Privacy Law and Policy : Privacy Lawyer & Attorney : Kevin Whitaker Law Firm : Patient Confidentiality, Defamation, Identity Theft : Privacy Law & Policy Blog

The scramble in on as companies seek to comply with the identity theft regulations adopted in Massachusetts and touted as 'the first of their kind in the country' which are scheduled to take effect on March 1, 2010.

The effective date’s announcement followed a report indicating there have been over one million instances of Massachusetts residents’ personal information being exposed in two years. “We hope these regulations will make it harder for information to get into the wrong hands, and lower the number of instances of data being lost or stolen,” said Barbara Anthony, the Undersecretary of the Office of Consumer Affairs and Business Regulation (OCABR).

While M.G.L. c. 93H was passed in 2007, controversy emerged over how to pursue some of the law’s objectives under the regulations. After repeated postponements and revisions—brought upon largely by changes in the economic climate as well as compliance concerns of businesses— the regulations are now set to take effect on March 1st.

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The Massachusetts Supreme Judicial Court recently reversed four indictments of Matt H. Zubiel for an attempt to disseminate matter harmful to a minor, under M.G. L. c. 272, § 28, and as defined in M.G. L. c. 272, § 31. Each indictment was based on Internet conversations between Zubiel and an undercover police officer on different days.

Deputy Sheriff Melissa Marino, a member of the "high-tech evidence analysis team" in the Plymouth County sheriff's department, conducted undercover investigations of crimes, including child pornography and child enticement. Marino created an undercover screen name, "Melissa QT 1995 and set up a Yahoo profile describing herself as "Meliss Smith" from the South Shore, age thirteen, and in the eighth grade. Her profile invited others to "PM" her (a form of instant messaging) if they wanted to send her a "private message."
 

On February 8, 2006, Zubiel with a screen name of "Ilikesports04," said, "Hi, how are you?" Marino informed Zubiel she was thirteen years old. He indicated he was age twenty-five. Their first online chat lasted forty-two minutes with Zubiel asking Marino for a photograph.  She emailed him photographs of herself when she was thirteen years old. They discussed where each lived and they gave physical descriptions of themselves. Zubiel asked Marino, "[You] ever fool around with boys?" and other questions regarding what she had done with boys, how old the boys were, and additional details about those events.

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As indicated by my prior posts, You've Got Email, But Is It Private At Work? and Is Einstein Reading Your Email for the Government?, the questions and arguments about privacy and email are heating up.  A recent case in point covered by the ABA Journal in Martha Neal's article, Prosecutor’s E-Mail Sent to His Lawyer on a Work Account is Privileged, Court Says, presents an interesting case. Here Neal reports,

A federal prosecutor's e-mail to his own lawyer is privileged, even though he sent it from work on a government computer, a federal court has ruled.

As pointed out in the article, this is in contrast to similar cases and interpretations. A comparison of this case and the government's arguments reviewed in, Is Einstein Reading Your Email for the Government? shows how the divide in these matters is growing.

Attorney-client privilege is a fiercely guarded area of privacy and this case may present the opportunity for the Supreme Court to reaffirm the attorney-client privilege in the the context of email and the information age. Of course, if taken up, how they go about this could have far wider implications for privacy rights and email communications. If heard, would they focus on the rule (reasonable expectation of privacy) or rather focus on the exceptions or privileges. If examined, will they look at the totality of the circumstances and thus leave the law to be advanced case-by-case as the circumstances come before courts or could they take a more holistic approach that offers guidance in this uncertain arena. Time will tell, but the issue seems to be ripening with each "send" button pressed.

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Not that long ago I blogged, Is Einstein Reading Your Email for the Government? The issue there was email and the government's argument about its right to read it. In short, they suggest you don't have a reasonable expectation of privacy in your email sent to (or read by) government employees. In sum, while computer users generally have a legitimate expectation of privacy in the content of Internet communications (such as an e-mail) while it is in transmission, the government argues there are things they can do to eliminate a person's reasonable expectation of privacy and thus remove any of email's privacy protections. It stands to reason that if certain things and conduct implemented by the government can remove privacy protections, then why not employers, too?

