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Privacy in the Courts

Privacy in 2012


Privacy in the Courts

Referencing an iPhone Application case, U.S. Magistrate Judge Paul S. Grewal dismissed charges against Google alleging everything from breach of Federal privacy law, to having a special crew of thugs who went around kicking the cats of all Android owners. Well, maybe it wasn't that bad, but even to an untrained eye, when you read the complaint that was presented to court it looks kind of like a legal windmill attack, like the plaintiff was looking for a legal opinion to show where privacy law was weak.

Dismissed at the very end of the year (28 Dec 2012) I have to admit, it sure looks like the judge had a good handle on what was going on here. Although he dismissed the case, he clarified why the suit was dismissed, and gave time for the suit to be amended. Things were missing. Like any evidence that anyone had been harmed by Google's information practices. It seemed very much like there was a lot of hollering and shouting, but no real problem.

At least not yet.

Functionally speaking, the case wasn't even about information being disclosed improperly, common sense tells us that a company can use information with itself. That is how they provide service. They explain that when you sign up. Google could have been spared a lot of grief by simply having a single privacy policy that encompassed all of their products from the beginning. The updated privacy policy that was brought into question sought to do precisely that - to unify the privacy policies of all Google products. That just makes good business sense, folks. However the lawsuit suggested that a user may expect a different level of privacy and their e-mail, than they might expect from their search engine, or their YouTube account. Well, that makes sense, too. But that really sounds more like something that would be in a user's settings.

What information are we talking about, anyway? The lawsuit alleges first and last name, home or physical address, current physical location, e-mail address, IP address, phone number, list of contacts, search history, web surfing history… well, all right, our complete consumer digital identity. Who were they wanting to share this information with, again? Themselves?

Users had given the information voluntarily, and in the case of Android phones, someone would be hard pressed to show they were forced to buy a cell phone at gunpoint. It's hard to imagine that a judge even had to take this lawsuit seriously. But that is, of course, his job.

Grewal pointed out that the complaint mentioned individuals being forced to purchase new phones, and that those people may even constitute a class that could sue, but since nobody filing the suit said they had to buy a new phone, it did not really apply to them. (This is probably what he was thinking of when he was talking about the complaint being amended.)

On the down side, Grewal cited a legal opinion of Judge Koh, who presided over the iPhone hearings. The fact that one judge looks at what another judge has said on a given topic is pretty common, again that's part of their job.

"…as Judge Koh explained nothing in the precedent of the Ninth Circuit other appellate courts confers standing on a party that has brought statutory or common law claims based on nothing more and the unauthorized disclosure of personal information…"

But the idea seems to fly in the face of FACTA, HIPAA, and every other privacy law that has a consequence attach to it for disclosing personal information. The message is fairly straightforward: even if a company loses your information, you can't really do anything about it unless something goes wrong and it gets used in some way that "harms" you.

And with that, the Court washed its hands of the matter, pending amendments to the suit.

The Forbes article that brought this to my attention considered this encouraging news. Since the magazine is geared toward business owners, their readers probably do see this as something to be optimistic about.

But from a privacy perspective things don't seem quite so rosy.

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