Sep 302010
 September 30, 2010  Posted by  Court

Andy Serwin writes:

This post is the second in a series that examines First Amendment issues and privacy.  It examines several of the standards that courts have adopted when considering the identification of anonymous speakers on the Internet.

Other State Variants of Cahill

In Lassa v. Rongstad and The Valkyrie Group, LLC, 294 Wis.2d 187, 718 N.W.2d 673, No. 2004AP377, (July 13, 2006), a defamation action was brought against certain defendants, including anonymous defendants. This case applied Wisconsin law, as well as the Cahill test, to a degree, to determine if the membership in a political group could be disclosed prior to a motion to dismiss being granted. The Appellate Court noted that it would not strictly follow Cahill, because Wisconsin law, unlike Delaware law, required defamation to be pled with particularity, and therefore held, at least prospectively, that the court should decide a motion to dismiss prior to permitting the subpoena to proceed

Read more on Privacy & Security Source.

Related:  Part 1.

Sep 302010
 September 30, 2010  Posted by  Breaches, Featured News, Online

I didn’t sleep much last night. I felt sick inside over the suicide of a young man whose privacy had been horribly invaded. There will be those who lump this case in with what is often referred to as “cyberbullying,” but cyberbullying does not necessarily involve invasion of privacy. The suicide of Tyler Clementi is about privacy in its most element form — to be able to engage in sexual activity in the privacy of your own space without prying eyes.

Back in August, I blogged about my concerns that schools were grooming students for a surveillance state in which they are growing up with reduced expectations of privacy. At other times, I’ve covered news stories about whether the younger generation has abandoned its privacy or is less concerned about privacy. Whether it’s the schools, Facebook, parents trying to be “friends” with their kids or electronically snooping on their kids, or anything else, the bottom line is that although privacy is certainly not dead, respect for privacy is in peril.

We are failing our children if we do not teach them that not only do they have a right to personal privacy, but they have a responsibility to respect others’ privacy, too. The tragic case of Tyler Clementi, which Kashmir Hill discusses on Forbes, the “Star Wars” kid video that Daniel Solove discussed in his book The Future of Reputation, or any of a number of cases where teens have either been the victims of a privacy invasion or the perpetrators – all of these cases signal a failure to teach respect for privacy. And in some cases, these privacy invasions have had tragic consequences. Whether Clementi killed himself out of depression or out of anger and desire to get revenge on his roommate or for some other reason is unknown to me, and as a psychologist, I will not speculate about his mental state. What does seem evident, however, is that had it not been for the actions of others who invaded his privacy, he would almost certainly be alive today.

Older teens and young adults are old enough to consent to having their privacy invaded. They are also old enough to take responsibility for invading others’ privacy. I’ve little doubt that many will clamor for new laws criminalizing the conduct of the two students involved in the Clementi case. Suddenly, five years for invasion of privacy will seem too light a penalty. Where were all these people when many of us kept warning others that we need more privacy protections, not less. Where have the courts been when many of us have urged them to recognize privacy harms that are not just unreimbursed financial losses or demonstrable impact such as job discrimination?

And can we really hold young privacy invaders accountable or responsible if we have failed to teach them what our parents taught us? Knowing that what you are doing is wrong is one thing. Fully appreciating how devastating a privacy invasion can be is another.

Being a parent is the toughest job on earth. When was the last time you had a conversation with your child about privacy and respect for boundaries?

Sep 302010
 September 30, 2010  Posted by  Non-U.S.

The Australian government seems to be investing a lot of time and energy into figuring out what to do about problem gamblers as a quick glance at Gambling Research Australia and an article on pre-commitment systems indicate.

It’s one thing to try to help people who may have a problem or addiction. It’s another to legislate and to invade privacy in the name of “helping.” And so I was a bit surprised to see this article in the Sydney Morning Herald:

The federal government is considering the use of fingerprint technology in clubs to help track problem pokie players.

But Prime Minister Julia Gillard says the system, suggested by Senator Nick Xenophon, is just one option to enforce mandatory pre-commitment limits.


Ms Gillard has promised to take action on problem gambling by 2014 in a deal struck with the anti-pokies campaigner, independent MP Andrew Wilkie.

Mr Wilkie and Senator Xenophon have been appointed to a parliamentary committee to work out the best course.

The options include smartcards to police daily limits for individuals and a USB stick bearing a gambler’s fingerprints, also with a daily limit.

The clubs sector is concerned the fingerprint option may give rise to a government-controlled database of pokie players.

Senator Xenophon has dismissed that suggestion, describing it as “a beat-up even boxer Mike Tyson would be proud of”.

“There will not be a fingerprint database,” he said in a statement, adding a player’s pre-commitment to gambling limits was not about invading privacy.

“I would never support any such scheme, and no scheme has ever been proposed by the federal government.”

Read more in the Sydney Morning Herald.

Sometimes, a proposal is not about invading privacy, but invading privacy can be an unintended consequence. Do you think that the government is going too far in trying to address what it sees as a problem?

Sep 302010
 September 30, 2010  Posted by  Court, Featured News, Non-U.S., Online

Marie-Andrée – who unlike this blogger can actually speak French and is a lawyer to boot –  provides a commentary and explanation of a recent French court ruling that Eric Schmidt was guilty of defamation because of  Google Suggest results.   She writes, in part:

The Court noted that “algorithms or software solutions proceed from the human mind before being implemented.” The court also doubted the purely automatic character of the search results, as results were not the same on “Google Suggest” and “Recherches Associées” (associated research), which is a list of suggested research made to users, based on their original search terms. Results were not the same on the Yahoo search engine either. Therefore, the Court expressed doubt about the technological neutrality of the results.

The Court also noted that “not all research terms entered by Internet users are taken into account by the Google search engine in order. One of Google’s exhibits in the September 2010 case was a statement by Google that “[it] appl[ies] a limited set of policies regarding removal of pornography, violence and hatred”, which, according to the French Court, “confirms the possibility of at least a retrospectively human intervention capable of preventing the most obvious damage related to the search features at stake.”

Read her full commentary on Online Reputation and the Law.