chapter 9 expectation of privacy. expectation of privacy what degree of privacy is expected?...

Chapter 9Expectation of Privacy

PgP BUSA331 Chapter14

Expectation Of Privacy

• What degree of privacy is expected?• Individuals, not corporations• Information on your computer• Information involved in online interactions

PgP BUSA331 Chapter 13

Expectation of Privacy in Chat Rooms• No expectation of privacy• Multiple people involved in the conversation• Transcript can be saved, printed, logged, archived.• But two party chats? Not clear…lot of cases involve

other issues, entrapment…• Chat at work? May be employee deciding whether

to report.


Expectation of Privacy in Email• Is your email private? Hardly• What is the nature of digital information? Easily

copied and distributed.


Email in the Workplace

• Employees depend on email to communicate• Employers understand need, but there are possible

issues:• Trade secrets, intellectual property loss• Discrimination• Harassment• Customer lawsuits• Unethical behavior, legal exposure-Merrill Lynch

investment analyst Henry Blodget• Email-a potential time-bomb?


Email, FRCP

• Corporate email is not private correspondence• Email exists on servers, on backups, in archives-

potentially indefinitely• Should corporations regularly purge old email?• Acceptable if following a policy• Not acceptable if trying to destroy evidence

• FRCP standard for email deletion- part of routine, good-faith operation.


Company Data Policy

• Email and other data is discoverable as evidence in litigation• Destroying this data can be obstruction of justice • Unless there is a policy to delete email that is a

routine, good faith operation


Email, and Employers

• Can employers read employee personal email stored on corporate computers?• Employer Issues:• Business confidentiality• Client confidentiality• Legal policy compliance (HIPAA)• Legal securities compliance• Illegal misrepresentation of false claims• Prevention of sexual harassment lawsuits• Company image


Email, Employers and Employees• Many employers monitor email• Employers have fired employees for email misuse

• Issue- Is there a reasonable expectation of privacy at work? Most courts say no!


Workplace Privacy, Best Practices• Employers should have a policy manual• Require new hires to read and sign• Employer must follow the policy

• NLRB issue-employers cannot allow personal use of corporate email system while prohibiting other uses (union-related)


Workplace Privacy, Portable Devices• Depends on who owns device and pays for service-• Other factors include:• Employer Policy• Practices-past and present, court may infer policy• State Tort Law• State Statutes• Electronics Communications Privacy Act• Fourth Amendment


Workplace Privacy, Monitoring• Keystroke loggers• Scanning email attachments (images, resumes,

confidential data…)• Electronic cards/locks pinpoint time and location

• Who watches the watchmen?

• Accidental actions. (whitehouse.com vs .gov) don’t go there!


Workplace- Government, FOI• Government employee emails can be access under

open meeting or freedom of information laws!• 1996-US creates ‘electronic reading rooms’ to

create online index of frequently requested materials• What about government employee using private

email to discuss government matters?• Be mindful of who can access your email, computer

files!


Workplace Email Issues

• Hackers with sniffer programs• Reply to all, not sending ‘bcc’, wrong address• ISP employees have access


Employer Monitoring Summary• Most cases are Invasion of Privacy• Most cases allow employers to monitor employee

internet use and email in the workplace• Key issue-were employees informed in advance?


Internet Service Providers, Gmail• ECPA covers-wire, oral or electronic communications• ECPA allows ISPs to access emails stored on system• Some courts interpret this to allow companies to monitor

employee’s email• ECPA may not be adequate for internet era, where is line

between privacy and protecting the business?• Federal Wiretap Act predates internet, not well applied in

‘Councilman’ where court allowed email interception by competitor.

• Email Privacy Act, bill would have reversed Councilman, but appellate court did so

• Google Gmail-targeted ads and no delete!


