Tanya Forsheit recently appeared on Fox to discuss the Supreme Court's evaluation of GPS surveillance under the Fourth Amendment in US v. Jones. The case raises important issues regarding technology, aggregation of data, and privacy expectations with respect to location information.
On May 10, 2011, the Senate Subcommittee on Privacy, Technology and the Law held a hearing on mobile privacy. We covered the hearing in detail on our blog. Yesterday, InfoLawGroup partner Boris Segalis spoke with Fox Live's Tracy Byrnes about the balance between business and consumer interests that mobile privacy implicates.The clip from the interview is available on Fox at http://video.foxnews.com/v/4689248/the-congressional-mobile-privacy-hearing/?playlist_id=86861
Our readers may have noticed that there is a lot in the privacy news this week. On Monday, I appeared on FoxNews.com Live to discuss smartphones and location privacy. Yesterday, Dave appeared on Fox 31 Denver KDVR to discuss The National Strategy for Trusted Identities in Cyberspace (NSTIC). And new privacy and security law stories are breaking on a daily (sometimes hourly) basis. We will continue to watch these and other rapidly evolving issues and will post new developments here.
Does "segregation" of records from another organization's records in a cloud that prevents "intermingling" preserve an organization's reasonable expectation of privacy vis-a-vis the government under the Fourth Amendment? One recent case, although not about a cloud of any shape or form, suggests that it might. In In re SK Foods Inc., No. 2:09-cv-02938, the United States District Court for the Eastern District of California stayed the Bankruptcy Court's order that would have allowed the Trustee to continue to possess and review information relating to third party non-debtors pending appeal. Why? There was evidence suggesting that, despite residing on shared computer servers, the data of the third parties had not been "intermingled" with the debtor's data, the servers belonged to a third party, the debtor could not access the third party records without authorization, and the third parties demanded return of their records once the Trustee intervened. Read on for a detailed review of the District Court's order and consideration of its implications for the cloud.
What does workplace privacy have to do with the cloud? Everything. On Tuesday, the New Jersey Supreme Court issued its opinion in Stengart v. LovingCare Agency, Inc., --- A.2d ----, 2010 WL 1189458 (N.J. March 30, 2010), and came out on the side of protecting employee privacy and the attorney-client privilege in personal Yahoo! webmail (a cloud service) even though the employee used a company computer. While everyone has been busy writing about the implications of LovingCare for company policies governing employee expectations of privacy (and for good reason), few have stopped to note that LovingCare is a cloud case. LovingCare is one of only a few published opinions addressing the difficult issues surrounding employee use of webmail and other cloud services on company computers where the attorney-client privilege is at stake, and the impact of the LovingCare decision will undoubtedly be felt for years to come by nearly every employer across the country, both in crafting policies for employee use of company computer systems and in conducting discovery in nearly every employment-related litigation. The machine may be the employer's, but, in the post-LovingCare world, the data may be the employee's - at least where the cloud and the attorney-client privilege are involved. You can read my detailed case analysis in this post.