Privacy in the Age of Myspace, Facebook, Text Messaging and Video Messaging.

Privacy in the Age of Myspace, Facebook, Text Messaging and

Video Messaging

OMG, IDK OMG, IDK ABOUT ABOUT

PRIVACY!PRIVACY!

DiscussionDiscussion What is the right to privacy? What is the right to privacy?

Is it a term-of-art?Is it a term-of-art? Any sources that document a right of privacy?Any sources that document a right of privacy?

What does the right to privacy comprise of?What does the right to privacy comprise of? Whom enforces the right to privacy?Whom enforces the right to privacy?

Citizens?Citizens? Government?Government? Private sector?Private sector?

Whom does the right to privacy apply against?Whom does the right to privacy apply against? Citizens?Citizens? Government?Government? Private sector?Private sector?

What activities do the right of privacy to What activities do the right of privacy to apply? apply?

Privacy Under U.S. Privacy Under U.S. ConstitutionConstitution

The right to privacy is not explicitly stated The right to privacy is not explicitly stated within the U.S. Constitutionwithin the U.S. Constitution

Right to privacy is an implicit/implied right Right to privacy is an implicit/implied right formed from the guarantees listed in the:formed from the guarantees listed in the: First Amendment – freedom of association; First Amendment – freedom of association; Third Amendment – prohibition against quartering Third Amendment – prohibition against quartering

soldiers;soldiers; Fourth Amendment – requirements for warrants;Fourth Amendment – requirements for warrants; Fifth Amendment – self-incrimination; and,Fifth Amendment – self-incrimination; and, Ninth Amendment – other powers retained by the Ninth Amendment – other powers retained by the

people.people.

Fourth Amendment ofFourth Amendment ofUnited States ConstitutionUnited States Constitution

The The right of the peopleright of the people to be secure in to be secure in their persons, houses, papers, and their persons, houses, papers, and effects, against effects, against unreasonableunreasonable searches searches and seizures, shall not be violated, and and seizures, shall not be violated, and no warrants shall issue, but upon no warrants shall issue, but upon probable cause, supported by oath or probable cause, supported by oath or affirmation, and particularly affirmation, and particularly describing the place to be searched, describing the place to be searched, and the persons or things to be seized. and the persons or things to be seized.

Federal LawsFederal Laws Electronic Communications Privacy ActElectronic Communications Privacy Act

Codified in 18 U.S.C. §§ 2510-22Codified in 18 U.S.C. §§ 2510-22

Stored Communications ActStored Communications Act Codified 18 U.S.C. §§ 2701-12Codified 18 U.S.C. §§ 2701-12 18 U.S.C. § 2702 prevents “person or entity 18 U.S.C. § 2702 prevents “person or entity

providing an electronic communication service [or providing an electronic communication service [or remote computing service] to the public shall not remote computing service] to the public shall not knowingly divulge to any person or entity the knowingly divulge to any person or entity the contents of a communication while in electronic contents of a communication while in electronic storage by that service.storage by that service.

18 U.S.C. § 2703 permits a government entity to 18 U.S.C. § 2703 permits a government entity to require disclosure by warrant if the electronic require disclosure by warrant if the electronic communication has been stored less than one communication has been stored less than one hundred eighty (180) days and by other procedures hundred eighty (180) days and by other procedures if more than one hundred eighty (180) days.if more than one hundred eighty (180) days.

Federal Cases Dealing WithFederal Cases Dealing With Stored Communications Stored Communications

ActAct Sixth Circuit, U.S. Court of AppealsSixth Circuit, U.S. Court of Appeals

Includes TN, KY, OH, and MIIncludes TN, KY, OH, and MI Warshak v. United StatesWarshak v. United States

532 F.3d 521 (2008)532 F.3d 521 (2008) deals with the issue of ripenessdeals with the issue of ripeness ““in determining the ‘reasonableness’ of in determining the ‘reasonableness’ of

searches under the Fourth Amendment and searches under the Fourth Amendment and the legitimacy of citizens’ expectations of the legitimacy of citizens’ expectations of privacy, courts typically look at the ‘totality privacy, courts typically look at the ‘totality of circumstances.’” (p528)of circumstances.’” (p528)


