Note: The author of this blog post, Brent Tuttle, CIPP/US E, is a third-year law student at Santa Clara University’s School of Law; he is pursuing a Privacy Law certificate. This piece first appeared in The Advocate--the law school's student-run newspaper.
On October 6th, SCU Law’s High Tech Law Institute, the Markkula Center for Applied Ethics, and the Santa Clara District Attorney’s Office hosted the first ever “Privacy Crimes: Definition and Enforcement” half-day conference. The Electronic Frontier Foundation (EFF), the International Association of Privacy Professionals (IAPP), and the Identity Theft Council (ITC) also sponsored the free event. It brought together practitioners, academics, and students to discuss several important questions that both civil and criminal legal professionals face in the digital age. For example, what is a privacy crime? What is being done to enforce the laws addressing these privacy crimes? Furthermore, how can we balance privacy interests in the criminal justice system?
After opening remarks from Santa Clara District Attorney Jeffrey Rosen, Daniel Suvor gave the keynote address. Mr. Suvor is the Chief of Policy to the Attorney General of California, Kamala Harris, and former Senior Director of the Office of Cabinet Affairs at the White House. Mr. Suvor discussed his work with the California Attorney General’s Office and elaborated on the AG’s stance regarding the current state of privacy crimes.
Mr. Suvor spoke of the California AG’s efforts to combat cyber-crimes. He noted that California was the first state to have a data breach notification law, implemented in 2003. Mr. Suvor also discussed a recent settlement between the CA Attorney General and Houzz, Inc. that is the first of its kind in the United States. Among other things, the terms of the settlement require Houzz, Inc. to appoint a Chief Privacy Officer who will oversee the company’s compliance with privacy laws and report privacy concerns to the CEO and/or other senior executives.
The California Attorney General has also increased privacy enforcement through the creation of an E-Crime Unit in 2011 to prosecute identity theft, data intrusion, and crimes involving the use of technology. To date, the E-Crime Unit has conducted several investigations involving piracy, shutting down illegal streaming websites, and online counterfeit operations. Mr. Suvor noted a recent area of priority to the Unit: the prosecution of cyber exploitation, commonly known as “revenge porn.”
Mr. Suvor clarified that the AG’s Office adamantly believes the term “revenge porn” is a misnomer. The Office takes the position that the term “cyber exploitation” is more appropriate for two reasons. First, porn is generally created for public consumption, whereas “revenge porn” was not created with a public audience in mind. In addition, the Office does not give any credence to the notion that the publisher of non-consensual porn has any legitimate interest in vengeance or revenge in carrying out such heinous acts. He noted that cyber exploitation is a serious nationwide epidemic and that California law expressly prohibits this conduct under California Penal Code, section 647. To tackle this problem, the Office is collaborating with the private sector. Mr. Suvor reported that Google, Facebook, Twitter, Reddit, and others have since adopted policies that will help victims combat cyber exploitation.
Following Mr. Suvor’s keynote, Irina Raicu, Director of Internet Ethics at the Markkula Center for Applied Ethics, moderated a panel titled “What Is a Privacy Crime?” The well-rounded group of panelists consisted of Hanni Fakhoury, Senior Staff Attorney from the Electronic Frontier Foundation; Tom Flattery, Santa Clara County’s Deputy District Attorney; and Susan Freiwald, a Professor at the University of San Francisco School of Law.
Ms. Freiwald opened the panel by acknowledging how hard it is to define a privacy crime. Privacy interests are amorphous. To some, privacy is the right to be left alone. Others seek privacy in their communications, privacy in their autonomy, but depending on the individual, privacy expectations and concerns will vary. However, she drew a sharp distinction in differentiating privacy crimes from torts, because in this respect, the State has an interest in punishing an individual for privacy crimes.
