Technically Legal

Technology and the law. Done right.

The 4th Amendment, Privacy, and it’s Application to Technology

Attorney, blogger and law professor, Eric Goldman, posted an excellent writeup today on several recent cases concerning the 4th Amendment “right to privacy” in state supreme court cases.

While some laws have been easily applied our new technology-laden world, others either provide complications or simply have not yet been applied–making the legal significance of a piece technology unknown.  In his post, Goldman points out several recent decisions concerning the application (or potential application) of 4th Amendment privacy rights to technology in both civil and criminal litigation, including:  cell phone and text message privacy; expectations of privacy in documents or data held by a third party; and GPS tracking devices and a right to privacy.  Read his post for the full recap.

You might not think the particularities of search and seizure law matter much to you (I don’t commit crimes anyways! Why should I care what the police can search?!).  However, you may find the fundamental concepts which support these laws today might influence future policies that affects our electronic data and online activity privacy rights–especially when it comes to how online service providers can handle our private information, whether it’s demographics, physical mailing address, phone numbers, e-mail, social security numbers, and the list goes on.   It’s very much a subject worth following as it develops.

Basic Background of the 4th Amendment “Right to Privacy”

If you are not already a lawyer, law student, or US constitutional aficionado, you probably recall the 4th Amendment from your high school (or college) civics classes.  Embodied as part of the Bill of Rights, the 4thAmendment affords a right to the “people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures.”  Additionally, the text provides a method for authorities to conduct what would be otherwise “unreasonable searches and seizures” if they obtain a warrant, “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. “   Side note: the 4th Amendment applies to the States through the 14th Amendment, hence why we see _state_ courts grappling with the application of the U.S. Constitution to local matters.  (See Mapp v. Ohio, 367 U.S. 643 (1960)).

You’ll notice there is no mention of the word “privacy” within this Amendment, but we’ve all come to know this section of the Constitution to afford a general right to privacy.  In fact, the modern notion of a “right to privacy” was articulated  into both criminal and civil law through judicial decisions interpreting the meaning of the textual language of the 4th Amendment.

The 4th Amendment is commonly invoked in criminal matters.  Even if you’re not especially familiar with criminal law, you probably know that a police office can’t just walk into your home and seize a piece of evidence.  Absent certain exigent circumstances, an officer would need to have a warrant to conduct such a search for contraband or evidence.  Similarly, if you are stopped on the street by an officer, absent probable cause, if that you have not committed a crime witnessed by the officer, you cannot be arrested nor have your purse or backpack searched without a warrant.  Note here that the concept of “seizure” also extends to a person– if you are arrested, you are effectively seized–in addition to search of belongings.   In the law, this prohibition on search and seizure was articulated into a test which is still applied today in Katz v. United States, 389 U.S. 347 (1967).  The right extends to tangible and intangible property where a person has an ” reasonable expectation of privacy”– the expectation must be one that is generally accepted by society, not subjectively by an individual.  E.g.,  just because I consider the open trunk area of my SUV which is visible to to the public to be a private area, doesn’t automatically deem it so.

The effect of the 4th Amendment is profound in criminal proceedings.  Importantly, a rule known as the “exclusionary rule” prohibits the introduction of unconstitutionally obtained evidence into the record on trial (a jury should never see it).  Thus if that “expectation of privacy” was violated when an officer searched an individual, in most circumstances it will not be permitted into evidence at trial.  Of course, like with almost everything in the law, there are a number of exceptions and the law is incredibly nuanced.

Beyond criminal proceedings, the notion of an “right to privacy”  is a subject in civil law too.  A number of torts recognized in the U.S. legal system which have evolved from the “expectation of privacy” concept.  In other words, should a person find themselves the victim of a civil privacy injury,  they can sue another person (or legal entity) for damages and sometimes equitable relief (e.g., an injunction).   The most universally recognized throughout the 50 states are:  “intrusion on solitude” (e.g., physical intrusions on private areas); “false light” (e.g., wrongly portraying someone in a news report on purpose, or defaming someone); “public disclosure of private facts” (e.g., publishing or disseminating certain private facts about a person); and, “misappropriate on likeness” (e.g., using a person’s picture in a commercial advertisement without permission).   A number of other laws governing privacy rights have also been legislated, including the handling of electronic data (see Electronic Communications Privacy Act and the Stored Communications Act) and certain protections on sensitive health care information (HIPAA).

