News Lawyer

Via Declan McCullagh at CNET, the Federal Government is pushing for tracking cell phones. 

New York Times article detailing Facebook’s response to privacy criticisms concerning Facebook’s practice of broadcasting Facebook users’ purchasers to other Facebook members.  As the article details, Facebook is trying to cash in on the popularity of Facebook without damaging the popularity.

The article points out a paradox of younger internet users – many broadcast details of their own lives in an almost exhibitionist manner, but want to maintain control over what is made public, even over purchasing decisions.

Fascinating article about virtual mobs and internet vigilante justice.

Lori Drew, a mother, goes online and creates a fake MySpace account, pretending to be a teenage boy. She does this specifically to befriend Megan Meier (her daughter’s friend and daughter of a neighbor) in order to get information about her own daughter. Somewhere along the line, Drew turns on young Ms. Meier and berates her. Ms. Meier – tragically fragile – then commits suicide. The dead girl’s father finds out about his bullying neighbor’s apparent role in his daughter’s death, and in a spasm of righteous rage, destroys the Drew’s foosball table. The Drews then press police charges against the grief-stricken father. Internet vigilante Sarah Wells finds out, does some research, and organizes a virtual mob whose fury has real world consequences – enough so that police have increased their patrols around the Drews’ residence.

The facts here seem pretty egregious, but the key word is “seem.” Mobs are not particularly known to be careful fact-finders nor dispassionate dispensers of justice. Are we entering an age of virtual witch trials and online cultural justice when the real world fails to mete out subjectively appropriate punishment? And with the anonymity of the internet, do mobs have even less of a sense of fair play?

Aside from the obvious internet cultural issues stand some fascinating legal issues. There is a tort law concept known as the “eggshell skull,” where those committing torts are responsible for all consequences flowing from the injurious acts, even if the victim suffers from unusually high damages from the acts. Did Drew have reason to know how emotionally fragile Ms. Meier was? Was the bullying pervasive and outrageous? It would seem that Papa Meier could have a cause of action against Drew, but what about free speech?

And check out the end of the article – in an ironic twist, Sarah Wells is tabbed a “vigilante” by a counter-vigilante, who posts personal information of Wells on the internet. Great read.

Besting Google in the process.

Critics of the leviathans Microsoft and Google might have a difficult time in determining who they should have rooted for in the battle to win a stake in Facebook: the semi-monopolistic Microsoft, so long considered the bane of smaller and more innovative companies, or Google, the dominant and innovative search engine giant that has been cited as having an “entrenched hostility to privacy” by Privacy International?

(Hat tip: Matthias).

As if to prove my point (in a sense), the USA Today published a news article today describing how police officers in various locales are using volunteer citizens to help enforce speed limit bans.

Obviously, this kind of assistance helps enforce speed limits, and may help save lives. However, that technology is allowing for more perfect law enforcement and an enforcement rate far higher than conceivable when speed limits were passed. Such perfect enforcement distorts the original balance of enforcement rates, mortality rates, economic impacts, and convenience considered when the speed limits were passed. Perhaps maximum speed limits need to be reconsidered as a result.

More importantly, if such practices give private citizens the notion that helping police in something mundane like highway safety is their duty, then their prying into the lives of their neighbors is a modest natural progression of that mindset, eating away at our notions of privacy.

A recent news item cited Senator Hillary Clinton for receiving sizable campaign contributions from Chinatown busboys and waiters, most of whom are presumably living on the margins and some of whom have already (proudly) said that they were merely following orders from community leaders. Donating at the behest of another person is strictly prohibited under federal campaign finance laws.

Catching Hillary and other politicians who garner money from suspect sources is a good thing. Our political offices are not for sale. But what is less clear is whether putting all of this information on the internet does not in some way infringe on other freedoms.

By analogy, the internet is in some ways like new traffic light photo technology that catches drivers who roll through empty intersections, or perfect speed traps that nab otherwise good drivers doing 75 on a long stretch of barren highway. Sure it’s still the law, but the law was passed in a time when enforcement was nowhere near 100%, a critical component for policy makers trying to ascertain the impact of speed limits on traffic patterns, safety issues, simple economics and overall convenience. Better enforcement throws the prior agreed-upon equilibrium of weighed interests out of kilter.