ActAct Ninth Circuit, U.S. Court of AppealsNinth Circuit, U.S. Court of Appeals

includes AZ, CA, NV, OR, WA, ID, MT, AK, HI, and includes AZ, CA, NV, OR, WA, ID, MT, AK, HI, and GuamGuam

Quon v. Arch WirelessQuon v. Arch Wireless 529 F.3d 892 (2008)529 F.3d 892 (2008) deals with the reasonableness element of Fourth deals with the reasonableness element of Fourth

AmendmentAmendment ““the reasonableness of a search is determined by the reasonableness of a search is determined by

assessing, on the one hand, the degree to which it assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of the degree to which it is needed for the promotion of legitimate governmental interest.” (p.903)legitimate governmental interest.” (p.903)


ActAct Ninth Circuit, U.S. Court of AppealsNinth Circuit, U.S. Court of Appeals Quon v. Arch Wireless (Cont.)Quon v. Arch Wireless (Cont.)

““the recently minted standard of electronic the recently minted standard of electronic communication via e-mails, text messages, and communication via e-mails, text messages, and other means opens a new frontier in Fourth other means opens a new frontier in Fourth Amendment jurispurdence that has been little Amendment jurispurdence that has been little explored.” p.904explored.” p.904

““email . . . users have no expectation in the to/from email . . . users have no expectation in the to/from addresses of their messages . . Because they addresses of their messages . . Because they should know that this information is provided to should know that this information is provided to and used by Internet service providers for the and used by Internet service providers for the specific purpose of directing the routing of specific purpose of directing the routing of information.” (p.905)information.” (p.905)

““however, users do have a reasonable expectation however, users do have a reasonable expectation of privacy in the content of their text messages vis-of privacy in the content of their text messages vis-à-vis the service provider.” (p.905)à-vis the service provider.” (p.905)


ActAct Fourth Circuit, U.S. Court of AppealsFourth Circuit, U.S. Court of Appeals

Includes SC, NC, VA, WV, and MDIncludes SC, NC, VA, WV, and MD Van Alstyne v. Electronic Scriptorium, Ltd.Van Alstyne v. Electronic Scriptorium, Ltd.

560 F.3d 199 (2009)560 F.3d 199 (2009) deals with the issue of damages for aggrieved deals with the issue of damages for aggrieved

partyparty private cause of action where proof of actual private cause of action where proof of actual

damages is required before a court can award damages is required before a court can award compensatory damagescompensatory damages

a “willful or intentional” violation of the SCA a “willful or intentional” violation of the SCA entitles the aggrieved party to punitive damagesentitles the aggrieved party to punitive damages

Content vs. RecipientContent vs. Recipient

Content is the words, items, or images Content is the words, items, or images being conveyed whereas recipient is the being conveyed whereas recipient is the person receiving the content.person receiving the content.

DistinctionDistinction If content is the desired focus then requires If content is the desired focus then requires

warrant pursuant to Fourth Amendmentwarrant pursuant to Fourth Amendment If recipient is the desired focus then no If recipient is the desired focus then no

warrant is necessary and information is warrant is necessary and information is allowed via a Pen Register under Federal allowed via a Pen Register under Federal laws.laws.

A Pen Register is A Pen Register is

Privacy Under N.C. Privacy Under N.C. ConstitutionConstitution

Roughly thirty-two (32) pages in Roughly thirty-two (32) pages in lengthlength

Divided into fourteen (14) ArticlesDivided into fourteen (14) Articles Most recent version effective as of Most recent version effective as of

July 1, 1971 July 1, 1971 No right of privacy explicitly statedNo right of privacy explicitly stated Implicit/implied right to privacy stated Implicit/implied right to privacy stated

in Article I of 1971 Constitution of in Article I of 1971 Constitution of North CarolinaNorth Carolina

North Carolina Constitution North Carolina Constitution Article IArticle I

Sec. 19. Law of the land; equal protection of the laws. No person shall be taken, imprisoned, or disseized of his

freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.

Sec. 20. General warrants. General warrants, whereby any officer or other person

may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted.

North Carolina CasesNorth Carolina Cases

No North Carolina cases adjudicate No North Carolina cases adjudicate issues similar to the Stored issues similar to the Stored Communications Act under federal Communications Act under federal law.law.

