Archive | Privacy


I’ve blogged before about people trying to force others to stop talking about the people’s past arrests or convictions; but Jason Lee Neiman wants to force others to stop talking about his past lawsuits. From Neiman v. Versuslaw, Inc. (C.D. Ill. Aug. 3, 2012):

Plaintiff is an insurance claims industry professional with over 20 years of experience. Between November 2009 and March 2011, Plaintiff was involved in litigation against his former employer, Nationwide Mutual Insurance Company (Nationwide) and several related defendants.

In approximately January 2009, Plaintiff discovered that certain Internet websites were linking copies of information related to the litigation to Plaintiff’s name, such that a simple Internet browser search for his name would provide immediate results that referenced one or more of the filings or rulings in the active litigation. According to Plaintiff, rather than linking his name to significant rulings, such as appellate decisions or even trial court summary judgment rulings, the links included attachments to rulings on matters as common as a stipulated motion to quash a subpoena. Plaintiff has alleged that these references were occurring by way of paid legal search websites such as Lexis/,,, and (and/or its related site,….

Between January 2009 and the date of filing this action, Plaintiff applied for one or more positions of employment. Plaintiff believes that the potential employers have performed Internet browser searches by way of,, or, and found documents related to litigation against his former employer Nationwide. Plaintiff also believes that the potential employers have used this information to disqualify him from candidacy for the applied position or have shared this information with others who have done so. In other words, Plaintiff alleges he “has been effectively ‘blacklisted’ as to employment opportunities due to the ease at which these


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Is It Libel to Say Someone Was Arrested When the Arrest Record Has Been Erased?

As I noted last year, the New Jersey Supreme Court rejected a similar claim as to convictions (paragraph break added):

G.D. [argues] that the record of his conviction [for possession with intent to distribute cocaine] was expunged [some years later] and, therefore, his conviction — as a matter of law — is deemed not to have occurred. G.D. submits that, after the expungement of his record, the pronouncement that he was convicted of a crime was simply false and the dissemination of the expunged information violated his privacy rights….

It is true that under the expungement statute, as a matter of law, an expunged conviction is “deemed not to have occurred,” N.J.S.A. 2C:52-27. But the expungement statute does not transmute a once-true fact into a falsehood. It does not require the excision of records from the historical archives of newspapers or bound volumes of reported decisions or a personal diary. It cannot banish memories.

It is not intended to create an Orwellian scheme whereby previously public information — long maintained in official records — now becomes beyond the reach of public discourse on penalty of a defamation action. Although our expungement statute generally permits a person whose record has been expunged to misrepresent his past, it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth.

But in Connecticut, a new lawsuit (Martin v. Hearst Corp. (Conn. Super. Ct. filed June 11, 2012)) is making much the same claim as was made in New Jersey, except as to arrest records. According to the Complaint, a Hearst publication stated, on Aug. 26, 2010, that plaintiff Lorraine Martin had been “arrested and charged with numerous drug violations Aug. 20 after police received information that a pair […]

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The Dark Side of Privacy

[UPDATE: The contempt motion has been withdrawn, though the gag order remains.]

The Courier-Journal (Louisville) reports:

Frustrated by what she felt was a lenient plea bargain for two teens who pleaded guilty to sexually assaulting her and circulating pictures of the incident, a Louisville 17-year-old lashed out on Twitter.

“There you go, lock me up,” Savannah Dietrich tweeted, as she named the boys who she said sexually assaulted her. “I’m not protecting anyone that made my life a living Hell.”

Now, Dietrich is facing a potential jail sentence, as the attorneys for the boys have asked a Jefferson District Court judge to hold her in contempt because they say that in naming her attackers, she violated the confidentiality of a juvenile hearing and the court’s order not to speak of it.

A contempt charge carries a potential sentence of up to 180 days in jail and a $500 fine.

