6 ms·

Hm, it's challenging because of the new medium but maybe we could discuss a real world analogue: You walk in to a home expecting to meet your friend, when you

by ehnto 6y ago

Hm, it's challenging because of the new medium but maybe we could discuss a real world analogue: You walk in to a home expecting to meet your friend, when you enter there is a man from the TV network there. You didn't expect him, his intention is just to watch you and your friend talk about television shows. Perhaps an example that gets closer to the crux of the problem: You're at a restaurant with a friend, and an unrelated stranger nearby can overhear the conversation. Not a participant, right? Now imagine they were sent to listen to you, and report back to the TV networks. I would say that, they have a very clear intention to participate in the conversation.

nerdponx 6y ago
You walk in to a home expecting to meet your friend, when you enter there is a man from the TV network there. You didn't expect him, his intention is just to watch you and your friend talk about television shows. Maybe the analogy should be: you go to meet a local contractor, and a representative from the cable company is there to help advise on the work. Neither of you are aware that he is recording the whole conversation, and that will use that information to send you targeted junk mail.
inetknght 6y ago
You're moving the goalposts. Here, let me refocus the goalpost for you. > I have no way to know that their widget is even on the site until I visit it You can ask, and expect an honest answer, from your friend about any TV news crew. And you don't really have an expectation to privacy in many restaurant settings.
- ehnto 6y ago
  The analogy wasn't really about that though, I was trying to explore whether or not the third party is considered a willing participant or not, which changes the implications of the data collection. A stranger in a restaurant can't help that they heard you talk about something private, but it was entirely the fault of the person sent to intentionally record a conversation so you could say they willingly participated in the ordeal. Backing out of the analogy, Facebook willingly collected the data, it was entirely their intention to collect the data. So the responsibility of that data collection is theirs, and they were an active participant. I think it's important to set that precedent, because we all know the technology was entirely indifferent to what it was collecting, but we can't use the inadequacies of a technology and process as a way to excuse companies from responsibility. Holding them accountable would force them to get better processes and improve the technology so it doesn't happen again.
TeMPOraL 6y ago
How about this analogue: You come to a restaurant to eat dinner with your friend, who arrived early. Unbeknownst to you, your friend arranged for one of their acquaintances, who you don't know, to sit at the next table and secretly record the whole conversation.
- nerdponx 6y ago
  And your friend might or might not know that the acquaintance is recording.
- taxidump 6y ago
  This is perfectly legal in most of the US. Famous people and their paparazzi followers probably know all too well that when you are anywhere an eye can see from a public location you can be recorded.
  - jacquesm 6y ago
    Famous people have different expectations of privacy than ordinary people.
    - taxidump 6y ago
      Citation?
      - mandevil 6y ago
        Public Figure Doctrine in the US. According to it, if you are a public figure libel and defamation have much higher burden's of proof whereas if you aren't a public figure you don't. And there are concepts like "Limited Purpose Public Figure" (as distinct from 'all purpose public figures'). All purpose public figures- people who are in "positions of such persuasive power and influence that they are deemed public figure for all purposes"- like movie stars, sports stars, and politicians, have essentially an impossible time winning any court case bringing libel or defamation (they need to prove "actual malice" on the part of the person doing the defamation). LPPF's are people who make themselves public figures on a single controversy or issue, and have a hard time proving defamation on that topic, but are still private citizens for other purposes. Say, an otherwise unremarkable person who is the named defendant in a Supreme Court case- for the issue that went before the Supreme Court they will have a hard time proving defamation but in terms of the rest of their life they have the same protections that anyone else holds, and a lower burden of proof for damages. All of this was worked out in the 1960's and 1970's, and I don't keep up on it so I'm not sure how courts have mapped Limited Purpose Public Figures onto modern social media: is an Instagram influencer a LPPF or a all-purpose public figure or a regular person?
legitster 6y ago
Expectations of privacy are already pretty well defined: https://en.wikipedia.org/wiki/Expectation_of_privacy https://en.wikipedia.org/wiki/Expectation_of_privacy You have an expectation of privacy in your own home - but you can't take back what you shared to your friend when you discovered he writes down every conversation on his blog. Intent isn't super relevant. For the purpose of the wiretap act, 'participant' is unrelated to intent.
- nerdponx 6y ago
  Interesting, I didn't realize "expectation of privacy" was related to (and dependent on) the 4th Amendment. Seems like a gap in our laws; expectation of privacy from people who aren't the government.
