Vogel Internet, Information Technology and e-Discovery Blog : Texas Internet, Information Technology, eCommerce & E-Discovery Lawyer & Attorney Peter S. Vogel : Gardere Wynne Sewell Law Firm : Dallas TX

Congressional hearings reveal that Internet companies routinely track behavior of visitors to websites, and as a result Congress is considering legislation to help personal privacy. Currently the Federal Trade Commission allows for self-regulation by websites, and websites need not have privacy policies, but if there are privacy policies the FTC expects adherence. Otherwise the FTC levies fines.
 

 

 

Unfortunately few Internet users ever bother to review the Privacy Policies of the websites that they visit, because if they did perhaps Congress would not be so shocked. Google and other major players retain data on visitors for 18 months, and even the EU recently was considering restricting the data retention to only 12 months (not that the 6 months additional data would change the fact that the ISPs were capturing information for their own purposes). Since the federal government allowed Google to purchase DoubleClick clearly everyone was aware of where Google was headed but to take advantage and use personal information about the Internet traffic.
 

Tracking information about web traffic is not bad, but when personal identifiable information is compromised consumers react. A number of major players submitted letters to the House Committee including AOL, Charter Communications, Earthlink, Time Warner Cable, and Yahoo! to name a few.
 

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It’s a perplexing time to see the fabulous drama of the Olympic Games in Beijing while at the same time the ugly face of war in Georgia. But somewhat under the radar on both of these front page news items is the impact of the Internet.

Why anyone was surprised to learn that the Chinese government would limit Internet access during the Games is a great mystery. Everyone recognizes that China is a totalitarian government, and restricts many rights of its citizens including Internet access. Obviously when the International Olympic Committee (IOC) selected China for the 2008 Games neither the IOC nor anyone expected the Chinese to change its form of government just because it was hosting the Games. So why journalists were outraged by limits to certain websites seems strange. If the Chinese citizens were precluded from websites why should athletic journalist visiting China have special privileges that the Chinese citizens do not enjoy? Ultimately the IOC did admit they expected these Internet restrictions. 

The ugly face of armed conflict in Georgia during the Olympic games was made more complicated by reports that hackers affiliated with the Russian Business Network hijacked websites of the Georgian government and websites. Clearly the ability to provide news to citizens embroiled in war zones is critical, and so these hacker attacks are not novel but rather a reminder that democracy and freedom extend a long-way into our social expectations of availability of information that we receive from the Internet.

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Information technology is an essential component of every lawyer’s practice and every client is dependent upon IT. It should not be a surprise that more than 95 percent of information is electronic. Consequently, nearly every lawsuit today has, and in the future will involve electronically stored information (also referred to as ESI).

Special Masters in E-Discovery

Over the past 20 years, I have served as a “special master” about IT and ESI, and my personal experience has been that the lawsuits become less complicated for the parties and the judge. As well, often times the mystery of ESI becomes clearer sooner and cases can be resolved less expensively. So when there are complex e-discovery issues to resolve in litigation, you want to keep costs down, and the judge does not have the IT expertise, you might request a special master who understands the law, evidence and IT. There are a number of excellent lawyers with this experience who can assist most any judge with perplexing ESI issues.

Selecting an E-Discovery Consultant

Since there is no licensing or certification in this area, the selection process for an e-discovery consultant can be confusing and complicated. The consultant you interview today may have been a plumber last month, but if that person can talk the talk and walk the walk, how can you tell the difference?

Verify the qualifications of an e-discovery consultant by asking for references -- as many references as possible. Call and/or visit as many as possible and ask probing questions about the successes (or failures) and as much else as you can learn.

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The Internet Freedom and Nondiscrimination Act will required ISPs (Internet Service Providers) to allow interconnection or face antitrust enforcement.

In 2008 the proliferation of the Internet and ISPs Congress wants the public to have freedom to select whom they interconnect with. On the other broadband providers have resisted insisting that this type of legislation is not necessary.

