Four Practice Areas on the Horizon – Page 3 | Internet Privacy Law
Internet Privacy Law
Internet Privacy Law should never be taken lightly. A person across the street wearing lens-less frames commands his headgear to take a video of a stranger minding her own business. Moments later, the video is uploaded to YouTube. On Google, a person signs into her Google account settings, clicks on a feature called Inactive Account Manager, and plans for her demise—digitally. On Facebook, a “public” discussion of a fishing trip taken years ago with an old buddy is shared with companies selling items for outdoorsmen. Suddenly, scrolling banners selling rods and reels are inescapable. On Yahoo and Gmail, ads are generated against one’s email content.
Privacy concerns abound on the Internet. It’s not clear what freedoms must be enforced to keep prying eyes from personal communications, from individuals using a person’s likeness without permission, or from government intrusion. New legal responses to the growing concerns over privacy on the Internet are necessary.
When the Guardian newspaper reported the United States has secretly been collecting electronic data on millions of electronic communications taking place within the United States every second, whose rights were violated?23 Federally, the Electronic Communications Privacy Act of 198624 protects certain electronic communication and electronically stored information and prohibits certain types of electronic “tracing” devices. It was essentially an extension of the Fourth Amendment to the Internet. Electronic communication means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include: 1) any wire or oral communication; 2) any communication made through a tone-only paging device; 3) any communication from a tracking device (as defined in Section 3117 of this title); or 4) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds. Can national security preempt the Privacy Act?
Another Internet Privacy Law breach was when Facebook announced several years ago that it was sharing members’ personal information to “help improve and promote our service” and to “offer joint services.” Apparently it was not in violation of the 1986 statute, although many people felt their privacy had been violated. But, at least one court has been asked to address the gap between the law and the reality of the Internet.
Internet Privacy Law In Crispin v. Christian Audigier, Inc.,25 a federal judge in the U.S. District Court for the Central District of California concluded that private communications of users of social networking sites were protected against warrantless disclosures. In a dispute over licensing rights, designer Christian Audigier served subpoenas on social media providers Facebook, Myspace, and Media Temple, directing them to produce all communications between Audigier and plaintiff Crispin, an artist. Initially, a motion to quash the subpoenas based upon the protection provided by the Electronic Communications Privacy Act was denied by U.S. Magistrate Judge John E. McDermott, but on appeal to the district court, Judge Margaret Morrow reversed in part and vacated in part, finding that the act’s privacy protections at least partially applied to users’ private communications on a social networking site, but that there was insufficient evidence to determine whether public wall postings and comments were also protected, and therefore precluded from discovery. This ruling provides some precedent to protect social networking providers and web hosts from producing certain communications in discovery.
In the above Internet Privacy Law example of the Inactive Account Manager on Google, upon inactivity for a specified period, such as three, six, or 12 months, Google will activate the individual’s account instructions, such as having his or her email and digital content forwarded or bundled to a third party, or deleted. This feature, offered by Google in April 2013,26 represents a new wave of digital privacy. Everyone should contemplate what will happen to private Internet ‘possessions.’ But, what if Google does not abide by one’s instruction, or accidentally transmits the information to the wrong parties? What is Google’s responsibility to defend an individual’s instructions against an attack by a family member seeking access to his or her emails?
Surely ‘estate planning’ like the type offered by Google is only one area of concern. Today, companies have improved their efforts to handle Internet Privacy Law. They track movements and clicks online, ostensibly targeting consumers most likely to buy their product but, in reality, invading user privacy in a way lawmakers and courts have yet to deal with comprehensively. Google Glass (the video-taking headgear) has been preemptively banned in Caesar’s casinos, based on the fact that recording equipment is already banned from gaming areas and inside show arenas.27 Google spends money launching media campaigns intended to deflect criticism and dissent from the privacy concerns.28 The FBI has been taken to task in Arizona for triangulating cellular user movements with devices that mimic the ubiquitous tree-costumed cell phone towers. It seems that for practitioners in this field, the future is now. Even so, technology is always moving forward. The Samsung Galaxy IV smartphone contains eye-tracking technology for controlling screen scrolling and screen brightness. This seems harmless enough. But, how will eye-tracking
research be handled? Should the outward signals of one’s thoughts be monitored?
The business of lawyering grows more congested in New Jersey each year, contributing to increased competition in the traditional practice areas. For young lawyers in the state seeking room to grow, it is time to consider where the law is evolving, and in the process, perhaps have the opportunity to build the foundation for these new practice areas.
Law firms now compete for Internet search results related to traditional practice areas, and in a crowded space, it is not easy to be heard. In the future, the same competition will also take place for these new practice areas. Today, young lawyers should consider starting their own website and becoming an expert in one of these new practice areas, or any other field where scientific advances come into contact with everyday life.
Some of the practice areas described may be further in the future than anticipated. Still others may never come to fruition. Areas of law that are now underdeveloped, or unknown, may emerge over the next several decades to have more prominence. In time, each practice area will become modernized with new legal mechanics.
Young lawyers must try to anticipate new opportunities in the legal profession without being overwhelmed or deterred. The risk that there will be no clients seeking legal services for these practice areas is a real one. But, each new practice area is also an opportunity to be on the cutting edge of legal thinking, to apply the law in innovative ways, and to invest in the future today.