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Cyberprivacy
Temple University School of Law
Bollinger, Dorothy M.

 
CYBERPRIVACY OUTLINE
Dorothy Bollinger
Fall, 2013
1)   CYBERPRIVACY AND SOCIAL MEDIA
Rules:
–          Private institutions:
o   Check policies, contracts signed.
o   No First Am issues can arise.
–          Public institutions:
o   Check rules, regulations, policies, contracts signed.
o   First Am issues may arise, but always check if the speech is newsworthy.
–          Both:
o   You cannot get info from social media by asking passwords to people (at least in Delaware and PA).
o   Posts/emails in social media can be asked via discovery as long as they are related to the case (as long as there is any privilege in confidential relations such as attorney-client).
o   However, if the info is delivered to a third party, any privilege may be negated. For example, if another employee has access to my posts or my email sent to him, that employee may submit the evidence to my boss.
o   If a post is visible by anyone, is its ok to take it.
o   It also depends on whom post the wrongful info/post. If I post it, I may be fired, but if it was done by another person, I cannot be fired.
a)      Tatro v. University of Minnesota (2012)
i)        Private university, so check contracts signed, university’s code of conduct policies and rules that regulate student’s behavior (no constitutional issues as in public university)
ii)       Tatro: undergrad. Posts (regarding her work on a corpse) in her FB wall accessible to her friends and friends of friends. Posts considered threatening.
iii)     Holding: P did violate university rules.
b)      Zimmerman v. Board of Trustees of Ball State University, 2013
i)        State university (constitutional issues may arise).
ii)       Zimmerman and the other P were students. They made a set up using a fake FB profile of a girl to another student outside university, and published a video of the set up on YouTube. Target complained to the university about the harassment.
iii)     University via code of conduct may discipline student (harassment and violation of privacy), even with suspension (Illinois state law allows universities to do so).
iv)     First Amm issue: Not recognized because no communication about what the bad guys did. False speech is not protected.
c)       McMillen v. Hummingbird Speedway, Inc.
i)        P claimed for injuries in car accident.
ii)       D filed motion to seek P’s posts in FB and MySpace to see if there were any comments related to his injury. D did so after asking P he was in social networks and checking his public posts in such networks.
iii)     As long as the information seek is pertinent to the case, and as long as the information is not covered under privilege, discovery should be granted. In the case of information posted in social networks, there is no such privilege (such as attorney-client, clergy-penitent, psychology-patient, and physician-patient).
iv)     P’s usernames/passwords should be given to D’s attorneys to see the posts.
v)      A new privilege may only be recognized it if shown:
(1)    that his communications originated in the confidence that they would not be disclosed;
(2)    that the element of confidentiality is essential to fully and satisfactorily maintain the relationship between the affected parties;
(3)    community agreement that the relationship must be sedulously (asiduamente) fostered; and
(4)    that the injury potentially sustained to the relationship because of the disclosure of the communication outweighs the benefit of correctly disposing of litigation. (Matter of Adoption of Embick)
vi)     When a third party is involved (such as FB), privileges are tend to be negated.
 
Plug-ins:
Information collection through plug-in. Now it can be tied to my name.
Information tracking.
Wiretap act: if there is an interception
Double-click case – violated the Wiretap Act.
Cookies collecting info pharmaceutical website.
 
Zip codes
–          15-20 states have outlawed to ask for zip code in a credit card transaction.
 
Facial recognition
–          No specific law about it.
 
Consumer Privacy Bill of Rights 2011 – not yet a law
 
Illinois Biometric Info Act
 
Google
–          Google said consent of scanning is implied.
 
 
PRIVACY AND THE MEDIA
 
Privacy torts:
 
Do not confuse privacy tort with defamation nor First Am defense.
 