A recent Wall Street Journal article, Some Courts Raise Bar on Reading Employee Email, Companies Face Tougher Tests to Justify Monitoring Workers' Personal Accounts; Rulings Hinge on 'Expectation of Privacy' was summarized by Debra Cassens Weiss in an ABA Journal post, May Employers Monitor Personal E-Mail? Cases Turn on Disclosure.

The articles and comments at each post raise good points. Some comments from Weiss' post touch upon, email retention policies and duties to preserve email as evidence, otherwise privileged communications (example, an email to your attorney), ownership or control of the computer, private vs. company email, and more.

Nonetheless, the takeaway lesson for employers sounds a lot like the government's arguments about Einstein 2.0, be very explicit in informing your employees about your monitoring activities and those employees don't have a reasonable expectation of privacy anymore. Thus, as an employer, if you don't have an email and electronics' communications policy, then it's time to consistently adopt, implement, and enforce one. While this is no guarantee that you are on safe ground in monitoring all email, it appears to be the direction things are heading. As for employees, you should know what monitoring is taking place at your work. Take the time to review the email and other company policies and to understand what each means. Also, think twice before sending that email with your resume attached from your office computer or before checking your personal email while at work or on a work computer. Stop, think, and remember--there's a good chance your boss, as well as big brother, may be watching what you send and what you read.

While this post discusses email, don't forget about blogs, comments, tweets on twitter, text messages, Instant Messages (IM), or others, too.

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A tweet from @AbbieCitron brought me to the Medical News Today post Electronic Medical Records Could Help Predict Domestic Abuse. The article discusses forecasting patients' risks by using electronic medical records. Specifically, the article deals with domestic abuse screening or predictions.

Dr Ben Reis of the Children’s Hospital Informatics Program at the Harvard-MIT Division of Health Sciences and Technology, Children’s Hospital Boston; and Harvard Medical School, co-authored the study, Longitudinal histories as predictors of future diagnoses of domestic abuse: modelling study. The study concluded,

Commonly available longitudinal diagnostic data can be useful for predicting a patient’s future risk of receiving a diagnosis of abuse. This modelling approach could serve as the basis for an early warning system to help doctors identify high risk patients for further screening.

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Ways may someday be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. - Justice Louis Brandeis (1928)

A recent ABA Journal article on privacy law (Feds Can Monitor Personal E-Mail Sent Privately to Gov’t Workers, DOJ) began as follows:

You might think that a private-mail sent to another U.S. citizen's personal account isn't subject to government monitoring. But that assumption could be wrong if the recipient is a federal government employee.

Both recipients and senders have no reasonable expectation of privacy if an e-mail is opened by a federal employee logged into a work computer network, according to an Aug. 14 legal opinion from the U.S. Department of Justice that was released Friday.

The Memorandum (PDF file) begins,

Operation of the EINSTEIN 2.0 intrusion-detection system complies with the Fourth Amendment to the Constitution, title III of the Omnibus Crime Control and Safe Streets Act of 1968, the Foreign Intelligence Surveillance Act, the Stored Communications Act, and the pen register and trap and trace provisions of chapter 206 of title 18, United States Code, provided that certain log-on banners or computer-user agreements are consistently adopted, implemented, and enforced by executive departments and agencies using the system. Operation of the EINSTEIN 2.0 system also does not run afoul of state wiretapping or communications privacy laws.

The Memorandum “briefly summarizes the current views of the Office of Legal Counsel on the legality of the EINSTEIN 2.0 intrusion-detection system.” The arguments presented are basically:

1. There is no "search" under the 4th Amendment;
2. If there is a "search", then it is reasonable; and
3. Federal laws trump any state laws.

The central premise of the Memorandum is this, while computer users generally have a legitimate expectation of privacy in the content of Internet communications (such as an e-mail) while it is in transmission over the Internet, the deployment, testing, and use of EINSTEIN 2.0 technology complies with the Fourth Amendment where each agency participating in the program consistently adopts, implements, and enforces the model log-on banner or model computer-user agreements, or their substantial equivalents.

The government's position (which methinks goes too far) is summarized below.

No Search Under the 4th Amendment

The government argues there is no search for Fourth Amendment purposes because “the adoption, implementation, and enforcement of model log-on banners or model computer-user agreements eliminates federal employees’ reasonable expectation of privacy in their uses of Government-owned information systems…."

