Archive | Privacy

Ford “Know[s] Everyone Who Breaks the Law” Using Cars They Made — Why Aren’t They Doing Something About It?

Business Insider reports that Ford executive Jim Farley stated, in a panel discussion:

We know everyone who breaks the law, we know when you’re doing it. We have GPS in your car, so we know what you’re doing. By the way, we don’t supply that data to anyone.

He later retracted that, saying Ford doesn’t routinely collect GPS data about its drivers, but that he was just “imagin[ing] a day when the data might be used anonymously and in aggregate to help other marketers with traffic related problems.” I’m happy to accept that clarification.

Yet the point remains that Ford could technically gather this information, and could use it to prevent injuries. For instance, if GPS data shows that someone is speeding — or the car’s internal data shows that the driver is speeding, or driving in a way suggestive of drunk driving or extreme sleepiness, and the data can then be communicated to some central location — then Ford could notify the police, so the dangerous driver can be stopped. And the possibility of such reports could deter the dangerous driving in the first place.

Ford, then, is putting extremely dangerous devices on the road. It’s clearly foreseeable that those devices will be misused (since they often are misused). Car accidents cause tens of thousands of deaths and many more injuries each year. And Ford has a means of making those dangerous devices that it distributes less dangerous; yet it’s not using them.

Sounds like a lawsuit, no? Manufacturer liability for designs that unreasonably facilitate foreseeable misuse is well-established. And the fact that the misuse may stem from negligence (or even intentional wrongdoing) on the user’s part doesn’t necessarily block liability, so long as the user misconduct is foreseeable. [UPDATE: I should note that I’m not wild about these [...]

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Brown v. Buhman isn’t so complicated

To me, today’s decision of the United States District Court for the District of Utah in Brown v. Buhman is much clearer and carefully-reasoned that Orin finds it to be. There may be plenty of blogging on the case, and Eugene’s analysis next week, after he’s had a chance to analyze it, will provide the perspective of the guy who actually did write the textbook on the First Amendment. I have merely taught the First Amendment, using his textbook (and taught the 14th Amendment using Randy’s textbook).

I’m no fan of the collected works of Edward Said, but I thought the Court’s use of Said entirely defensible. As the Court details, 19th-century hostility to polygamy was based, in part, on polygamy’s association with non-white races. As the U.S. Supreme Court wrote in Reynolds v. United States, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” 98 U.S. 145, 164 (1879). Thus, Said’s theories of “Orientalism” and the “other” are useful tools for explaining the situation. The historical analysis is necessary to the case, because part of the Opinion requires an analysis of the 1894 “Irrevocable Ordinance” in the Utah Constitution outlawing polygamy. That constitutional provision was part of the price that Utah paid for admission to the Union.

Utah’s anti-bigamy ordinance has a normal provision, and an unusual provision: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” Utah Code Ann. § 76-7-101(1) (2013).

Judge Waddoups upholds the first part, about marrying a second person, as [...]

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Planning for the Obsolescence of Technologies Not Yet Invented

The automated motor vehicles that I have discussed this week are just one example of the remarkable technologies coming to our roads, skies, homes, and even bodies. A decade from now, we’ll marvel at how advanced these new products are. But a decade after that, we’ll marvel at how anachronistic they have become.

Rapid technological change means that obsolescence is inevitable, and planning for it is as much a safety strategy as a business strategy. Responsible developers and regulators will need to consider the full lifecycle of products long before those products ever reach the market.

Cars of the early 20th Century (JSTOR) were essentially beta products. In 1901, Horseless Age magazine noted that “[i]f a manufacturer finds that the axles of his machine are” breaking, then “the next lot of vehicles are provided with axles of a slightly larger diameter and so on until they begin to stand up pretty well.” In 1910, a GM engineer testifying in MacPherson v. Buick Motor Co. explained that “the only means” for a designer to get information about a vehicle’s performance “is to use the customers, that is to go over the complaint correspondence.”

As I noted yesterday, it is at least conceivable that a similar approach to modern design could counterintuitively end up saving lives by accelerating safety-critical innovation. But even a more cautious approach to product design and deployment is necessarily iterative.

The general bent of incremental innovation is toward greater safety. The electronic stability control now required in new cars, for example, could save thousands of lives a year if deployed fleetwide. But given the slow turnover in cars–the average age of today’s fleet exceeds ten years–reaching saturation could take years.

At the same time, new products can present new dangers. Most of these dangers are [...]

