News/Issue: Privacy- Good, Bad, and Ugly

There's been a lot of news lately about privacy- much of which is being bounced around the blog world from privacy advocacy group to privacy advocacy group. I'll try to give it a bit of a more moderate spin, and one that frames it in a legal context. But first, three news pieces:

1. In this weeks BusinessWeek, there is a story about an employee that used a Yahoo message board to post attacks against the company he worked for, including one that contained racial epithets to describe the company's diversity policy. In retaliation, the company used the courts to receive a subpoena to reveal the man's identity, and subsequently fired him from his position. Now, the former employee is suing, claiming the company wrongfully used the courts to unmask his identity. The privacy group Public Citizen is protecting him, there summary of the case can be found here.

2. The Delaware Supreme Court this week determined in John Doe v. Cahill that as far as blogs and chatrooms are concerned, defamation charges that require ISPs to reveal the names of anonymous individuals must meet a "summary judgment" standard as opposed to a "good faith" standard (the latter being the standard a lower court used). In this case the plaintiff used a screenname "Proud Citizen" to make potentially defamatory comments about Cahill, a public officer. The court found that given the ambiguous nature of the comments, and the context in which they were said, offered suitable grounds to dismiss the charge. Notably, Chief Justice Steele gives a fairly long account of why blogs and chatrooms ought to be considered opinion, not platforms of discourse that reasonable people accept as fact.

In the first case, privacy is used as both a means to attack a corporation's reputation, as well as to use racial slurs. Given that this speech was made on the person's own free time, in their own home, and without signing a terms and agreements document that would allow his anonymity to be taken away, it appears that Allegheny illegitimately wrested this information from the ISP.

So what's the problem? A lack of standards, or at least, applicable standards. In the second case, Steele was absolutely right in viewing the law in light of both the value and context of free speech on the internet. By doing so, he creates a very clear framework of how law should apply to the internet, and refuses to treat the internet like any of the spaces- home, street corner, town hall, ect. - that it is often compared to. A significant reason for Alleghany's lawsuit was to ensure that the person posting messages was not a 'high ranking employee'. And if it was? As long as a person is not using their anonymity to commit a crime (for example disclose proprietary information or make clear defamatory statements) then the values in the case need to be weighed- anonymity v. protection of reputation/security. Such a balance was never attempted in the Allegheny case.

3. There's been a lot of buzz about Sony and its use of a rootkit program in CDs. Princeton Professor Ed Felton has posted an excellent analysis of the issue on his blog, freedom to tinker. The folks at boing boing also seem particularly irate. So what's with all the rabble rabble?

Well, this one takes a little more time, so I get to it in the next post. Ciao