Posted in August 2013


Sensationalist Headlines Might Drive Page Views, but Not Good Privacy Law or Policy

By Tanya Forsheit, CIPP/US

Skimming through my daily privacy law newsfeeds last week, I came across the following headline on multiple occasions:  Google says e-mail users have “no reasonable expectation of privacy.” In quotes. Meaning Google actually said that. “Really?” I thought. That can’t be right. I bet Google did not actually say that. 

Guess what? Google did not actually say that. 

I’ll preface the rest of this piece by making clear that I am not in the business of defending or apologizing for Google. Those who know me well know that’s not the case. Not in the least. But what happened last week reaches far beyond Google and demonstrates the folly of letting the media drive the privacy debate in this country—and, consequently, the development of privacy law and policy.

More from Tanya Forsheit


Is Your Privacy My Privacy? The Strange Tale of Martin Manley

By Jedidiah Bracy, CIPP/US, CIPP/E

We are social creatures. But we love our privacy, too. One of the reasons I love a good piece of fiction is that it often allows me into the minds of others in a very human way—often revealing personal struggles and deeply embedded worldviews in ways I might not have experienced. As such, I find that literature is an amazing way to come to understand the people and world around me.

But, I’m talking about fiction. And though an author’s narrative derives from personal experience, it’s couched in a story. Sometimes fiction mirrors reality so closely, real people are affected—I refer you to Thomas Mann’s roman à clef Buddenbrooks, which was so close to the people in his hometown, an entire family was scandalized.

Last week, a different kind of unfettered view into the mind of another human appeared on the Internet. And it’s not easy to grapple with.

More from Jedidiah Bracy


410,000 Lavabit Users Weren’t Edward Snowden

By Andrew Clearwater, CIPP/US

Lavabit founder Ladar Levison shut down his company rather than cooperate with a government investigation. Recent reports indicated that Lavabit’s secure e-mail service included NSA whistleblower Edward Snowden among its users. Now the Lavabit website shows only a letter stating in part: “I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit.” It seems that Lavabit has lived up to its mission to be the “e-mail service that never sacrifices privacy for profits.”

More from Andrew Clearwater


Is Advising Clients To Clean Up Social Media After Filing a Lawsuit Questionable?


A recent article stirred up quite a bit of discussion among my LinkedIn friends.

Opposing counsel requested discovery of a plaintiff’s Facebook page. The plaintiff’s attorney advised him to clean it up and was suspended for five years from the practice of law. The disciplinary system actions states the suspension was for “violating professional rules that govern candor toward the tribunal, fairness to opposing party and counsel and misconduct.”

My immediate reaction on the title of the article “lawyer agrees to five-year suspension for advising client to clean up his Facebook account” had me on the side of the lawyer. It makes sense to clean up one’s image in a lawsuit—as long as doing so doesn’t hide incriminating evidence, etc. But in reading the article, and learning that this advice came after a discovery request, of course interfering with discovery orders would warrant discipline for an attorney. It has overtones of Enron’s paper-shredding party.

More from K Royal


It’s About Data Assets, Not Privacy, Or Is It?

By Jedidiah Bracy, CIPP/US, CIPP/E

In his discussion of Universal People Sensors in Portsmouth, NH, earlier this summer, Alex “Sandy” Pentland made the case for the benefits of Big Data. He said it’s not about privacy, it’s about using data as an asset. For Pentland, the question is, “Who controls the data, and can you be secure in sharing it for particular purposes?”

As co-leader of the World Economic Forum Big Data and Personal Data Initiatives and employee at MIT, Pentland presented a slew of examples bolstering the need for collecting vast sets of information in order to track and better learn about our world. (My colleague Emily Leach wrote a great piece on some of Pentland’s work here.) It can help travelers drive more safely, better connect those suffering from mental health issues with others and track infectious diseases.

More from Jedidiah Bracy


Why I Haven’t Yet Given Up Hope on Contracting Around Personal Data

Why is it that better methods of digital contracting and data ownership have not yet developed to help us protect our privacy online? 

It’s not like these are new ideas. In fact, way back in the Net’s dial-up dark ages—1996 to be exact—Cal-Berkeley economist Hal R. Varian, now chief economist with Google, penned a short, but widely-cited, essay on “Economic Aspects of Personal Privacy” that proposed assigning “property rights in information about an individual to that individual, but then allow contracts to be written that would allow that information to be used for limited times and specified purposes. In particular, information about an individual could not be resold, or provided to third parties, without that individual’s explicit agreement,” he argued.

A year later, Eli Noam of Columbia University made a similar argument in an essay on “Markets for Electronic Privacy.” “Encryption permits individuals to sell information about themselves directly, instead of letting various market researchers and credit checkers [use it freely],” Noam noted.

So, what happened on the way to private contracting paradise? There are several reasons privacy markets have never taken off.

More from Adam Thierer


Making the Case for Online Obscurity and Less Anonymity…Wait, huh?

By Jedidiah Bracy, CIPP/US, CIPP/E
From the blog Shea Allen Says…

Privacy has a problem.

That’s what Prof. Woodrow Hartzog told participants at our Navigate event earlier this summer. What does he mean by this? Is privacy dead? Well, no. Not necessarily. “The problem with privacy,” he said, “is that it doesn’t really mean anything; it has ceased to be an effective term to guide policy because it can mean so many different things.”

Besides such a protean definition, our traditional view of the public/private dichotomy is also part of the problem. Did you post “that comment” on Facebook last night? Oh, you did? Well, then, it’s not private. Or should it be? Why does it have to be either/or?

More from Jedidiah Bracy