consumers. Does this happen?
I have never seen any evidence of it, beyond recognizing different broad
classes of consumers. Perhaps it takes the form of discounts for favorite
customers, but that's a limited form of price discrimination.
Dell: different prices to business versus education This is
the same thing, though the education discount is not nearly as steep now.
Academic journal subscriptions and price discrimination: Libraries pay
as much as 10 times for some journals as individuals!
Two roundtrip tickets including weekends can be less than one (this
example is from 2005, but the pattern is still with us; all
flights are round-trips)
If you buy the second and third tickets and throw out the returns, you
save almost $300! Airlines have actually claimed that if you don't fly
your return leg, they can charge you extra.
The issue is not at all specific to online shopping; it applies to
normal stores as well. Sometimes it goes by the name "versioning": selling
slightly different versions to different market segments, some at premium
At one time, online retailers pretty much offered up the same price to
everyone, partly on the assumption that different prices for different
people would be quickly noticed.
Those were the days.
Here are some common strategies today (2015):
- Prices delivered to mobile devices may be higher than prices delivered
to regular computers
- The order in which items are listed may vary; Alice's first
page may contain more higher-priced items than Bob's
- Examples exist where Mac users were offered higher prices than Windows
- Item costs sometimes depend on your location (not just shipping
- For some travel sites, registered users received lower prices than
None of these examples are exactly of the form "we know from his past
shopping behavior the most Peter is willing to pay; let's charge him
that". But price discrimination in online retailing is clearly increasing.
Travel sites seem to be particularly prone to this, partly because travel
prices are so wildly variable.
Grocery Store Surveillance Cards
In the industry these are called "loyalty" cards. Jewel recently dropped
The organization CASPIAN (http://nocards.org) is against
surveillance cards. A big part of Caspian's argument appears to be that
the cards don't really save you money; that is, the stores immediately
customer-specific pricing: http://nocards.org/overview
One recent customer-specific-pricing strategy: scan your card at a kiosk
to get special discounts.
Jewel's "avenu" program was an attempt to create customer-specific pricing.
Customers could check in at a kiosk (either in-store or online) and get
coupons based on their shopping history. Apparently it was not a success;
Jewel later discontinued the entire card program.
Store loyalty is only one goal of surveillance cards. Another goal
within the industry is to offer the deepest discounts to those who are
less likely to try the product anyway. In many cases, this means offering
discounts to shoppers who are known to be price-sensitive,
and not to others.
Clearly, the cards let stores know who is brand-sensitive and who is
price-sensitive, although stores now have other ways to figure this out.
Loyal Skippy peanut butter
customers would be unlikely to get Skippy discounts, unless as part of a
rewards strategy. They would be more likely to qualify for Jif
Classic price discrimination means charging MORE to your regular
customers, to whom your product is WORTH more, and giving the coupons to
those who are more price-sensitive. Well, maybe the price-sensitive
shoppers would get coupons for rice, beans, and peanut butter, while the
price-insensitive shoppers would get coupons to imported chocolates, fine
wines, and other high-margin items.
Shopper-surveillance cards probably have been used effectively for the
following two strategies:
1. To allow price discrimination: giving coupons etc to the
price-sensitive only. There may be other ways to use this; cf Avenu at
The idea used to be that you, the consumer,
could shop around, compare goods and prices, and make a smart choice. But
now the reverse is also true: The vendor looks at its consumer base,
gathers information, and decides whether you are worth pleasing, or
whether it can profit from your loyalty and habits. -- Joseph Turow, Univ
2. segmentation (nocards.com/overview) What about arranging the store to
cater to the products purchased by the top 30% of customers (in terms of
profitability)? In a Caspian case study, the candy aisle was reduced,
although it's a good seller, because top 30% preferred baby products. Is
this really enough to make the cards worth it to the stores, though?
Using a card anonymously doesn't help you here, as long as you keep
using the same card!
Using checkout data alone isn't enough, if "the groceries" are bought
once a week but high-margin items are bought on smaller trips.
One of the most significant examples of price discrimination is college
tuition. The real tuition equals the list price minus your school
scholarship. While many scholarships are outside of the control of the
school, the reality is that schools charge wealthier families more for the
Another example of price discrimination is student versions of popular
software (eg MSDNAA $0 pricing, or Photoshop student versions). Why do
software companies do this?
Maybe the main point is simply that no one does really care about privacy,
at least in the sense of all that data out there about us. One can argue
that at least we're consistent: collectively we tend to ignore "rights"
issues with software both when it works in our favor (file sharing) and
against us (privacy).
One secondary issue with privacy is the difference between "experts" and
ordinary people: experts know a lot
more about how to find out information on the Internet than everyone else.
We'll come back to this "digital divide" issue later, under the topic
"hacking", but note that there may be lots of available information out
there about you that you simply are not aware of.