Law Enforcement Officials

• Warrants or subpoenas give state and federal agents access to email• Government entity can request that ISP retain

records (logs) for 90 days under the ‘Electronic Communication Transactional Records Act of 1996’• Research the FBI ‘Carnivore’ program• USA PATRIOT and NSLs-National Security Letters

(unconstitutional now) • Foreign Intelligence Surveillance Court-FBI served

ISP that mistook warrant for one account as for all!

http://en.wikipedia.org/wiki/Carnivore_(software)


Litigation

• Discovery-legal process requiring document production• Covers emails, instant messages• Is lawsuit reasonably forseeable? Don’t delete!• Litigation Hold! Notify employees, preserve data-

have a procedure in place• Spoilation-bad faith destruction of evidence


Expectation of Privacy in Email• Craigslist ad used to solicit private facts?• Tort – public disclosure of private facts, elements

met, could perpetrator have been sued?


Expectation of Privacy After Death• Dead customers, release email to soldier’s parents?• Yahoo, Corporal Ellsworth death, PR nightmare• New clause in will? Inherit someone’s email

username/password?


Social Networks

• FaceBook Beacon program, broadcast your purchases, oops…• Is there a different privacy norm for social network

users than for the general public?


Hard Drive Privacy

• 4th Amendment protects you from ‘unreasonable searches and seizures by the government’• Work, no; but personal….yes, perhaps…• Technicians stealing private photos• Circuit City technician finding child porn during

servicing• US customs seizes computer after finding nude women

pix, doing further investigation finding child porn…• US customs finding child porn on laptop, but drive

encrypted, court ordered him to decrypt


Government Reach @ Border• Should the government be allowed to copy and

retain the entire contents of a hard drive that may contain personal info?• Legal, financial, medical information???• Review of computer files vs forensic examination• Does a password protected file mean you have

something to hide?• What is ‘reasonable suspicion’?


Encryption, 5th Amendment

• Can defendant be required to provide decrypted evidence?• Standard seems to be yes, if the government proves

that there is incriminating evidence on the drives by other means.• Otherwise, it appears that you cannot make

someone incriminate themselves…


Spycams

• In 2010 2,300 students with school-owned laptops contained program to• pinpoint location based on MAC address• Take screen shots of visited websites• Take pictures using webcam!

Student charged with taking drugs using webcam pictures.Invasion of privacy!


Spycam 2

• Stolen laptop with LoJack software records keystrokes and photos of user naked during chat• Invasion of privacy• Not known if plaintiff knew whether laptop was

stolen.


Spycam 3

• Leased laptop with monitoring • Is this a violation of ECPA, CFAA?• 420,000 customers had been vicitms, not told of

monitoring• FTC settled with 7 rent-to-own companies


Spycam disaster

• Roommate spying• Leads to intimate revelation• Victim commits suicide• Perpetrator convicted of:• Invasion of privacy• Evidence tampering (deleting tweets, IM)• Hate crime• 10 year prison sentence


File-sharing

• Pair of artists stole 10,000 private photos from 100 hard drives on computers with mis-configured file sharing software, and made them available on website without knowledge or consent, compensation or copyright releases.• If you use personal PC for business use it could be

confiscated and all (business and personal) content could be exposed!


Expectation of Privacy in Web Posts• NY court held no expectation of privacy in

restricted fb posts. (being used as evidence against defendant)• Banks can turn over records to government without

customer permission or notification. • This has happened at least 24 times since 2008 on

social network sites.


Expectation of Privacy in Search History• Should a victim be compelled to turn over search

records in rape case that would indicate she had been searching for the legal definition of rape online after the event?


Expectation of Privacy in SmartPhones• Do police need a search warrant to search a smart

phone? Courts divided.• Is a warrantless search • ‘preserving evidence’?• ‘incident to a lawful arrest’?

• Or is it unconstitutional and only allowed if police officer’s safety is at risk, or an emergency?


GPS Tracking

• Courts say if you do not want to be tracked turn-off your phone!? But you did not consent to share info.• Montana passed law requiring state government to

obtain warrant to track smart phone via GPS. Will other states follow?

chapter 9 expectation of privacy. expectation of privacy what degree of privacy is expected?...

Documents

email private

frcpcorporate email

email deletion

old email

pgp busa331 chapter144email

employee personal email

workplace privacy

email misuse issue