Category Archives: Privacy

Is there a constitutional right of privacy in a family member’s autopsy photos?

Marsh v. County of San Diego, — F.3d —, 2012 WL 1922193 (9th Cir. May 29, 2012)

Yes, there is now. At least in the Ninth Circuit. Since the defendant was found to be not liable for violation of that right because of qualified immunity, an appeal is unlikely and the ruling will probably stand.

autopsy table

Background

When defendant Coulter retired from the district attorney’s office, he kept a photocopy of an autopsy photo (of a 2-year old boy with head injuries) from one of the cases he tried in 1983. What’s even more bizarre is that defendant turned over the photo and a memo to a newspaper and television station.

When the mother of the deceased little boy who appeared in the photo heard about this, she sued the district attorney and the county for violation of her due process rights under the Fourteenth Amendment of the United States Constitution.

The trial court threw out the case on summary judgment. Plaintiff sought review with the Ninth Circuit. Though the court found defendant was not liable for a constitutional violation because of qualified immunity, it held that plaintiff had a constitutionally protected right to privacy over her child’s death images.

Due Process

The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution has been held to protect “a right of personal privacy, or a guarantee of certain areas or zones of privacy.” Carey v. Population Servs. Int’l, 431 U.S. 678, 684 (1977) (quoting Roe v. Wade, 410 U.S. 113, 152 (1973)). This privacy right is of two types: (1) the individual interest in avoiding disclosure of personal matters, and (2) the interest in independence in making certain kinds of important decisions concerning, for example, family relationships and child rearing.

In this case, the court observed that other courts, including the Supreme Court, had recognized a common law (but not constitutional) protection against the disclosure of a deceased family member’s death scene photos. But this case was the first time a court held that protection against public disclosure of such photos was a constitutionally protected right under substantive due process.

The court noted that “the well-established cultural tradition acknowledging a family’s control over the body and death images of the deceased has long been recognized at common law.” Because such sensibility is so deeply-rooted in our culture, the test for both types of substantive due process were met in this case. Protecting the interest would serve to avoid the disclosure of the graphic details of a family member’s tragic death (which reveals much about the manner of death and extent of suffering). In the context of a child’s autopsy photos, the right of a parent to determine the “care, custody and control” of the child is protected by a federal privacy right against public disclosure.

State Law – Procedural Due Process

The court held that plaintiff’s procedural due process rights were violated by the disclosure of the autopsy photo. California has a statute — Cal.Civ.Proc.Code § 129 — that codifies the state’s public policy against the reproduction of post-mortem photos for improper purposes. This served to create a liberty interest in plaintiff that could not be taken away without due process. The court found that plaintiff had sufficiently alleged a claim of violation of the statute and, therefore, a deprivation of a state-created liberty interest.

Photo credit: atluxity under this license.

Social media legal best practices: some problems and solutions with uploading photos and tagging people

Facebook, Flickr, 500px and mobile sharing applications such as Instagram have replaced the hard copy photo album as the preferred method for letting others see pictures you have taken. Now photos are easy to take and easy to share. This easiness makes a number of legal questions potentially more relevant.

Embarrassing photos

Let’s be honest — every one of us has been in photos that we do not want others to see. It may be just bad lighting, an awkward angle, or something more sinister such as nudity or drug use, but having a photo like that made public would cause embarrassment or some other type of harm. Sometimes the law affords ways to get embarrassing photos taken down. To the same extent the law can help, the one posting the embarrassing photo puts himself at risk for legal liability.

Invasion of privacy. If someone takes a picture of another in a public place, or with a bunch of other people, the subject of the photo probably does not have a right of privacy in whatever he or she is doing in the photo. So the law will not be helpful in getting that content off the internet. But there are plenty of situations where the subject of a photo may have a privacy interest that the law will recognize.

  • “Intrusion upon seclusion,” as its name suggests, is a legal claim that one can make when someone has intentionally intruded — physically or otherwise — upon their solitude or seclusion. Surreptitiously taken photos of a person in her own home, or in a place where she expected privacy (e.g., in a hotel room or dressing room) would likely give rise to an unlawful intrusion upon seclusion.
  • “Publication of private facts” is another form of invasion of privacy. A person commits this kind of invasion of privacy by publishing private, non-newsworthy facts about another person in a way that would be offensive to a reasonable person. Posting photos of one’s ex-girlfriend engaged in group sex would be considered publication of private facts. Posting family pics of one’s nephew when he was a kid would not.