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Domestic Drone Regulation for Safety and Privacy

Today’s (Sunday, Sep 8, 2013) New York Times has a story by Anne Eisenberg, “Preflight Turbulence for Commercial Drones.”  The article combines two crucial topics in connection with drones (remotely piloted aerial vehicles, or unmanned aerial vehicles, UAVs, but my advice to the industry and USAF is that the People Have Spoken, and it’s “drones”): safety and privacy.  The article is interesting chiefly because it focuses on commercial drones (rather than either military drones, law enforcement drones, or hobbyist drones, as so many articles do).  It talks about the likely path of commercial uses of drones:

Companies in the United States are preparing for drones, too. Customers can buy an entire system, consisting of the aerial vehicle, software and a control station, for less than $100,000, with smaller systems going for $15,000 to $50,000, said Jeff Lovin, a senior vice president at Woolpert, a mapping and design firm in Dayton, Ohio. Woolpert owns six traditional, piloted twin-engine aircraft to collect data for aerial mapping; these typically cost $2 million to $3 million to buy, and several thousand dollars an hour to operate, he said.

Gavin Schrock, a professional surveyor and associate editor of Professional Surveyor magazine, says he thinks that surveyors will be among the first to add drones to their tool kits. Aerial systems are perfect for surveying locations like open-pit mines, he said. A small drone can fly over a pit, shuttling back and forth in overlapping rows, taking pictures that can be stitched together and converted into a three-dimensional model that is accurate to within a few inches. Such a system is safer than having a surveyor walk around the pit with traditional tools. “I hate doing that,” Mr. Schrock said. “It’s dangerous.”

For many commercial applications, in other words, the choice will become [...]

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Using NSA Surveillance Data in the War on Drugs

On Monday, Reuters reported that the Special Operations Division, a secretive unit of the Drug Enforcement Administration is using NSA electronic surveillance data in the War on Drugs, and then deceiving judges and defense lawyers about the source of the evidence when it is used in criminal trials. As various experts quoted by Reuters point out, such deception is a violation of elementary due process.

Julian Sanchez of the Cato Institute has a good post discussing some of the other risks of this kind of “mission creep”:

This should serve as a crucial reminder that you can’t build a massive architecture of surveillance “just for terrorism” and expect it to remain limited to that function: once the apparatus exists, there will inevitably be incredible pressure from other interests within government to expand its use. Once the data is already begin collected, after all, it seems a waste not to exploit its full potential. And indeed, we’ve seen again and again how—mostly because there just aren’t all that many terrorists out there—powers and programs justified by the need to fight the War on Terror end up getting coopted for the War on Drugs, from the Patriot Act’s “Sneak and Peek” searches (used almost exclusively in drug rather than terror investigations) to federally funded “fusion centers.”

Such expansive use of surveillance data beyond national security purposes has already occurred in France. In the United States, as Sanchez notes, the New York Times recently reported that many domestic agencies are clamoring to use NSA data for their own purposes:

The recent disclosures of agency activities by its former contractor Edward J. Snowden have led to widespread criticism that its surveillance operations go too far and have prompted lawmakers in Washington to talk of reining them in. But out of public view, the

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Down the Memory Hole?

From Martin v. Hearst Corp. (D. Conn. Aug. 5, 2013):

Plaintiff Lorraine Martin was arrested in 2010. At the time, local media outlets ran articles on news websites and in print accurately reporting that she was arrested [for possession of narcotics, drug paraphernalia, and marijuana -EV]. She now sues the owners of those media outlets, claiming that “on or after January 11, 2012” the articles detailing her arrest — which remained available online — became defamatory because, as of that date, Ms. Martin “was deemed never to have never been arrested” due to the dismissal of the criminal charges against her and the operation of the “deemer” provision of Connecticut’s erasure laws. See Conn. Gen. Stat. § 54-142a(e)(3) (“Any person who shall have been the subject of such an erasure shall be deemed to have never been arrested….”)….

The court concludes — correctly, I think — that the Connecticut statute doesn’t purport to have the “sweeping, history-altering design perceived by Ms. Martin” but instead is simply “meant to relieve those who qualified for erasure from the legal effect of an arrest ‘within the meaning of the general statutes’ and to permit such persons lawfully to deny the fact of the arrest in court and other official proceedings.” “[T]here is … not the slightest suggestion that [the legislature] sought to muzzle private persons who might have obtained arrest information (other than the specific reference to consumer reporting agencies — which do not figure in this case) or, for that matter, to change history.”

