Articles Posted in Privacy

On June 13, 2016, the U.S. Attorneys’ Office filed a complaint in the Western District of Washington against the City of Seattle and its department Seattle City Light.

In United States of America v. City of Seattle, the complaint revealed that the FBI had been installing covert video surveillance cameras on city utility poles, as part of an investigation of particular subjects. The federal government is seeking an injunction to prevent the City, which had received a request from a KIRO 7 reporter under the Washington State Public Records Act, from disclosing the location of cameras that the FBI had installed on city utility poles.

Last month, the Court of Justice of the European Union issued a preliminary ruling on the right of natural persons to privacy with respect to the processing of personal data. In the case, Mr. Costeja González, a Spanish national, had lodged a complaint with the Agencia Española de Protección de Datos (AEPD), the Spanish Data Protection Agency, concerning a then 12-year-old announcement in La Vanguardia Ediciones SL, a Spanish newspaper, that mentioned a real-estate auction connected with attachment proceedings for the recovery of Mr. González’s social security debts. Mr. González wanted his personal data in the announcement removed from the La Vanguardia website. In addition, he wanted Google Inc. or Google Spain to remove the La Vanguardia web pages from its search results.

The AEPD rejected the complaint against La Vanguardia because the Ministry of Labour and Social Affairs had ordered the announcement to promote the auction and secure as many bidders as possible. However, the AEPD upheld the complaint against Google Spain and Google Inc. The Google companies then brought separate actions before the Audiencia Nacional (National High Court), which stayed the proceedings and referred several questions regarding Directive 95/46 to the Court of Justice of the European Union.

In upholding the right of data subjects to have certain search results associated with their names removed from search engines, the Court of Justice stated that search engines may initially be able to process accurate personal data regarding a person. However, over time, this right may conflict with the Directive if such results are “inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed.” Accordingly, the right of privacy should be balanced against the economic interest of the search engine operator as well as the “interest of the general public in finding that information.”

The Fourth Circuit Court of Appeals recently unsealed the documents in the FBI action against Lavabit, Inc – Edward Snowden’s email provider. In July of 2013, the FBI sought a search warrant in the Eastern District of Virginia. Rather than turn over the encryption key that would allow the government to read the emails that Snowden sent, and risking exposure for other clients of the service, Lavabit closed its operations. You can read about the case at Wired and Techdirt. We found the (unsealed) docket and have it featured here, with all of the filings.

The Foreign Intelligence Surveillance Court has created a public docket for declassified opinions.

The documents have been released through the efforts of providers like Yahoo, Microsoft, and Google, as well as advocacy groups like the ACLU and the EFF, who filed requests to publish the opinions and filings in the FISC. Since FISA was enacted, the FISC and FISA Court of Review have only released a handful of opinions. The public docket gives us insight into the secret activities of the courts and their litigants.

The docket includes the following cases:

Access to opinions and codes is of particular interest to the bloggers at Justia. We complain mightily about private citation formats, paywalls to codes and caselaw online, privatization of court services and filings, and the government’s overall failure to provide us with official, free access to the public record. Last week’s news about the reauthorization of the FISA Amendments Act, however, highlights an altogether different problem of access to the law: secret, sealed court opinions from the nation’s Foreign Intelligence Surveillance Act Court. This body of law is not available for free or for purchase. It is sealed and hidden from the American people.

There is plenty of news coverage about the Act, and plenty of opinions online about the threat it poses to the freedom and privacy of Americans and non-Americans here and abroad. I’d like to highlight the problem of access to the output of the FISA Courts, and why we are still in the dark about their decisions – decisions that are legally binding precedent but that we know nothing about.

On November 30, Google was hit with yet one more class action lawsuit over Gmail’s method of scanning emails to deliver personalized advertising to its users. The named plaintiff in this case, Kristen Brinkman, filed the lawsuit in the U.S. District Court for the Eastern District of Pennsylvania.

Like in the other cases, this case alleges that the way Google automatically scans the emails of its Gmail users to deliver personalized ads is unlawful. The complaint cites Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, 18 Pa. Cons. Stat. §5701 as prohibiting the behavior in which Google allegedly engaged.

There is nothing unusual about this case as compared to any of the other related cases filed against Google (in California, Florida, and Illinois). The complaint lays out as the proposed class of plaintiffs “[a]ll natural persons located within the Commonwealth of Pennsylvania who sent e-mails from a non-@gmail.com account e-mail address to an @gmail.com account e-mail address the owner of which was also located within Pennsylvania from within” the statute of limitations.”

Yesterday, November 29, Brent Matthew Scott filed a class action lawsuit against Google, Inc. in the U.S. District Court for the Northern District of Florida. The lawsuit alleges that through its Gmail product, Google violated state laws against wiretapping.

Specifically, the complaint alleges that Google intercepts the plaintiff’s emails (and those of the entire class of plaintiffs) before they reach the intended recipients, in violation of the Florida Wiretap Act, codified at Florida Statute § 934.03.

Most of the lawsuits against Google that are brought under state and federal wiretapping laws have alleged that Gmail’s automatic scanning of emails for personalized ad placement violates state and federal law. However, the present lawsuit does not elaborate on the nature of Google’s alleged violations other than to say that the provider “intercepts” the emails.

Yesterday, Google was named in a class action lawsuit by a plaintiff identified only as “A.K., as next friend of minor child J.K.” Filed in the U.S. District Court for the Southern District of Illinois, the lawsuit alleges that Google has violated (and continues to violate) the Electronic Communications Privacy Act of 1986 (the “Act”) and various state privacy laws by its “intentional and willful interception, scanning, and use of” emails sent to and from J.K., a minor child.

The plaintiff claims to represent similarly situated minor children in the state of Illinois and alleges, among other things, that Google’s Gmail product violates federal and state law. Section 2511 of the Act makes punishable anyone who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.”

This is not the first time Google has been sued for Gmail’s use of email scanning to deliver personalized ads. In November 2010, Keith Dunbar filed a lawsuit in the U.S. District Court for the Eastern District of Texas alleging the same violations. The case was transferred in June 2012 to Judge Lucy Koh on the U.S. District Court for the Northern District of California and is still in discovery at the time of writing.

The European Union (EU) is expected to announce legal action against Google for allegedly violating EU law by failing to give users a choice to opt out its new privacy policy, according to The Guardian.

The French data commissioner, known as the ‘CNIL’ or Article 29 Working Party that has authority concerning protection of individual personal data, is anticipated to require that Google undo its recent privacy policy changes. The effect could be far-reaching, not only in Europe, but worldwide as governments scrutinize Internet privacy policies and their impact on users.

In a Solomonic ruling, Manhattan Supreme Court Justice Manuel Mendez recently denied a defendants’ sweeping Notice to Admit social media account postings by a personal injury plaintiff in Carr v. Bovis Lend Lease (read the decision below). In New York, unless a party objects to another’s pre-trial Notice to Admit, they run the risk of admitting something they don’t disagree with, potentially helping another litigant through inaction. In Carr, the defendants’ Notice to Admit sought to have plaintiff admit to making Facebook, Twitter, and other social media postings online, even though plaintiff only acknowledged having a Facebook account.

Here, Justice Mendez gave each party a little victory, and perhaps a setback too.