There is a lot of information about each of us that is public but not very accessible. In the pre-internet era, it would take a motivated person to dig up, say, my voter registration or property records. The information wasn’t private per se, but it was effectively shielded from public view due to the effort involved in digging up the public records. Newspapers could print my information and the information of my neighbors, but voter rolls and other mass quantities of data do not make for compelling reading.

The New York Times ran a fascinating piece on Subprime lending, tying in data on rates of subprime lending to community maps. The riveting maps took complex data and made it accessible and understandable to the general public. In the coming months we are going to see exquisite internet mashups showing public information laid out in maps of all types. This mapping is a prime component of the New Media Workshop course at Columbia, a cornerstone of the New Media concentration. Obviously, these maps are going to make data mining much more convenient. But therein lies a subtle problem.

There is a lot of public information that, while public, we would prefer not to have broadcast. As the mapping software gets more intricate and more data gets mined, the public will have access to maps showing all sorts of interesting data about their neighbors that they would not otherwise work to have access to. For example, the voter rolls are public information, but are not generally accessed by the public. Conceivably, local community papers could create maps showing the addresses of Democrats and Republicans on a resident-by-resident basis. That access might not be comfortable for Democrats in Crawford or Republicans on the Upper West Side, as their neighbors would suddenly know who the specks of off-color are in their community’s otherwise monochrome map. Such minority status could well be a stigma for the outed. Over time, extreme minorities might take to registering themselves as something other than their preferences, yielding less speckled, albeit more inaccurate, maps, and distorting our culture and political system. Criminal records, property tax data, voter information – all of these could conceivably be mapped, giving all members of a community a far more intimate look at their neighbors than they had previously.

Our privacy culture and laws were in part based on the premise that public information would be mined only by the most overzealous of neighbors. Now, public information on the internet makes everyone that overzealous neighbor. Public information may be crucial in checking the appetites of avaricious politicians and for informative pieces like the aforementioned Times article. But, without revisiting what should lie in the public sphere, our past and present will soon be fodder for our neighbors, the world over.

This topic is very close to my heart. My father left the Navy after the Korean War and started climbing poles for New York Telephone Company, working his way up from union man into middle management of New York Tel/NYNEX before retiring in the early 90s. I don’t think my father was ever prouder of me than when I secured my first real law job as junior internet attorney for Southern New England Telecom, which was purchased by SBC, a conglomeration of Regional Bell Operating Companies that became the mostly reconstituted AT&T after I left in 2000.

Ryan Singel blogs for THREAT LEVEL at Wired.com, and details Verizon and AT&T executives who have suddenly acquired an interest in helping out Senator Jay Rockefeller, a Senate Democrat from West Virginia. Sen. Rockefeller is running for reelection, and strangely enough, the scion of the still-vast Rockefeller fortune is scrapping for reelection funds. Apparently, Senator Rockefeller, sensitive to charges that he bought a Senate seat in poor West Virginia, promised his constituents that he would not dip into his family funds to help finance his political career. Now, he’s in a dogfight for reelection in a state whose constituents are far more conservative than he.

And... hey, I know someone on this list! James Ellis was General Counsel for SBC when I left the company and is now GC of AT&T, and wow, what is a Texan doing giving money to a Rockefeller? Kind of weirdly, anachronistically ironic.

Anyway, government wiretapping is a big issue these days, and could not be done without the help and complicity of the Telcos who own the Central Office space where most of the equipment used to create our cybertelephonic lives is located. With the Telcos being sued for this wiretapping, they are pulling out the lobbying machinery to make sure that they get their shield. So, a company like AT&T, with over 300,000 employees, can imply to some of its top executives that giving to Rockefeller would be a good thing.

And with the recent passage in the Senate of a bill granting telcos immunity for post-9/11 wiretapping, AT&T and their executives may have gotten their money’s worth. (to be continued)….