Photoshop jobs

Some people enjoy using Photoshop or a similar advanced photo editing application to paste the head of one person onto the body of another. (Reddit has an entire category devoted to Photoshop requests.) This can have drastic, negative consequences on the person who — through this editing — appears to be in the photo doing something he or she did not and would not do. This conduct might give rise to legal claims of infliction of emotional distress and defamation.

Infliction of emotional distress. We expect our fellow members of society to be somewhat thick-skinned, and courts generally do not allow lawsuits over hurt feelings. But when it’s really bad, the law may step in to help. One may recover for infliction of emotional distress (sometimes called “outrage”) against another person who acts intentionally, and in a way that is extreme and outrageous, to cause emotional distress that is severe. Some states require there to be some associated physical harm. A bride who sued her photographer over the emotional distress she suffered when the photographer posted pictures of her in her underwear lost her case because she alleged no fear that she was exposed to physical harm.

Defamation. A person can sue another for defamation over any “published” false statement that harms the person’s reputation. Some forms of defamation are particularly bad (they are called defamation per se), and are proven when, for example, someone falsely states that a person has committed a crime, has engaged in sexually immoral behavior, or has a loathsome disease. A realistic Photoshop job could effectively communicate a false statement about someone that is harmful to his or her reputation.

Copied photos

Since copying and reposting images is so easy, a lot of people do it. On social media platforms, users often do not mind if a friend copies the photos from last night’s dinner party and reuploads them to another account. In situations like these, it’s simply “no harm, no foul.” Technically there is copyright infringement going on, but what friend is going to file a lawsuit against another friend over this socially-acceptable use? The more nefarious situations illustrate how copyright can be used to control the display and distribution of photos.

In most instances, the person who takes a photo owns the copyright in that photo. A lot of people believe that if you appear in a photo, you own the copyright. That’s not true unless the photo is a self portrait (e.g., camera held at arm’s length and turned back toward the person, or shot into the mirror), or unless the person in the photo has otherwise gotten ownership of the copyright through a written assignment (a much rarer situation).

A person who finds that his or her copyrighted photos have been copied and reposted without permission has a number of options available. In the United States, a quick remedy is available under the notice and takedown provisions of the Digital Millennium Copyright Act. The copyright owner sends a notice to the platform hosting the photos and demands the photos be taken down. The platform has an incentive to comply with that demand, because if it does, it cannot be held responsible for the infringement. Usually a DMCA takedown notice is sufficient to solve the problem. But occasionally one must escalate the dispute into copyright infringement litigation.

Some other things to keep in mind

With the protections afforded by free speech and the difficulties involved in winning an invasion of privacy or infliction of emotional distress lawsuit, one can get away with quite a bit when using photos in social media. One court has even observed that you do not need a person’s permission before tagging him or her in a photo.

A person offended by the use of a photo by him or of him may have recourse even in those situations where it is not so egregious as to give him a right to sue. Social media platforms have terms of service that prohibit users from harassing others, imitating others, or otherwise engaging in harmful conduct. The site will likely remove content once it is made aware of it. (I have sent many requests to Facebook’s legal department requesting content to be removed — and it has been removed.) The norms of social media communities play an important role in governing how users treat one another, and that principle extends to the notions of civility as played out through the use of photos online.

Evan Brown is a Chicago technology and intellectual property attorney. He advises businesses and individuals in a wide range of situations, including social media best practices. 

Photo credit: AForestFrolic

Are network neutrality and freedom from government surveillance incompatible?

The FBI would like to see Congress amend CALEA (the Communications Assistance for Law Enforcement Act). FBI director Mueller recently testified that his agency wants legislation that will assure internet service providers “have the capability and the capacity to respond” to court orders allowing the eavesdropping on a person’s internet communications.

CALEA currently requires that telecommunications companies expeditiously make their equipment, facilities, and services available to the government for wiretapping. Presumably, federal law enforcement would like to see this expanded to bind ISPs and other non-telecom entities.

We see a similar division of the world into telecom and non-telecom in the discussion of network neutrality. Many in favor of network neutrality laud the FCC’s efforts to bring ISPs into the agency’s scope of power to help ensure those providers of internet infrastructure do not discriminate on the basis of content source.

