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Phone: 212-874-6181
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Digital Privacy

PRIVACY IN THE AGE
OF ELECTRONIC COMMUNICATION


This chapter takes on the very extensive area of privacy rights to electronic communications which is in flux but is congealing into a majority consensus of judicial opinion nationwide on the Federal level at the close of the first decade of the 21st century. The two major Federal Internet/computer statutes being the ECPA (Title I 18 USC 2510-2522, Title II 18 USC 2701 et. seq, Title III 18 USC 3121 et seq.) and the Computer Fraud and Abuse Act (18 USC 1030(a)) predominate case law in this area. These Federal statutory protections cannot be lessened by any State legislation (but can be increased)[1]. Most States simply mirror the Federal Statutes. For example, New Jersey’s equivalents are as follows: a) Title I of the ECPA is mirrored by the NJ Wiretap and Surveillance Act, NJSA 2A:156A-3; b) Title II of the ECPA – the Stored Communications Act is mirrored by the NJ Stored Communications Act NJSA 2A:156A-27, c) Title III of the ECPA – Pen Registers, Tracking and Tracing is mirrored by NJSA 24:2 and NJSA ___ and d) the Computer Fraud and Abuse Action is mirrored by NJSA 2A:38A 1-3 with a significant difference being that there is no $5,000 threshold of damages, thus New Jersey increased the protections afforded by this statute. The statues have many terms that have been interpreted in a number of ways over the last decade and differing interpretations have led to great confusion in law. However, by the turn of the first decade of the 21st century the majority of Federal courts have come to a general consensus of how these statutes should be interpreted. Earlier court decisions continue to confuse issues for many courts and practitioners. The first part of this chapter endeavors to be a helpful guide in distinguishing the main factors that must be considered in interpreting these statutes which statutes relate to unauthorized access to the content of electronic communications and data. The second part of this chapter relates to the third party access to informational privacy (as opposed to privacy in the contents of a communication). Private information would be a information about a person such as their name, address, phone number, date of birth and the like as well as location). Such information is often taken from unsuspecting users of the Internet, cell phones, and GPS systems. The third part of this chapter explores legislation since 9/11 allowing the US Governmental access to content and information about individuals and the minimum guidelines under which such information is routinely obtained.


General Overview

STATUTORY PROTECTIONS

1. Title I of the ECPA (Electronic Communications Privacy Act) – 18 USC ยง 2510-2522

Requirements: A party

  • intentionally
  • intercepts, intended to intercept or procured a third party to intercept (while in transmission)
  • the contents of
  • an electronic communication
  • using a device (or specialized software)

See In Re Pharmatrak, Inc, 329 F 31 9 (1st Cir, 2003). Note that Title I applies much less than Title II to privacy violations of content to electronic communications because of the requirement that there be an interception while in transit which requires use of specialized hardware or software.

2. Title II of the ECPA – known as the “Stored Communications Act” – 18 USC 2701 et seq.

Requirements: A party

  • intentionally
  • accesses
  • a facility through which an electronic communication service is provided
  • and thereby obtains, alters or prevents access to an electronic communication
  • while such electronic communication is in storage with the above described facility

3. Computer Fraud and Abuse Act – 18 USC 1030 (a)

Requirements: A party

  • knowingly
  • accesses a computer or closed computer network
  • without authorization or exceeds authorization
  • and thereby obtains data or information
  • which information

a. takes something of value exceeding $5000
b. relates to national defense
c. is from a “protected computer” or government agency
d. is a financial record
e. traffics in password or similar information
f. threatens to extort money in exchange for not obtaining unauthorized information
g. is taken as part of a crime

COMMON LAW PROTECTIONS


4. Privacy right – in tort
Legitimate expectation of privacy exists when both a subjective and objective test are met. These tests are as follows:

A. SUBJECTIVE TEST – ACTUAL EXPECTATION OF PRIVACY

  1. Did the persons conduct demonstrate an expectation of privacy? What actions did the person take to protect their communications (any factor may be considered including whether the communication was password protected, the communication was on a personal computer)
  2. what behavior of the person exhibits an understanding that they had that the communication was private (eg. was the communication of a very private nature)

B. OBJECTIVE TEST – IS THE EXPECTATION ONE THAT SOCIETY IS PREPARED TO ACCEPT UNDER THE CIRCUMSTANCES BEING CONSIDERED?

  1. Did the Plaintiff know, or should the plaintiff have known, not to expect right of privacy under the circumstances? Eg. there is no reasonable expectation of privacy in a stolen lap top

 


ADVICE FOR SMALL BUSINESS OWNERS
WHEN CONSIDERING A WEBSITE

Getting to a website – with a web designer
A. BEFORE YOU CONTACT THE WEB DESIGNER DO THE FOLLOWING:

  1. TRADENAME: Check www.USPTO.gov – for trade name availability and LOGOs – if still available – you should trademark your name and your logo
  2. DOMAIN NAME: Check domain name availability – www.networksolutions.com OR www.digitalspace.net. Make sure that you register for the domain name and not your designer – so that you own it. This could be done prior to contacting a web designer.
  3. PREPARATION before meeting web designer: sketch out what ideas you have and make a list of goals so that the designer can better work for you – have key words (metatags) that you want used in your website to help identify it. The more specific you are the better (saves time and money). Have other websites that you would like to be linked considered.

B. WHEN ENTERING INTO A CONTRACT WITH A WEB DESIGNER

Contract considerations:

  • DATES: Make sure that there is a start and completion date.
  • PRICE: Agree on a specific price with your web designer – a fixed amount (price can be based on number of pages in a website)- and only give 1/3 up front, 1/3 when the design is complete and 1/3 when it is up and running for a week with no problems – if possible.
  • OWNERSHIP: Make sure the contract says that you own the work product and graphics of your website and have your designer state that there is no intellectual property infringement in regards to the graphics of your website and that the designer agrees not to duplicate your web design or key elements elsewhere. You should also have contract provisions that address confidentiality and non-competition by the web designer. All materials given to the designer should be returned at a time certain.
  • HOST: Discuss with your designer who would be the best host for your website – make sure the host is known for little down time – consider the capacity that your website will need to operate and the hosting cost. Make sure that you register with the hosting company and that the contract is in your name not your web designers
  • MAINTENANCE: Try to get free maintenance for 90 days and a reasonable contract thereafter – get all information you need to enter your site and make changes yourself
  • Warranty, non-compete

For further information: write Victoria Brown at vb@brownllc.com and put Kiss FM on the subject line.