Category: Privacy

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More on Pseudonymous Litigation

redact1.jpgHoward Bashman offers these further thoughts about the issue of pseudonymous litigation and the sex tape case I blogged about earlier today:

In terms of assessing blame, however, in my view it is the attorney for the pseudonymous party who bears the responsibility to ensure that the appellate briefs posted online — and surely the Seventh Circuit’s practice of posting briefs online comes as a surprise to no one — does not reveal the actual identity of the lawyer’s pseudonymous client. . . .

There is no way that an appellate court’s clerk’s office can review filings for the purpose of making appropriate redactions; that is the job of counsel for the parties.

While I don’t believe that the court should be held blameless, I definitely agree with Bashman that the lawyers are also to blame in this case.

Lawyers often are not devoting adequate attention to the issue of client privacy interests in the course of litigation. One reason why many privacy cases involve the real names of plaintiffs is because many lawyers don’t even think of raising the issue of the plaintiff proceeding pseudonymously. Courts often will deny plaintiffs the right to proceed under a pseudonym, but this doesn’t mean it isn’t worth trying. You rarely get anything without at least asking.

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7

Of Sex Tapes, Pseudonymous Litigation, and Judicial Bungling

videocamera1a.jpgLior Strahilevitz (law, Chicago) has a wonderful post over at the Chicago Law Faculty Blog about a very problematic Seventh Circuit opinion — and blunder. The case, Doe v. Smith, involves a teenage girl whose boyfriend secretly videotaped them having sex and then emailed the video to his friends. The issue is whether the plaintiff could proceed on federal Wiretap Act claims. The court said yes. But then the court stated:

On remand, the district judge must revisit the question whether the plaintiff should be allowed to proceed anonymously. The judge granted her application to do so without discussing this circuit’s decisions, which disfavor anonymous litigation. The public has an interest in knowing what the judicial system is doing, an interest frustrated when any part of litigation is conducted in secret. Plaintiff was a minor when the recording occurred but is an adult today. She has denied Smith the shelter of anonymity – yet it is Smith, and not the plaintiff, who faces disgrace if the complaint’s allegations can be substantiated. And if the complaint’s allegation’s are false, then anonymity provides a shield behind which defamatory charges may be launched without shame or liability.

Lior Strahilevitz persuasively attacks the court’s reasoning:

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17

Is Anonymous Blogging Possible?

anonymity2.jpgHoward Bashman at How Appealing muses whether anonymous blogging is really possible:

These days, however, most users of the internet understand that every bit of information communicated electronically leaves electronic fingerprints that can be used to trace the source of the information, even if the source hoped to remain anonymous. To be sure, there are ways to anonymize emails and other forms of communication, but they tend to be complicated to use and difficult to figure out. . . .

I doubt whether anonymous blogging is possible. It surely isn’t possible if the blogger conducts email correspondence with others and fails to mask his or her internet protocol address. Plus, even the act of logging on to a blogging service provider, such as TypePad or blogger, leaves electronic fingerprints, and I’d have to assume that “UTR” had a TypePad subscription, enabling someone to subpoena the blog owner’s identity and/or payment information. So, to you anonymous bloggers out there, have fun, but don’t fool yourselves into thinking that simply by not providing your identity you are doing an effective job of remaining hidden.

I generally agree that it is very difficult to blog anonymously, but it is certainly possible if a person is careful.

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Journalist Privilege and Law Enforcement Leaks

freespeech1.jpgIn a very interesting case, U.S. District Court Judge Rosemary Collyer recently held a Washington Post reporter in contempt of court for not revealing the source of a leak in the investigation of Wen Ho Lee. [Click here for the court’s opinion.] The case involves a civil suit by Lee against a number of federal agencies for violating the Privacy Act of 1974, 5 U.S.C. § 552a. Lee was a scientist employed by the Department of Energy and was being investigated by the FBI for espionage for China. Ultimately, the espionage case collapsed and Lee pled guilty to one count of mishandling computer files.

During the investigation, Washington Post journalist Walter Pincus published a few articles about the Lee investigation, identifying him by name and discussing extensive details of the investigation, including “his and his wife’s employment histories, their financial transactions, details about their trips to Hong Kong and China, details concerning the Government investigation and interrogation, and purported results from polygraph tests.” Pincus indicated that anonymous government sources supplied him with the information.

