Privacy

This is the seventh in a series of posts calling attention to topics we cover in the Citizen Media Legal Guide. In this post, we highlight the section on Recording Phone Calls, Conversations, Meetings and Hearings, which discusses federal and state laws relating to the use of recording equipment in specific private and semi-public settings. We also provide some practical tips for using recording devices, which should help you steer clear of legal trouble.

Using a recording device, such as a microphone, video recorder, or camera, is often a helpful way to capture and preserve information about conversations, interviews, and phone calls in which you participate. It is also a good way to document what takes place in a court hearing or public meeting, whether for personal reference or later broadcast over the Internet.

Where you do your recording, and what you record, will largely dictate what legal limitations apply to your recording activities. It may also be the case (in fact, it is quite likely) that more than one set of laws or limitations might apply to your use of recording equipment. Before concluding that your activities are in the clear, you should read all of the sections listed below that might apply, as well as the section on Gathering Private Information elsewhere in this guide.   read more »

I have a column running on the Guardian’s website. It’s entitled “Freedom of information” — and is reprinted below:

What does a Swiss bank that does business in the Cayman Islands have in common with a Hong Kong actor who jets around the globe? They are object lessons this month in a reality that anyone handling information needs to understand. Like toothpaste squeezed from a tube, information, once out in the wild, is all but uncontainable.

The Julius Baer Bank is a protagonist in the now-famous Wikileaks case. The bank’s lawyers managed to persuade a US federal judge, Jeffrey White, that the first amendment of the US Constitution had no meaning, obtaining an injunction and follow-up order that, among other things, required blocking the visibility of the domain wikileaks.org in the internet’s Domain Name System (DNS). A former bank employee had posted documents on the anonymous whistle-blowing website, allegedly describing shady dealings - hmmm, Cayman Islands, Swiss banks - on behalf of clients.

“The orders don’t just direct the take down of existing content, they also enjoin any future publication of the material,” says David Ardia, director of the Citizen Media Law Project at Harvard University Law School’s Berkman Center for Internet & Society (of which I’m a co-founder). “Even more significantly, the second order requires anyone who receives notice of the order to refrain from publishing, distributing or linking to the documents.”   read more »

CNET collaborated with Fred von Lohmann of the Electronic Frontier Foundation to come up with the helpful list 9 Fun Ways Web 2.o Startups Can Commit Legal Suicide. It includes some important pointers about managing users' private data, a reminder to startups to designate a copyright agent for DMCA takedown notices, and a word of caution for websites about expanding into print:

Thanks to Section 230 of the Communications Decency Act, you're protected from libel suits filed against you if your users write disparaging comments about other people or services on your site. That's how ZocDoc, a new Yelp-like service for finding doctors, can exist without being sued into the ground. But if you print out your user reviews, this no longer applies. So be careful if your customers or users ask for it.

We will be addressing many of the issues covered in the CNET piece in our forthcoming Legal Guide, and in the future we hope to take on cases involving some of these novel legal issues.

To keep the police misconduct theme going here at the CMLP, I'll expand on a short post I read by Eugene Volokh on the Volokh Conspiracy. Volokh notes:

Revealing an undercover police officer's identity is not tortious in New Mexico, even when the speaker is aware that publicizing these identities may help others commit crimes against police officers; so the Tenth Circuit held last Friday in Alvarado v. KOB-TV.

In the lawsuit, Alvarado v. KOB-TV, 06-2001 (10th Cir. Jul. 13, 2007), the police officers claimed, among other things, that KOB-TV invaded their privacy when it broadcast a story about their alleged involvement in a sexual assault.

What makes this case interesting and unique is that the officers based their privacy claims on the public disclosure of their status as undercover officers.

Under New Mexico law, the privacy tort at issue in Alvarado, which is generally called "public disclosure of private facts," requires the disclosure of intimate or private facts that would be objectionable to a reasonable person. In addition, there must be a lack of legitimate public interest in the information for a privacy claim to succeed.

Noting that courts have generally treated allegations of police misconduct as worthy of public interest, the 10th Circuit rejected creating a broad rule that would shield the identities of undercover police officers:

Alvarado and Flores's privacy claim hinges on a proposed exception for undercover officers, i.e., that disclosure of their identities "lacks legitimate public interest" as a matter of law. We can find no precedent for such an exception, and we are not inclined to create one here merely on policy grounds . . . . Because allegations of police misconduct are in the public interest, and because there is no exception in the law for undercover officers, Alvarado's and Flores's claim cannot survive . . . .

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That is the question that Jason Fry raises in a provocative column in the Wall Street Journal Online. Fry writes that:

Property deeds, marriage and divorce records, court files, motor-vehicle information and tax documents are increasingly being digitized, and contain a wealth of information that few of us would want online: Social Security numbers, birth dates, maiden names and images of our signatures. Local governments have rushed to put those documents online for a decade or so, often without scrubbing them of such information. And that's made them potentially fertile ground for busybodies, stalkers and identity thieves.

I have no doubt that this comes as a shock to many people. But it shouldn't. The records being put online are public. They are available to anyone willing to schlep to the courthouse or county clerk. As Fry notes, "[o]pen records are a longstanding American tradition."   read more »

An 18 year-old from Carlisle, Pennsylvania has been charged with a felony under Pennsylvania's wiretap statute -- for videotaping a police officer during a traffic stop.

Brian D. Kelly didn't think he was doing anything illegal when he used his videocamera to record a Carlisle police officer during a traffic stop. Making movies is one of his hobbies, he said, and the stop was just another interesting event to film. [...] Kelly, 18, of Carlisle, was arrested on a felony wiretapping charge, with a penalty of up to 7 years in state prison. [...] Kelly is charged under a state law that bars the intentional interception or recording of anyone's oral conversation without their consent.  read more »

Interesting article in today's New York Times about Whosarat.com, which says it has identified 4,300 informers and 400 undercover agents, many of them from electronic court records.  According to a Justice Department official quoted in the piece:

We are witnessing the rise of a new cottage industry engaged in republishing court filings about cooperators on Web sites such as www.whosarat.com for the clear purpose of witness intimidation, retaliation and harassment.

Well worth a read as it touches on many interesting -- and difficult -- issues concerning privacy, access to court records, and free speech.