  - legitster 6y ago
    I mean, society won't function if you have to give everyone outside of your home consent to look or speak at you. Unless you plan on blinding and deafening the whole world, there's going to have to be a line somewhere about what we are allowed to learn about the people around us.
    - drcross 6y ago
      The concept you are looking for is "reasonable expectation".
jascination 6y ago
A problem with all of the responses here is that they swing and miss at trying to find an allegory that matches this situation, and then conflate their allegory as truth, losing any of the nuances of the Facebook situation. You can skew these examples to make your point stronger, too. (The Radio in the restaurant is listening to me!) The only situation that matches is the exact one at hand: Facebook tracked user information in their share/like widgets. Is that ok under the law? It wouldn't surprise me if it was, but I don't I think the laws should be tightened up on this as well.
- rossdavidh 6y ago
  Really, we can expect this to go all the way to the Supreme Court, and I would not be at all surprised if one of the reasons that the Supreme Court did not quash it is that they know they will have to provide guidance (in the form of a precedent) for lower courts on expectations of privacy in internet situations, but they want to let every court below them kick the tires on this case first so that they can benefit from all of that investigation and discovery before they have to issue a ruling on it.
SilasX 6y ago
I'd say it's more like, VendorA gives VendorB special buttons (like they kind you pin to your shirt) that promote VendorA, analogous to the "like" buttons. You visit VendorB for private financial counseling (like an https web session). VendorB is wearing the button during the session. Unbeknownst to you (and probably VendorB), the button is recording some metadata of your encounter: when you went there, for how long, how loud your voices were, and VendorA periodically scans the button for this data and collects it. Just like on the web, you were never aware of the implications of the VendorB button, and had no chance to opt out before the recording began.
freeopinion 6y ago
What if the "man from the TV network" is really a "man from Amazon" only it isn't a man. It's a Ring doorbell, clearly labeled when you came through the front door. Or it's a little Echo in the corner of the room. Does that mean Amazon was invited to the conversation? Should you as a visitor to the home expect that every logo you see in the house means that you agree to have that company present in your conversations during the visit? Does a Facebook icon or a Google icon or an Amazon icon on a webpage give them the right to participate in your conversation? Does a Windows logo in the corner of your screen give Microsoft the same right? Is it ok if they don't record audio or video, just metadata?
- fny 6y ago
  In most states and federally, one party consenting to a recording is sufficient, so in those cases it doesn't matter that you, the visitor, give consent. In states with two party consent laws, I think you're required to have signage or other explicit message that declares recording is in progress (this may be different for residential properties): a Ring logo may not be sufficient.
  - lotsofpulp 6y ago
    There’s usually an option to not record audio in the software because in the states that require consent of all parties, audio recording is usually still not allowed without explicit consent of everyone in a non public location even if a notice is placed.
  - nerdponx 6y ago
    What about a 3rd party? You give consent to the homeowner, but do you also give consent to Amazon?
    - thaumasiotes 6y ago
      One party is sufficient. Whether you give consent -- to anyone -- doesn't matter. Your interlocutor is free to consent anyway.
  - 6y ago
dillondoyle 6y ago
I'm not sure I would push the analogy that far. There are real world examples of ad tracking that are more similar. Bluetooth trackers in physical retail, digital billboards. For the TV if you're using Roku or similar they are probably running content ID and know what you are watching.
deleted 6y ago
[deleted]
CogitoCogito 6y ago
> it's challenging because of the new medium I think this is the whole crux of everything. Trying to look back on past analogues really don't make much sense in my opinion. The fact is the old decisions were made in the past environment they were a part of. That environment has changed dramatically. The surveillance possible today simply wasn't possible in the past. Sure someone could setup a wiretap or a directional microphone, but the shear ubiquity of easy surveillance by so many different actors makes the environment fundamentally different at the application of past analogues pretty much pointless (in my opinion anyway). I understand that legal precedent is built into the US legal system, but I think its applicability is often over emphasized. These are new times. Trying to apply past logic when the game has so completely changed is a fool's errand.
emayljames 6y ago
A better analogy is a landlord having a camera recording their tenant, that for whatever reason the tenant agrees to. A better analogy for the cafe is the eaves dropper works for the cafe.
robertlagrant 6y ago
What about this: Every shop you walk into has a secret camera that tracks everything you do. The cameras are all owned by a private advertising company that uses them to build a very detailed profile on you. On the plus side, the goods in the shop are often free.

