Chapter 9

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.

The two requirements for establishing a "reasonable expectation of privacy" are:

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

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.

Intrusion

A civil cause of action that applies when a person intrudes on another's affairs or space in an offensive way

Public disclosure of private facts

A civil cause of action that may apply when an individual discloses another's private information without consent

Tracking tools

A computer program that tracks information about Internet users

User-generated content

Any content created and made publicly available by end users

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. An employer has the right to monitor workers' electronic communications if (1) the employee consents, (2) the monitoring occurs in the ordinary course of business, or (3) in the case of email, if the employer provides the computer system.

Public

Anything you publish to the internet

Internet service providers (ISPs)

Companies like Verizon and Comcast that connect users to the Internet

Integrity/Security

Information collectors must take reasonable precautions to ensure that the data they collect are accurate and secure

Internet

Interconnected network, began in the 1960s

Notice/Awareness

Notice should be given before any personal information is collected;

The core principles of the FIPS are

Notice/Awareness, Choice/Consent, Access/Participation, and Integrity/Security

Choice/Consent

People should be able to control the use and destination of their information;

Access/Participation

People should have the ability to view, correct, or amend any personally identifiable record about them

The disclosure is highly offensive to a reasonable person.

Privacy is somewhat subjective. One person's secret is another's reality show. For this reason, defendants must prove that most reasonable people would be offended if the secret was revealed.

Communications Decency Act of 1996 (CDA)

Provides ISPs and websites immunity from liability when information was provided by an end user.

The facts were not of legitimate concern to the public.

The First Amendment protects free speech and, therefore, sometimes undermines privacy rights. To protect their privacy, plaintiffs must prove that the revealed secret was not of public concern, that is, that the public was not entitled to know about it.

The defendant made public disclosure

The defendant must have divulged the secret information to a number of people, not just one other person.

The disclosed facts had been private

The person seeking privacy must prove that she had a reasonable expectation of privacy in the information. But courts have held that people cannot have a reasonable expectation of privacy in information that is generally visible or available.

Behavioral marketing/behavioral targeting

The practice of aiming certain advertisements at consumers based on their online behavior

Foreign Intelligence Surveillance Act FISA

a federal statute governing domestic spying

Electronic Communications Privacy Act of 1986 (ECPA)

a federal statute that prohibits unauthorized interception of, access to, or disclosure of wire and electronic communications.

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

a federal statute that regulates spam, but does not prohibit it.

Courts have generally held that

employees do not have a reasonable expectation of privacy in the workplace, especially if using hardware provided by the employer, or if the employee handbook says they may be monitored.

The Children's Online Privacy Protection Act of 1998 (COPPA)

prohibits Internet operators from collecting information from children under 13 without parental permission. It also requires sites to disclose how they will use any information they acquire. A federal statute protecting the privacy of children online

Section 5 of the FTC Act

prohibits unfair and deceptive acts or practices

The Fourth Amendment to the Constitution

prohibits unreasonable searches and seizures by the government.

The First Amendment to the Constitution

protects free speech, and that includes these postings—and worse—that have appeared on Internet message boards and blogs

The First Amendment to the Constitution

protects speech on the Internet so long as the speech does not violate some other law.

Net Neutrality

the principle that all information flows on the Internet must be treated equally.

Spam

unsolicited commercial email (UCE) or unsolicited bulk email (UBE