John Oliver Case and the Question of PrivacyJohn Oliver Case and the Question of Privacy
Contributed by Dean Milliana, content coordinator interning with
Among the first lawsuits of its kind in the United States, a lawsuit was filed against John Oliver who called a program on the government run television network PBS, entitled “THE OTHER DAY Tonight” on the date of April 18, 2010. The complaint was filed by the American Civil Liberties Union, a public interest law firm. This program was entitled “Government Bullying” and included the following dialogue:
That is a scary fact: the average American is watched by six government agencies. Six. I want to make this perfectly clear, if you watch last week night`s demonstrate can confirm this fact for yourself.
PB: I was happy to achieve this. Oliver: You will not believe what I found when I viewed the call detail records of everyone who called this number, week for the last, or going back six weeks. (The segment went on for about fifteen seconds, and the caller hung up following the telephone call was completed) Oliver: The next time you are tempted to assault a stranger in public areas, remember that this is actually the government watching you, watching every move. PB: Many thanks. Oliver: But of course, the part that really got people`s goat was the part where Oliver talked about the call detail records going back month. The ACLU`s complaint stated:
“Oliver took a clip of the month`s worth of phone records and displayed them on national television as a way of making a point about the government`s interest in the private lives of citizens. It might be unconstitutional for a private party to allow such disclosure patently, however the government doesn`t have an identical interest. The Supreme Court has held that the Fourth Amendment protects people not the contents of their communications. In this respect, the ACLU was right. But it was wrong in its use of days gone by tense. The federal government has not “looked” as of this information. They have obtained these details with a subpoena and the info in Oliver`s clip is lawfully on its files. Oliver`s clip was a kind of fishing expedition. A fishing expedition is where private individuals enter someone else`s property and look for information which might be used to embarrass, harm, or destroy the private individual. Oliver`s act isn`t just wrong; it is in bad taste and an undesirable taste act can cause you personal injury. Oliver needs to be reminded about the Fourth Amendment, not just the ACLU.”
The clip did spark an important debate on the utilization of past data in forensic examination, but was Oliver`s use of that “past data” legal? The ACLU and Oliver both claim that the clip was found in part to produce a point about the necessity for people to reveal their data when these are subpoenaed. As as the Fourth Amendment is concerned far, there is absolutely no such requirement. Oliver`s clip merely demonstrated the truth that whenever a person answers a subpoena to make a piece of information, the government sometimes needs to get a search warrant to get any extra information, or even to look at the whole data set. A search warrant allows the government to examine someone`s data. Oliver didn`t obtain a warrant to examine a month`s worth of phone records. In Oliver`s context, that`s a fact. But Oliver`s context is irrelevant to the relevant standard for finding a search warrant in a federal case. As discussed in greater detail within an earlier article, the main element question is whether the government used the “unidentified source” of Oliver`s data. Here, the government claimed that Oliver`s call detail records were an “unidentified source” of the FBI`s call detail records, and that Oliver`s use of the clip of these records was unprotected conduct. So, Oliver`s use of the clip was protected, and it didn`t help Oliver that he didn`t have the main element bits of information he needed to corroborate his defense. Oliver had not reviewed the call detail records actually. He knew nothing about any subpoenas to create the records.
However, Oliver`s use of the clip did contribute to the government`s finding a search warrant to examine a month`s worth of phone records. Oliver`s use of the clip was therefore legal, and it didn`t hurt Oliver that he didn`t actually have the main element bits of information he needed to corroborate his defense.
The main element question is whether the government used the “unidentified source” of Oliver`s data. Here, the government claimed that Oliver`s call detail records were an “unidentified source” of the FBI`s call detail records, and that Oliver`s use of the clip of these records was unprotected conduct. Oliver`s use of the clip was therefore legal, and it didn`t hurt Oliver that he didn`t actually have the main element bits of information he needed to corroborate his defense. Oliver had not actually reviewed the call detail records. He knew nothing about any subpoenas to create the records.
As discussed within an earlier article, the government`s claim has ended his conduct of taking a look at a clip of phone records in a browser window. As other writers have argued, this argument may fail because the government doesn`t need to prove that Oliver actually viewed the net page with the phone records, only that Oliver viewed the net page. As many other writers have argued, Oliver is absolve to look at any website, including a link to a full page that will not include phone records, and which does not identify the info in question.
