Category Archives: Law: Privacy

Here's an interesting privacy case from the Washington state Supreme Court: State v. Athan. There's a majority opinion, a a concurrence, a dissent and another dissent. (Warning: links are only good for 90 days.)

Here's the news summary, Licking an envelope gives up privacy right to saliva

Police who obtained a murder suspect's DNA by tricking him into licking an envelope didn't violate any privacy laws, even though the letter was from a fake law firm, the [Washington] state Supreme Court ruled Thursday.

In a 6-3 ruling, the court held there is no state or federal privacy interest in the spit used to seal a person's mail.

Licking an envelope, the majority wrote, is “analogous to a person spitting on the sidewalk or leaving a cigarette butt in an ashtray.”

It also didn't matter that Seattle detectives got the DNA sample by posing as lawyers preparing a class-action lawsuit.

Even though pretending to be a lawyer is illegal under state law, police didn't violate the suspect's rights and didn't gather any privileged or confidential information, the court held.

The result is partly explained by the grisly facts:

The decision upholds the second-degree murder conviction of John Athan, a Palisades Park, N.J., man found to have killed a 13-year-old girl in Seattle in 1982, when he was 14.

The girl's murder went unsolved for years, until cold-case detectives fooled Athan into licking the envelope and sending it back to police.

Even so, the court seems to have given up a number of hostages to fortune:

In Thursday's ruling, the court's majority said collecting Athan's saliva from the envelope did not raise the same privacy concerns as would forced collections of blood or urine.

“There is no subjective expectation of privacy in discarded genetic material just as there is no subjective expectation of privacy in fingerprints or footprints left in a public place,” the court ruled.

Athan also wasn't protected by attorney-client privilege in the case because the saliva used to seal the envelope is not an actual “communication,” the court said.

Although Athan believed he was sending the letter to a lawyer, detectives were allowed to open the mail because their names were listed – albeit as fake attorneys – on the original letter, the court ruled.

We'll be seeing more and more issues like this.

Ars Technica has a very provocative story, claiming that Your ISP may be selling your web clicks:

David Cancel, the CTO of the web market research firm Compete Incorporated, raised eyebrows at the Open Data 2007 Conference in New York when he revealed that many Internet service providers sell the clickstream data of their users. Clickstream data includes every web site visited by each user and in which order they were clicked.

The data is not sold with accompanying user name or information, but merely as a numerical user value. However, it is still theoretically possible to tie this information to a specific ISP account. Cancel told Ars that his company licenses the data from ISPs for millions of dollars.

If this is true, I think consumers will rightly be upset to learn that they're being spied on by their ISPs, even if the data is not easily tied to them. And I can't even begin to understand what ISPs were thinking about doing this without disclosing it. If it's true.

I'd call Bell South and ask them, but somehow I doubt that the call center has a script for this one.

Nelson's Weblog: googleSearchHistory

Did you know that for years Google has been keeping a record of every search you do? And did you know they're now associating your search history with your Google login for other services like Gmail, Calendar, and the like? Surprise! It's Search History. And now it's being used to personalize your search results.

I don't like Google aggregating this data about me. It is possible to opt out. You can turn off search history recording in the settings page. You can also edit your history, including removing it entirely.

…

Update Tuesday, Feb 6: the instructions above let you remove the search history that you can access via the search history product. However, Google is logging your search history in other places for other purposes. See Google's privacy FAQ and privacy policy for more info on those other forms of search history.

Nothing to fear! Of course! Nothing to fear!

Ed Hasbrouck has been talking about this issue for a long time. Today, the Washington Post has an update, Report Says TSA Violated Privacy Law:

Secure Flight, the U.S. government’s stalled program to screen domestic air passengers against terrorism watch lists, violated federal law during a crucial test phase, according to a report to be issued today by the Homeland Security Department’s privacy office.

The agency found that by gathering passenger data from commercial brokers in 2004 without notifying the passengers, the program violated a 1974 Privacy Act requirement that the public be made aware of any changes in a federal program that affects the privacy of U.S. citizens. “As ultimately implemented, the commercial data test conducted in connection with the Secure Flight program testing did not match [the Transportation Security Administration’s] public announcements,” the report states.

It took two reporters — Ellen Nakashima and Del Quentin Wilber — to fail to answer all the interesting questions. First, is anyone going to be held accountable? Second, are these potential criminal violations or not? It doesn’t sound like it:

TSA spokeswoman Ellen Howe said the agency has “already implemented or is in the process of implementing” the recommendations contained in the privacy office report. She said the report’s conclusions were not surprising, adding that they were “very similar” to those reached last year by the General Accounting Office, the government’s auditing arm.

So, what was the purpose of this report, given that the GAO ventilated many of the facts a year ago? Does the rest of the TSA care about what its privacy office says? The story doesn’t tell us. It took two reporters to do this?

And, the Post makes no mention of what appear to be the follow-on illegalities.

On this stuff, you’re much better off reading blogs than the Post. Is Brad DeLong right? Is the paper (as opposed to online) Post toast?