In which the Washington Bureau Chief thinks everyone is at fault

by Eileen McGuire-Mahony | 10:55 pm, August 31, 2011 | Comments Off

A woman who used a stolen laptop is suing the company that tracked said device on behalf of its rightful owner for violating her privacy.

On the face of it, we ought to find that sniveling child and beat her soundly.  And it is to prevent just such poorly thought out over-reactions that we now turn to the rest of the story.  First, we meet Susan and Carlton, a lovely young couple separated by a sizable chunk of the North American landmass.  Fortunately, they had instant messaging and, as we shall see, no judgment.

Susan was a “long term substitute teacher” at Kiefer Alternative School in Ohio.  When I looked up KAS, the first result was a story about a 14 year old student being taken into custody for attacking a teacher.  The second was about the laptop kerfuffle.  The third was about a mediation center being set up in the school as its students spend so much time in court, anyway.  Yes, in case you were wondering, this fine academic institute serves children with “emotional and behavioral problems”

Yet, when a student at this hallowed hall of learning, this holding pen for future inmates, randomly asked Susan to buy an old laptop from him for $60 cash, she took that deal.  She claims she thought the price was fair, says she never noticed the serial number had been scratched off, and that it never occurred to her the computer might be stolen.  Susie…call me…I can offer you the deal of a lifetime on a bridge.

Susan was not yet finished displaying egregiously bad judgment, not by a long shot.  Remember that long distance relationship with Carlton?

Alright, look, kids…here’s the lay of the land.  Before you even think about getting frisky on IM, you need to be using a computer you bought new, which has never been accessed by anyone else, and which is protected by a legitimately difficult password.  Make it one you bought with your own money, too.  One can’t have some employer or grant maker arguing they have a claim to the machine or its contents.  Run that baby on a secure Internet connection that you control.  If you do not have unfettered access to the router and an administrative password, you don’t control the network well enough to be getting it on on-line.  On top of that, you need superb anti-virus software, something that blocks keystroke loggers, and you should be using both a proxy and some sweet encryption.  Even then, you should still give serious thought to sexually explicit chit-chattery.  Please, allow Susan’s humiliation to be your lesson.  And, if you’re still just that lonely, there are IM protocols for conversations you might later wish hadn’t happened.

Now, back to the story.  Susan’s laptop actually belonged to the Clark County School District.  They had loaned it to a student, Dusty, who reported it stolen.  Another student, Christopher, bought it at a bus stop for $40 and then sold it to his teacher for $60.  Arbitrage for beginners and a 50% profit, tax free.  That kid might be the smartest player in this story.  However, given his criminal history, I doubt any of the better MBA programs want him.

The School District had, however, installed LoJack, a program to track stolen laptops.  Their contract with LoJack’s maker, Absolute, allowed Absolute to do damn near anything it wanted in the name of recovering a laptop.  Which is just what happened.  Meet Kyle, the theft officer at Absolute.  He could have tracked the IP – such laptop recovery programs are usually programmed to run silently and automatically send an IP to the tracker as soon as the stolen laptop goes online – and turned that over to police, who would have contacted the ISP connected to the IP, gotten a name and address, and been done with it.

Instead, Kyle began tracking everything Susan did, watching her web searches, recording keystrokes, observing those nasty IMs in real time, and intercepting webcam pictures.  Turns out, Susan chats au natural and is not above pulling a Sharon Stone.  Eventually, Kyle did go to the police, to whom he turned over everything.  When they showed up to arrest Susan for receiving stolen property, they showed her the pictures she had unknowingly posed for.  Lest you’re wondering, Kyle was actively tracking the computer for 16 days before going to law enforcement.  Having established that Susan was no criminal mastermind, deftly hiding her location and identity, Kyle is either a terrible theft officer or was satisfying his own needs for roughly 15 3/4 days.

And now, a judge has ruled that Absolute went so far beyond what was necessary to recover the laptop that Susan has grounds to sue for violation of privacy.  Susan herself said Absolute would have been within their rights to track the IP and subpoena the user info attached to it.  Which is correct.  But, by making no effort to do that until after satisfying a decidedly prurient taste, Absolute’s employee has put himself in the wrong.

Still, I am grateful to these jackasses for providing a real world example for thinking about privacy.