[Further]… individuals in the private sector who communicate directly with federal employees of agencies participating in the EINSTEIN 2.0 program through Government-owned information systems do not have a legitimate expectation of privacy in the content of those communications provided that model log-on banners or agreements are adopted and implemented by the agency.

… By clicking through the model log-on banner or agreeing to the terms of the model computer-user agreement, a federal employee gives ex ante permission to the Government to intercept, monitor, and search “any communications” and “any data” transiting or stored on a Government-owned information system for any “lawful purpose,” including the purpose of protecting federal computer systems against malicious network activity. Therefore, an individual who communicates with a federal employee who has agreed to permit the Government to intercept, monitor, and search any personal use of the employee’s Government-owned information systems has no Fourth Amendment right against the Government activity of protecting federal computer systems against malicious network activity, as the employee has consented to that activity.

The Memorandum goes on to say this applies even when the email was sent to the employee’s non-governmental or personal account. When the,

sender of an email to an employee’s personal, Web-based email account (such as Gmail or Hotmail) does not know of the recipient’s status as a federal employee or does not anticipate that the employee might read, on a federal Government system, an email sent to a personal email account at work or that the employee has agreed to Government monitoring of his communications on that system. A person communicating with another assumes the risk that the person has agreed to permit the Government to monitor the contents of that communication.

But if it is a "Search," then it's Reasonable anyway

The Memorandum argues, even if EINSTEIN 2.0 operations were to constitute a “search” under the Fourth Amendment, …those operations would be consistent with the Amendment’s “central requirement” that all searches be reasonable [because] the Government has a lawful, work-related purpose for the use of EINSTEIN 2.0’s intrusion-detection system that brings the EINSTEIN 2.0 program within the “special needs” exception to the Fourth Amendment’s warrant and probable cause requirements."

State Privacy Laws vs. The Supremacy Clause

The Memoradum’s final argument is the EINSTEIN 2.0 program does not run afoul of state wiretapping or communication privacy laws due to Supremacy clause.

To the extent that such laws purported to apply to the conduct of federal agencies and agents conducting EINSTEIN 2.0 operations and imposed requirements that exceeded those imposed by the federal statutes discussed above, they would “stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” and be unenforceable under the Supremacy Clause.

What do you think? Do you buy the argument that if you send an email to a government employee's private gmail or yahoo account, then the government may have the right to read the email?

Preceding the last presidential election, Condoleezza Rice was apologizing to presidential candidates for government intrusions into their private passport records. President Obama, a candidate at the time, called for hearings on the matter. Watergate, Hoover, and McCarthyism should remind us as to what ends government intrusions into personal privacy can have. Deeper historic reflections illuminate this point even more. Benjamin Franklin, offered, "they who would give up an essential liberty for temporary security deserve neither liberty nor security." Of a more local flavor, Boston's Samuel Adams, stated:

Driven from every other corner of the earth, freedom of thought and the right of private judgment in matters of conscience, direct their course to this happy country as their last asylum.

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Ross Clark's book, The Road to Big Brother, One Man's Struggle Against the Surveillance Society, involves Clark's experience in avoiding CCTV cameras and surveillance efforts in England. PrivacyDigest's review of the book, states (in part):

Ross Clark lays bare the astonishing amount of personal data which is hoarded by the state and by commercial organizations, and asks whom should we fear most: the government agencies who are spying on us - or the criminals who seem to prosper in the swirling fog of excessive data-collection.

As a city councilor, I was surprised to see surveillance cameras recently installed on new sets of local traffic lights. I wondered, "Who decides where these go and who will have access? Why are they there?" "Why didn't I have to approve these?"

I realize there's a practical argument for the potential advantages, such as recording accident data, raising compliance with safe driving laws, and, of course, avoiding traffic. In fact, the Connecticut Department of Transportation site lets you view traffic camera images that are updated every five minutes. The Boston SmarTraveler site offers several views, too.

But are things like Google Earth, government surveillance, and private webcams streaming on the web taking us into unchartered territories? I was excited to use Google Earth to see where my wife lived in Spain or others' travels. I've been on guided tours from the comfort of our home and they were fun experiences. But is there a trade off for fun?

