Technology and Business Law Blog

Technology and the Fourth Amendment

Technology has made our lives magical and a fantasy. Not too many years ago, to communicate with others we wrote letters (real paper snail mail ones), before going somewhere we called people to get directions and poured over paper maps, when we missed an exit in the freeway we pulled over at a gas station and asked for directions or used the coin operated public telephones and we also minded our own businesses, did not invade into people’s privacy and followed established legal procedures to prosecute people.

Although technology has brought flexibility and convenience it has not reduced crime and in fact crime is getting more sophisticated and we have to now deal with the traditional and the technology related crimes. One of these technology crimes happens by invading our privacy and getting hold of our personal information. On the flip side technology is also being used by the enforcement authorities to track down and keep the crime rate down.

The issue that then arises is the conflict between use of technology and traditional principles of law laid down in the Constitution. One of the most common area of conflict arises in the area of the Fourth Amendment which relates to right to privacy. The text of the Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

According to Wikipedia, the Fourth Amendment specifies that any warrant must be judicially sanctioned for a search or an arrest, in order for such a warrant to be considered reasonable. Warrants must be supported by probable cause and be limited in scope according to specific information supplied by a person (usually a peace officer) who has sworn by it and is therefore accountable to the issuing court.

This safeguards the citizens rights against the enforcement officials stepping over the line, following procedures established by law and not being persecuted under any pretext.

Across the country, police are using GPS devices to snare thieves, drug dealers, sexual predators and killers, often without a warrant or court order. Privacy advocates said tracking suspects electronically constitutes illegal search and seizure, violating Fourth Amendment rights of protection against unreasonable searches and seizures, and is another step toward George Orwell’s Big Brother society. Read here.

Craig Fraser, director of management services for the Police Executive Research Forum, said tracking technology’s new capabilities might eventually require legal adjustments.

“The issue is whether the more sophisticated tools are doing the same things we used to do or are creating a different set of legal circumstances,” he said.

It is true that technology is helping the enforcement officials catch offenders of the law and cuts down on the resources utilized but on the other hand what about the citizens invasion of privacy and how does one decide in what circumstances it is OK to cross the line and not follow established procedures. Privacy has been greatly affected by the advancement in technology and the new challenge is figuring out how to use technology without the government breathing over our necks and also other entities and individuals misusing our personal information.

The solution is to use common sense by not putting out personal information out in the open and courts restricting the governments use of technology without following procedures.

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August 14, 2008 Posted by | privacy, Technology | , , | Leave a comment

Social Networking’s End?

Social networking is one of the most popular market segments in terms of business and even from a consumer perspective. Almost everyday a new social networking site seems to pop up somewhere in the world and I receive requests on a regular basis to join one or the other and so what do I do — I don’t join any of them. I am worried about scattering my personal information all over the cyberspace and having it infiltrate and stored in places and in hands of people I wouldn’t it to be in.

Another reason is that once you are a member of all these various sites then it is hard to remember all the different passwords and logins and what information I gave out where. Third, but most important is that I am sheer lazy.

The popularity of social networking has a direct impact on the loss of privacy and in the U.S. the most popular sites are Facebook and MySpace and both of them allow  third party developers to set up different applications like playing poker, getting daily horoscopes and sending one another virtual cocktails and according to this article in Washington Post

But it is often difficult to tell when developers are breaking the rules by, for example, storing members’ data for more than 24 hours, said Adrienne Felt, who recently studied Facebook security at the University of Virginia.

She examined 150 of the most popular Facebook applications to find out how much data could be gathered. Her research, which was presented at a privacy conference last month, found that about 90 percent of the applications have unnecessary access to private data.

If developers and others whom the Facebook user does not know and did not intend to give out their information gets hold of it, there is no saying what the information is being used for.

I get a feeling that once this euphoria of online social networking cools down in about 5-7 years especially when people see that their private information has been misused one way or the other and it has an affects on their lives then people will revert back to good old fashioned getting to know one another on  a personal basis networking.

June 12, 2008 Posted by | Facebook, privacy, Social networking | , , , | 1 Comment

Consolidation of Health Records and Privacy

Consolidation and digitization of health records of individuals seems to be the next niche market and major players like Google and Microsoft are getting into it. Read here.

An electronic personal health file seems like the way to go where all the information can be found on-line  in one place and can be easily accessed but the downside to this will be that this kind of consolidation and accessibility can also lead to leakage of information and privacy breaches.

Health records contain personal information and intimate details about an individual that one may not want to land in the wrong hands which can affect his or her job, insurance eligibility and personal & social life. Currently under HIPAA (Health Insurance Portability and Accountability Act) health records cannot be easily subpoenaed, used for profit and must be stored securely.  Now if companies like Google and Microsoft take over the maintainence and upkeepment of these health records even if they ensure secure storage as well as privacy, issue then will be, what remedies will they offer if the information does leak out one way  or the other since they are not covered by HIPPA which  currently offers legal  protection to doctors, pharmacies and hospitals.