Ms. Freiwald also urged the audience that it is important to proceed with caution when defining privacy crimes. For example, Freiwald stressed the consideration of due process. We must ensure that legislation specifies conduct so that people have notice of what exactly is illegal, what the relevant level of culpability is, whether a privacy crime must be subjectively or objectively harmful, and what defenses may be available to those accused. Furthermore, she noted that protecting some from privacy crimes could also conflict with the First Amendment. In this respect, she urged that we find a proper balance between protecting an individual’s privacy while leaving room for freedom of speech and freedom of the press.
The co-panelists echoed Ms. Freiwald’s concerns and statements. Deputy District Attorney Tom Flattery shed light on how the Penal Code helps protect privacy, but also recognized that there are gaps that it does not address. While the Penal Code combats matters where one individual does something to harm another individual, it does not address matters Mr. Flattery referred to as “commercial surveillance,” where private companies use deceptive terms of service to invasively collect data on their users.
Mr. Flattery went into detail about the common use of the California Penal Code to deal with privacy crimes. Specifically, section 502 contains anti-hacking provisions that differentiate criminal activity by what an individual does with the data after gaining unauthorized access. For example, if someone merely gained unauthorized access to a social media or email account and did nothing with this data, that person would be subject to Penal Code § 502(c)(7), though first offense is only considered an infraction, in the same vein as a speeding or parking ticket. However, if the individual used the information, then Penal Code § 502(c)(2) elevates the charge to a misdemeanor or felony. Mr. Flattery encouraged the audience to think about what the term “use” means in the context of the Code. Does this code section only apply when an individual uses the information to obtain financial gain, or does sharing this data with a group of friends also constitute a “use”? Mr. Flattery stated that these questions don’t really have “good clean answers,” which leaves citizens without a bright-line rule in a context that will become increasingly more important over time.
Another area of concern Mr. Flattery highlighted was the increasing theft of medical IDs and electronic medical records. In these instances, people will go in to a hospital or medical treatment facility and assume the identity of someone else to obtain free healthcare services under a stolen alias. However, as medical records increasingly become electronic, when the victim of this crime comes into the hospital with a legitimate medical emergency, his or her electronic medical record is full of inaccurate medical information. In these cases, the identity theft can be life threatening, as a patient’s record can correctly document that someone under their name received a particular medication two weeks prior, when in fact the actual patient is fatally allergic to such treatment.
Mr. Fakhoury brought a unique perspective to the debate, but one that all the panelists were somewhat in agreement on. His takeaway was that when defining and addressing privacy crimes, we “need to chill out a little bit and think these things through.” Rather than adding more legislation, he stressed that we should examine whether or not the current California Penal Code sections could be used to address the problem. Mr. Fakhoury believes that the current penal code could fix at least some of the new problems society is facing with “privacy crimes.” For example, addressing Mr. Flattery’s previous remarks about medical ID theft, Mr. Fakhoury noted that the general identity theft statute is an applicable statutory remedy, so he questioned why we would need another law to handle this problem. Mr. Fakhoury also emphasized the potential issues of adding an abundance of new and unnecessary legislation. New bills could be drafted sloppily or poorly and include ambiguous language that is left for courts to interpret, thereby covering more conduct than was originally intended.
Not entirely against new legislation, Mr. Fakhoury urged support for CalECPA, aka SB-178 (which was signed by the Governor late last week). This new law provides citizens with privacy protections against law enforcement. Mr. Fakhoury distinguished this piece of legislation from others that might be quick to criminalize privacy crimes, as he believes it provides law enforcement with tools to get sensitive digital information, but it also protects the public by requiring law enforcement to get a search warrant beforehand.
Santa Clara County’s Supervising District Attorney Christine Garcia-Sen moderated the next panel, “What’s Being Done to Enforce Laws Addressing Privacy Crimes?” Attorney Ingo Brauer, Santa Clara County Deputy District Attorney Vishal Bathija, and Erica Johnstone of Ridder, Costa & Johnstone LLP all participated in an hour-long talk that discussed the obstacles and successes practitioners are facing in enforcing privacy crimes.