Moreover, the court also concludes (again, I think, correctly) that this interpretation helps save the statute from unconstitutionality. “If the ‘deemer’ provision of the erasure laws operated to allow defamation liability to be imposed on true and newsworthy statements, it would run afoul of the First Amendment.” [...]

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France’s NSA-Like Electronic Surveillance Program

Yesterday, the major French newspaper Le Monde published an article revealing that the French government runs a massive electronic surveillance program similar to the US NSA program that has caused massive international controversy. Here is a summary of the revelations in English, published by the left-wing British newspaper The Guardian. For French-speaking readers, the original Le Monde article, can be found here. Here is the opening paragraph:

Si les révélations sur le programme d’espionnage américain Prism ont provoqué un concert d’indignation en Europe, la France, elle, n’a que faiblement protesté. Pour deux excellentes raisons : Paris était déjà au courant. Et fait la même chose.

I translate this roughly as follows: “Although the revelation of the American Prism espionage program provoked indignation in Europe, France mounted only feeble protests. For two excellent reasons: Paris was already aware of the program. And it was doing the same thing itself.” The article goes on to claim that the French government surveillance program encompasses virtually all telephone and internet communications within France, and between that country and the outside world. “All of our communications are spied upon,” it concludes. Meanwhile, the French government claims that Le Monde’s account is inaccurate and that the program is subject to various legal restraints.

To me, the most interesting aspect of Le Monde’s description of the French program is that access to the data is not limited to agencies responsible for intelligence and counterterrorism. Many other government agencies also apparently use the data whenever they see fit. This illustrates the slippery slope problems inherent in such large-scale spying. While the original justification may be the need to prevent massive terrorist attacks, over time there is a strong temptation to use it for other purposes as well. If we can use this kind of surveillance to [...]

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DoJ Seeks to Keep FISA Court Decision Invalidating NSA Surveillance Under Wraps

There have been some interesting disclosures in the past week or so about the extent of federal government surveillance. Could there be still more to come? On Friday, the Department of Justice filed a motion opposing public release of a 2011 Foreign Intelligence Surveillance Court decision declaring some aspect of National Security Agency surveillance under the FISA Amendments Act to be unconstitutional or otherwise illegal.  The motion is in response to a suit by the Electronic Frontier Foundation that grows out of Freedom of Information Act requests about NSA surveillance.  David Corn has more here. [...]

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Louisiana Set to Criminalize Publishing That Someone Has a Concealed Carry Permit

The bill is HB8, though there’s a Senate amendment; apparently, the Legislature plans to enact the bill as amended. The bill bars the government from releasing information about who has applied for or gotten a concealed carry permit, and the Legislature certainly can impose such restrictions on the government itself. But then it also criminalizes speech by everyone else (I merge the House Bill and the adopted Senate amendment):

Absent a valid court order requiring the release of information or unless a recipient of a concealed handgun permit is charged with a felony offense involving the use of a handgun, it shall be [a misdemeanor] … to release, disseminate, or make public in any manner any information contained in an application for a concealed handgun permit or any information regarding the identity of any person who applied for or received a concealed handgun permit issued pursuant to this Section.

So blogging that you happen to know that a gun control advocate actually has a concealed carry permit himself would be a crime. Or say that you know someone has a concealed carry permit, and that person is sued for supposedly making death threats, or is criminally prosecuted for a felony offense involving a shotgun, or otherwise seems dangerous and unstable — mentioning the permit in publicly discussing the situation would be a crime. Mentioning applicants’ names in giving examples of cases where you think a concealed handgun permit was wrongly issued, or wrongly denied, would be a crime, too. So would talking about a person’s concealed carry permit in a biography of the person, or in a newspaper or magazine story that is trying to give a sense of the kind of person he is.

This is a clear First Amendment violation. Florida Star v. B.J.F. (1989) [...]

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Labeling Reporters “Criminals,” or Just Complying With the Privacy Protection Act?

There has been a lot of outrage expressed recently over the contents of an affidavit filed in support of a search warrant to search the e-mail accounts of reporter James Rosen. The government’s affidavit offered the view that Rosen violated the law by aiding and abetting the alleged violations of laws prohibiting the disclosure of classified national security information. Specifically, the affidavit stated, “there is probable cause to believe that the Reporter . . . has committed a violation of 18 U.S.C. 793(d) either as Mr. Kim’s co-conspirator and/or aider and abetter.” To some, the fact that the government would make this argument shows that the Obama Administration is engaging in a War on Journalism. According to this thinking, the Obama Administration is not only trampling on the rights of a free press by going after its sources. Incredibly, they even think of a reporter as a criminal — and are willing to say so in court.

