Tuesday, January 31, 2006

Alito Confirmed

Judge Alito has been confirmed by the Senate to sit on the U.S. Supreme Court.

The final vote was 58-42.

Samuel Alito, 55, will be sworn in as the 110th Justice later today.

Monday, January 30, 2006

ChoicePoint to Pay $15 million for Security Breach

ChoicePoint, whose big security breach in 2004, and announced in early 2005, got the ball rolling on the state security breach notification laws, has agreed with the FTC to a record fine and to pay compensation.

Choicepoint will pay a $10 million fine, which the FTC says is the largest civil penalty it has ever imposed, and pay $5 million
$5 million into a fund to compensate people who may have experienced damages because of the exposure of their personal information.

The penalty is technically for violating the company's privacy policy.

"It sends a big signal. All major companies that handle personal information will see that the bar is being raised," said Peter Swire, a law professor at Ohio State University, and America's first privacy czar in the Clinton White House.

"The message to ChoicePoint and others should be clear: consumers' private
data must be protected from thieves," said FTC Chair Deborah Platt Majoras.

Wednesday, January 25, 2006

Senator Leahy Seeks Info on Google Subpoena

Senator Pat Leahy, the highest ranking Democrat on the Senate Judiciary Committee, has sent a letter to Attorney General Alberto Gonzales, seeking more information about the DOJ's subpoena of Google's search request records.

His letter asked about the types of information being sought, how the department intends to use the information while protecting individual privacy rights and civil liberties and whether it will issue any additional subpoenas.

Leahy said the Justice Department demand raised "the specter of excessive government surveillance that may intrude upon important privacy interests and chill the exercise of" free speech.

He also asked how the department is addressing the privacy and civil liberties concerns and whether the DOJ has asked for or received anyone's personally identifiable information.

Tuesday, January 24, 2006

Google Fights Subpoena

The Department of Justice has asked Google to turn over their records on every search request made in a one week period. Although other services, including AOL and Yahoo, apparently complied with the request, Google is fighting it.

The Attorney-General filed a motion in San Jose on Thursday to enforce a subpoena ordering Google hand over

Google is not a target or a party to any lawsuit or criminal case. The government does not need the information to prosecute a criminal or civil case.

The DOJ says the need the records to defend the Children's Online Protection Act (COPA). COPA is a law enacted in 1998 which would require commercial Web sites with adult content to require visitors to prove that they are over 18 before they can access material that could be deemed "harmful to minors." The issue is not, therefore, child pornography, but minor's access to "harmful materials."

The law was overturned and the case went to the Supreme Court, where it was sent back for a rehearing.

It is unclear at this point how, if at all, the Google records will help the government prove the constitutionality of the COPA law.

There are a few ways Google's records on who is searching for what on the Internet could be tied back directly to a specific person. If you are signed in and a registered user, then Google will track your searches (by way of a cookie). Google can also place a cookie on your hard drive even if you are not a registed user. In addition, as many web users know, visitors can often be tracked by way of their IP address.

Thursday, January 19, 2006

Congress to Consider Law Protecting Phone Records

U.S. Senator, Charles Schumer, U.S. Sentor Arlen Specter and U.S. Senator Bill Nelson have introduced a bill which would
make it a federal crime get someone else's phone records under false pretenses.

Lately this issue has been in the news (see yesterday's post).

Although fraud is already illegal, third-party access to these records does seem to fall into a legal gray area.

Wednesday, January 18, 2006

Cingular Wins on Privacy of Phone Records

On Friday Cingular won a temporary restraining order in federal district court in Atlanta stopping two companies from selling its customers' cell phone records. Cingular filed suit alleging that the companies got their customer's records through fraud.

This has become a suddenly potent business, legal, and political issue. Recently a web site, trying to show how easy it is to buy anyone's cell phone records, bought and posted (redacted) the cell phone records of former Presidential candidate Gen. Wesley Clark.