Lee has sued the government for violating the Privacy Act, which prohibits government agencies (including the FBI) from disclosing records about an individual. Lee sought from Pincus who his sources were. Pincus raised the journalist privilege, claiming he should be sheilded from being forced to disclose.

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0

Orin Kerr on the USA Patriot Act Compromise

My colleague Orin Kerr has gone through the nearly 100 pages of statutory text of the new USA Patriot Act renewal compromise bill. He offers his tentative conclusions here. The bill makes changes in Section 215 Orders, National Security Letters, and Sneak and Peek Warrants. Basically the changes are more recordkeeping and more judicial review — both laudable improvements. There are, however, many other problems in the USA Patriot Act as well as in the underlying electronic surveillance laws that still remain. Check out Kerr’s analysis, which is insightful and intelligent as usual. You could, of course, read the almost 100 pages of statutory code yourself, but I’m sure you’ve got a life. Thank goodness there are folks like Kerr to do it for us. That’s why we keep him around.

Related Posts:

1. Solove, National Security Letters

2. Solove, More on National Security Letters

3. Solove, The USA Patriot Act: A Fraction of the Problem

1

Article III Groupie Groupie

Howard Bashman has yet more on A3G here, here, and here. If he keeps up this pace of blogging about A3G, I’m going to nickname Bashman “Article III Groupie Groupie.” And the story has now made the New York Times.

Hat tip: ECPA Groupie

Related Posts:

1. Solove, Article III Groupie Disrobed: Thoughts on Blogging and Anonymity

2. Solove, The Mysterious Disappearance of Article III Groupie

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Does Anything Really Disappear from the Internet?

magician1.jpgI just posted about the Wayback Machine and that got me wondering whether anything really disappears from the Internet when it is deleted. Certainly, a ton gets archived in the Wayback Machine as well as in Google cache and in RSS readers. Of course, if something appears on the Internet, somebody could see it and copy it before it gets taken down.

But I was wondering to what extent information can vanish completely from the Internet. Thus, if a blogger posts something and then deletes it a minute later, can it escape from permanent fame? Maybe some ill-fated performances might be so brief that they can sneak on and off the Internet without being caught. What about a comment to a blog post that gets zapped quickly by the blog author? Can this escape becoming part of some permanent record?

The question, put another way: Can something posted briefly on the Internet, seen and heard by hardly anyone, not snatched up by anybody, and then deleted, be gone forever? Is there an Internet equivalent to a tree falling in the forest that nobody hears?

I don’t know the answer to this question, and I would like to hear from those with more technical expertise.

UPDATE: People with expertise have answered, and their replies are worth checking out if you’re interested in the issue.

2

What’s On the Net Stays on the Net: Thoughts on the Wayback Machine

waybackmachine.jpgSteve Vladeck (law, Miami) visiting at PrawfsBlawg tells an interesting anecdote about the Internet Archive, otherwise known as the “Wayback Machine.” Steve writes about a student who discovered his childhood pictures:

Well, apparently that cute idea I had for a webpage when I was a freshman in college, including the fun pictures page, didn’t die quite the fiery death I had hoped for it upon graduating (or, to be more honest, one month after last updating it in the fall of my sophomore year).

So, new law prawfs, beware!! If there’s a cute, funny webpage all about you from somewhere out there in the Internet ether, your students will find it… what they do with it, well, I’m just glad I kept some of the college photos off the page.

Sobering thoughts for any blogger before clicking on the “publish” button.

According to the Wayback Machine’s FAQ:

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More on National Security Letters

Over at the Volokh Conspiracy, Orin Kerr has a post about National Security Letters (NSLs) with comments by Michael J. Woods, former chief of the National Security Law Unit in the FBI. Woods was quoted in a recent Washington Post story that provided extensive information about NSLs. Check out Orin’s post, which quotes from an email Woods sent in response to Orin’s request for further comments.

Related Posts:

1. Solove, National Security Letters

2. Solove, The USA Patriot Act: A Fraction of the Problem

0

Top 10 Tips to Protect Your Privacy

privacytop10.jpgChris Hoofnagle of the Electronic Privacy Information Center’s West Coast Office has posted a list of the “top 10 things you can do with very little money or effort to protect your privacy.” There’s hardly anyone who knows more about consumer privacy than Chris, so his Top 10 tips list is definitely worth checking out.