Oliver`s reliance on USA v. Pazant, where the Supreme Court discovered that the use of the URL to conduct a search of an out-of-court conference call was not protected expression, is misplaced. In that case, the Court upheld an indictment for accessing a pc located on a foreign government website, even though Pazant had entered the URL of the web site into his personal computer`s URL bar.
In contrast, in this full case, the government obtained an order for Oliver`s call detail records pursuant to a grand jury subpoena, which included specific instructions to recognize the source of the records which were sought. The Government, counting on USA v. Pazant, decided that Oliver`s conduct of taking a look at a URL within the browser`s address bar was insufficient for him to assert the defenses afforded by the Stored Communications Act. Because Oliver didn`t actually access or make a copy of the webpage, or save it for retrieval later, he could not assert the defenses afforded by the Stored Communications Act.
The Court of Appeals, and the district court in this case, have rejected arguments that Oliver should be permitted to assert his state`s wiretap claim as a function of his use of the bookmark to assist him in accessing a foreign website. While it might be possible, with respect to the circumstances, that Oliver could have a claim against the government if he accessed the webpage, the claims asserted by the government weren`t founded on a use of the URL within the browser`s address bar.
Rather, the government argued that Oliver`s access of the URL is highly recommended a use of the Stored Communications Act. Because the national government relied on that reasoning, the claim was denied and the wiretap case against Manning was permitted to stand.
I do not find it essential to address this point. The claim that Manning accessed a URL with the only real reason for accessing a foreign website was not the type of access that entitled Manning to assert the defenses provided by the Stored Communications Act, but was a second use of the URL instead, and was thus not grounds for Manning to assert the defenses.
Because the Stored Communications Act allows plaintiffs to assert defenses based on the circumstances of their access to the webpage, an initial use defense is not required. In fact, I believe that should be the standard. The primary purpose of the utilization of the URL is defined as “the one intended by the web site operator in directing users to the URL.” However, if the defendant initiates the utilization of the URL, then it will only be accessible to the defendant`s usage, not the intended use of the web site operator.
I disagree with the Court of Appeals` decision. It had been wrong on both legal history and theory.
At first glance, this seems such as a slam dunk case. The court`s reasoning appears to be that because Manning accessed the webpage because he was on the work computer and on work premises, he will need to have designed to access the webpage with respect to his employer. And what do the known facts show? Manning accessed the page because he had an urgent need to get hold of someone. It might have even been because he had an urgent need to get hold of his wife. As such, he didn`t view the webpage for personal use, but viewed the webpage with respect to his employer instead. Therefore, he violated the Stored Policy. This decision appears to support the court`s rationale. Then again, this is actually the first time this decision has been handed down in a personal injury context.
It is certainly subject to a different interpretation than when it was handed down in the telecommunications context. In that context, Stored Communications (later known as Cogent Communications) was trying to decide the problem of if a supervisor could be liable for a subordinate`s access of the supervisor`s work computer. If so, Cogent argued that supervisors had a duty of look after the subordinates they employed, and because the supervisor`s access to the work computer was not for work related purposes, the supervisor could not be liable. If so, Cogent held the supervisor liable for the subordinate`s access to the computer. But in this full case, the court had a different position. The court ruled that Stored didn`t have the rights to terminate the access as it occurred. The access only became terminationable when Manning made a decision to send an email to a customer support agent, explaining his actions.
The court relied on your choice in Newland v. United Airlines, Ltd. where the court held that whenever an airline provided a passenger with meals, ticket, boarding passes and the chance to use the airport`s terminal, and informed the passenger that they could not be held responsible for any actions on the passenger`s behalf if the passenger didn`t do anything, the airline lost the to terminate the meal, ticket, boarding passes, and terminal access when the passenger boarded the plane. In Newland, the court discovered that when the airline gave the passenger a ticket for a flight to be utilized for business purposes, the passenger had used the airline`s facilities for work related purposes, and the airline retained the to terminate access when the passenger operated the aircraft. When the airline terminated Manning`s access to the computer, it had only given him the chance to access the computer for work related purposes. The court reasoned that, it was only the passenger`s act of actually accessing the web site that gave Stored the to terminate Manning`s access. The court ruled that Stored had not sent Manning an email of “instructions” to gain access to the computer.
The court discovered that the airline had sent Manning an email of “instructions” to gain access to the computer and that Manning had accessed the computer via the airline`s Internet system, not via Stored`s system. The court determined that Stored was not liable for Manning`s actions as it had not given the passenger instructions to gain access to the system. Manning`s access to the system was terminated when the aircraft reached cruising altitude and Manning became aware that he was being videotaped by the security camera.