I think you get a different sense of this affidavit if you understand the privacy laws, however, and in particular a federal law called the Privacy Protection Act, 42 U.S.C. 2000aa. It’s a pretty complicated law, so it will take me a minute to explain. But I think I can explain why the affidavit filed in the Rosen search had this language, and why claims that this language reveals a “war on journalism” are based on a misunderstanding.

Here’s the background. The Privacy Protection Act was a response to a Supreme Court decision called Zurcher v. Stanford Daily, 436 U.S. 547 (1978). In Zurcher, the Supreme Court held that the Fourth Amendment permits the government to execute a search warrant at a newspaper to recover evidence of a crime that reporters had gathered in the course of investigating the [...]

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John Villasenor on Domestic Drones, Airspace Safety, and Privacy Protection

John Villasenor – a professor of engineering at UCLA and a Brookings Institution senior fellow – has a new article at Slate on the domestic use of drones.  (The article part of a conference held yesterday at the New America Foundation in conjunction with Arizona State University on domestic drone policy, with many fine participants; well worth checking out.)  The article’s fundamental point is that many features that will likely figure in FAA regulations intended to ensure safety in domestic airspace as drones are allowed to enter it will also be supportive of privacy concerns.  By no means does this make the problems of privacy go away, but it’s important to be aware of the ways in which safety regulation will affect and, in important ways, reinforce privacy.

For most of the 20th century, obtaining overhead images was difficult and expensive. Now, thanks to advances in unmanned aircraft systems—people in the aviation field tend to dislike the word drone—it has become easy and inexpensive, raising new and important privacy issues[PDF]. These issues need to be addressed primarily through legal frameworks: The Constitution, existing and new federal and state laws, and legal precedents regarding invasion of privacy will all play key roles in determining the bounds of acceptable information-gathering from UAS. But safety regulations will have an important and less widely appreciated secondary privacy role.

Why? Because safety regulations, which aim to ensure that aircraft do not pose a danger in the airspace or to people and property on the ground, obviously place restrictions on where and in what manner aircraft can be operated. Those same restrictions can also affect privacy from overhead observations from both government and nongovernment UAS. FAA regulations make it unlawful, for example, to operate any aircraft (whether manned or unmanned) “in

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From Nieman v. Versuslaw, Inc. (7th Cir. Mar. 19, 2013) (nonprecedential):

Jason Nieman, an insurance-claims professional, … [sued] asserting invasion of privacy and retaliation against Yahoo, Google, Microsoft, and VersusLaw, Inc., a legal-research website that provides the public with access to records of judicial decisions for a fee. Nieman alleged that the search engines operated by these companies have enabled potential employers to find documents related to a lawsuit he brought against a past employer; as a result, he contends, he has been passed over by these employers who might be wary of his litigiousness….

According to his complaint, Nieman discovered in 2009 that certain legal-search websites (such as Lexis/,,, were linking copies of documents from his prior lawsuit to his name. That litigation involved a former employer and was settled in 2011. When Nieman encountered difficulty obtaining another insurance job, he suspected that potential employers had learned of his prior lawsuit online and “blacklisted” him from employment opportunities. Nieman alleged that in late 2011 he wrote to each of the defendants and asked them to delink his court cases from their online search results. The defendants declined. Google pointed out that it simply aggregates information already published on the internet. VersusLaw responded that its publication of public records was protected by the First Amendment and that it would block links to public records only by court order.

Nieman asserted claims for (1) commercial misappropriation of his name; (2) intentional interference with current and prospective economic advantage; (3) unjust enrichment/civil conspiracy; (4) retaliation under the Illinois Human Rights Act and 42 U.S.C. § 1981; (5) violation of the Racketeer Influenced and Corrupt Practices Act; and (6) violation of the Lanham Act….

Nieman maintains that the First Amendment’s protections are not absolute. Citing our decision in Haynes

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Arrest for “HIPAA Violation” Based on Citizen’s Recording of Encounter Between Police and Another Citizen

That’s what the St. Paul Pioneer Press reports:

Andrew Henderson watched as Ramsey County sheriff’s deputies frisked a bloody-faced man outside his Little Canada apartment building. Paramedics then loaded the man, a stranger to Henderson, into an ambulance.