by ehnto 6y ago

nerdponx 6y ago

You walk in to a home expecting to meet your friend, when you enter there is a man from the TV network there. You didn't expect him, his intention is just to watch you and your friend talk about television shows. Maybe the analogy should be: you go to meet a local contractor, and a representative from the cable company is there to help advise on the work. Neither of you are aware that he is recording the whole conversation, and that will use that information to send you targeted junk mail.

inetknght 6y ago

You're moving the goalposts. Here, let me refocus the goalpost for you. > I have no way to know that their widget is even on the site until I visit it You can ask, and expect an honest answer, from your friend about any TV news crew. And you don't really have an expectation to privacy in many restaurant settings.

ehnto 6y ago
The analogy wasn't really about that though, I was trying to explore whether or not the third party is considered a willing participant or not, which changes the implications of the data collection. A stranger in a restaurant can't help that they heard you talk about something private, but it was entirely the fault of the person sent to intentionally record a conversation so you could say they willingly participated in the ordeal. Backing out of the analogy, Facebook willingly collected the data, it was entirely their intention to collect the data. So the responsibility of that data collection is theirs, and they were an active participant. I think it's important to set that precedent, because we all know the technology was entirely indifferent to what it was collecting, but we can't use the inadequacies of a technology and process as a way to excuse companies from responsibility. Holding them accountable would force them to get better processes and improve the technology so it doesn't happen again.

TeMPOraL 6y ago

How about this analogue: You come to a restaurant to eat dinner with your friend, who arrived early. Unbeknownst to you, your friend arranged for one of their acquaintances, who you don't know, to sit at the next table and secretly record the whole conversation.

nerdponx 6y ago
And your friend might or might not know that the acquaintance is recording.
taxidump 6y ago
This is perfectly legal in most of the US. Famous people and their paparazzi followers probably know all too well that when you are anywhere an eye can see from a public location you can be recorded.
- jacquesm 6y ago
  Famous people have different expectations of privacy than ordinary people.
  - taxidump 6y ago
    Citation?
    - mandevil 6y ago
      Public Figure Doctrine in the US. According to it, if you are a public figure libel and defamation have much higher burden's of proof whereas if you aren't a public figure you don't. And there are concepts like "Limited Purpose Public Figure" (as distinct from 'all purpose public figures'). All purpose public figures- people who are in "positions of such persuasive power and influence that they are deemed public figure for all purposes"- like movie stars, sports stars, and politicians, have essentially an impossible time winning any court case bringing libel or defamation (they need to prove "actual malice" on the part of the person doing the defamation). LPPF's are people who make themselves public figures on a single controversy or issue, and have a hard time proving defamation on that topic, but are still private citizens for other purposes. Say, an otherwise unremarkable person who is the named defendant in a Supreme Court case- for the issue that went before the Supreme Court they will have a hard time proving defamation but in terms of the rest of their life they have the same protections that anyone else holds, and a lower burden of proof for damages. All of this was worked out in the 1960's and 1970's, and I don't keep up on it so I'm not sure how courts have mapped Limited Purpose Public Figures onto modern social media: is an Instagram influencer a LPPF or a all-purpose public figure or a regular person?

legitster 6y ago

Expectations of privacy are already pretty well defined: https://en.wikipedia.org/wiki/Expectation_of_privacy https://en.wikipedia.org/wiki/Expectation_of_privacy You have an expectation of privacy in your own home - but you can't take back what you shared to your friend when you discovered he writes down every conversation on his blog. Intent isn't super relevant. For the purpose of the wiretap act, 'participant' is unrelated to intent.

nerdponx 6y ago
Interesting, I didn't realize "expectation of privacy" was related to (and dependent on) the 4th Amendment. Seems like a gap in our laws; expectation of privacy from people who aren't the government.
- legitster 6y ago
  I mean, society won't function if you have to give everyone outside of your home consent to look or speak at you. Unless you plan on blinding and deafening the whole world, there's going to have to be a line somewhere about what we are allowed to learn about the people around us.
  - drcross 6y ago
    The concept you are looking for is "reasonable expectation".

