Monthly Archives: March 2012
Dear Cyber Lawyer,
I recently had an interview at an electrical engineering firm in *redacted*. During the interview, the HR manager asked me a few questions about internet usage, since most of my work would be on a computer connected to the network. She then asked me for my facebook username and password as part of their “background check”. I told her that I did not want to do that as I felt it was an invasion of my privacy, and quietly left the interview a few minutes later. Can an employer really ask for that kind of information during an interview?
This area of law is somewhat gray. Some states are starting to pass privacy legislation that would prevent potential employers from asking that for that kind of information during an interview. However, absent this sort of legislation, the answer is probably “Yes”. I know, it really sucks but it is true. There are generally two types of questions that cannot be asked during an interview, first would be questions dealing with a protected class, such as race and gender related questions. The second type are questions where the interviewee has a reasonable expectation of privacy. What is a reasonable expectation of privacy? It is a legal term of art meaning where the public would not normally have access to this information, bank accounts for example. In criminal law, a person has a reasonable expectation of privacy on what goes on inside the home with the shades down, but not in what goes on in the yard. Does an individual have a reasonable expectation of privacy in what they post on facebook? Well actually, probably not. When a person posts information on facebook they are actually making that information available to the public in a limited form. Even though a person may have their privacy levels set to the highest levels, this does not negate the fact that they are acting with the intent to make that information available at least to certain members of the public.
Do you have to give them the answer? No, but then again, you probably would not get the job if you refused. I probably would think twice about working for an employer who asks that sort of question in a job interview.
Stories like this often upset readers. Nobody likes to hear the news that a child pornographer somehow slipped through the system. I tend to take a very different view, for if the law can be used protect the worst of society, it logically can be used to protect the best in society. This is the nature of law and we cannot cut it down just to receive a desirable end goal. Because if we can cut down the law to get at one person the law can be cut down to get at us as well.
The background of this case is pretty simple. A man was put on trial for possessing child pornography. The evidence is contained on his encrypted hard drive. Prosecutors get the judge to issue a court order compelling him to turn over the key to break the encryption. he refuses. The prosecution then offers him limited immunity in exchange for his turning over key. He again refuses and the court holds him in contempt. Legal issue is whether or not the court could hold them in contempt for refusing to turn over the pass key. 11th Circuit Court of Appeals has ruled that he does not have to turn over the pass key, because forcing him to do so would be a violation of his Fifth Amendment rights against self-incrimination. The Fifth Amendment provides that no one “shall be compelled in any criminal case to be a witness against himself”. In this case the defendant could not be compelled to turn over the pass key because doing would be a form of self-incrimination.
Interestingly this case raises many questions as it is applied to cyber law.recently laws have been enacted in several jurisdictions which compel individuals to turn over their cell phones to law enforcement officers during a traffic stop. If this cell phone is password-protected, does this ruling provide cover for the individual does not give the password to the law enforcement officer to prevent access to information on the phone?
The text of the full ruling can be seen on the 11th Circuit Court of Appeals website.
There is a saying that explains services made available on the internet. If it’s free, then YOU are the product. This is especially true when it comes to Google, in its effort to be the everything to everyone on the internet.
Google says it plans to use the information in developing its new products, so that by knowing where everyone is, they can estimate travel times on Google Maps for example. Google has also admitted very publicly that the information will be used to better target advertising across their products. This is where YOU become the product because your information is being used for targeted advertising. Remember the mall scene from “Minority Report” where Tom Cruise is walking through the mall and is bombarded with commercials targeted to him, or rather the person whose eyes he’s wearing? It is sort of like that.
Yes, I see the irony in embedding a youtube video.
The most controversial aspect is the inability to opt out, so all of you who have gmail accounts on their computers and on their smartphones, Google is not just watching, it is tracking, and there is nothing you can do about it. There is no where to hide as long as you use any Google products. Then again, you can always just use Bing.
This morning i learned of the passing of new media pioneer Andrew Breitbart. Many of you know I got my start in cyber law through working with online media. Needless to say, the field would be very different today if not for Andrew Breitbart.
I never met him personally, but he was close friends with a few of my clients.
To say he was controversial would be like saying the sun was hot. He was much more than just controversial. You either loved him or you hated him. Not many people had ambiguous feelings. Regardless of what people thought of his politics, he had a knack for challenging the status quo, and that is a quality that must be admired. Those who knew him, even on the left, knew that he had something rare in political journalism. He had personal integrity. When he would go into battle, he would avoid attacking his opponents with personal ad hominems, and would always call people out when they used them to attack him. He never held anyone to a standard higher than he held himself.
Requiescat in Pacem.