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In previous posts, I discussed the legislative amendment being kicked around that would weaken the MA data security law (M.G.L. 93H).

• An Act Ensuring Less Privacy of Massachusetts Residents' Data: Part One
• An Act Ensuring Less Privacy of Massachusetts Residents' Data, Part 2 of 5
• An Act Ensuring Less Privacy of Massachusetts Residents' Data: Part 3 of 5
• An Act Ensuring Less Privacy of Massachusetts Residents' Data: Part 4 of 5,
• An Act Ensuring Less Privacy of Massachusetts Residents' Data: Part 5 of 5.

Well, it appears the legislative change may not be necessary as the latest and ungreatest regulatory scheme changes appear to do the hatchet job for them.  Too bad.  In short, it's not good news for Massachusetts consumers or their privacy rights as privacy rights seem, once again, to be taking a backseat to political influences.

The Official Website of the Office of Consumer Affairs & Business Regulation (OCABR) states:

BOSTON – Aug. 17, 2009 – ... The updated regulations will take effect March 1, 2010. The regulations make clear that their approach to data security is a risk-based approach that is especially important to small businesses that may not handle a lot of personal information about customers. Under a risk-based approach, a business, in developing a written security program, should take into account its size, nature of its business, the kinds of records it maintains, and the risk of identity theft posed by its operations.

...

New language in the regulations recognizes that the size of a business and the amount of personal information it handles plays a role in the data security plan the business creates. The new language requires safeguards that are appropriate to the size, scope and type of business handling the information; the amount of resources available to the business; the amount of stored data; and the need for security and confidentiality of both consumer and employee information.

The changes, Anthony said, make clear the regulations are risk-based in implementation, not just in enforcement as had been the case in earlier versions of the regulations. In addition, the regulations are technology neutral and acknowledge that technical feasibility plays a role in what many businesses, especially small businesses can do to protect data.  The overall approach is more consistent with federal law, she said.

...

The Office of Consumer Affairs and Business Regulation today sent to the Secretary of State notice of public hearing on the changes. That hearing will be held on Tuesday, Sept. 22, at 10 a.m. at the Transportation Building, 10 Park Plaza, Boston.

For more information about identity theft protection, visit the Office of Consumer Affairs and Business Regulation website, www.mass.gov/consumer.

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Massachusetts Senate Bill No. 173 (PDF file or see full text below) introduced this year, would amend M.G.L. 93H and effectively water down the Office of Consumer Affairs and Business Regulation's (OCABR) authority on a few fronts. I've addressed a few of these in past posts.

• An Act Ensuring Less Privacy of Massachusetts Residents' Data: Part One
• An Act Ensuring Less Privacy of Massachusetts Residents' Data, Part 2 of 5
• An Act Ensuring Less Privacy of Massachusetts Residents' Data: Part 3 of 5
• An Act Ensuring Less Privacy of Massachusetts Residents' Data: Part 4 of 5,

After a short vacation, today I'll briefly be addressing the fourth proposed change, but more importantly the sum of all the proposed changes, because I fear they fail to protect consumers and their privacy rights, but instead seem very good at protecting certain business interest aided by powerful lobbying efforts

Briefly, under the fourth proposed change, employees could be terminated for willful violations of the law, regulations, or written information security plans.

While I'm not going to attack this language (although you can see the proverbial passing of the buck coming here), it make me ask, "As a group, did any of the four proposed changes help consumers while guarding individuals' privacy rights?"

Let's review a summary of the three changes I've previously discussed:

1. Businesses would not have to comply with any Massachusetts state regulations with stricter standards than federal law
2. Ensures OCABR is prevented from requiring specific technology or methods be employed. Thus, the proposed amendment effectively guts OCABR's encryption requirement (and its power to do so in regulations).
3. The law would not apply evenly, but would depend on the size of the business and require separate standards be promulgated for small businesses, thus implying a person's privacy rights matter less depending on who is allowing them to be infringed upon. This would also add more delay as more layers of regulations are adopted.

The answer to my earlier question, I'm afraid, is a resounding "No," none of the four four proposed changes help consumers while guarding individuals' privacy rights--thus the title of this series of posts, "An Act Ensuring Less Privacy of Massachusetts Resident's Data" which is a play on the proposed act's title "An Act Ensuring the Privacy of Certain Data."