An order barring a victim from revealing the names of her assailants is, I think, clearly unconstitutional, even when the assailants are juveniles. Oklahoma Publishing Co. v. District Court (1977) expressly rejected the notion that courts or legislatures may bar the publication of the names of juvenile offenders; that case involved a newspaper’s publishing the name of the juvenile offender, which it learned from a court hearing, but the rationale applies at least as strongly to a person’s publishing a name that she learned from the attack itself. Likewise, even when it comes to grand jury proceedings — probably the most historically secret part of the criminal justice system — Butterworth v. Smith (1990) held that, while a grand jury witness could be barred from revealing what he learned as part of the grand jury proceedings, the witness could not be generally barred from revealing information that he had learned […]

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Injunctions Against Speech That “Ha[s] a Substantial Adverse Effect … on … [a Person’s] Privacy”

I’m writing an article that indirectly touches on this question, and I thought I’d ask our readers for their take on it. I’d particularly like to hear from people who are knowledgeable about privacy law, and who (unlike me) support information privacy speech restrictions, such as the disclosure-of-private-facts tort.

Minnesota has an interesting statute that allows courts to enjoin speech that “ha[s] a substantial adverse effect … on the … privacy” of a person, Minn. Stat. Ann. § 609.748. Five months ago it was used to issue an injunction banning online speech by a person about his ex-girlfriend, Johnson v. Arlotta (2011), but it has been used before as well.

I’m curious what people think of this — again, especially people who generally support the disclosure tort — given the lack of a statutory or judicial definition of what constitutes “privacy” for purposes of the statute, and the criminal penalties for violating the order. How should the statute be read, and is it constitutional? Should “privacy” be read as tortious invasion of privacy, with all the common-law twists on that (e.g., the exception for newsworthy speech, and the requirement that the speech be said to the public and not just as gossip within a circle of friends)? Is that sufficiently clear for an order that can be enforced through criminal penalties? Also, are temporary restraining orders under the statute — which may be issued ex parte — unconstitutional prior restraints?

Here’s the relevant excerpt:

(a) “Harassment” includes:
(1) a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between


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Orders Banning Speech That “Ha[s] a Substantial Adverse Effect … on the … Privacy of Another”

Minnesota law defines “harassment” to include,

repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target.

If someone complains about “harassment,” a court can issue an order banning such “harassment,” and violation of the order will then be a crime. Given this, what are you free to say about other people in Minnesota, assuming you want to say it several times, and they’re willing to go to court to stop you?

Say that you have been (accurately) telling your and your ex’s acquaintances that your ex cheated on you, or infected you with a sexually transmitted disease — is that a “repeated incident[] of intrusive or wanted … words … that ha[s] a substantial adverse effect on the [ex’s] privacy”? What if you tell people that someone holds some publicly condemned religious or political beliefs that he has tried hard to conceal? The list could go on.

Note that there’s nothing in the statute that purports to limit this to speech that is a tortious disclosure of private facts, though that tort is itself constitutionally questionable, both on overbreadth grounds and vagueness grounds (given the lack of clear definition of the “newsworthiness” exception to the tort, an exception that does not appear in the statute). […]

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HUD on Fair Housing and Discriminatory Roommate Advertising

When I blogged about the case recently, I pointed out the Ninth Circuit seemed to assume that if discriminating in one’s choice of roommates is legal, it would also be legal to advertise a discriminatory preference.  I suggested that this wasn’t so clear.  Some commentors thought it was absurd to suggest that HUD would try to penalize expressing discriminatory roommate preferences when advertising for a roommate, given that the underlying discrimination is both legal and protected by the constitutional right to intimate association.  But here is what HUD’s website has to say:

It is illegal for anyone to

  • Advertise or make any statement that indicates a limitation or preference based on race, color, national origin, religion, sex, familial status, or handicap. This prohibition against discriminatory advertising applies to single-family and owner-occupied housing that is otherwise exempt from the Fair Housing Act.
  • […]

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Does the Right to Choose a Roommate Include a Right to Advertise Discriminatory Preferences?

Last week, Eugene blogged about the Ninth Circuit’s opinion in Fair Housing Council v.  As Eugene noted, the court, in an opinion by Judge Alex Kozinski,

holds that federal and state housing discrimination law do not extend to discrimination in choice of roommates (or in advertising for roommates). Part of the court’s rationale is its judgment that reading the law as applying to roommate selection would raise serious constitutional concerns, given the right to “intimate association” that the Supreme Court has recognized in cases such as Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte (1987); the Ninth Circuit therefore interprets the federal and state laws, which it sees as not definitive on the subject, to avoid the constitutional problem.

