Ch. 7 Cyberlaw and Privacy

the tort of intrusion requires the plaintiff to show that the defendant

1. intentionally intruded, physically or otherwise, 2.upon the solitude or seclusion of another or on his private affairs or concerns, 3.in a manner highly offensive to a reasonable person.

the public disclosure tort requires the plaintiff to show all of the following

1. the defendant made public disclosure. 2. The disclosed facts had been private 3. The facts were not of legitimate concern to the public. 4. the disclosure is highly offensive to a reasonable person

two requirements for establishing reasonable expectation of privacy

1. the person had an actual, subjective expectation of privacy 2. Society accepts the persons expectation of privacy as reasonable

Code of Fair Information Practices (FIPS), core principles

1.Notice/Awareness- notice should be given before any personal information is collected 2. Choice/consent - people should be able to control the use and destination of their information 3. Access/participation- people should have the ability to view, correct, or amend any personally identifiable record about them 4. integrity/security - information collectors must take reasonable precautions to ensure that the data they collect are accurate and secure

Electronic communications privacy act of 1986

A federal statute prohibiting unauthorized interception of, access to, or disclosure of wire and electronic communications. which include, email, cell phones, and social media

public disclosure of private facts

A tort providing redress to victims of unauthorized and embarrassing disclosures

Federal Communications Commission (FCC)

An independent federal agency that regulates interstate and international communication by radio, television, telephone, telegraph, cable, and satellite.

Under the ECPA

Any intended recipient of an electronic communication has the right to disclose it. ISPs are generally prohibited from disclosing electronic messages to anyone other than the addressee, unless this disclosure is necessary for the performance of their service or for the protection of their own rights or property. An employer has the right to monitor workers' electronic communications if the employee consents, the monitoring occurs in the ordinary course of business, or in the case of email, if the employer provides the computer system.

an employer has the right to monitor electronic communication even if it does not relate to work activities.

But one thing employers cannot do is access an employee's social media profile by trickery or coercion.

the FTC adapted what to the internet marketplace

FIPS

Foreign Intelligence Surveillance Act (FISA)

Federal statute governing the government's collection of foreign intelligence in the United States. sets out the rules for the use of electronic surveillance to collect foreign intelligence (spying) within the U.S.

under the CAN-SPAM, commercial email

May not have deceptive headings (From, To, Reply To, Subject) Must offer an opt-out system permitting the recipient to unsubscribe (and must honor those requests promptly) Must clearly indicate that the email is an advertisement Must provide a valid physical return address (not a post office box) and Must clearly indicate the nature of pornographic messages

4th Amendment

Prohibits unreasonable searches and seizures by the government

reasonable expectation of privacy

The test to analyze whether privacy should be protected

now the FISA provides that

To spy on people located in the United States who are communicating abroad, the government does not need a warrant but it must obtain permission from a secret Foreign Intelligence Surveillance Court (FISC). To obtain this permission, the government need only demonstrate that the surveillance

tracking tools

a computer program that tracks information about internet users

The Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM)

a federal statute that regulates spam, but does not prohibit it. applies to virtually all promotional emails

the worldwide web

a subnetwork of the internet, it is decentralized collection of documents containing text, pictures, and sound.

intrusion

a tort if a reasonable person would find it offensive

behavioral marketing/targeting

a widespread practice that involves inferring needs and references from a consumer's online behavior and then targeting related advertisements to them

user-generated content (UGC)

any content created and made publicly available by end users

The FTC

applies this statute to online or private policies

Internet Service Provider (ISP)

are companies like Verizon and Comcast that connect customers to the internet

The Federal Trade Commission Act

authorizes the Federal Trade Commission (FTC) to protect consumers and prevent unfair competition.

Under FTC rules

bloggers face fines as high as $1,000 if they do not disclose all compensation they receive (either in cash or free products) for writing product reviews

congress passed the communications decency act of 1996 (CDA)

created a broad immunity for ISPs and websites

Under the CDA

end users and anyone who simply provides a neutral forum for information (such as ISPs and website operators) are not liable for content that is provided by someone else, only content providers are liable

EU Privacy Directive

establishes data protection for europeans in all their commercial transactions worldwide. especially online

Telecommunications Act of 1996

grants the FCC the right to regulate broadband infrastructure

federal privacy statutes

instead of having a single comprehensive data privacy law, the United States has a collection of federal privacy laws that apply to particular types of personal data.Different federal laws apply to your consumer credit information, your medical data, and even the movies you rent.

internet

interconnected network which began in the 1960's as a project to link military contractors and universities

Spam

is officially known as unsolicited commercial email (UCE) or unsolicited bulk email (UBE)

Children's Online Privacy Protection Act of 1998

prohibits internet operators from collecting information from children under 13 without parental permission. also requires sites to disclose how they will use any information they acquire. enforcement is in the hands of the FTC

FTC Act

prohibits unfair methods of deceptive acts or practices

1st Amendment

protects free speech, and any postings on media if it does not violate any other law

4th Amendment

protects the privacy rights of criminal defendants

the FIPS are

recommendations, not law. the basis for online privacy policies that have guided the creation of the statutes

violators to the ECPA are

subject to both criminal and civil penalties. Although, an action does not violate the ECPA if it is unintentional or if either party consents

To avoid liability

the ISP or website must not write, edit, encourage, or influence the content

The FCC has adopted a policy of Net Neutrality

the principle that all information flows on the internet must receive equal treatment

when are computer service providers liable under the CDA

they are only liable for content they create, develop, or transform. they are no liable for content they publish from third parties -- even if the publishing process includes some screening

the CDA does not protect

web hosts, ISPs that engage in crimes or infringe intellectual property