Key PointsKey Points

The right to privacy is a right against The right to privacy is a right against government-intrusiongovernment-intrusion. Therefore, the . Therefore, the right to privacy is not applicable against right to privacy is not applicable against private companies or individuals in private companies or individuals in certain situationscertain situations

Does the right of privacy apply if you Does the right of privacy apply if you send electronic communications to one send electronic communications to one person? person? What about five people?What about five people? What about everybody on your MySpace or What about everybody on your MySpace or

Facebook friends list?Facebook friends list?

Right To Privacy Right To Privacy QuestionsQuestions

Is a person entitled to a right to privacy Is a person entitled to a right to privacy when he/she posts pictures or videos of when he/she posts pictures or videos of himself/herself on the Internet?himself/herself on the Internet?

Is a person possess a right to privacy Is a person possess a right to privacy when his/her MySpace, Facebook, or when his/her MySpace, Facebook, or Youtube page is available for everyone to Youtube page is available for everyone to view?view?

Should colleges and employers utilize Should colleges and employers utilize MySpace, Facebook, and Youtube MySpace, Facebook, and Youtube profiles when evaluating a candidate’s profiles when evaluating a candidate’s application?application?

Facebook PrivacyFacebook Privacy2.2. Sharing Your Content and InformationSharing Your Content and Information

You own all of the content and information you post on You own all of the content and information you post on Facebook, and you can control how it is shared through Facebook, and you can control how it is shared through your privacy and application settings. In addition:your privacy and application settings. In addition:

For content that is covered by intellectual property For content that is covered by intellectual property rights, like photos and videos ("IP content"), you rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to specifically give us the following permission, subject to your privacy and application settings: you grant us a your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post worldwide license to use any IP content that you post on or in connection with Facebook ("IP License"). This on or in connection with Facebook ("IP License"). This IP License ends when you delete your IP content or IP License ends when you delete your IP content or your account unless your content has been shared with your account unless your content has been shared with others, and they have not deleted it. others, and they have not deleted it.

When you delete IP content, it is deleted in a manner When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. similar to emptying the recycle bin on a computer. However, you understand that removed content may However, you understand that removed content may persist in backup copies for a reasonable period of time persist in backup copies for a reasonable period of time (but will not be available to others). (but will not be available to others).

Facebook PrivacyFacebook Privacy5.5. Protecting Other People's Rights Protecting Other People's Rights

We respect other people's rights, and expect you to do the same.We respect other people's rights, and expect you to do the same. You will not post You will not post content or take any action on Facebook that content or take any action on Facebook that

infringes or violates someone else's rights or otherwise violates infringes or violates someone else's rights or otherwise violates the law. the law.

We can remove any content or information you post on Facebook We can remove any content or information you post on Facebook if we believe that it violates this Statement. if we believe that it violates this Statement.

We will provide you with tools to help you protect your We will provide you with tools to help you protect your intellectual property rights. To learn more, visit our How to intellectual property rights. To learn more, visit our How to Report Claims of Intellectual Property Infringement page. Report Claims of Intellectual Property Infringement page.

If we remove your content for infringing someone else's If we remove your content for infringing someone else's copyright, and you believe we removed it by mistake, we will copyright, and you believe we removed it by mistake, we will provide you with an opportunity to appeal. provide you with an opportunity to appeal.

If you repeatedly infringe other people's intellectual property If you repeatedly infringe other people's intellectual property rights, we will disable your account when appropriate. rights, we will disable your account when appropriate.

You will not use our copyrights or trademarks (including You will not use our copyrights or trademarks (including Facebook, the Facebook and F Logos, FB, Face, Poke, Wall and Facebook, the Facebook and F Logos, FB, Face, Poke, Wall and 3266532665), or any confusingly similar marks, without our written ), or any confusingly similar marks, without our written permission. permission.

If you collect information from users, you will: obtain their If you collect information from users, you will: obtain their consent, make it clear you (and not Facebook) are the one consent, make it clear you (and not Facebook) are the one collecting their information, and post a privacy policy explaining collecting their information, and post a privacy policy explaining what information you collect and how you will use it. what information you collect and how you will use it.