February 28, 2008 Posted by | privacy | 1 Comment

Our Privacy in Jeopardy

Unwarranted searches at U.S. borders to eavesdropping and illegal spying into private telephone conversations have become the norm of the day. It was a victory for the telecom companies and the Bush administration when the Senate today voted to preserve retroactive immunity from lawsuits for telecom companies and approved the Surveillance Bill. It is a classic example of caving into pressure.

The EFF site statesthat “Despite the strong leadership of senators like Chris Dodd and Russ Feingold, the Senate failed today to block provisions of a pending surveillance bill that would grant immunity to phone companies that assisted the government in illegal electronic surveillance.The Dodd-Feingold amendment to remove immunity from the FISA Amendments Act (FAA) failed in a 31 to 67 vote, and final Senate passage of the FAA is expected later today”.

Numerous organizations like the ACLU, EFF etc had filed lawsuits against telecommunications companies like AT&T, Sprint etc alleging that the companies had violated privacy laws. This warrant-less surveillance violates the Fourth Amendment, the  Act, Foreign Intelligence Surveillance Act of 1978 (FISA) and the Electronics Communications Privacy Act.

The Senates action today is one step further into giving permission to the government to violate an individuals privacy without the individual having any recourse. These kinds of warrant-less searches are done under the umbrella of the Protect America Act which gives the government almost unlimited authority to conduct such surveillance on anybody without requiring any form of warrant.

Now, this Act was passed to monitor the calls of ‘suspected terrorists’ but court documents filed in these class action suits will show that the phone lines of ordinary citizens were were tapped and the American public were the ones affected.

February 12, 2008 Posted by | privacy | Leave a comment

Targeted Advertising on the Internet

-The biggest gripe against social networking sites is invasion of privacy. Even as these social networking companies tout that they will not share the users personal information with others and has statements of respecting privacy on their websites we all know that it is not completely adhered to. Every time we shop or pay bills on-line our personal information is being disseminated a little bit more, it is a slow unnoticeable leak which spreads around without causing waves. The other day I was shopping at the Disney store and the cashier asked me for my home phone number and my zip code and like most people I in an auto reflex and preprogrammed manner gave it to her, and after about half an hour I went back to the same store and bought another toy for my child and the cashier once again asked the same questions “what is your home phone number?” and your “zip code please” and I told her I just gave that information a little while ago and she replied we have to get that every time you buy sometime, and when I told her I did not want to give my home phone number she got a bit cold and unfriendly.

For some reason when we go outside the house and in a commercial setting or when we fill out forms for various reasons we just automatically fill in all the information that is asked for in the various headings starting from out date of birth to social security number without thinking or asking why is this being asked and is it a requirement or what if I don’t give all this information being asked.

It is all over the news about how Facebook is expanding its business through targeting advertising by sharing the users online purchases with the user’s “friends” without really giving opt out options and by displaying private purchases made on the Facebook News Feeds. Now I don’t want my friends to know where and what under clothes or hygiene products I shop for or use and definitely don’t want it being shared automatically with the other users on Facebook without my permission.

Also when we use or search for something on the Internet using search engines like Yahoo or Google we are being tracked and even if this information is not being shared openly with the world our online movements are totally exposed and the only alternative is not to use the Internet. Now is that possible in today’s wired world where all that we need even to conduct our day to day business is connected to the Internet?

The European Union has a balanced approach to these issues and has placed a time limit on search engines retaining the web search information. The EU also has greater restrictions on divulging information and has stricter privacy policies. Since Facebook’s advertising program delivers ads based on user interests and those of their friends, so it may be a target for future EU crack down. Read Article here.

November 26, 2007 Posted by | EU, Facebook, privacy, Targeted advertising | 1 Comment

Surveillance Oversight Bill

Since 9/11/01 under the name of safeguarding the nation against terrorist attacks and tracking down terrorists our personal freedoms have been and are being slowly but surely stripped, the freedoms that form the pillars of this country which the founding fathers envisioned and built this country on. Almost any action of even ordinary citizens can now be labeled as a threat to the country and under this guise the government has placed most of our civil liberties under scrutiny.

After nearly seven years of this behaviour pattern the tides seem to be turning… The House has approved a new Democratic Intelligence Bill  and the new bill called the “Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act” or RESTORE Act. This bill deals with the warrant-less monitoring of phone calls and e-mails of ordinary citizens by telecom companies without the permission of the secret court which was created for this purpose about 30 years ago. The essence of this bill is that it allows warrant-less eavesdropping on non-U.S. citizens, but a warrant must be obtained from the secret court if intelligence agencies believe that a foreigner is likely to be in contact with an American citizen. The new bill tightens rules on the sharing of identifying information gleaned from electronic surveillance that involves Americans. It provides protections against “reverse targeting” _that is, using unfettered foreign surveillance to secretly monitor Americans. It increases the size of the secret court that oversees intelligence. It also prohibits future presidents from conducting electronic surveillance outside the procedures established by the 30-year-old Foreign Intelligence Surveillance Act. Read here.

