Privacy and the data toothpaste problem

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."

Here's the court in a section of its decision intended to offer comfort to privacy advocates: "Our holding today does not mean that we do not appreciate Facebook's concerns about the scope of the bulk warrants issue here or about the District Attorney's alleged right to indefinitely retain the seized accounts of the uncharged Facebook users."

The decision continued: "Facebook users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one's home. These bulk warrants demanded all' communications in 24 broad categories from the 381 targeted accounts. Yet, of the 381 targeted Facebook user accounts only 62 were actually charged with any crime." As if to underscore that point, the decision added in a footnote: "A total of 134 people were indicted in this investigation. Sixty-two of those individuals were from the 381 targeted Facebook users. Thus, 319 targeted Facebook users were not indicted." 

So the appellate panel justified its decision -- in effect arguing that the system works -- by noting that 134 people were probed and not subsequently charged. To my mind, though, that's better evidence that the system is not working. Now add that bit about indefinite data retention, and George Orwell would be quite proud indeed. 

On a more rational note, that federal appellate panel found that an accidentally dialed phone call -- and anything that is heard as a result -- is fair game. To me, the difference relates to actions, passive or active. In this case, a woman received a phone call from an executive and repeatedly said "Hello" and tried to get the executive's attention.

The executive admitted that he had made other accidental calls and never bothered to use a phone password or any other means to prevent more accidental calls. The court had no sympathy.

"Exposure need not be deliberate and instead can be the inadvertent product of neglect," the panel ruled. "Under the plain-view doctrine, if a homeowner neglects to cover a window with drapes, he would lose his reasonable expectation of privacy with respect to a viewer looking into the window from outside of his property."

Hence, whether it's an accidental pocket-dial or a deliberate social media post, courts are concluding: You say it, we can use it. Consider yourself warned.

Evan Schuman has covered IT issues for a lot longer than he'll ever admit. The founding editor of retail technology site StorefrontBacktalk, he's been a columnist for, RetailWeek and eWeek. Evan can be reached at and he can be followed at Look for his column every other Tuesday.


Evan Schuman

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