But do you see the potential problem here? If an individual is in favor of network neutrality and also wary of overzealous government wiretapping, he or she must be careful to not allow advocacy of federal power in one arena (enforcing network neutrality) to bleed over, even by analogy, to advocay of federal power in the other arena (surveillance). Participants in these discussions are advised to keep the ideological origins of the respective positions in mind.

Is transparency the best norm for user privacy?

Discussions about how companies handle privacy are metadiscussions, because data use policies provide information about information, namely, how platforms collect, use and share it. It’s easy to come up with platitudes when operating in such an abstract realm. People like the catchy norm of “transparency.” It suggests that our dignitary ills are cured when we know how companies such as Facebook use the information about us that they hoard.

But transparency as a norm suffers from a hobbling flaw when put into practice — it is antithetical to the proprietary interests companies hold dear and which the law protects. At a fundamental level, the exploitation of big datasets is how most online social platforms make money. Granular knowledge about the user equals more targetedness of the ad. Targeted-er ads can be sold at a premium. The fact that a platform can collect so much information about a user is one thing. The method for the information’s use is another. It’s the face of the latter aspect into which transparency flies.

No company that has invested substantially in developing effective methods for utilizing its collected data is going to have an authentic incentive to lift the hood on its data-utilizing methods. The protection of the law of trade secrets would evaporate in any instance where a company were to do that.

Any reluctance to transparency on the part of the platform betrays this misalignment of incetives between platform and user. Calling on transparency as the norm will only exacerbate the misalignment. What people are actually looking for when they call for transparency are reasons to trust. The metadiscussion needs a new pathway to get to trust, because the path that transparency affords is, ironically, blocked.

Photo credit: motoyen

Alleged voyeur boss cannot pursue Computer Fraud and Abuse Act claim

Bashaw v. Johnson, 2012 WL 1623483 (D.Kan. May 9, 2012)

Some employees filed suit after they learned that their boss — who required them to wear skirts to work — allegedly installed the Cam-u-flage video surveillance app on his iPhone and iPad to surreptitiously capture upskirt shots of plaintiffs at work.

The boss filed a counterclaim under the Computer Fraud and Abuse Act (CFAA), claiming that plaintiffs deleted data from his iDevices without authorization. Plaintiffs moved to dismiss this counterclaim. The court granted the motion.

The court held that the boss failed to allege the nature of his alleged damages within the meaning of the CFAA, and that he failed to sufficiently allege a qualified loss as defined by the statute.

As for damage, the court found that the mere allegation that data had been erased, without identifying which data, did not meet the plausibility requirement to survive a motion to dismiss. (Hmm. I wonder what data the plaintiff-employees would have wanted to delete?)

On the question of loss, the employer alleged that such calculation “would exceed” the CFAA threshold of $5,000. But he did not allege that he actually incurred losses in that amount. He did not mention any investigative or response costs, nor did he allege any lost revenues or other losses due to an interruption in service.

Photo credit: Magic Madzik

Why be concerned with social media estate planning?

The headline of this recent blog post by the U.S. government promises to answer the question of why you should do some social media estate planning. But the post falls short of providing a compelling reason to plan for how your social media accounts and other digital assets should be handled in the event of your demise. So I’ve come up with my own list of reasons why this might be good both for the individual and for our culture:

Security. People commit identity theft on both the living and the dead. (See, for example, the story of the Tennessee woman who collected her dead aunt’s Social Security checks for 22 years.) While the living can run credit checks and otherwise monitor the use of their personal information, the deceased are not so diligent. Ensuring that the dataset comprising a person’s social media identity is accounted for and monitored should reduce the risk of that information being used nefariously.

Avoiding sad reminders. Spammers have no qualms with commandeering a dead person’s email account. As one Virginia family knows, putting a stop to that form of “harassment” can be painful and inconvenient.

Keeping social media uncluttered. This reason lies more in the public interest than in the interest of the deceased and his or her relatives. The advertising model for social media revenue generation relies on the accuracy and effectiveness of information about the user base. The presence of a bunch of dead peoples’ accounts, which are orphaned, so to speak, dilutes the effectiveness of the other data points in the social graph. So it is a good thing to prune the accounts of the deceased, or otherwise see that they are properly curated.

Preserving our heritage for posterity. Think of the ways you know about your family members that came before you. Stories and oral tradition are generally annotated by photo albums, personal correspondence and other snippets of everyday life. Social media is becoming a preferred substrate for the collection of those snippets. To have that information wander off into the digital ether unaccounted for is to forsake a means of knowing about the past.