The Bush  administration has managed to stay in power by playing on people’s fears and beaten the terrorist trump card to death and blatantly ignored time tested laws or invented their own “Acts” as a facade to justify its unethical and even illegal actions and activities. Now, finally everyone is tired and sick of this charade, are waking up and have mustered the courage to speak up and do something.

November 16, 2007 Posted by | FISA, privacy, Wiretapping | Leave a comment

Privacy in the online world.

In the pre Internet days only your neighbors, friends and family could snoop into our private affairs unless someone hired a private investigator. Nowadays with most of our activities revolving around the Internet, we can conduct our activities from communication, shopping, banking to almost anything on-line without literally stepping out of our homes. This is so convenient and great but our life and affairs are exposed to anyone who wants to track us anonymously by the cookies that trace every footprint that we leave in cyberspace. Strangers snoop, track, categorize, assimilate, file and analyze all of this information by stalking us on-line and make money off our activities.

Before the “Do Not Call List” came out we got swamped every evening at dinnertime with telephone calls from marketers who wanted to sell us one product or the other and then everyone registered in the Do Not Call telephone list. Similar to that is the “Do Not Track List” being put together by privacy groups like the Consumer Federation of America, the World Privacy Forum and the Center for Democracy and Technology who say that tracking our on-line activities is an invasion of our privacy and when companies collect information about a computer user then they should be notified and given options to opt out. Now how effective are these opt out cookies is another issue.

Also with the government watching over every individuals movements and spying on them, innocent activities could be construed as suspicious and our activities can be subpoenaed by the government authorities.

November 14, 2007 Posted by | Internet, On-line world, privacy | Leave a comment

Facebook’s Ad Platform

Privacy issues are the most common topics of concern and discussion in the online world. The latest of-course is Facebook pushing the envelope with its plans of allowing businesses to target ads to users of the site. Facebook has a built in captive audience of thousands of people ranging from teens to senior citizens now that the site is open to all ages, so companies have access to this ready made eye balls and it is an irresistible chance to market their products.

Major companies like Coco-Cola, CBS Corp etc have signed up for the Facebook ad paltform. According to Facebook’s CEO Zukerberg, companies can advertise on their own profile page on Facebook as well as spread messages “virally” by linking ads to recommendations or newsfeeds members send to each other. Facebook further said that when people visit companies website to buy things or write names that information will be spread to their friends at the website.

Facebook is using the users of the site to market products of other companies and make money in the process without any of the profit making its way into the users pocket. The company will be leveraging the network created by its users for a totally different purpose of social interaction to a large extent based on trust, so it is a powerful marketing strategy without the companies having to spend tons of dollars like they do in traditional marketing.

The problem now is that  these outside companies will target the audience based on the personal information provided by Facebook to these outside companies about the particular Facebook user without the site users permission and this raises issues of privacy and the legality of it. The new advertising system will target ads based on personal information shared by users with their friends. This methodology is invading privacy for commercial purposes of Facebook and the site users whose information Facebook already has collected over the years is being compiled and sold without the site users consent. It also reeks of unethical practices since when these users joined Facebook they  were not told or given the chance to opt out and state that their personal information like interests, relationship status, work history etc should not be used.

November 10, 2007 Posted by | Facebook, privacy, Unethical conduct | Leave a comment

Privacy of Medical Records

When it comes to the issue of privacy our health records should be given top priority, but apparently under HIPAA (Health Insurance Portablity and Accountablity Act) our health records may be regularly accessed and disseminated without our consent for all routine uses (defined as treatment, payment, and healthcare operations). All about this is written in this interesting article by Deborah C. Peel, who is medical doctor herself and the article can be found at http://www.mdng.com/current_issue_detail.cfm/article/266 and it is titled HIPAA: The Data Miner’s Dream. The author states that our medical records are open to surveillance, snooping, unwanted uses, and disclosure by more than four million “covered entities,” including employers, financial institutions, insurers, schools, government agencies and all of their business associates.

All this Data mining generates billions of dollars in revenue but not one dime goes to help a single sick person. All our personal medical records are sold by various companies to large employers, insurers and the pharmaceutical industry. Even though at times having our records readily available can save lives and be helpful it is important that we control access to our records to prevent rampant abuses of privacy.

To get more information on your medical and privacy rights go to www. patientprivacyrights.org, which was founded by the author.

October 31, 2007 Posted by | HIPAA, Medical records, privacy | 2 Comments

Who is in “Whois”?

This maybe outdated for many out there in the cyberworld, but I just found out about this site called “Whois” which contains information such as names and phone numbers of owners of “.com” and other Internet addresses.

So, I googled whois and went to the site and typed my domain name and yes all the contact information on me showed up. Now, it is not hard to find me, but apparently law-enforcement officials, trademark lawyers and journalists, as well as spammers, also use it regularly to get information since alternatives such as issuing subpoenas to service providers take more time and cost money.

The news is that whois maybe scrapped for privacy reasons, since privacy and anonymity is being advocated for Internet users. Read here.

October 30, 2007 Posted by | domain info, privacy | Leave a comment