Facebook Founder Zuckerberg’s Lost Privacy

Daniel Solove
Founder of TeachPrivacy

Zuckerberg Marc Facebook

Facebook founder, Mark Zuckerberg, has learned a lesson about privacy — it’s hard to maintain if others irresponsibly leak your personal information. From the New York Times:

Facebook tried last week to force the magazine 02138 to remove some unflattering documents about Mr. Zuckerberg from its Web site. But a federal judge turned down the company’s request for a court order to take down the material, according to the magazine’s lawyers. . . .

02138, which refers to Harvard College’s ZIP code in Cambridge, Mass., and consists primarily of articles about Harvard and Harvard alumni, published an article last week about the genesis of Facebook and the resulting lawsuit. The piece is sympathetic to the plaintiffs’ account and questions the validity of Mr. Zuckerberg’s claims.

The article relied in part on documents submitted in the lawsuit, in Federal District Court in Boston, that were ordered sealed by the judge in the case, Douglas P. Woodlock. On its Web site, 02138 posted not only the article, but also the documents, which include Mr. Zuckerberg’s handwritten application for admission to Harvard and an excerpt from an online journal he kept as a student that contains biting comments about himself and others.

Luke O’Brien, the freelance reporter who wrote the article, said that he had done nothing wrong in obtaining the documents and that neither side in the lawsuit had improperly leaked them to him. He said he had obtained the papers in mid-September from the First Circuit Court of Appeals in Boston, which considered a part of the case, where a clerk apparently made a mistake and let him read and copy sealed documents, along with those that were still supposed to be open to the public. . . .

Some of the pages he copied were stamped “Confidential” or “Redacted.” Bom Kim, founder and editor of 02138, which is not affiliated with the university or its alumni association, said that gave him pause.

On Thursday, Facebook asked Judge Woodlock to order 02138 to strike the documents from its Web site. Lawyers for 02138 said that late Friday, the judge, in an oral ruling, turned down the request; Facebook and its lawyer refused to confirm or deny that account. Calls to the court went unanswered.

Since the documents were leaked by the court, the First Amendment bars the newspaper from being sued for publishing them. See Cox Broadcasting v. Cohn, 420 U.S. 469 (1975).

The Zuckerberg incident raises an issue that I find to be occurring far too often — courts inadvertently leaking sealed and confidential documents. As businesses have discovered, after the spate of data security breaches in 2005, keeping people’s data secure is no easy task and demands training and resources. But courts, it seems, have not thought much about data security. One of the problems is that a victim of a judicial leak of information has little recourse. The First Amendment prevents stopping a newspaper or blogger or anyone who obtains the information from publicizing it. As for the court, the court clerk and officials are typically immune from liability. So if a court leaks your confidential personal information, it’s tough luck for you.

There needs to be a better incentive for courts to protect personal information. “Oops, I’m sorry” just doesn’t cut it if a court is negligent in keeping information secure.

Hat tip: Bashman

Photo Credit: Anthony Quintano

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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