PRIVACY + SECURITY BLOG

News, Developments, and Insights

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Fox News and Vigilante Justice Gone Bad

Fox News and Shaming

There have been some interesting discussions recently about people taking matters into their own hands and shaming others whom they witness committing crimes.  A while back, I wrote about the shaming of the dog poop girl, whose picture and personal information were placed on a website after she failed to clean up her dog’s poop on the subway.  Kaimi Wenger also had some interesting thoughts about the case here and here, as well as did Marcy Peek in a post about Internet vigilantism.  Just the other day, Brooks Holland writes about a case involving the shaming of a NYC subway flasher, where a woman caught a picture of him on her cell phone camera and posted it online.

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The Washingtonienne Case and the Still-Very-Much-Alive Public Disclosure Tort

Washingtonienne Case

Earlier this summer, I blogged about the Washingtonienne case. Recently law professor Andrew McClurg wrote a piece for the Washington Post about the case. He writes:

Cutler’s blog, written under the pseudonym Washingtonienne, was a daily diary of her sex life while working as a staffer for Sen. Mike DeWine (R-Ohio). It recounted, entertainingly and in considerable — sometimes embarrassing — detail, her ongoing relationships with six men, including [the] plaintiff. . . .

Although McClurg notes that the plaintiff “suffered a genuine wrong,” he also states that the law “appears to be against him” because he “does not allege that any of the statements about him are untrue.” McClurg notes that the plaintiff is suing under the public disclosure of private facts tort, which “provides a remedy when one publicizes private, embarrassing, non-newsworthy facts about a person in a manner that reasonable people would find highly offensive.” McClurg notes that “while Cutler’s actions may meet this standard, courts have long been hostile to such lawsuits because of a fear of inhibiting free speech.” McClurg continues:

In 1989 the court tossed out a lawsuit against a newspaper for publishing a rape victim’s name in violation of Florida law. While it stopped short of ruling that a state may never punish true speech, the test it adopted for when that can be done without violating the First Amendment is so stringent Justice Byron White lamented in dissent that the court had “obliterate[d]” the public disclosure tort.

Not so. Time after time the Supreme Court has explicitly carved out space for the public disclosure tort to exist. In the series of cases involving the First Amendment and privacy restrictions on true speech, the Court has always confined the First Amendment to speech about matters “of public significance.” The Court did this in Smith v. Daily Mail Pub. Co., 443 U.S. 97, 103 (1979) as well as its most recent case on the issue, Bartnicki v. Vopper, 532 U.S. 514 (2001), where the Court held that “privacy concerns give way when balanced against the interest in publishing matters of public importance.” Id. at 534.

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How Companies Help Phishers and Fraudsters

Privacy Choice forms

A friend of mine recently received in the mail a letter purporting to be from Citibank.  It contained a sheet of paper saying: “Please see the enclosed for information regarding your Citi Mastercard Customer Credit Card account ending in [last four digits] issued by Citibank USA, N.A.”  Inside the letter were two little brochures – a notice of change to Citibank’s policies; and a complete privacy policy with an opt out form at the end.

She went to Citibank’s website and downloaded their privacy policy and noticed some suspicious differences between the opt out form in the letter [on the left] and the one from Citibank’s website [on the right].

Two notable differences are: (1) the form from Citibank’s website has a toll free phone number you can call to opt out; the form in the letter does not; (2) the addresses of the processing centers where the opt out forms are to be sent are different.

So my friend then called Citibank to find out what was going on.  Had a fraudster acquired a card in her name?  Was the letter an elaborate fishing scheme?

My friend recounted the conversation the best she could so I could recreate it on this blog.  This is reconstructed from her memory, so it’s not exact.  Although the transcript below doesn’t contain the precise words spoken, it hopefully will capture the gist of the conversation.

Click on the continuation to read more.

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