DJ Hero

I got an anonymous comment to my last post on the TSA's new security procedures saying that there has to be something we can do, rather than just submitting to whatever is advanced under the name of security. As it happens, there are several things that people can do to react to the TSA's new procedures.

The most well publicized protest is probably National Opt Out Day (warning - page includes naked picture taken with TSA's new scanners), wherein people will opt for being groped by a TSA agent to slow down processing of fliers on November 24 - the busiest flying day of the year. If that's your cup of tea, then it's certainly your right to opt out of the scanning (which you might want to do anyway, for both health and privacy reasons). For me though, I'm not at all interested in being groped by the TSA, even for the noble purpose of protest.

If you're more interested in an ineffectual protest with a touch of humor, you can try radiation shielding undergarments, or a bill or rights luggage tag (all of which are described in this article). My guess is that the bill of rights tag would just be ignored (much like the actual bill of rights), and that the metal undergarments would result in a referral for one of the TSA's special enhanced pat downs. Still, if you want to make a statement, those are another way to do it.

As a lawyer, my first thought was a declaratory judgment action seeking to preliminarily and permanently enjoin the TSA from implementing the new security measures. My next thought was that that was so obvious that someone must have already done it. However, a quick Google search didn't turn up much more than this thread, so maybe that's still available. The problem with this approach is that these types of DJ actions are really hard to win, and you may get bumped on procedural grounds before the judge ever reaches the merits of the case.

In the end though, my guess is that what will be necessary to reverse these new procedures is people (finally) taking a stand for privacy, and bringing enough bad press to the TSA and pressure on their elected representatives, that the TSA's current policies become radioactive. I'm not thrilled that we've reached that point, but it is a free country, and if our elected representatives make enough intrusive laws, sometimes the only way to respond is by replacing them with people who aren't so keen to invade people's privacy.

Fighting the TSA

The Internet is currently burning up with a story about a man who would rather not fly than submit to the TSA's intrusive screening procedures, and how the TSA reacted to him. To make a long story short, once he decided to leave the security area and ask for a ticket refund, a TSA agent told him he had to return to the security area or would be subject to a civil fine of up to $10,000. A normal person's reaction to reading this story might be outrage at this sort of petty tyranny. As a lawyer, my first reaction was to question whether the threat was real. That is, is this a case of abuse of power by a misguided TSA employee acting outside his authority, or is it a case of abuse of power by a misguided TSA employee enforcing an egregiously bad law?

After about an hour of searching, I strongly suspect that this is a case of abuse of power by a misguided TSA employee acting outside his authority, though I have not been able to convince myself of that fact, and so the normal disclaimers about nothing on this blog being legal advice should go at least double for this post.

The reason I strongly suspect that this is a case of abuse of power by a misguided TSA employee acting outside his authority is that the regulations on penalties and prohibitions mostly focus on making sure that you can't get certain things into secure areas. For example, 49 C.F.R. 1540.107 says that no one can enter the sterile area or board an aircraft without going through a screening. However, in this case, the putative flyer wasn't trying to get into the sterile area or an aircraft without going through a screening - he made a conscious decision to avoid a screening by not entering the sterile area or boarding an aircraft. Similarly, 49 C.F.R. 1540.109 prohibits threatening, interfering with, assaulting or intimidating screening personnel. However, in this case, the putative flyer wasn't interfering at all. Indeed, the screening personnel could have done their jobs more easily if they had simply let him leave the airport. Because there is no evidence that leaving the airport had any adverse effect on security, or on the ability of the screening personnel to screen other passengers, it seems to fall outside of the general scope of the regulations, and so I suspect that the threat of a $10,000 civil penalty was not supported by law.

However, the reason I haven't been able to convince myself of the fact that a civil penalty couldn't have been imposed is that the relevant law is more than a little bit difficult to wade through, and the regs have previously been applied in ways that seem patently unjust. In terms of difficulty wading through the regs, I will give one example: 49 U.S.C. 46301(a)(5):

(A) An individual (except an airman serving as an airman) or small business concern is liable to the Government for a civil penalty of not more than $10,000 for violating—
(i) chapter 401 (except sections 40103 (a) and (d), 40105, 40106 (b), 40116, and 40117), section 44502 (b) or (c), chapter 447section 44502 (b) or (c), chapter 447 (except sections 44717–44723), or chapter 449 (except sections 44902, 44903 (d), 44904, and 44907–44909) of this title; or
(ii) a regulation prescribed or order issued under any provision to which clause (i) applies.