I agree that (a) the Fair Housing Act was not meant to impinge on roommate decisions and (b) if a is wrong, the right to intimate association nevertheless prohibits the government from interfering with one’s choice of roommate.

However, I was surprised that the opinion didn’t address a more subtle argument, to wit: if the Fair Housing Act does apply to roommate situations, even if it would be unconstitutional for the government to punish someone for his choice of roommate it is not unconstitutional for the government to prohibit someone from advertising discriminatory preferences.

The reasoning would be that while who one chooses to live with involves intimate association rights, publicly advertising one’s discriminatory preferences in an advertisement for a roommate is not only not an “intimate” activity, it’s a very public one.

Indeed, it’s my understanding that during the Clinton Administration, HUD’s position was that it could (and would) prohibit advertising that expressed discriminatory preferences even when acting on those preferences would be constitutionally protected.  (The relevant regulations allowing punishment for such behavior were eventually […]

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Freedom to Discriminate in Choice of Roommates

Fair Housing Council v. (9th Cir. Feb. 2, 2011) holds that federal and state housing discrimination law do not extend to discrimination in choice of roommates (or in advertising for roommates). Part of the court’s rationale is its judgment that reading the law as applying to roommate selection would raise serious constitutional concerns, given the right to “intimate association” that the Supreme Court has recognized in cases such as Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte (1987); the Ninth Circuit therefore interprets the federal and state laws, which it sees as not definitive on the subject, to avoid the constitutional problem.

The opinion is by Chief Judge Kozinski, joined by Judge Reinhardt. Judge Ikuta concurs as to federal law, but concludes that state law does apply to roommates; she would therefore remand for further briefing in district court on the constitutional question. Thanks to How Appealing for the pointer.

UPDATE: Link fixed, sorry about that. […]

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Privacy Victims by the Million: Federal Law Turns Parents and Children into Liars … and Criminals?

A recent report by Danah Boyd and others reveals that turning parents and children into liars is a principal effect of the Children’s Online Privacy Protection Act, or COPPA.  According to Consumer Reports, 7.5 million kids under 13 have joined Facebook. Since Facebook prohibits kids of that age from the service, that’s 7.5 million children who lied in the signup process.  And most of them got help in telling the lie from their parents.  According to Boyd’s study, the vast majority of parents were aware that their children joined Facebook before reaching 13; in fact, more than two-thirds of these parents helped their under-age kids join.

That’s a lot of lying.

COPPA more or less forces Facebook into excluding thirteen-year-olds.  The law and the FTC regs implementing it set stringent limits on the kinds of information that web services can collect from kids under 13 in the absence of “verifiable parental consent.” Obtaining verifiable consent requires mail, fax, phone calls, or credit card numbers; email is allowed only if accompanied by a cryptographically secure digital signature. It is quite deliberately a hassle.  And once the consent is received, the service is charged with knowledge that the customer is a child, which triggers special legal protections and limits, not to mention FTC and state attorney general oversight.

All in all, unless you’re running a site focused exclusively on preteens, you’d be crazy to let them join.  Facebook isn’t crazy.  It excludes children.  But staying off Facebook isn’t really an option for kids with a social life, or grandparents for that matter. So the real effect of the law and Facebook’s policy is to force children and their parents to lie about the child’s age. Facebook-logo

Teaching kids to lie isn’t exactly a government policy to be proud of.  But […]

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Subpoena for Library Records

There has been a lot of controversy in the past about whether the government should be free to subpoena library records or bookstore records, or execute search warrants for such records. (See, for instance, this post of Orin’s, this Congressional testimony by Orin, and pp. 30-37 of this article of mine.) I just ran across a case that dealt with this question in an unusual context — where the defendant’s alibi involved his supposedly returning a certain book to the library, State v. Hilton (Wash. Ct. App. Sept. 27, 2011):

