privacy law

"The collection of phone records by the National Security Agency has no basis in the law, a member of an independent federal advisory board said Wednesday," The Hill reported on a Congressional hearing yesterday in which members of the Privacy and Civil Liberties Oversight Board testified. The Hill further reported: "'With all respect to both executive branch officials and judicial officials, nobody looked at the statute as carefully was we did,' James Dempsey, the vice president for public policy at the Center for Democracy & Technology, told members of the Senate Judiciary Committee."
 

The United Nations adopted a resolution, sponsored by Brazil and Germany in the wake of the revelation that the United States was eavesdropping on leaders in those countries, supporting the protection of Internet privacy, the BBC reports. The non-binding resolution affirms that '"the same rights that people have offline must also be protected online,'" the BBC further reports.

The hope of such non-binding international measures is that they will influence international norms.

Science 2.0 has a blog about a study done at the University of Utah on attitudes toward sharing personal health information. The researchers found that when study subjects were educated about "the intricacies involved in collecting and using this information in population-based research—particularly the safeguards and confidentiality measures in place to maintain anonymity—that they support it," Science 2.0 reports. This finding comes despite the lack of privacy some feel because of "the Obama administration ... using surveillance cameras, tracking website visits and monitoring citizens using GPS," the blog says.

Gigaom reports on a petition filed by several major media companies, including The New York Times, Politico and Bloomberg, against the Foreign Intelligence Surveillance Court decision that the Media Freedom and Information Access Clinic at Yale Law School does not have standing to seek access to the court's decisions authorizing the National Security Agency to collect millions of phone and e-mail records. Among other arguments, Gigaom reports "the media companies also point out that they have fewer resources to defend free speech and civil liberties issues in court, and must rely on newer groups like the Yale law clinic to help lift a legal torch they carried for most of the 20th century: 'while [the media companies] feel that news of their ‘death’ has been greatly exaggerated, shrinking budgets at large media companies have inevitably meant a drop-off in First Amendment litigation from those outlets.'"

A United Nations committee has advanced a resolution sponsored by Brazil and Germany to make the right to privacy against unlawful surveillance applicable to anyone in the world, The Washington Post reported. The two countries sponsored the measure after revelations of monitoring  by the United States of Brazilian President Dilma Rousseff and German Chancellor Angela Merkel.

The resolution is expected to pass the United Nations General Assembly too, The Post further reported. While the resolution is not binding law, General Assembly resolutions " reflect world opinion and carry political weight," The Post also reported.

The largely symbolic resolution was watered down though. The Post reported: "The key compromise dropped the contention that the domestic and international interception and collection of communications and personal data, 'in particular massive surveillance,' may constitute a human rights violation."

Both Brazil and German, which have been the subjct of American surveillance, are seeking to "apply the right to privacy, which is enshrined in the International Covenant on Civil and Political Rights (ICCPR), to online communications," Foreign Policy reports. The United States, however, is pushing back, "to kill a provision of the Brazilian and German draft which states that 'extraterritorial surveillance' and mass interception of communications, personal information, and metadata may constitute a violation of human rights," Foreign Policy further reports.

Separately, Reuters reports that a "draft U.N. resolution that some diplomats said suggested spying in foreign countries could be a human rights violation has been weakened to appease the United States, Britain and others ahead of a vote by a U.N. committee next week." The initial draft would have had the General Assembly declare it is "'deeply concerned at human rights violations and abuses that may result from the conduct of any surveillance of communications, including extraterritorial surveillance of communications,"' but the draft now proposes the General Assembly declare it is '"deeply concerned at the negative impact that surveillance and/or interception of communications, including extraterritorial surveillance and/or interception of communications, as well as the collection of personal data, in particular when carried out on a mass scale, may have on the exercise and enjoyment of human rights,'" according to Reuters.

Drug and Device Blog reports on a California Court of Appeal decision in which an intermediate appellate panel held that the California Confidentiality of Medical Information Act does not allow for plaintiffs to sue over the negligent maintenance of their confidential medical information unless their information was accessed wrongfully or without authorization.

In the underlying case, a doctor took home a hard drive containing the personal health information for 16,000 patients. The hard drive, as well as the encryption passcodes, were stolen, but no one knows if the thief viewed or tried to view the patients' personal health information.

Drug and Device Blog said the case has "broad appeal because the fact pattern is so typical of 'data security breach' lawsuits: Private information resides on a stolen hard drive or is sent off into the ether with nary an indication that anyone received, reviewed, used, or otherwise paid any attention to the information. At another level, such lawsuits (which are usually class actions) almost never articulate any credible basis that the plaintiffs suffered any actual harm."

The Recorder reports on a couple problems that arise out of large privacy class actions:

One, the classes are so large that, even though claimaints in class actions typically only are entitled to a small amount per person, they are too large to settle because they require settlement funds worth billions of dollars.

Two, the people whose privacy was invaded aren't known to the class-action lawyers and to the court and it requires further invasion of their privacy to identify them to give them notice of the class action.

Three, giving unclaimed, or cy pres, funds to legal charities is increasingly coming under attack.

 Attorney Terrence P. Dwyer writes that there is still a question left open by the U.S. Supreme Court "relating to the extent of government use of GPS technology without a warrant, specifically about requirements when there is no physical trespass upon personal property." He writes that some courts are more protective of cell site locator information while others are not (CSLI "can be sought in one of two ways — either as historical cell site data that seeks past locator information, or as prospective cell site data which seeks real time, present data"). He also writes that it is likely the courts, not legislatures will decide the parameters of our privacy regarding cell phones locational data as there has been very few bills introduced to govern this subject area.