And that's just one example. As a lawyer, I can wade through that, cross checking sections, examining applicability to a given situation, etc. However, as a human being, I don't do that sort of thing for fun, and no one is paying me to write this blog. In terms of unjust application of the regs in the past, I refer readers to Rendon v. TSA an unhappy case where a civil fine imposed for asking some rather profane (but not unreasonable) questions about security procedures was upheld under the prohibition on interfering with screening personnel. While I think imposing a fine for trying to leave an airport is even worse than the situation in Rendon, given the result in Rendon, it wouldn't surprise me terribly if a fine, in fact, were imposed.

So what will happen in this particular case? Probably nothing. I doubt the TSA will seek penalties, given that the whole incident was video taped, and a trial would only lead to bad press and the possibility of their powers being curtailed. In the end, my guess is the whole thing will blow over, the TSA will keep their current security policies in place, and most people (e.g., me) who can't afford to skip flights just because we might not want to be molested by the TSA will end up being subjected to whatever form of invasive screening the TSA thinks is warranted without any realistic avenue for recourse.

I know I've written this post before

Here's the wired headline: Scribd Facebook Instant Personalization Is a Privacy Nightmare. The article is about what you'd expect. There are complaints about automatically generated spam emails to your automatically created friends and confusing or non-existent opportunities to opt out. There's a Scribd PR person explaining how privacy is really very important to the company. There's the author suggesting that one way to fix the problem is to delete your Scribd profile, but characterizing that as extreme. I'm not 100% sure why I read the article. True, I don't use Scribd, and have never run across this particular feature. However, just seeing Facebook in the title gave me a pretty good idea what to expect. Someone in marketing wants to take advantage of the tremendous amount of data on Facebook (and get in on the whole "social media" bandwagon) and so they make it really easy to share data, and relatively difficult not to so do.

So what should people do instead of this? Well, there's always the possibility of not integrating with Facebook. Frankly, regardless of what they've been forced to do by public pressure, I will always distrust a company who's CEO famously doesn't believe in privacy. In the event that you must integrate with Facebook, you could always try little things like opt in rather than opt out participation, not automatically spamming Facebook friends, and sending making sure it's clear for someone how to opt out if they decide they don't like the program. There are also guidelines for interactive and behavioral advertising put out by organizations like the FTC and the IAB (though I consider those to be a bit outside the scope of this post). Whatever you do though, if you're going to move into the world of social media, you need to do it with your eyes open, or your company is likely to be integrated with Facebook in a headline that also includes unpleasant words like "nightmare" or "disaster."

July/August Privacy Catch Up

So...the blog has been uncharacteristically quiet for the last month or so. This is not because nothing privacy related has happened in the legal world. For example, the FBI and federal prosecutors announced that they will not be filing criminal charges related to the Lower Merion Spy Cam Scandal (link here), something I wrote about hereas possibly being the creepiest privacy violation of 2009. Also, it turns out that the millimeter wave scanners used to see through clothes to catch those ever-elusive terrorists can store and transmit images, despite assurances from the TSA that that was not the case (link. In more positive news, the appeals court for the District of Columbia circuit has rejected a claim by the government that round the clock warrantless GPS surveillance is ok (article here). There was also some legislative action, as internet advertisers warned that a new privacy bill, the "best practices act" would "would turn the Internet from a fast-moving information highway to a slow-moving toll-road." Also, speaking of slow-moving toll-roads, Google and Verizon came together to formally announce that net neutrality (i.e., the concept that all traffic on the internet should be treated equally) is a rather quaint notion that shouldn't apply to wireless networks. All in all, it's been a relatively busy month or so.