Mr. Hilton’s remaining arguments are that the records were private under both Const. art. I, § 7 and the Public Records Act (PRA), chapter 42.56 RCW, and protected by the First Amendment and Const. art. I, § 5. In particular, he cites to RCW 42.56.310, which provides that a library record that “discloses or could be used to disclose the identity of a library user is exempt from disclosure under this chapter.” The emphasized language makes short work of Mr. Hilton’s PRA argument. The PRA provides an exemption from disclosure pursuant to a public records request. It does not create a privilege, let alone a privilege exempt from judicial process. See RCW 42.56.050; Brown v. Johnston, 328 N.W.2d 510 (Iowa), cert. denied, 463 U.S. 1208 (1983). Similarly, Const. art. I, § 7 prohibits intrusion into “private affairs” absent “authority of law.” A subpoena is “authority of law.” Gunwall, 106 Wn.2d at 69. Mr. Hilton’s argument is without merit.

The free speech argument fares no better. Mr. Hilton appears to predicate his claim at least in part on the theory that the SIJ [Special Inqury Judge] proceedings were invalid, an argument we have already rejected. His sole authority is a Colorado case, Tattered Cover, Inc. v. City


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Private Conversations and the Disclosure of Private Facts Tort

Occasionally, I see assertions that disclosing certain private information about someone — for instance, details of their sex lives, medical history, or financial affairs — would be tortious, even if the disclosure is in a private conversation. (See, for instance, this comment, and this dissent from a Supreme Court opinion.)

But generally speaking, the disclosure of private facts tort does not apply to such private disclosures. (Of course, the disclosure might in some cases be a breach of a professional duty, such as that of a lawyer, a doctor, or a psychotherapist, or a breach of nondisclosure agreement; but those are different matters.) As the Restatement (Second) of Torts § 652D puts it (emphasis added),

The form of invasion of the right of privacy covered in this Section depends upon publicity given to the private life of the individual…. “Publicity[]” … means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public.

Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff’s private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity


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Will Jeff Bezos Bring Feudal Security to the Net?

The Kindle Fire is a remarkable innovation in the Apple mold:  taking a bunch of components that are pretty well known and combining them into a powerful new experience.  But unlike Apple, Amazon’s integrating vision isn’t visual design or even user delight.  Instead it’s far more ambitious — a new vision of the entire Internet ecosystem.

OK, let me try that again without the Valley babble.  The Kindle Fire forks Android into an Amazon-designed and Amazon–controlled operating system.  So far, no surprises. Amazon owns and subsidizes the hardware, too, so it can design features that integrate operating system and processor tightly.  Again, nothing that Apple can’t do.  But then comes the clever, almost-new idea:  Fire uses its own browser, called Silk, which is designed to work with Amazon’s massive cloud computer. So instead of downloading web pages one after the other and opening them on your computer, Amazon’s cloud stores and even opens them, sending you the end result.  This allows speedier downloads for a couple of reasons:  Caching of popular pages (or even parts of pages) avoids download delays when the original source is overloaded; and Amazon’s cloud can handle even the most processor-intense pages instantaneously, far faster than your wheezing desktop machine.  In short, your Internet experience on the Fire ought to be lightning quick.

castle_StefanThere’s another advantage to this new vision of what might be called the Bezosnet.  The Bezosnet ought to be a lot more secure.  One way that hackers compromise your machine is by getting you to go to malware infected sites.  Just visiting the site triggers routines that take over the visitor’s computer.  But if the routine runs, not on a visitor’s computer but in a virtual environment at Amazon’s data center, the attacker’s code isn’t likely to work.

In fact, it looks to […]

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D.C. Circuit on the New “Advanced Imaging Technology” Airport Searches

From Electronic Privacy Information Center v. United States Department of Homeland Security (D.C. Cir., decided this morning):

The Electronic Privacy Information Center (EPIC) and two individuals petition for review of a decision by the Transportation Security Administration to screen airline passengers by using advanced imaging technology instead of magnetometers. They argue this use of AIT violates various federal statutes and the Fourth Amendment to the Constitution of the United States and, in any event, should have been the subject of notice-andcomment rulemaking before being adopted. Although we are not persuaded by any of the statutory or constitutional arguments against the rule, we agree the TSA has not justified its failure to issue notice and solicit comments. We therefore grant the petition in part….

