May 11, 2012
California General Assembly and Senate Considering Prohibiting Employers From Requesting Passwords To Social Media Sites
The California Legislature is moving ahead on bills that would prohibit employers from demanding employee passwords to social media sites. The text for California Assembly Bill, A.B. 1844, is available here. The text for California Senate Bill 1349 is available here.
May 10, 2012
Applying Existing Tort Law To Privacy Concerns On the Internet
Diane Leenheer Zimmerman, New York University School of Law, is publishing The 'New' Privacy and the 'Old': Is Applying the Tort Law of Privacy Like Putting High-Button Shoes on the Internet? in Communication Law and Policy. Here is the abstract.
Commentators have been critical of the inadequacies of the privacy tort law to deal with personal information circulated on the internet, particularly on social networking sites. This paper argues that, although technological change has created new concerns about privacy, the concerns are not fundamentally different from those raised by the "old" media, and they do not render the existing law, with its delicate balance between privacy and free speech, beside the point. The same considerations remain in play that have been recognized for more than half a century. There are, however, certain new elements that contribute to the anxiety about privacy and that, at the same time, make it more difficult to know how to respond to them. First is a distinct change in what individuals are actually willing to reveal to a broad range of acquaintances and strangers; second is the disintermediation of the "editor." Today, much of what is "published" is published by individuals who do not filter their decisions through the old protections of industry standards and who are not constrained by the need not to offend a paying audience. Both make the exposure of highly intimate or embarrassing material more likely, but do not necessarily create a case for giving those injured by the exposure greater rights to control its publication and use after the fact. Solutions, therefore, must be found outside the realm of privacy tort law.
Download the article from SSRN at the link.
May 9, 2012
"Village People" Singer, Songwriter Wins Copyright Victory
From the Hollywood Reporter: Village People member Victor Willis has won a victory against two music publishers who wanted a court to rule that Mr. Willis's notice last year, relinquishing his rights to some of his songs, is effective. A judge has instead decided that a copyright holder may "unilaterally" terminate such a grant of rights if it occurs not less than two years before the "intended termination date," that is, not earlier than 2013. More coverage here from NBC, here from the Toronto Star.
Casual Speech and Free Speech Protection on the Internet
Jacob H. Rowbottom, University of Oxford Faculty of Law, has published To Rant, Vent and Converse: Protecting Low Level Digital Speech in volume 71 of the Cambridge Law Journal (2012). Here is the abstract.
Expression on the internet is now regulated by a wide range of UK laws, including public order laws, media laws and laws that were drafted to target poison pen letters and nuisance phone calls. While these laws were initially designed to regulate different spheres of activity, they now converge and can regulate the same types of digital expression. Digital speakers are now exposed to various legal controls. Recent cases have shown that conversations on social networks and in other forums can be the subject of criminal prosecution and libel actions. While the European free speech jurisprudence has traditionally focused on protecting speech on matters in the public interest, it is argued that these principles do not give sufficient protection to casual conversations and ‘everyday’ expression. This article considers alternative free speech arguments and looks at the case for more proportionate controls on digital expression.
Download the article from SSRN at the link.
Datasets, Privacy, and Confidential Sources: Implications For Reporters
Andrew D. Selbst, New York University School of Law & New York University Department of Culture and Communication, has published Datasets as Reporters’ Confidential Sources. Here is the abstract.
We live in the age of Big Data. Researchers, industry, and government are all marshalling data to accomplish big tasks. Journalists are also embracing data more and more each day, changing what it means to be a reporter. Whereas before journalists might have acted as anthropologists, they are rapidly becoming social scientists and computer programmers looking for patterns in datasets. The privacy implications of the growing collecting, assembly, and use of large datasets by journalists have been largely unrecognized and inadequately analyzed. This article begins the task of studying the privacy implications of growing journalistic reliance on large datasets by studying how and whether current legal protections for reporters’ relationships with more traditional sources – the so-called “shield laws” – address the issue of data privacy and considering how these laws might be amended to deal with the privacy challenges of journalistic use of personal data.