Mr. Bathija highlighted the fact that frequently victims are so embarrassed by these privacy crimes that they are hesitant to shed more light on the humiliating moments with court proceedings and enforcement. He used an example of a sexual assault case where an underage female was exchanging sexually explicit photos with another person. Prior to the case going to trial, the victim realized that the details of her sexual assault would be heard by the jury. Understandably, she vocally expressed her concerns that she didn’t want other people to know that she had been subject to this sexually deviant conduct with the offender.
Erica Johnstone was quick to point out that a huge difficulty in litigating “revenge porn” or “cyber exploitation,” is the expense of doing so. Many firms cannot accept clients without a retainer fee of $10,000. If the case goes to court, a plaintiff can easily accrue a bill of $25,000, and if the party wants to litigate to get a judgment, the legal bill can easily exceed $100,000. This creates a barrier whereby most victims of cyber exploitation cannot afford to hire a civil litigator. Ms. Johnstone shared her experience of working for pennies on the dollar in order to help victims of these crimes, but stressed how time- and labor-intensive the work was.
Ms. Johnstone also pointed out the flawed rationale in using copyright law to combat revenge porn. Unless the victim is also the person who took the picture, the victim has no copyright in the photo. In addition, the non-consensual content often goes viral so quickly that it is impossible to employ copyright takedown notices to effectively tackle this problem. She described one case where a client and her mother spent 500 hours sending Digital Millennium Copyright Act takedown notices to websites. She also spoke on the issue of search results still displaying content that had been taken down, but was pleased to announce that Google and Bing! had altered their practices. These updated policies allow a victim to go straight to search engines and provide them with all URLs where the revenge porn is located, at which point the search engines will automatically de-list all of the links from their query results. Ms. Johnstone also applauded California prosecutors in their enforcement of revenge porn cases and said they were “setting a high bar” that other states have yet to match.
As a defense attorney, Ingo Brauer expressed his frustration with the Stored Communications Act, a law that safeguards digital content. He noted that while prosecutors are able to obtain digital content information under the SCA, the law does not provide the same access for all parties, for example defense and civil attorneys. Mr. Brauer stressed that in order for our society to ensure due process, digital content information must be available to both prosecutors and defense attorneys. Failure to provide equal access to digital content information could result in wrongful prosecutions and miscarriages of justice.
All three panelists were also adamant about educating others and raising awareness surrounding privacy crimes. In many instances, victims of revenge porn and other similar offenses are not aware of the remedies available to them or are simply too embarrassed to come forward. However, they noted that California offers more legal solutions than most states, both civilly and criminally. Their hope is that as the discussion surrounding privacy crimes becomes more commonplace, the protections afforded to victims will be utilized as well.
The conference closed out with the panel “Balancing Privacy Interests in the Criminal Justice System.” Santa Clara Superior Court Judge Shelyna V. Brown, SCU Assistant Clinical Professor of Law Seth Flagsberg, and Deputy District Attorney Deborah Hernandez all participated on the panel moderated by SCU Law Professor Ellen Kreitzberg.
This area presents a particularly sensitive field as both victims and the accused are entitled to certain privacy rights within the legal system, yet prioritizing or balancing these interests is difficult. For example, Judge Brown stated in a hypothetical sexual assault case where the defense sought psychological records of the victim, she would want to know if the records would have any relevance to the actual defense. She stressed that the privacy rights of the victim must be fairly weighed against the defendant’s right to fully cross-examine and confront his or her accusers. And even if the information is relevant, she noted that often times you must decide whether all of it should be released and whether the information should be released under seal.
Overall, the Privacy Crimes conference served as an excellent resource for those interested in this expanding field. EFF Senior Staff Attorney Hanni Fakhoury stated, “This was a really well put together event. You have a real diversity of speakers and diversity of perspectives. I think what’s most encouraging is to have representatives from the District Attorney’s Office and the Attorney General’s Office, not only laying out how they see these issues, but being in an audience to hear civil libertarians and defense attorneys discuss their concerns. Having...very robust pictures, I think it’s great for the University and it’s great for the public interest as a whole to hear the competing viewpoints.”
Videos, photos, and resources from the event