Court Orders Invasion of Privacy!

Source: "YouTube Ordered To Release User Data: Viacom Had Sought Access to Database In Copyright Battle," by Ellen Nakashima, The Washington Post, July 4, 2008.

A U.S. federal judge in New York this week ordered YouTube to release data on the viewing habits of its tens of millions of worldwide viewers to Viacom, the media company that owns large cable networks such as MTV, VH1 and Nickelodeon.

On Tuesday, U.S. District Judge Louis L. Stanton granted Viacom's request that YouTube release its 12-terabyte "logging" database -- a database that is larger than the Library of Congress's collection of about 10 million books, to Viacom. Every minute, 13 hours of video are uploaded to YouTube servers. The site logs hundreds of millions of views a week.

The database contains the unique login ID of the viewer, the time he began watching, the Internet Protocol, or IP, address of the user's computer and the identification of the video. That database is the only existing record of how often each video has been viewed during various time periods, the opinion said. Its data can recreate the number of views of a video for any particular day.

In ordering the data release, Stanton said that YouTube's privacy concerns were "speculative," that Google cited "no authority barring them from disclosing such information in civil discovery proceedings" and that Google itself has noted that an IP address without additional information cannot in most cases identify a person.

The ruling would seem to disregard the 1988 Video Privacy Protection Act's protection against people's video-viewing habits from being disclosed. "The law says that records may not be turned over unless the consumer is given the opportunity to object."

The article also states:

Jennifer Urban, a law professor at the University of Southern California, said that even if Viacom does not use the information to sue users, "a future litigant may not keep the information private."

What videos people view, what books they read, have long been considered sensitive information, she said, "intensely personal pieces of information we expect people to be able to keep private."

Comment: We need to protect our privacy both by law, and by those who would disregard the laws that are passed. Even if, as seems likely, the firms involved will try to protect the data and the ruling was made in ignorance of the applicable law, there is a possibility of misuse of the data not to mention a precedent that is set. JAD

Thinking about privacy

I have been reading The Unwanted Gaze: The Destruction of Privacy in America by Jeffrey Rosen, and I got to thinking about privacy. The right to privacy, if you think about it, is really a right to restrict the amount of information others obtain and thus the knowledge that they gain.

As I mentioned in a previous posting, Rosen makes the point that protection of one's privacy is especially important in preventing others from deriving false impressions from biased and partial knowledge of one, which seems a valid point. As this blog has pointed out, not all that we regard as knowledge is true, and that thus it is important to retain a willingness to reexamine our knowledge and to replace knowledge with better knowledge when that becomes available.

Returning to privacy, sometimes it is personal, and sometimes communal. Thus we feel that spousal communication is privileged, and a spouse can not be forced to testify about information obtained within a marriage. We also recognize the confidentiality of lawyer-client, and priest-penitent communication. I would also feel that religious rituals can legitimately be private, such as those of some of the native American nations which believe they would be polluted by the observation of non-initiates.

It seems to me that the rights to privacy are culturally defined, not only in the sense that they vary from culture to culture, but in that they are often communicated tacitly and are unexamined. They are deeply held attitudes that are not derived from rational analysis, but rather from custom and example. As such they are especially difficult to accept when exposed to another culture, or even to understand.

Indigenous peoples living in tropical climates, who wear few clothes, probably have as much difficulty understanding American perceptions of minimal acceptable clothing as Americans have in understanding the more stringent restrictions on women's clothing in conservative Jewish or Muslim cultures. Alternatively, we find it quite strange when people flaunt what we believe to be minimal standards of decency (in the protection of their own privacy or in the invasion of the privacy of others).

It is important that we understand the nature of privacy taboos because:

• technological advances pose threats to traditional standards for the rights of privacy;
• globalization results in people from different cultures, with different perceived rights to privacy, coming into more and closer contact, and thus changing each others cultural norms and standards;
• changing circumstances result in differing costs and benefits from privacy norms, and may drive changes in privacy.

I remember some years ago having a discussion about the cameras that are increasingly being used to monitor the speed of vehicles and which are combined with computer processes to issue tickets to the owners of cars that are found to be speeding. Some people feel that the systems invade their privacy, while I feel that there is no inherent right to break speed limits, and in fact cars are required to have license plates so that their owners can be readily identified if the car is involved in an illegal act.