jascination 6y ago

A problem with all of the responses here is that they swing and miss at trying to find an allegory that matches this situation, and then conflate their allegory as truth, losing any of the nuances of the Facebook situation. You can skew these examples to make your point stronger, too. (The Radio in the restaurant is listening to me!) The only situation that matches is the exact one at hand: Facebook tracked user information in their share/like widgets. Is that ok under the law? It wouldn't surprise me if it was, but I don't I think the laws should be tightened up on this as well.

rossdavidh 6y ago
Really, we can expect this to go all the way to the Supreme Court, and I would not be at all surprised if one of the reasons that the Supreme Court did not quash it is that they know they will have to provide guidance (in the form of a precedent) for lower courts on expectations of privacy in internet situations, but they want to let every court below them kick the tires on this case first so that they can benefit from all of that investigation and discovery before they have to issue a ruling on it.

SilasX 6y ago

I'd say it's more like, VendorA gives VendorB special buttons (like they kind you pin to your shirt) that promote VendorA, analogous to the "like" buttons. You visit VendorB for private financial counseling (like an https web session). VendorB is wearing the button during the session. Unbeknownst to you (and probably VendorB), the button is recording some metadata of your encounter: when you went there, for how long, how loud your voices were, and VendorA periodically scans the button for this data and collects it. Just like on the web, you were never aware of the implications of the VendorB button, and had no chance to opt out before the recording began.

freeopinion 6y ago

What if the "man from the TV network" is really a "man from Amazon" only it isn't a man. It's a Ring doorbell, clearly labeled when you came through the front door. Or it's a little Echo in the corner of the room. Does that mean Amazon was invited to the conversation? Should you as a visitor to the home expect that every logo you see in the house means that you agree to have that company present in your conversations during the visit? Does a Facebook icon or a Google icon or an Amazon icon on a webpage give them the right to participate in your conversation? Does a Windows logo in the corner of your screen give Microsoft the same right? Is it ok if they don't record audio or video, just metadata?

fny 6y ago
In most states and federally, one party consenting to a recording is sufficient, so in those cases it doesn't matter that you, the visitor, give consent. In states with two party consent laws, I think you're required to have signage or other explicit message that declares recording is in progress (this may be different for residential properties): a Ring logo may not be sufficient.
- lotsofpulp 6y ago
  There’s usually an option to not record audio in the software because in the states that require consent of all parties, audio recording is usually still not allowed without explicit consent of everyone in a non public location even if a notice is placed.
- nerdponx 6y ago
  What about a 3rd party? You give consent to the homeowner, but do you also give consent to Amazon?
  - thaumasiotes 6y ago
    One party is sufficient. Whether you give consent -- to anyone -- doesn't matter. Your interlocutor is free to consent anyway.
- 6y ago

dillondoyle 6y ago

I'm not sure I would push the analogy that far. There are real world examples of ad tracking that are more similar. Bluetooth trackers in physical retail, digital billboards. For the TV if you're using Roku or similar they are probably running content ID and know what you are watching.

deleted 6y ago

[deleted]

CogitoCogito 6y ago

> it's challenging because of the new medium I think this is the whole crux of everything. Trying to look back on past analogues really don't make much sense in my opinion. The fact is the old decisions were made in the past environment they were a part of. That environment has changed dramatically. The surveillance possible today simply wasn't possible in the past. Sure someone could setup a wiretap or a directional microphone, but the shear ubiquity of easy surveillance by so many different actors makes the environment fundamentally different at the application of past analogues pretty much pointless (in my opinion anyway). I understand that legal precedent is built into the US legal system, but I think its applicability is often over emphasized. These are new times. Trying to apply past logic when the game has so completely changed is a fool's errand.

emayljames 6y ago

A better analogy is a landlord having a camera recording their tenant, that for whatever reason the tenant agrees to. A better analogy for the cafe is the eaves dropper works for the cafe.

robertlagrant 6y ago

What about this: Every shop you walk into has a secret camera that tracks everything you do. The cameras are all owned by a private advertising company that uses them to build a very detailed profile on you. On the plus side, the goods in the shop are often free.