As is standard practice, Susan is suing everyone possible – the police, the individual officers who arrested her, Absolute, Kyle the randy theft officer, the Clark County Schools.  Where does Amendment IV fit in here?  The court has ruled that as the search was conducted by a private company, duly authorized to do so by the legal owner of the laptop, and as we’re going to pretend it wasn’t always a given that police would become involved, there isn’t really a search and seizure violation.

The crux of this whole thing is whether Susan had an expectation of privacy or should have realistically known the computer was stolen, and whether Kyle should have gone to the police sooner, or whether his extended monitoring of Susan was excessive.  Judgment calls.  To be made by a field where judgment is demonstrably absent.

Alright, then…what about Absolute, who say they are immune as they acted within the ‘color of the law’, and the School District, which says it had no idea just what they had allowed Absolute to do in the name of tracking down a stolen laptop?  First off, don’t hire voyeuristic horndogs to work as ‘theft officers.  Secondly, read the entire contract before you sign.  Dammit, people.

That leaves us with Kyle.  As you might have guessed, I think this fellow is a nasty little pervert who went above and beyond in the wrong way.  Should Susan have a right of action against him?  Would it be a more suitable punishment to publish the entire contents of every computer Kyle owns and everything he has ever done on-line?  Would we all wish we’d never seen the contents?

First, to allow that we have to assume that Kyle spent half a month stroking off when he already had enough information to get the laptop back.  And I have problems with that.  Precedent matters in legal matters because, by allowing or forbidding something once, we are making a judgment on things that haven’t happened, yet.  Also, we would have to assume motive.  Now, in formal logic, that’s a no-no.  Obviously, this is not a high-brow academic piece, but even I have standards.  I can’t read minds, you can’t, and neither can any judge.  Sometimes we can reasonably infer a subject’s state of mind from  their behavior, but I think we need to be careful about assuming the courts can always make that inference correctly.

Naturally, if we think we can safely assume Kyle was not spending so much time watching Susan’s online action for entirely laudable reasons, we must extend the same treatment to Susan.  And, by assuming she knew damn well she was using a stolen computer, she has no expectation of privacy at all.  Aren’t paradoxes fun?  When I can’t sleep, I dwell on them until my brain begins to stew itself , pass into semi-conscious stupor on a 500 thread count pillowcase, and have freakish dreams.

Seriously, though, what I am getting at is that privacy is a transactional thing.  As a concern, it only exists when other people are involved.  Unless there is a threat of privacy violation, what is there to analyze?  Clark Schools was trying to retrieve its private property.  Absolute was trying to run a private business.  Christopher, the playground Gordon Gekko, was looking after his private finances.  Kyle was attending to another private concern.  Susan was trying to have a private life.  We could even say the police were upholding a social framework that allows private citizens to pursue private things privately.

One the other hand, once your privacy is hideously violated, there is no going back.  Secrets cannot be untold and nothing online ever goes away.  A court decision may be a moral vindication and a psychological boost.  Assuming you get whatever sum you were awarded, money is always groovy.  Yet, the real benefit of a court system that consistently comes down like a ton of bricks on privacy violators would be in scaring potential gossips.  And no one will take a threat seriously until the courts have made good on it consistently enough, and for long enough, that the Kyles of the world take pause.  Here I am speculating, but I imagine anyone who has ever become an utter laughing stock due to her private life being broadcast wants her dignity and reputation back more than whatever public apology and damages she might get.

What would you do, here?  Should companies that monitor private information be liable for individual employee’s misuse of their access?  They already are, but is that the way it ought to be?  Should individuals be individually vulnerable to torts for what they did while ‘working’?  Must we all be on insanely secured networks and machines to have even the hint of a legally recognized expectation of privacy?  Should we admit that humiliation and ruined reputations are very real and very much irreparable consequences of privacy incursions, knowing that would lead to monetizing an individual’s good name?  And what is our cultural opinion on disseminating information that is true but still damaging?

Eileen McGuire-Mahony has not been visible on IM since 2002.  She is insanely grateful to a bright young legal mind and friend of PPC who mercy-killed the detours and spurious gibes in the original draft.  She is also newly versed in ‘Respondeat Superior’.  Kickass.

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