As journalists become accustomed to collecting and analyzing quantitative data, they will probably become more and more interested in using data mining and other statistical methods to uncover newsworthy stories. Just as FICO is now able to use job status and home ownership data to predict how likely patients are to take their prescriptions and Target can use an array of data about purchases to identify shoppers who are likely to be pregnant, collecting and analyzing a wide variety of types of data can yield ideas for fascinating stories.
As with any industry that embraces data, though, data journalism creates privacy concerns. For example, a story about drug use throughout a city might prove dangerous for even anonymous survey takers if it based on a dataset that includes IP addresses and the raw data is made available to law enforcement. Moreover, as news sources increasingly seek to combine their traditional reporting with interactive online materials, they may want to make their data publicly available to readers. Journalists may not be trained in de-identification techniques for public distribution of datasets and, as many studies have shown, the re-identification of data is often possible, particularly if poor de-identification techniques are employed. Additionally, some journalists are surely using identified data without well-thought-out policies about how to store such data or when to disclose it to those who wish to use it for fact-checking a journalist’s story, for research purposes, or, in some cases, for law enforcement purposes.
Luckily, most states have a tool designed to enable newsgathering while protecting privacy: reporters’ shield laws. These laws allow reporters to resist subpoenas that would require production of their sources. How these laws apply to datasets is a critical question as data journalism becomes more prominent. Laws variably refer to identifying, producing, and disclosing sources, and it is unclear how these terms would apply to datasets as opposed to people. Some shield laws explicitly protect data, though based on the reasoning it is journalist “work-product”, rather than as a source. Finally, the most common rationale for shield laws – encouraging people to speak to journalists – simply does not apply to all types of datasets.
This article analyzes the privacy problems raised by journalistic use of large datasets and compares them to privacy issues raised by more familiar journalistic practices. It surveys current reporters’ shield laws to predict how likely data sets are to garner protection and what form the protection would take under current law. The article will also address the questions that arise out of this analysis and the role of shield laws in a broader system of privacy protections designed to enable data journalism to thrive while limiting potential problems and abuses.
The full text is not available from SSRN.
May 8, 2012
FCC Commissioners On Confirmation Of Two New Colleagues
“I want to congratulate Ajit Pai and Jessica Rosenworcel on their Senate confirmation and welcome them to the Commission. They bring deep knowledge of our sector, and proven track records of accomplishment. President Obama made an outstanding choice in their nominations, and I look forward to working with them.”
I extend my heartfelt congratulations to Jessica Rosenworcel and Ajit Pai on their confirmations as commissioners of the Federal Communications Commission by the United States Senate. Their experience and credentials will be an asset to the Commission. Now that we have a full five member FCC, I look forward to all of us rolling up our sleeves and getting to work on several important matters facing the Commission for the benefit of American consumers, including but certainly not limited to: implementation of the new incentive auction legislation, finally putting the power of unlicenced use of the TV “White Spaces” into consumers’ hands, adopting sensible universal service contribution reform, modernizing our media ownership rules to reflect the competitive marketplace of the Digital Age, important transactions requiring expeditious review, and much, much more. Having worked with Jessica and Ajit here at the Commission, I know that they are very talented and knowledgeable public servants who will be able to hit the ground running. I look forward to working with them on some of the most interesting and important public policy matters facing America.
“I applaud the United States Senate for confirming President Obama’s most recent nominees to the FCC, and I wish to join my colleagues in congratulating Jessica and Ajit on their confirmation. I am anxious to begin working with them both, and am relieved that after long last, this Commission will once again be operating at full strength.”
May 7, 2012
CBS Claims ABC's Show "Life In a Glass House" Violates "Big Brother" Copyright
From The Hollywood Reporter: CBS is alleging that ABC's new show "Life in a Glass House," whose producers are "Big Brother" alums, is alarmingly like CBS's hit "Big Brother," and CBS plans to "pursue all available remedies" if ABC continues to develop the show. In particular, CBS claims that ABC's show violates CBS's copyright in "Big Brother." More here from the Philadelphia Daily News.
Feds Drop Case Against Dajaz1.com
From the New York Times, a report that the federal government (via ICE) has dropped its copyright infringement case against the blog Dajaz1.com, a year after it brought the case. But why? More here from the Electronic Frontier Foundation, one of the groups which assisted the website in its defense.