ABA Examines Decline of Internet Privacy

In its July 5, 1993, issue, The New Yorker ran a cartoon by Peter Steiner showing a dog at a computer saying to his canine friend, “On the Internet nobody knows you’re a dog.”

While online anonymity may have been the case in 1993, the intervening years – with advances in data collection, biometric information and global positioning, as well as with surveillance cameras everywhere – have shown that anonymity is rapidly becoming extinct.

A panel, “Location Tracking and GPS: International Roadmap of Legal and Privacy Issues,” during the Business Law Section 2010 Spring Meeting focused on the declining level of privacy on the Internet.  Panelists included:

• Robert Bond, partner with Speechly Bircham, London
• Loretta Garrison, senior attorney, division of privacy and identity theft, Federal Trade Commission
• Sam Phillips, chief information security officer, Research in Motion, Charlotte, N.C.

Co-chairs of the panel were Ariane Siegel, partner with Gowling Lafleur Henderson, Toronto, and Ted Claypoole, member, Womble, Carlyle, Sandridge and Rice, Charlotte, N.C.

Addressing issues of online privacy have been difficult. Claypoole explained that technology is moving so much faster than the law. “In U.S. law, we’re not very far along in knowing where we want to go.”  He said we have “more devices, more interconnection, more digitization and more acceptance.”

On one hand, Claypoole pointed out, technology exists to save people.  On the other, the law needs to understand and accept the technology.  He said electronic data in the 2006 case of the Duke University lacrosse players accused of rape helped to clear the students.  Data showed that one of the three was making a withdrawal at an ATM, another was making a purchase at a convenience store and the third was driving while talking on his cell phone.  None of the three was in the vicinity of the location of the alleged crime at the time it was to have occurred.

In his opinion, Claypoole said, the prosecutor was disbarred, not for following through on the arrest, but for failing to consider the electronic evidence that would have exonerated the young men.

He said in the Duke case, location software proved a benefit, but pointed out there is no overall federal plan to deal with tracking privacy in the United States.  The lack of guidance has led to many cases of abuse of personal data.

He related a case involving a rental car company operating in California.  Its small-print contract language said if the driver violated the law, the rental car company would itself charge fines, and that if the driver violated the speed limit, the rental car company would also charge fines.

A driver who rented a car from the company found that a monitoring device in the car alerted the rental company when he exceeded the speed limit.  As outlined in the contract, the company deducted fines from his checking account as he had used his debit card to rent the car.  The driver sued and won restitution of his funds, but, according to Claypoole, the potential for misuse and abuse of personal data still exists.

People are no Longer Anonymous on the Web

Looking at online privacy from another viewpoint, Garrison said, “Technology has impacted the law so dramatically that it has far outpaced the law’s ability to stay ahead.”

She said that the FTC is looking at a wide range of security issues as well as online behavior advertising with a real focus on maintaining consumer privacy.  “Our concerns are how to make our notice effective, to make sure consumers understand their roles and to ensure companies do what they say they’ll do.”

One of the challenges with data collection is that the more data companies collect and the longer they keep it, the more vulnerable it becomes to security breaches.

The merging of online and offline data is another area the FTC is tracking.  “Companies are saying they don’t have sensitive data.  Yet the date can be linked to other information making it possible to identify individuals,” said Garrison.

Because there is so much data available for the taking, agencies like Health and Human Services are testing new security standards.  “People are no longer anonymous on the web,” she declared.

She also said that despite cell phones providing digital records of people’s movements, consumers do not understand data collection.  She said that the majority of people do not like the thought of being tracked, but are unaware of how their information can be used.  For example:

• 62 percent of consumers believe that a privacy policy means that a website cannot share information on a consumer without that consumer’s consent
• 54 percent believe websites delete personal information
• 52 percent believe the pizza company cannot sell your information when you order a pizza online

“Consumers also do not understand how phone apps can interact.  Young people say they are concerned about privacy, but their knowledge is worse than their parents on this issue,” she concluded.