To sum up, first, we grant the petition for review insofar as it claims the TSA has not justified its failure to initiate notice-and-comment rulemaking before announcing it would use AIT scanners for primary screening. None of the exceptions urged by the TSA justifies its failure to give notice of and receive comment upon such a rule, which is legislative and not merely interpretive, procedural, or a general statement of policy. Second, we deny the petition with respect to the petitioners’ statutory arguments and their claim under the Fourth Amendment, except their claim under the [Religious Freedom Restoration Act], which we dismiss for lack of standing. Finally, due to the obvious need for the TSA to continue its airport security operations without interruption, we remand the rule to the TSA but do not vacate it, and instruct the agency promptly to proceed in a manner consistent with this opinion.

Thanks to Tom Ault for the pointer.

UPDATE: I see Orin is working on a post about the Fourth Amendment issues, which I expect will be up […]

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Prof. Sonja West on the “My Ex-Girlfriend Killed Our Baby” Billboard Case

I asked Prof. Sonja West (University of Georgia) whether she had some thoughts on the case, because she had written two articles that relate to the question: The Story of Me: The Underprotection of Autobiographical Speech and The Story of Us: Resolving the Face-Off between Autobiographical Speech and Information Privacy. She was kind enough to pass along the following; I’m not sure I would entirely agree with the line she proposes — having constitutional protection turn on the speaker’s motive in this situation strikes me as too likely to lead to error, and to undue deterrence of speech — but I wanted to pass along her views in any event:

Eugene’s post about Greg A. Fultz’s billboard lashing out at his ex-girlfriend for allegedly having an abortion hits on an important conflict between free speech and privacy — what should happen when someone speaks about his own life and, in doing so, reveals private information about someone else.

Assuming that Fultz was telling the truth about the abortion (a matter that appears to be under some dispute), the question becomes whether it matters that Fultz was talking about something that happened to him personally. In other words, should there be heightened First Amendment protection for truthful autobiographical speech?

It is easy to tweak the scenario here to see the difference the autobiographical interest can make. Imagine that instead of Fultz, the speaker was some other third party — a friend, a community member or a co-worker — who somehow learned about the abortion and decided to broadcast the information publicly. This is the scenario our laws are equipped to handle. We ask whether the information is true; whether it was communicated to enough people; whether the disclosure would be highly offensive to a reasonable person; and whether it is


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When Facts About Another’s Life Are Also Facts About Your Life

Greg A. Fultz put up a billboard showing himself holding what appears to be empty space, with the words “This Would Have Been A Picture Of My 2-month Old Baby If The Mother Had Decided To Not KILL Our Child!” and some endorsements (apparently later removed) from pro-life groups, including the words “PRO LIFE” and “RIGHT TO LIFE.” The billboard didn’t identify the man’s ex-girlfriend, but presumably some people who knew him and her would figure it out. (The billboard did at first say “Created for N.A.N.I. – National Association of Needed Information,” though that was later removed, and Nani is the ex-girlfriend’s name; but I take it that no-one would identify the girlfriend from that, unless they had already figured out her identity because they knew who the man was.)

Then, as the Alamogordo News reported on June 3:

An Otero County Domestic Violence Court hearing commissioner recommended … an order of protection be granted to Nani Lawrence because Greg A. Fultz displayed a pro-life billboard about their relationship, which violated Lawrence’s right to privacy … [and] recommended the billboard be taken down by 8:15 a.m. on June 16.

Twelfth Judicial District Judge James W. Counts is expected (today) to sign the order of protection and an order to remove the billboard located on White Sands Boulevard between First and Second streets. [Later press accounts say the order was indeed entered, though I’ve also heard a claim that the District Judge has not yet decided. -EV]

There are many interesting First Amendment questions, and factual questions, here. Factually, Fultz now says he doesn’t really know whether the ex-girlfriend had had an abortion or a miscarriage, because the girlfriend hadn’t told him; at the same time, press accounts suggest she was just arguing invasion of privacy and not libel, so […]

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