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