Just as Congress has provide a ban on sales taxes, it seems that the Federal government has some duty to help protect Internet consumers. It is also possible that before any laws are enacted that the legislation is subject to change and the broadband providers may be satisfied.

Since this is a consumer issue, it seems important that the public is protected since more of our economy is based on Internet commerce.

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The use and evolution of the Internet has changed social behavior in a number of ways. It is unlikely that anyone could have foreseen the explosive growth and development of Google since it launched in 1998 and is now worth more than $200 billion. So when Google purchased YouTube there was a rumble about Google figuring out a way to commercialize and monetize YouTube in ways not contemplated. At the same time the copyright laws have been in turmoil over the Internet and it's not clear who the real winner has been. The demise of Napster and song sharing in 2000 led the Apple's unbelievable success with the iPod. Another unforeseen evolution of the Internet.

Recently a federal judge ordered Google to hand over 12 terabytes of YouTube data including IP addresses, and many privacy groups are fretting over which they should be. When YouTube visitors watch videos on YouTube they do not expect to be identified, and even though Viacom is suing Google for a $1 billion in copyright infringement that does not justify personal information to be disclosed. So the federal judge order the YouTube data to be subject to a protective order so that the data may not be used except for limited purposes. Since we are all aware of inadvertant mistakes and leaks of private information, any violation by Viacom, whether intentional or inadvertant, would put millions of individuals at risk. Watching these event unfold may lead to some changes in federal laws to protect individuals.

Few individuals review Privacy Policies on any websites, but the Federal Trade Commission requires that US companies follow whatever Privacy Policies that they have on their website. However, there are users of YouTube from other countries as there are not international boundaries for use and access of YouTube. In the EU (and Canada) there are very different privacy laws. Particularly the 1995 EU Data Directive which allows individuals access to any computer which has data about them which they can correct. The YouTube Privacy Policy states that YouTube agrees to the US Department of Commerce Safe Harbor Policy which means that YouTube complies with the 1995 EU Data Directive. So EU visitors to YouTube may have an entirely different perspective on the federal judge's action last week regarding privacy of their use of YouTube's data now being provided to Viacom.

 

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A recent story in the New York Times should send chills down the spines of anonymous bloggers since apparently prosecutors in New York issued a grand jury subpoena to help identify of certain people blogging on a website called Room 8. On the face of the subpoena in capital letters there was a warning that merely disclosing the very existence of the subpoena could impede the investigation and interfere with law enforcement. A clear message that someone would be prosecuted for disclosure of the subpoena.

After the threat of the a lawsuit for violation of free speech under the First Amendment of the Constitution the prosecutors withdrew the subpoena.

Anonymity and the Internet have been an issue for some time since the First Amendment protects free speech, and there are individuals who want to use post messages, emails, and have websites to say what they feel about issues without fear of reprisal. Over the years there has been a great deal of litigation against Joe and Jane Doe for cybersmear where anonymous postings are made about publically trade stocks on sites like Yahoo! Finance. Also lawsuits have been brought against Joe and Jane Doe for allegedly intruding on websites to steal information.

But bloggers are something of a different category since one of the points of a blog is make comments about social, political, sports, or any issue they feel. Some bloggers are happy to identify themselves, but since the First Amendment allows free speech some bloggers post anonymously.

In this case threatening to prosecute a blogger where it not clear that a crime had even been committed is very perplexing and the civil liberty groups are up in arms.

The courts have no body of law to depend on to rule on such complex cases, and most judges do not have personal experiences to draw on. This is true for the explosion of the use of the Internet as it changes our lives. For instance, in 1995 when the browser first was released making the Internet a public utility, no one could have foreseen Google, Facebook, or bloggers. The courts are generally slow to adopt to major social change because old laws do not apply well. However, over time the court system will have to deal with these complex issues brought about changes of the Internet.

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