As stated in other posts, privacy rights simply aren't being treated as rights held by individuals but rather as things or issues to be regulated. With economic considerations, lobbying, and political influence guiding the outcome, it appears that short-term economic arguments may continue trumping individuals' privacy concerns. In the end, so long as economic incentives and business interests are placed before individuals' rights, then privacy rights can't really exist, no matter what we call or title them.

The full text of Senate Bill 173, An Act Ensuring the Privacy of Certain Data, is below. Funny, I don't think this is available anywhere else on the web except in PDF. Why is that?

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Massachusetts Senate Bill No. 173 (PDF file) introduced earlier this year, would amend M.G.L. 93H (Massachusetts data protection law) and effectively water down the Office of Consumer Affairs and Business Regulation's (OCABR) authority (as well as their data protection regulations) on a few fronts. I'm reviewing four of the proposed changes in separate posts. Today, I'll examine a proposed change which requires different strokes for different folks, or rather different legal standards for protecting people's personal data. The proposed change adds,

Notwithstanding the rules adopted by the department [OCABR] ..., said department shall create separate regulations for small businesses ... that reflect said small businesses unique situation and resources.

Thus, under this proposed change, the law would not apply evenly, but would depend on the size of the business and require separate standards be promulgated for small businesses. Perhaps it sounds reasonable when looked at from the perspective of protecting small businesses, but this change implies a person's privacy rights matter less depending on who is allowing them to be trampled upon. Should the law allow for different standards when it comes to individuals' rights or should the emphasis be on protecting the absolute rights held by individuals instead?

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Massachusetts Senate Bill No. 173 (PDF file) introduced by Senator Michale W. Morrissey this year, would amend M.G.L. 93H and effectively water down the Office of Consumer Affairs and Business Regulation's (OCABR) authority on a few fronts. I'm taking each one up in a separate post. Today, I'll address a proposed change that involves encryption and specific technologies and adds the following language,

The department [OCABR] shall not in its regulations, however, require covered persons to use a specific technology or technologies, or a specific method or methods for protecting personal information.

To put this proposed change in the proper context, you must know OCABR's current regulations require data be encrypted. Unlike today, this proposed change would ensure OCABR is prevented from requiring specific technology or methods be employed. Thus, the proposed amendment effectively guts OCABR's encryption requirement (and its power to do so in regulations). Not only does this weaken the agency helping protect consumers' data, but it takes the bright lines out of the regulations and makes the revised law effectively fuzzy at best. In sum, the change leads to foreseeable ambiguity and real world enforcement problems.

Who does this change really protect?

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Massachusetts Senate Bill No. 173 (PDF file) introduced this year, would amend M.G.L. 93H and effectively water down the Office of Consumer Affairs and Business Regulation's (OCABR) authority on a few fronts. I'm taking each one up in a separate post and today, I'll address the first proposed change.

If SB 173 is enacted, businesses would not have to comply with any state regulations with stricter standards than federal law.  While businesses need to comply with federal law, this should not stop states from implementing higher standards to protect their residents. This suggested revision hurts individuals' privacy rights as compliance is limited to the lowest common denominator and doesn't aspire to improve safeguards beyond minimum standards.

While some commentators previously commended MA for leading the way on data privacy protections, this proposal brings us back, at best, to the status quo--a review of data breach news headlines demonstrates the status quo simply isn't working or protecting peoples' privacy. MA has a chance to take the lead in protecting individuals' privacy rights and punting isn't the best option.

In the end, so long as economic incentives and business interests are placed before individuals' rights, then privacy rights are at risk. I hope Massachusetts opts to lead the way on protecting privacy and doesn't adopt the proposed amendment. 

The timing of this proposed amendment baffles me, why gut a law the state legislature passed that hasn't even been given a chance to work?

Next, I'll discuss the data encryption and data protection methods that are being stripped away under the proposed change.

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Massachusetts Senate Bill No. 173 (PDF file), introduced earlier this year, would amend M.G.L. 93H (MA Data Security Law) and effectively water down the law while reducing the Office of Consumer Affairs and Business Regulation's (OCABR) authority to protect Massachusetts consumers' privacy rights.