So why no posts? Well, in addition to all of these privacy events, we also got a huge non-privacy decision - Bilski v. Kappos - which basically upended a decade's worth of precedent on whether you can get patents on novel software or business methods. Since software and business method patents are a big part of my practice, a good deal of the time that I would have spent on privacy was spent on patent stuff instead. To make matters worse, at least time-wise, I also got a copy of Starcraft II, which turned out to be a huge time suck. Happily, rather than releasing a full game, with three playable races and campaigns for each (the approach taken with the original), Blizzard decided to only release a human campaign, which turned out to be approximately a third of a game's worth of play for a full game's price. As a result, I not only get to get back to blogging sooner, I also get to know to avoid new releases from Blizzard in the future, which I guess means that everyone wins.

Why Do People Keep Thinking This is a Good Idea?

Earlier this month, Blizzard Entertainment (makers of World of Warcraft, among other successful computer games) decided that they would change their game forums from anonymous forums (i.e., you can't tell the identity of someone posting to the forums unless they tell you) to forums where comments are connected with a person's real name. After a firestorm of criticism (e.g., here) Blizzard spiked the program, at least for now. And the reason for going down this path, with its utterly predictable and embarrassing trajectory? Two words: Facebook Integration. Actually (as explained here) it's slightly more complicated than that, but what it boils down to is that Blizzard wanted to get in on some of that social networking magic, and giving everyone a single ID that was consistent across all of Blizzard's forums (and Facebook) seemed to be a good way to do it.

This is an old story, and one that often ends in class action lawsuits (e.g., Google Buzz, Facebook Beacon). Why do people keep doing this? My guess is because they see their existing user data as an asset, and they hate letting an asset go unexploited. However, that's the wrong mindset. The safest way to think of user data is as something that actually belongs to users, which they have allowed you to temporarily safeguard. The point of the user data isn't to exploit it, it's to allow a business to maintain its relationship with its users. If you want to integrate with Facebook - fine. However, the way to do so is going forward, collecting new data (with a clear explanation of what you're collecting the data for), and without degrading or changing the services provided for old users. True, at the outset, this seems much harder than leveraging an existing user base. On the other hand, many existing user bases don't like being leveraged, and going about things the hard way can take that into account, and avoid turning an existing base into a historical user base.

Tech Apologies of 2010

Wired put up an article on the biggest tech apologies so far this year (link). The list is:

• Google: Sorry about Buzz, Street View Privacy Issues (providing information to unwelcome Buzz "followers" and recording WiFi data while making Street View maps)
  


• Adobe Apologizes For Old Flash Bug (failing to patch bug for 16 months)
  


• McAfee’s Antivirus Snafu (releasing update that shut down computers running XP)
  


• AT&T Begs Pardon for iPad E-mail Breach (allowed hackers to identify email addresses of iPad customers through a flaw in an authentication web site)
  


• Facebook Apologizes for Privacy Shortcomings (Sort Of) (Mark Zuckerberg issues non-apology for constantly changing facebook privacy policies)
  


• Ellen Degeneres Didn’t Mean To Hurt Apple’s Feelings (Apparently, a comedian made fun of Apple...and this made the list why?)
  


• Apple: Sorry We Couldn’t Keep Up With iPhone 4 Orders (The description says it all)
  

Not separately counting the two separate Google apologies squished into the top bullet, that makes 3/7 apologies for privacy gaffes. The moral of the story - privacy mistakes are the gift that keeps on giving, at least in terms of bad publicity.

Ontario v. Quon Decided

As described in this article from Computer World, the Supreme Court has issued its decision in City of Ontario v. Quon. A quick recap of the facts: the city of Ontario California issued Jeff Quon (a SWAT team member) a pager. Quon exceeds his text message allotment on the pager and is audited. The audit reveals the Quon has overwhelmingly used the pager for personal text messages. Quon is subsequently disciplined.

The decision was totally unsurprising - the police department was allowed to audit messages sent during work hours on the pager it provided. What was surprising, or at least, was something of a relief, was that the Court reached the expected result in a way that leaves a nascent right to employee privacy in electronic communications basically unscathed. Indeed, the Court seemed to go out of its way to avoid upsetting precedent like Stengart v. Loving Care, which had found that employees have at least some expectation of privacy in personal emails, even if sent on company computers. For example on page 14 of its decision, the Supreme Court specifically distinguished personal emails such as were at issue in Stengart:

OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been.

All in all, I think Ontario v. Quon was a good decision. Indeed, given the issues involved, and the potential for damage, it was probably the best that the Court could have done.