Privacy

Last week, the tech world caught fire with the newest in an increasingly long list of electronic privacy scandals. Carrier IQ, a small Silicon Valley software company with its product installed on millions of cell phones, made headlines when a young programmer posted a video allegedly showing the software’s ability to log keystrokes and collect other, very personal information from phones.

By the end of last week, the controversy had already sparked an angry letter from democratic Senator Al Franken, two class-action lawsuits, and a flurry of denials and explanations from the software company as well as major mobile phone carriers. We briefly mentioned the story in Friday’s Non-Sequiturs, but it deserves a deeper look.

Is Carrier IQ as bad as it sounds? Good question….

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Caveat: I did not write the following dialogue. It is from the “comments” section of one of my columns where I mentioned I’d be writing about HIPAA and GLBA. Unfortunately, I cannot attribute the comments to the persons who wrote them, as they are anonymous; however they are quite apropos of today’s subject:

1) “I wish vendors would get it into their heads that indemnity for being sued on a confidentiality basis doesn’t cut it for financial institutions and other customers/clients that have affirmative obligations without being sued in the event of a breach of confidentiality.”

2) “I wish financial institution customers would get it into their heads that the ‘customer information’ they’re obligated to protect is not the sort of thing they would ever disclose to the vast majority of their vendors, and stop using their ‘affirmative obligations’ as a tool to cram unnecessarily restrictive confidentiality terms down the throats of vendors.”

Perfect. Those two comments capture the schism between vendors and customers when dealing with private financial or personal confidential information….

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* Facebook settled with the FTC over its privacy violations. Mark Zuckerberg will be adding a “dislike” button to the site so he has an appropriate way to deal with this. [National Law Journal]

* The lawsuit seeking to overturn gay marriage in New York will proceed. Eric Schneiderman just got disinvited from more holiday parties than he can even count. [New York Times]

* On appeal, Dechert will get to walk away from the Dreier drama without losing a single dime, but not if Marc Kasowitz has anything to do with it. [New York Law Journal]

* Herman Cain’s defamation lawyer, Lin Wood, is apparently living on a very nice planet where “guilt by accusation” isn’t already the norm in the realm of politics. [Washington Post]

* What’s with all of the child predator attorneys flocking to New Jersey? Solo practitioner Tobin Nilsen got 12 years for trying to have sex with a 7-year-old girl. [Atlanta Journal-Constitution]

There has been justifiably a lot of talk over the last few days about U.S. v. Jones, and the privacy issues it raises. Our editor emeritus Kashmir Hill was fortunate enough to hear oral arguments at the Supreme Court in person, alongside top legal reporters such as Jeffrey Toobin and Adam Liptak.

But when it comes to electronically tracking people, Jones is just the tip of the iceberg. Law enforcement also often follow American citizens through their cell phones. The practice has become so widespread that some magistrate judges are reconsidering their willingness to authorize it….

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WASHINGTON - OCTOBER 08:  U.S. Supreme Court m...

“If you win this case, there is nothing to prevent the police or government from monitoring 24 hours a day the public movement of every citizen of the United States,” said Justice Breyer.

The Supreme Court justices were decked out in their usual black robes today for U.S. vs Jones [pdf], a case involving the question of whether police need a warrant to attach a GPS tracker to someone’s car. But given their paranoia about possible technology-enabled government intrusions on privacy, it might not have been surprising if they had also been wearing tin foil hats.

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Remember how everyone used say, “Don’t post anything on Facebook you wouldn’t want your boss to see. But if you do, just make sure you set your privacy settings so that your boss can’t see.”

Well, things have changed. Now, when companies enter workman’s compensation or personal injury litigation, courts will sometimes order discovery on password-protected Facebook information.

On Thursday, a New York appeals court ruled that a company could not see the plaintiff’s protected data, but not simply because it was private. Let’s see what happened…

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Madonna

On Tuesday of this week, I popped over to San Francisco for the Computer Forensics Show. It’s a small tradeshow targeted at attorneys, accountants, IT professionals, and law enforcement.

I sat in on one legal technology-related panel that was particularly entertaining and informative. Many, if not most, of the people in the room were not attorneys. It was interesting to be a part of a non-attorney crowd and a reminder of how many people really don’t understand basic legal technology principles. What I heard underscored was the importance of maintaining a technology dialogue between legal and other parts of the business.

It was also chance to hear some awesome war stories from a veteran partner at a major law firm. Why did Archie Comics threaten to sue a baby? Why doesn’t Madonna like porn? Why aren’t you allowed to have the domain name fcukpenguins.com?

Beam me to the jump, Scotty, and let’s see….

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It’s said that it’s rude to ask a woman her age. In fact, it’s only rude to ask women 30 and over about their digits. It’s far worse, however, to ask a woman with decades under her belt for her age and then to publish it for the world to see. An actress in Texas says it wasn’t just rude but financially costly for her when the movie database IMDB publicized her nearly over-the-hill age in 2008. Cue, Robert Murtaugh.

The Hollywood Reporter has a copy of the actress’s complaint against Amazon.com, which owns the Internet Movie Database, in which she alleges that everyone’s favorite website for figuring out who-that-guy-in-that-one-movie-was-and-what-was-that-other-movie-he-was-in-with-that-girl screwed her over after she signed up for a Pro IMDb account. After entering credit card information and personal details, including her birthdate, to start the account, her age all of a sudden appeared on her public profile page, “revealing to the public that Plaintiff is many years older than she looks,” according to her humble complaint.

Age isn’t just a number, says her counsel, “Internet lawyer” John Dozier, but a $1,075,000 number…

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Earlier this week, the federal government got some heat for allegedly violating the common man’s electronic privacy by snooping around in email and the like. Today we have a lawsuit from Kentucky accusing a tech company, specifically Facebook, of doing nearly the same thing.

What is going on? It’s almost like there’s no privacy anywhere anymore! (I’m kidding, of course: Privacy completely disappeared years ago.)

The suit, filed by an average Facebook user like you or me (well, most of you are lawyers, so not quite like you), claims a class of 150 million people, and damages of hundreds or thousands of dollars per class member. Exactly what heinous offense has Facebook supposedly committed?

I’m so glad you asked….

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We’ve been talking a lot recently about the secretly authorized stuff our government does to us — like killing us, or molesting us at airports.

Here’s another one for the list: digging through our emails or Twitter feeds or cell phone data, without probable cause, our permission, or our knowledge. This isn’t necessarily shocking in and of itself; back in April, Kashmir Hill wrote about how often the government requests information about private individuals from tech companies.

What’s shocking is the ease with which the government gets that information and the secrecy with which it does so. Somehow it’s all based on a law that is older than the Internet. The policy recently came to light when authorities ordered a small Internet provider, as well as Twitter and Google, to turn over information about Jacob Appelbaum, an American who volunteers with WikiLeaks.

How does the U.S. government circumvent basic probable cause and search warrant requirements when it wants electronic information? Let’s see….

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