These proposed changes to the data protection law are a timely topic as the original MA law was passed following TJX's large-scale data breach. TJX has recently entered into a $9.75 million settlement with 41 states over their data breach. According to the Boston Herald in, TJX to pay states $9.75M in data breach settlement,

The $9.75 million settlement payment includes $2.5 million to establish a data security fund for the states and $1.75 million to cover the states’ investigations into the data breach. Massachusetts will receive more than $950,000 of that money.

The Herald reports, Attorney General Martha Coakley, who was a driving force for all states' involved, said in a statement

Protecting consumers’ personally-identifiable information is of paramount importance to prevent fraudulent use of credit and identity theft.

All retailers and companies that hold or use personally-identifiable information must employ data security systems that guard against the improper disclosure or use of that information. This settlement ensures that companies cannot write-off the risk of a data breach as a cost of doing business.

The Identity Theft Assistance Center (ITAC) blog, in TJX Agrees to Pay $9.75 million to 41 States in Data Breach Case, states:

The company [TJX] also stated in an official news release that it “firmly believes it did not violate any consumer protection or data security laws.” However, California Attorney General Jerry Brown had a different POV [point of view] and cited the company’s 2004 internal audit, which found security vulnerabilities. ... "TJX ignored flaws in its credit card database, until hackers broke into it, gaining access to the personal information of almost 50 million people..."

In the wake of the TJX settlement, under MA Attorney General Coakley's and other attorney generals' realized efforts, it's disappointing to see present attempts to water down the Massachusetts data protection law by state legislators. In coming posts I'll discuss four changes being proposed and how each fails to help consumers or protect individual privacy rights. Thus the title of this series, "An Act Ensuring Less Privacy of Massachusetts Resident's Data" which plays off of the proposed act's title "An Act ensuring the privacy of certain data."

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Paul McNamara at Buzzblog posts in Bozeman backs down on demanding passwords that the flood of complaints over Bozeman, Montana's policy of requesting online account names and passwords of potential hires has led to that practice being discontinued. I commented on his blog as it reminded me of the discussion I recently had with a Patriot Ledger's Reporter, Julie Onufrak. During a recent interview, we were discussing the limits of industry self-regulation when it comes to privacy rights and the need for laws that protect them. I don't think self-regulation works when it comes to peoples' rights and whether it's demonstrated by a Sears' settlement or Bozeman's practices, my point is that we need clear laws that protect individuals and their privacy rights.

Here are my comments on buzzblog about the Bozeman situation:

It's good to see the policy change go into effect, but there's always another issue to consider anytime a privacy invasion occurs. What happens to the data that was collected? Recently the FTC entered into an agreement with Sears that required they stop collecting private consumer data in a certain manner, but also that they destroy the data which had been collected that way. This gets even trickier, however, when government agencies are the ones collecting private data as there are Freedom of Information Act and other sunshine laws that can give citizens access to government records. While it's good to see a policy change in Bozeman, it would be even better to see legal standards in place that go beyond self-policing or self-regulation.

To me the unifying theme is one that keeps popping up in privacy issues, if individual privacy rights are not being treated as recognized rights which are held by an individual, then efforts to protect them will fail. In order to protect privacy, bright-line laws giving individuals the right to enforce those rights must to be enacted and not left for government enforcement, but provide private remedies as well. Unfortunately, I don't think government see it that way, FTC Provides Views on Behavioral Advertising to House Subcommittee. I think this is true in Washington and as recent legislative efforts indicate, here in Massachusetts, too--which I'll post about shortly.

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Does privacy matter? I was recently reviewing excerpts from an earlier interview by International Association of Privacy Professionals with Bruce Schneier where he was asked, "Is privacy the new environmentalism?" Schneier's reply was prescient,

Yes, and data is the pollution problem of the Information Age. Think about it. All computer-mediated processes produce data. Unless dealt with, it stays around. And its after-effects can be pretty toxic. And, just as 100 years ago we ignored pollution in our rush to build the Industrial Age, today we're ignoring data in our rush to build the Information Age. And, I believe, 100 years from now our great-grandchildren will look back at the decisions we made and wonder how we could have been so ignorant and short-sighted.

