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Privacy and the data toothpaste problem

Evan Schuman | July 29, 2015
Two court rulings basically maintain that we can’t expect privacy on the phone or on social media. George Orwell would be proud of the judges.

Credit: Scott Ehardt, public domain, via Wikimedia Commons

Two prominent appellate courts have ruled in two unrelated privacy cases and dealt dual blows to privacy. A New York state appeals court said that Facebook had no right to resist coughing up extensive details about what its users are saying, while a federal appeals court said that anyone who unintentionally telephones someone -- a pocket-dial, sometimes known a bit more impolitely -- can't expect the listener to not listen and use the information.

The upshot of both cases points to a clear judicial privacy trend: If the data can be intercepted, it will be. Put another way: Anything you say on Twitter or Facebook will be used against you in a court of law.

The Facebook decision is troubling in its specifics, but it's hardly surprising. Courts are seeing social media as conversations in a public square, and they therefore can't understand why such conversations should be protected. Hence, if you talk about robbing a bank in the town square and someone overhears you and calls the police, who set up a stakeout and catch you, you have little cause to legally challenge the arrest.

The problem with the Facebook decision is the toothpaste-back-into-the-tube problem. Once confidential data gets into the hands of law enforcement or government officials, there's no easy way to permanently remove it. The court's narrow view is that wrongly obtained information can always be challenged later, but that's missing the point. To the court, someone who is not indicted -- or indicted and not convicted -- suffers no harm. But the data disclosure itself could be damaging.

The court, for example, pointed to a suppression motion as offering a complete fix to this issue. "The motion to suppress is vital because it can lead to the suppression of unconstitutionally seized evidence. Once evidence is suppressed, the government's case could become impossible or significantly more difficult to prove." That's fine, but the absence of a court conviction doesn't even come close to righting this wrong. Ask anyone whose name was dragged through the media for years before being acquitted. Is that person's life returned to its original state?

The Facebook case involved a probe into retired police officers and firefighters "suspected of having feigned mental illnesses caused by the events of September 11, 2001." Investigators wanted to see if the suspects had incriminated themselves in Facebook posts.

Facebook resisted the demands to turn over information as well as the instruction that they not tell its users that it was turning over this data. The court ruled that "Facebook had to wait until the warrants were executed and the searches conducted. Only then could the legality of the searches be determined."


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