The 2014 Privies —
Dumbest Privacy Case of the Year
a. Boston Police Department (Commissioner William Evans)
Record Your Talk with Boston Police, Face Felony Wiretap Charges
When Taylor Harding called the Boston Police Department’s press spokesman about his case, he recorded the call and posted it to YouTube. At which point the Boston police charged him with felony wiretapping. Pretty stupid, but don’t blame the cops. Blame privacy law.
Under Massachusetts law, it’s a righteous bust, thanks to the privacy advocates who persuaded the Massachusetts legislature that both participants in a call had to agree before the call could be recorded. Spurred by a technological panic, the legislature couldn’t have been clearer about its intent: “The uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the Commonwealth. Therefore, the secret use of such devices by private individuals must be prohibited.”
Chalk up another unintended consequence for privacy advocates trying to stop the march of technology. As the tools for recording conversations and even video spread to everyone, the two-party consent law doesn’t make sense and is mostly enforced only on behalf of the rich and powerful. So this case was almost nominated in the category “Worst Use of Privacy Law to Protect Power and Privilege.” But in the end, the Boston Police Department was ridiculed into dropping the case. Turns out that the police don’t quite have as much power and privilege as the technorati. Which is really only comforting if you think the technorati lynch mob will never come for you.
b. Joffe v. Google (Hon. Jay Bybee, Ninth Circuit)
“Radio Waves Aren’t Radio. Publicly Accessible Broadcasts Aren’t Publicly Accessible. And #$kjhi&#^- …”
When Google’s Street View car collected wi-fi signals from the homes and businesses it passed, it only gathered information that anyone could have gathered without leaving the street. The users who hadn’t secured their wi-fi signals decided to shoot the messenger, suing Google for illegally wiretapping them. Kind of a long shot legal claim, since the law exempts the capturing of radio broadcasts and publicly accessible communications; there’s not much doubt that wi-fi uses radio waves and can be accessed by the public if it’s not secured. But Judge Bybee of the Ninth Circuit wasn’t deterred by either of the barriers to holding Google liable. He decided that radio communications are only those things we hear on the AM-FM dial. As for being publicly accessible, he writes, why that’s ridiculous: if you listened to wi-fi signals on an AM radio, “they would sound indistinguishable from random noise.”
Come to think of it, so does this opinion.
c. FTC v. LabMD (Federal Trade Commission)
Stupid Mistake + Media Coverage = Unfair Practice
When LabMD set up security for its network, it didn’t expect a rogue employee to poke holes in its security by running Limewire, a program notorious for sharing pirated music — as well as any business or personal records that happen to be on the same network. And it certainly didn’t expect a complaint from the Federal Trade Commission when Limewire shared a spreadsheet with customer data.
There’s no doubt that LabMD made a mistake, and a bad one. But the Federal Trade Commission isn’t empowered to correct every mistake made by American businesses. It only has authority to charge companies that have committed “unfair practices.” What LabMD did may have been dumb; it may have been sloppy; but you’ve got to strain pretty hard to call it an unfair practice. The FTC has been trying for years to become America’s privacy and security enforcer. For just as long, Congress has refused to give it that role.
You have to admire an agency with the cojones to argue that it can make up its own legal authority as well as the offenses that it chooses to punish. Maybe if you look closely at the seal, you can see the agency’s true motto: “Whatever It Takes: Finding Ways To Punish Companies Criticized by the New York Times Since 1914.”
d. The Gmail Wiretapping Claims (Hon. Lucy Koh, N.D. Cal.)
Judge Uncovers Wiretap Plot with 425 Million Co-Conspirators
Is there anyone left who doesn’t know that Google provides free email and pays for it by serving ads tied to the content of your correspondence? In fact, it’s the most popular free email service on the planet, endorsed by 425 million subscribers who voted with their feet for Gmail.
Apparently the Gmail business model was news to Lucy Koh, a federal judge in San Francisco, who decided that all 425 million Gmail subscribers were dopes who couldn’t possibly have consented to Google’s automated scanning of email content, even though its terms of service said the company reserved the right to “pre-screen, review, flag, [or] modify … any or all Content from any Service.” That language didn’t count, Judge Koh said, because it didn’t tell consumers that Google was reviewing the mail to provide ads as well as to find objectionable content.
Maybe Google could have written a clearer (though longer and therefore less readable) document. But the effect of Judge Koh’s tortured reading was to make Google potentially liable under the wiretap laws for tapping the communications of all 425 million users, plus everyone they wrote to. At $10,000 per violation, that’s a pretty heavy price for free email. Not to mention that, if you were one of the 424,999,999 subscribers who actually understood the business model, it looks as though Judge Koh just exposed you to liability for aiding and abetting the wiretapping of everyone you slyly tricked into exchanging mail with you. In fact, the result was so strained that it couldn’t even persuade a magistrate in the same court, who read her opinion and ruled the other way despite being outranked by Judge Koh. Oh, and those spam filters you couldn’t live without? In a footnote, Judge Koh suggests they’re wiretapping too unless they have a consent clause that even a federal judge can understand.
Before this decision, Judge Koh was most famous for telling an attorney for Apple that he must be “smoking crack.” Judge Koh, in contrast, seems intent on smoking the rubble of the Internet economy.
Review: All Three Awards — and All the Nominees — Are Listed Here.