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Thank you to the folks at e-Justice Blog for including Privacy Law and Policy in their 50 Best Blogs for Privacy Nuts. It's an honor to be included and also to be among the top ten blogs in the Law and Policies category.

e-Justice covers issues from cyber-law to personal security and aims to promote a more pro-active and informed citizenry by tackling issues of justice that affect people's safety and well-being.

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I recall a law professor telling me that when the Titanic sank it was lawful to not have enough lifeboats to hold the ships' occupants. I quickly checked on Wikipedia and it states,

The Titanic carried 20 lifeboats with a total capacity of 1,178 people. While not enough to hold all of the passengers and crew, the Titanic carried more boats than was required by the British Board of Trade Regulations. At the time, the number of lifeboats required was determined by a ship's gross register tonnage, rather than her human capacity.

Additional research indicates the Titanic had the potential to carry 48 lifeboats (as suggested by Alexander Carlisle) but cost-cutting resulted in only 20 being carried (albeit still more than the 16 required.) The NY Times headline on April 17, 1912 read, "LIFEBOATS FOR ALL NOT ORDERED BY LAW; Apparent Security of Modern Liners Kept Out-of-Date, Requirements in Force. The first paragraph states,

The disaster to the Titanic may bring about a change in the British Laws establishing the requirements in regard to appliances for the saving of life on modern liners, a development of marine architecture which was apparently not contemplated by those who framed the laws and amended them.

Sometimes privacy law seems like the Titanic to me. A U.S. District Court in the Northern District of California recently held the alleged risk of identity theft is enough to grant standing to an identity theft victim, but that the risk alone is not enough to survive summary judgment.

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A three member U.S. District Appeals Court for the District of New Mexico finds a familial (family) connection to a suspect supports neither probable cause for a search warrant, nor reasonable suspicion for an investigative detention of a relative. Further, officers who get this wrong can't raise "qualified immunity" as a defense in a § 1983 lawsuit.

This case demonstrates the difficulties that often arise between police powers and individuals' privacy rights. Those who favor broader police powers will decry this ruling and argue it will have a chilling effect on law enforcement. Alternatively, others will celebrate a ruling which recognizes individuals' protections from unreasonable search and seizures (due primarily to a familial relationship) and that also gives these rights a civil remedy which has some teeth.

In this case (PDF here), officers obtained a warrant and ordered the search of a murder suspect's in-laws' property. Later, officers also stopped the suspect's sister-in-law in an investigative detention. The court held the officers actions in both cases violated the in-laws' Fourth Amendment rights and ruled,

we hold that a familial relationship is insufficiently particularized to justify invading an individual's reasonable expectation of privacy. ... Applying this rule to the present case, we conclude that the...status as...in-laws, combined with the meager additional facts..., were insufficient to support a finding of either probable cause to search the property or reasonable suspicion to detain [the sister-in-law.]

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Throughout Massachusetts, including Boston where crowds awaited their victors, today is “Marathon Monday,” signifying the running of the Boston Marathon, a challenging race with many individuals striving towards a common goal. 

Through the streets of Boston, some will run fast, some slow. Regardless (or “Irregardless” as is often heard here), the field of runners couldn’t participate unless there was a shared goal and a protected course laid out for their journey. Shouldn’t we aim for the same in privacy law and policy, a shared goal of protecting individual's privacy rights while defending against infringements along our journey?

Society’s direction over the information superhighway, however, is not anywhere nearly as well laid out and organized as the Boston Marathon. While the Internet is a course we are all racing on more and more, law and policy aren’t the ones leading the pack or setting the pace. Rather, a widening gap is developing between the law (looking back over its shoulder of precedent to gage how it’s doing) versus a Web 2.0 world racing ahead under the quickening pace of Moore’s law.

But privacy’s race is not yet lost—individuals’ rights have triumphed before and are the fabric of our democracy. In Boston, today is not only “Marathon Monday,” it is also Patriots’ Day, a day honoring the first battles fought on April 19^th, 1975 in Lexington and in Concord. Ralph Waldo Emerson memorialized this day in this stanza with it's famous last line,

By the rude bridge that arched the flood,

Their flag to April's breeze unfurled;

Here once the embattled farmers stood,

And fired the shot heard 'round the world.

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