How big a deal is this, anyway? This Mashable article commenting on the U.S. government post says that last year about 500,000 Facebook users died. That’s about 0.0006% of the user base. (Incidentally, Facebook users seem much less likely to die than the general population, as 0.007% of the world’s entire population died last year. Go here if you want to do the math yourself.)

I say it’s kind of a big deal, but a deal that’s almost certain to get bigger.

Employer not allowed to search for porn on employee’s home computer

In re Jordan, — S.W.3d —, 2012 WL 1098275 (Texas App., April 3, 2012)

Former employee sued her old company for subjecting her to a sexually hostile workplace and for firing her after she reported it. She claimed that she had never looked at pornography before she saw some on the computers at work. During discovery in the lawsuit, the company requested that employee turn over her home computer so that the company’s “forensic computer examiner” could inspect them.

The trial court compelled employee to produce her computer so that the forensic examiner could look for pornography in her web browsing history and email attachments. The employee sought mandamus review with the court of appeals (i.e., she asked the appellate court to order the lower court not to require the production of the hardware). The appellate held that she was entitled to relief, and that she did not have to hand over her computer.

The appellate court found that the lower court failed to consider an appropriate protective order that would limit inspection to uncover specifically-sought information in a particular form of production. In this case, the company had merely asked for the hardware without informing employee of the exact nature of the information sought. And the company provided no information about the qualifications of its forensic examiner. Though the trial court tried to limit the scope of the inspection with carefully chosen wording, the appellate court found that was not sufficient to protect the employee from the risks associated with a highly intrusive search.

Photo credit: Jakob Montrasio (CC BY 2.0)

Video: This Week in Law Episode 150

Had a great time hosting This Week in Law Episode 150, which we recorded on February 24. (Thanks to Denise Howell for handing over the hosting reins while she was off for the week.) It was a really fun conversation with three very smart panelists — Mike Godwin, Greg Sergienko and Jonathan Frieden. We talked about copyright and free speech, encryption and the Fifth Amendment, and the state of internet privacy.

If you’re not a regular listener or viewer of This Week in Law, I hope you’ll add it to your media diet. I’m on just about every week (sometimes I’m even referred to as a co-host of the show). We record Fridays at 1pm Central (that’s 11am Pacific, 2pm Eastern). The live stream is at http://live.twit.tv and the page with all the past episodes and various subscription options is http://twit.tv/twil.

No restraining order against uncle posting family photos on Facebook

Court refuses to consider common law invasion of privacy tort to support restraining order under Minnesota statute.

Olson v. LaBrie, 2012 WL 426585 (Minn. App. February 13, 2012)

Appellant sought a restraining order against his uncle, saying that his uncle engaged in harassment by posting family photos of appellant (including one of him in front of a Christmas tree) and mean commentary on Facebook. The trial court denied the restraining order. Appellant sought review with the state appellate court. On appeal, the court affirmed the denial of the restraining order.

It found that the photos and the commentary were mean and disrespectful, but that they could not form the basis for harassment. The court held that whether harassment occurred depended only on a reading of the statute (which provides, among other things, that a restraining order is appropriate to guard against “substantial adverse effects” on the privacy of another). It was not appropriate, the court held, to look to tort law on privacy to determine whether the statute called for a restraining order.

Teacher fired over Facebook post gets her job back

Court invokes notion of “contextual integrity” to evaluate social media user’s online behavior.

Rubino v. City of New York, 2012 WL 373101 (N.Y. Sup. February 1, 2012)

The day after a student drowned at the beach while on a field trip, a fifth grade teacher updated her Facebook status to say:

After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!

Three days later, she regretted saying that enough to delete the post. But the school had already found out about it and fired her. After going through the administrative channels, the teacher went to court to challenge her termination.

The court agreed that getting fired was too stiff a penalty. It found that the termination was so disproportionate to the offense, in the light of all the circumstances, that it was “shocking to one’s sense of fairness.” The teacher had an unblemished record before this incident, and what’s more, she posted the content outside of school and after school hours. And there was no evidence it affected her ability to teach.

But the court said some things about the teacher’s use of social media that were even more interesting. It drew on a notion of what scholars have called “contextual integrity” to evaluate the teacher’s online behavior:

[E]ven though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable.

So while the court found the teacher’s online comments to be “repulsive,” having her lose her job over them went too far.