Henderson, 28, took out his small handheld video camera and began recording…. [A] deputy, Jacqueline Muellner, approached him and snatched the camera from his hand, Henderson said. “We’ll just take this for evidence,” Muellner said. Their voices were recorded on Henderson’s cellphone as they spoke, and Henderson provided a copy of the audio file to the Pioneer Press. “If I end up on YouTube, I’m gonna be upset.” …

Randy Gustafson, spokesman for the Ramsey County sheriff’s office … said, “It is not our policy to take video cameras. It is everybody’s right to (record) … What happens out in public happens out in public.”

One exception might be when a law enforcement officer decides that the recording is needed for evidence, he said. In that case, the officer would generally send the file to investigators and return the camera on the spot, Gustafson said….

A week later, Henderson was charged with obstruction of legal process and disorderly conduct, both misdemeanors. He had been filming from about 30 feet away, he said….

The deputy wrote on the citation, “While handling a medical/check the welfare (call), (Henderson) was filming it. Data privacy HIPAA violation. Refused to identify self. Had to stop dealing with sit(uation) to deal w/Henderson.” …

The allegation that his recording of the incident violated HIPAA, or the federal Health Insurance Portability and Accountability Act, is nonsense, said Jennifer Granick, a specialist on privacy issues at Stanford University Law School.

The rule deals with how health care providers handle consumers’ health information.

“There’s nothing in HIPAA that prevents someone who’s

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Government Out of Bedrooms, but into Barnyards

I should say at the outset that I approach this delicate subject sheepishly, but this development bears noting. In a rare example of a Western country taking steps to restrict previously recognized sexual liberties, Germany is seeking to ban bestiality. (Its supporters call it zoophilia – are opponents zoophobes?) This will presumably put out to pasture Germany’s erotic zoos, where visitors go beyond heavy petting.

Germany legalized bestiality in 1969, together with sodomy. When Justice Scalia analogized from the decriminalization of the latter to the former in his Lawrence dissent, he was widely denounced, but apparently the liberal Germans agreed with him, at least until now.

I suspect the motives behind the ban are entirely moralistic. Yet the government cannot come out and say so. Thus effort is made to distinguish the matter from Germany’s libertarian approach to sexual matters by suggesting the animals do not consent in the way consenting humans do. Yes, but they don’t consent to being bought or sold, or butchered, either, and they are not human, so consent is a red herring. This would not pass intermediate scrutiny in the U.S.

It is an invariable aspect of sexual morality regulation that those who regard a practice as amoral, or vile, also believe it has negative practical effects. The latter allows one regard one’s own knee-jerk preferences as sound social policy rather than moralizing. In today’s post-morality world, vestigal aversions to prostitution, polygamy and incest have to be justified with strained public policy arguments.

If erotic zoos are bad, it is not because, as critics contend, it is “animal rape,” any more than prohibitions on intercourse with human remains can be justified by the “non-consent” of the corpse. Requiring two-sided consent in zoophilia situations privileges the person/person intercourse model in a way which is neither [...]

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The Secret Ballot, and Initiative, Referendum, and Recall Signatures

The Gallaudet incident, in which a university administrator was suspended for signing a referendum petition related to same-sex marriage, leads me to bring up again what I mentioned before: Most of the reasons that support having a secret ballot — rather than the non-secret systems that were used in America throughout most of its first century — tend to apply to initiative and referendum signatures.

Both an election and a threshold signature requirement to put something on an election are generally aimed at accurately measuring public opinion. Such an accurate measurement is much more likely if the measurement is undistorted by people’s fear of being attacked, fired, ostracized, or even annoyed by those who disagree with them. So just as our electoral system keeps secret people’s votes, both for or against candidates and for or against ballot measures, so it should try to keep secret people’s signing initiative, referendum, and recall signatures.

To be sure, unlike with a secret ballot, a petition signature could not be fully secret -— for instance, the government would know what you signed, though it doesn’t know how you voted, and it’s possible that the signatures would be briefly visible as other people are signing the petitions (though that could be minimized, for instance if there’s just one signature per page, and each page is concealed after it’s signed). But we should still try to make the signatures as secret as possible.

It’s true that the public availability of signatures might help prevent fraud, for instance if someone sees what purports to be his signature on a petition that he knows he never signed. But the same argument could be made as to public availability of each voter’s ballots, tied to his name — after all, maybe that might let a voter see [...]

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