Increasingly cameras and other sensing devices are embedded in our surroundings, and thus information is gathered about us in ways that were not possible in the past. Perhaps the issue is not so much to limit the gathering of the information, but to limit the ways in which that information can be used to inform the knowledge of different actors for different purposes. Thus I see no problem with surveillance cameras being used to deter theft, but some problems with them being used to inform marketers of consumer behavior where that knowledge would be used to encourage impulse buying, and significant problems where they would be used to provide the basis for blackmail.

I suppose that in a society in which norms are increasingly explicit, defined in laws and regulations, we will elaborate an increasingly complex set of rules for the protection of the rights of privacy, such as the requirement of warrants for governmental surveillance. The rule making will balance human rights with the public good, and indeed we are facing some of those controversies now. To what degree and in what circumstances can coercion be used to obtain information that might prevent terrorist acts? How and how much do we limit data mining of electronic data to balance the protection of privacy and the public safety?

Our foreign policy with respect to surveillance should be made with the understanding that our domestic attitudes toward privacy may be quite different than those of people in another culture -- people who we are now able to observe in ways that they do not expect nor understand, and may not approve. Equally, American entertainment programming, which is increasingly available worldwide, may thrust information on other people that they find objectionable.

Someone once said that they have more faith in courtesy than morality. If we can not depend on the respect for the rights of privacy as a moral imperative, let us be sure that all understand how profoundly discourteous it is to invade someone else's privacy observing that which they feel it improper to observe, or displaying that which they feel it improper for them to observe.

An Argument for the Right of Privacy

In The Unwanted Gaze: The Destruction of Privacy in America, Jeffrey Rosen argues that disclosing one salacious fact about a person may result in that person getting an inaccurate, and thus unfair reputation. He further argues that disclosing full information about a person, say all the websites that they have visited, results in people overloading with input and thus selecting (perhaps at random) a very limited set of that information on which to form an opinion of the subject of the disclosure, and again an unfair opinion. He then says that the protection of privacy is the best and perhaps the only protection that individuals have against such unfair judgments by others.

Unfairly extrapolating from his comments, humans have evolved to form interpersonal bonds relatively slowly, in part through the exchange of confidences. Culturally, we have modes of communication within the family or within groups of friends which are quite different than in a public setting. Putting communications from the circle of friends and/or family into the public setting can also result in very unfair judgments of the person so revealed, and thus should be protected by privacy.

So, in terms of the theme of this blog -- Knowledge for Development -- where does one draw the line between information in the public domain to inform our knowledge and information that should be protected by privacy? In a time in which surveillance cameras are found in our cities in the tens of thousands, in which electronic communication can be monitored and data mining computers can extract the most damning information from the most fleeting comment, in which remote sensing can track a person's every movement without his recognizing that fact, in which the U.S. Government officials can feel empowered to extract information by torture or to authorize surveillance without due process of law, the issue of rights to privacy versus rights to information has become urgent and complex.

Map of Privacy Quality Protection

Source: Privacy International

The Legal Tangles Of Data Collection

Read the full article by Ellen Nakashima in The Washington Post, January 16, 2007.

U.S. law requires that law enforcement officials obtain a warrant to tap someone's phone or intercept e-mail. But after Sept. 11, 2001, "Bush secretly issued an executive order authorizing warrantless electronic intercepts for national security purposes -- even on U.S. citizens, as long as one party is suspected to be outside the country."

"E-mail is a slightly different matter. The law makes a distinction between intercepting e-mail in transit and obtaining stored e-mail from a service provider's servers.......These days, most e-mail is held and stored by third parties. So the government claims the authority to read someone's most intimate communications, including stored chat sessions, by serving a subpoena -- no probable cause required. A person may never even know that this has been done, as there is no legal requirement for an Internet service provider to provide notice......

"The same holds true for virtually any information held by a third party: phone company records that indicate who called you, when they called and how long the call lasted; Internet service provider records on what Web sites you visited, when and for how long; tollbooth records; security camera footage; records of emergency calls made from a car; supermarket purchase records. All that and more can be requested by the government with a search warrant, or sometimes with an administrative subpoena or other demand, frequently without judicial review."