You will not post anyone's identification documents or sensitive You will not post anyone's identification documents or sensitive financial information on Facebook.financial information on Facebook.

MySpace PrivacyMySpace Privacy

6.6. Proprietary Rights in Content on Proprietary Rights in Content on MySpace.com.MySpace.com.

1.1. MySpace.com does not claim any ownership rights in MySpace.com does not claim any ownership rights in the text, files, images, photos, video, sounds, musical the text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials works, works of authorship, or any other materials (collectively, "Content") that you post to the MySpace (collectively, "Content") that you post to the MySpace Services. After posting your Content to the MySpace Services. After posting your Content to the MySpace Services, you continue to retain all ownership rights in Services, you continue to retain all ownership rights in such Content, and you continue to have the right to such Content, and you continue to have the right to use your Content in any way you choose. By displaying use your Content in any way you choose. By displaying or publishing ("posting") any Content on or through or publishing ("posting") any Content on or through the MySpace Services, you hereby grant to the MySpace Services, you hereby grant to MySpace.com a limited license to use, modify, publicly MySpace.com a limited license to use, modify, publicly perform, publicly display, reproduce, and distribute perform, publicly display, reproduce, and distribute such Content solely on and through the MySpace such Content solely on and through the MySpace Services. Services.


2.2. You represent and warrant that: (i) you You represent and warrant that: (i) you own the Content posted by you on or own the Content posted by you on or through the MySpace Services or through the MySpace Services or otherwise have the right to grant the otherwise have the right to grant the license set forth in this section, and (ii) the license set forth in this section, and (ii) the posting of your Content on or through the posting of your Content on or through the MySpace Services does not violate the MySpace Services does not violate the privacy rights, publicity rights, copyrights, privacy rights, publicity rights, copyrights, contract rights or any other rights of any contract rights or any other rights of any person. You agree to pay for all royalties, person. You agree to pay for all royalties, fees, and any other monies owing any fees, and any other monies owing any person by reason of any Content posted by person by reason of any Content posted by you to or through the MySpace Services. you to or through the MySpace Services.


http://www1.myspace.com/index.cfm?http://www1.myspace.com/index.cfm?fuseaction=misc.termsfuseaction=misc.terms

The website is listed solely because of the The website is listed solely because of the numerous legal disclaimers affecting privacy, numerous legal disclaimers affecting privacy,

ownership of copyrighted images, licenses, and ownership of copyrighted images, licenses, and etc. Please view at your convenience.etc. Please view at your convenience.

Sprint/Nextel RestrictionSprint/Nextel Restriction Restrictions On Using ServicesRestrictions On Using Services

You can't use our Services: (a) to transmit You can't use our Services: (a) to transmit content/messages that are, or in any manner content/messages that are, or in any manner that is, illegal, fraudulent, threatening, that is, illegal, fraudulent, threatening, abusive, defamatory, or obscene; (b) in a way abusive, defamatory, or obscene; (b) in a way that could cause damage or adversely affect that could cause damage or adversely affect our customers, reputation, network, property our customers, reputation, network, property or Services; (c) to communicate any or Services; (c) to communicate any unsolicited commercial voice, text, SMS, or unsolicited commercial voice, text, SMS, or other message; (d) to infringe on the other message; (d) to infringe on the copyright of another, or upload or transmit copyright of another, or upload or transmit any "virus," "worm," or malicious code; or (e) any "virus," "worm," or malicious code; or (e) in any way prohibited by the terms of our in any way prohibited by the terms of our Services, the Agreement or our Policies.Services, the Agreement or our Policies.

College AdmissionsCollege Admissions

Chicago Tribune: Dated 09/20/2008Chicago Tribune: Dated 09/20/2008 http://archives.chicagotribune.com/2008/sep/20/local/chi-facebook-college-20-http://archives.chicagotribune.com/2008/sep/20/local/chi-facebook-college-20-

sep20 sep20

In a new survey, 10 percent of admissions officers In a new survey, 10 percent of admissions officers from prestigious schools said they had peeked at sites from prestigious schools said they had peeked at sites like Facebook and MySpace to evaluate college-bound like Facebook and MySpace to evaluate college-bound seniors. Of those using the profiles, 38 percent said it seniors. Of those using the profiles, 38 percent said it had a “negative impact” on the applicant, according to had a “negative impact” on the applicant, according to Kaplan Inc., the education services company that Kaplan Inc., the education services company that polled the officers. polled the officers.