1)      Intrusion upon Seclusion
a)      Cases usually arises in information gathering by reporters, journalists, etc.
b)      Restatement (Second) of Torts § 652B (1977)
c)       Paparazzi laws have been established, like in CA
d)      Other remedies besides torts claims: trespass (if entering my property), fraud (if the “newsgatherer lied or used deceitful methods to obtain information”), electronic surveillance laws of many states requires consent of all participants to a conversation in order to record it, in others only one of the parties (therefore only need newsgatherer’s consent).
e)      Requirements:
i)        Intentional intrusion,
(1)    Physical or otherwise.
ii)       highly offensive according to sensibility of an ordinary person
(a)    Reasonable person standard: It has to be more than careless, annoying. It has to be really offensive.
(i)      Subjective standard: Did they think it was reasonable?
(ii)    Objective standard: Did the society consider this is offensive?
iii)     access, not publicity necessary.
(1)    This is the difference with disclosure of truthful info.
(2)    Intrusion upon seclusion “concerns the way that the information is obtained”. It doesn´t matter if there “is no publication or other use of any kind of the photograph or information outlined.” (comment b) Restatement 652B)
(3)    Disclosure of real info, liability “does not depend upon how the information is obtained”.
(4)    Check degree of permission to access/use X info
f)       Cases?
i)        Sanders v ABS – reporter secretly videotaping conversations between P and a psychic. D said no reasonable expectation of privacy. Court didn´t agree. “Seclusion” doesn´t have to be characterized as absolute, it is a relative term like privacy. The fact a person can bbe seen by someone “does not automatically mean that he or she can legally be forced to be subject to being seen by everyone.”
ii)       Galella v Onassis – there was physical touch from the paparazzi to Onassis and her daughter.
iii)     Villanova v Innovative Investigations – GPS put by wife to her and his husband’s car to track husband’s movements. The info got from GPS was from movements in public space, not private, and the wife didn´t give the info to the investigator (D).
iv)     If a third party (Facebook friend) give to your employer your posts, you are badly done!
 
2)      Public disclosure of private info
a)      Publicity given to private life – Restatement (Second) of Torts **652D
b)      Other remedies: restriction of X info such as identities of sexual offense victims, AID’s patients, federal wiretap law (ECPA title I –  (1)(c): prohibits disclosure of communic that one has reason to know was obtained illegally  – see Bartnicki v Vopper)
c)       Breach of confidentialilty tort – no need to show any of the requirements of

may have been liable as a publisher, it is shield by the Comm Dec Act
(c)    Batzel v Smith and Cremers: Cremers was shield by CDA because he only disseminated (forward) through his listserv the false info written by Smith in his email in through his email listserv. Cremers was not the content provider.
 
b)      Classes:
i)        Embellishment of a true story.
(1)    Varnish v. Best Medium Publishing Co. (1968). – false facts about story of a marriage  – wife committed suicide and killed her children.
ii)       Use of photo out of context.
(1)    Thompon v. Close.up, Inc. (1950) – drug dealing
(2)    Homes v. Curtis Publishing (1969). – photo portraying Plaintiff as a gambler.
(3)    Wood v. Hustler Magazine (1984). – use of a photo obtained via a forged consent form, and in the caption it was written “plaintiff porno fantasy.”. Publisher was liable for not securing consent form as well.
c)       Not false light:
i)        Obvious fiction: but it must be clear the story is “pure fiction.”
(1)    People’s Bank and Trust Co. v. Globe International Publishing, Inc. (1992): story about a 97 year old woman who got pregnant, using the name of a real person, and the paper said the story was “factual and true” and mixes fiction and reality without knowing which one is true or not.
d)      Cases:
i)        Braun v. Flynt (1984). Publication in a porn magazine of a photograph depicting Plaintiff doing a routine in an amusement park.  The way it was published implied a “kinky” scene. Lawsuit was for defamation and false light. Appeals Court said she cannot file both claims at the same time, but it said that Plaintiff was not a public figure and 1st Amendment didn´t protect the magazine (Gertz rule, what is this rule?).
e)      Collision with First Amendment.
(1)    Zimmerman: This claims can be handled under defamation.
(2)    Case law (Lake v. Walt-Mart – the court didn´t recognize false light tort because of its similarity with defamation, and because false light is broader, it can collide with 1st Am.; Renwick v. News and Observer Publishing, [1984]).
(3)    Snyder v. Phelps (2011):
(a)    Issue: whether First Amendment protects church members in a case in which they were picketing (in a public area) near a soldier´s funeral saying that God punish American sins by letting American soldiers die.
(b)   Scotus found for Defendant. His speech was of public concern (legit news interest) (US sins, homosexuality, etc.), his picketing was done in a public area, Plaintiff didn´t realize about the picketing until he watched the TV news, etc. The doctrine of captive audience argued by Plaintiff was not accepted. “The burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes…”
(c)    Privacy tort of intrusion upon seclusion was not granted because …
f)       Malice standard… (p. 219).