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Weekly E-Discovery SnapshotPublished: 02/24/2012
Laissez les bons temps rouler? Is it even possible to let the good times roll in times like these? It seems that no matter where you are or what you do, someone—or something—is always monitoring you.

Last month, the federal district court in Oregon ruled that a police officer's warrantless search of an arrestee's digital camera violated his Fourth Amendment rights. The court rejected a Fifth Circuit finding that personal electronic devices were analogous to closed containers such as wallets, reasoning that containers must be "capable of holding another object." In reaching the decision, the Oregon court considered the breadth and amount of personal information that electronic devices typically store. Therefore, the judge decided that warrantless searches of electronic devices were only reasonable where necessary to ensure officers' safety, to prevent the destruction of evidence, or in other exigent circumstances.

But most of the time, we don't have such an expectation of privacy. Many of us have friends who post unflattering, and potentially incriminating, pictures of us on social media sites. (And no, you can't sue your uncle for posting embarrassing pictures on Facebook.) Occasionally, the ramifications of online postings are more serious. The Criminal Court of the City of New York recently subpoenaed Twitter, asking for "any and all user information, including email address, as well as any and all tweets" relating to a person arrested as part of an Occupy Wall Street protest.

Sometimes the information is collected and published without our knowledge. Websites such as mylife.com may be aggregating information about you and posting it on the Web—without your permission. And unlike the European Union, the United States does not have laws that permit us to request the deletion of our personal information from these sites. Upcoming legislation may target this problem: on Thursday, the White House proposed a Privacy Bill of Rights.

Other times, the use of this information about us is less apparent. Last Friday, news broke of Google's hidden website code designed to defeat the security settings of Apple's Safari browser. Google circumvented Safari's settings that prohibit most types of cookies so it could store information on users' computers and mobile devices, allowing the company to serve ads tailored to their interests (the cookies do not store personally identifiable information). Though Google claims it was an accident, it has already stopped using the tracking code, which appears to be an implicit admission of guilt.

Are sites such as Google to blame for intrusions into our privacy, or are they just convenient scapegoats? Should we "put the blame where it belongs, on us, the users of the Internet"? Instead of accepting default settings that explain how online services will use our information and later complain about it, should we focus on how we can control that information? Or is the converse true? Some argue that "the argument that if consumers care about their privacy they shouldn't use these technologies is a cop-out. This technology is now completely woven into every part of society and business. We didn't tell people who wanted safer cars simply not to drive. We made safer cars."

As always, we hope you enjoy our content and welcome your feedback.
 
Jon Resnick
Worldwide Vice President, Field Operations and Marketing
Phone: 312.543.6211
Email: jon.resnick@applieddiscovery.com

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