Last week Illinois Governor Rod Blagojevich proposed legislation that would prohibit the sale of phone records. Other states, and perhaps Congress, will likely follow in 2006.

Tuesday, January 17, 2006

iTunes Controversy

Apple is addressing concerns about a new in the newest version of iTunes, which can track data about downloads so customers can receive other marketing information from Apple.

Consumers are now concerned that they downloaded the software without realizing what it does.

Apple has issues a statement saying: "Apple does not save or store any information used to create recommendations for the MiniStore."

Spyware became a major issue in 2005, with nine states passing laws regulating it.

In addition, Sony has been dealing with its problems involving software which downloaded onto user's computers directly from their music CDs. The software, for copy protection, has been taken off Sony CDs.

Wednesday, January 11, 2006

Alito and the Right to Privacy, Part 6

Here we are less concerned with specific policies (i.e., abortion) and more generally concerned with Judge Alito's views on whether, and the extent to which, a "right to privacy" can be found in the U.S. Constitution.

Highlights from Day 2 of the Alito Confirmation hearings.

SPECTER: Starting with the woman's right to choose, Judge Alito, do you accept the legal principles articulated in Griswold v. Connecticut that the liberty clause in the Constitution carries with it the right to privacy?

ALITO: Senator, I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there's an invasion of a right to privacy, a legitimate expectation of privacy.

SPECTER: Well, Griswold dealt with the right to privacy on contraception for married women. You agree with that.

ALITO: I agree that Griswold is now, I think, understood by the Supreme Court as based on liberty clauses of the due process clause of the Fifth Amendment and 14th Amendment.

SPECTER: Would you agree, also with Eisenstat, which carried forward Griswold to single people?

ALITO: I do agree also with the result in Eisenstat.

SPECTER: Let me move now directly into Casey v. Planned Parenthood, and picking up the gravamem of Casey as it has applied Roe on the woman's right to choose, originating from the privacy clause, with Griswold being its antecedent. And I want to take you through some of the specific language of Casey to see what your views are and what weight you would ascribe to this rationale as you would view the woman's right to choose.

In Casey, the joint opinion said, quote, "People have ordered their thinking and lives around Roe. To eliminate the issue of reliance would be detrimental. For two decades of economic and social development, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail." Pretty earthy language, but that's the Supreme Court's language. And the court went on to say, quote, T"he ability of women to participate equally in the economic and social life of the nation has become facilitated by their ability to control their reproductive lives." Now, that states, in specific terms, the principle of reliance, which is one of the mainstays, if not the mainstay, of stare decisis precedent to follow tradition.

SPECTER: How would you weigh that consideration on the woman's right to choose?

ALITO: Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system. And it's the principle that courts in general should follow their past precedents. And it's important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interests. And it's important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions. It's not an exorable command, but it is a general presumption that courts are going to follow prior precedents.


SPECTER: Judge Alito, let me move to the dissenting opinion by Justice Harlan in Poe v. Ullman where he discusses the constitutional concept of liberty and says, quote, The traditions from which liberty developed, that tradition is a living thing.

SPECTER: Would you agree with Justice Harlan that the Constitution embodies the concept of a living thing?

ALITO: I think the Constitution is a living thing in the sense that matters, and that is that it is -- it sets up a framework of government and a protection of fundamental rights that we have lived under very successfully for 200 years. And the genius of it is that it is not terribly specific on certain things. It sets out -- some things are very specific, but it sets out some general principles and then leaves it for each generation to apply those to the particular factual situations that come up.

SPECTER: Would you agree with Cardozo in Palco that it represents the values of a changing society?

ALITO: The liberty component of the Fifth Amendment and the 14th Amendment, which I was talking about earlier, embody the deeply-rooted traditions of a country. And it's up to each -- those traditions and those rights apply to new factual situations that come up. As times change, new factual situations come up, and the principles have to be applied to those situations. The principles don't change. The Constitution itself doesn't change. But the factual situations change. And, as new situations come up, the principles and the rights have to be applied to them.