At least one admissions officer had rescinded an offer At least one admissions officer had rescinded an offer because of an applicant’s postings, results showed. because of an applicant’s postings, results showed. The survey went out to 500 schools—of which 320 The survey went out to 500 schools—of which 320 responded— in July and August and promised responded— in July and August and promised anonymity.anonymity.

College AdmissionsCollege Admissions Wall Street Journal: Dated 09/18/08Wall Street Journal: Dated 09/18/08

http://online.wsj.com/article/SB122170459104151023.htmlhttp://online.wsj.com/article/SB122170459104151023.html The lack of rules is already provoking debate among The lack of rules is already provoking debate among

admissions officers. Some maintain that applicants' online admissions officers. Some maintain that applicants' online data are public information that schools should vet to help data are public information that schools should vet to help protect the integrity of the institutions. Others say they are protect the integrity of the institutions. Others say they are uncomfortable flipping through teenage Facebook pages. uncomfortable flipping through teenage Facebook pages.

Thomas Griffin, director of undergraduate admissions at Thomas Griffin, director of undergraduate admissions at North Carolina State University in Raleigh, says the school North Carolina State University in Raleigh, says the school will do an Internet search, including Facebook and other will do an Internet search, including Facebook and other sites, if an application raises "red flags," such as a suspension sites, if an application raises "red flags," such as a suspension from school. Mr. Griffin says several applicants a year have from school. Mr. Griffin says several applicants a year have been rejected in part because of information on social-been rejected in part because of information on social-networking sites. In a recent case, the university researched networking sites. In a recent case, the university researched a student who disclosed on his application that he had been a student who disclosed on his application that he had been disciplined for fighting. The school found a Facebook page disciplined for fighting. The school found a Facebook page with a picture of the applicant holding a gun. "We have to use with a picture of the applicant holding a gun. "We have to use this information to make the best decision for the university," this information to make the best decision for the university," Mr. Griffin says. Mr. Griffin says.

EmploymentEmployment New York Times: Dated 06/11/2006New York Times: Dated 06/11/2006

http://www.nytimes.com/2006/06/11/us/11recruit.htmlhttp://www.nytimes.com/2006/06/11/us/11recruit.html Many companies that recruit on college campuses have Many companies that recruit on college campuses have

been using search engines like Google and Yahoo to been using search engines like Google and Yahoo to conduct background checks on seniors looking for their conduct background checks on seniors looking for their first job. But now, college career counselors and other first job. But now, college career counselors and other experts say, some recruiters are looking up applicants on experts say, some recruiters are looking up applicants on social networking sites like Facebook, MySpace, . . . where social networking sites like Facebook, MySpace, . . . where college students often post risqué or teasing photographs college students often post risqué or teasing photographs and provocative comments about drinking, recreational and provocative comments about drinking, recreational drug use and sexual [behavior] in what some mistakenly drug use and sexual [behavior] in what some mistakenly believe is relative privacy. believe is relative privacy.

Students may not know when they have been passed up for Students may not know when they have been passed up for an interview or a job offer because of something a recruiter an interview or a job offer because of something a recruiter saw on the Internet. But more than a dozen college career saw on the Internet. But more than a dozen college career counselors said recruiters had been telling them since last counselors said recruiters had been telling them since last fall about incidents in which students' online writing or fall about incidents in which students' online writing or photographs had raised serious questions about their photographs had raised serious questions about their judgment, eliminating them as job candidates.judgment, eliminating them as job candidates.

DiscussionDiscussion

How do you view privacy?How do you view privacy? How are you habits formed by your How are you habits formed by your

knowledge of privacy?knowledge of privacy? Will you change any of your habits?Will you change any of your habits? Should anything be done to federal Should anything be done to federal

privacy laws?privacy laws? Misc.Misc.

Privacy in the Age of Myspace, Facebook, Text Messaging and Video Messaging.

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Transcript of Privacy in the Age of Myspace, Facebook, Text Messaging and Video Messaging.