Both from the Constitutional and civil standpoints, these laws regulate the everyday privacy we enjoy and sometimes take for granted.  As societal norms evolve, it’s important to ensure the law properly reflects what we think of as privacy.

Comments Off Posted in: Commentary on January 19, 2010

Death to MS Word?: Microsoft Loses i4i Appeal in Patent Infringement Case

On December 22, 2009, the Federal Circuit ruled all issues on appeal in favor of i4i.  The Federal Circuit reestablished the effective date of the injunction to January 11, 2010.  Microsoft is left with few avenues in terms of the litigation.  They can appeal to the Federal Circuit (again) and ask for a rehearing en banc.  Another viable option maybe to appeal the Circuit court’s ruling to the Supreme Court.  Finally, they can always wait and see what happens will the Bilski case, which was argued before SCOTUS earlier this fall, and hope the ruling affects the underlying validity of i4i’s patent (not an attractive option).

We covered the first part of this saga on our podcast back in August.  In short, i4i Limited Partnership sued the 800 lb gorilla, Microsoft, for patent infringement based on its Patent # 5,787,449.  The patent claims “a system and method for the separate manipulation of the architecture and content of a document, particularly for data representation and transformations.”   The target of i4i’s litigation was Microsoft’s XML document editing software which is integrated into Microsoft Word (primarily affecting Word 2003 and 2007).   More specifically, i4i claimed Microsoft willfully infringed the ’449 patent.  After a jury found Microsoft guilty of infringement, the district court awarded i4i $200M for the infringement, an additional $40M because the infringement was willful, and pre- and post-judgment interest.  Ouch.

Here’s the kicker though.  In August, i4i filed a post-judgment motion seeking to permanently enjoin Microsoft from supporting, using, or selling editions of MS Word that contained the infringing technology.  The motion was granted; and, Microsoft was dealt a serious blow to the gut.  This sparked a fury of speculation in the blogopshere and media as everyone tried to figure out the fate of MS Word.  As you might imagine, Microsoft did not lay down in defeat– instead they filed an emergency motion to stay the injunction.  The stay was granted and Microsoft filed an appeal before the Federal Circuit challenging the ruling, arguing the District Judge erroneously construed a claim– in  lay-speak, Microsoft argued that the Judge incorrectly applied meaning to a portion of the invention which made the patent broader than what was actually claimed.  Additionally, Microsoft argued that the patent should be invalidated and injunction lifted through other precedent (KSR and EBAY) and pandered about with some other evidentiary arguments that occurred during the trial.

Most importantly, the injunction became effective this week, and Microsoft was forced to comply with it. Since the appellate decision, sources are reporting that Microsoft has indeed made changes to the software to comply with the ruling.  The changes will apparently allow Microsoft to continue selling versions of Word without violating the injunction.  Fear not!  Word is here to stay– in some form.  No word yet if it is technically feasible for Microsoft to redevelop the XML editor in a way which prevents them from violating the ’449 patent.  However, I suspect Microsoft will do something to reincorporate the lost XML functionality back into future versions of Word.

Something that I have not seen covered on other blogs is how this injunction is affecting Microsoft’s corporate clients.  I’ve already received  a handful of phone calls from friends and even a family member asking about the Federal Circuit’s ruling.  Each of these people are employed at the executive or senior executive levels of Fortune 500 companies and all expressed concern about how the ruling was going to affect their company’s future revenue streams.  Undoubtedly, a large number of companies who develop products that depend on certain functionality (like XML manipulation) or proprietary file formats (DOCX and DOCM come to mind) might have just been hurt in a previously unanticipated way.  Depending on what Microsoft changes, this might end up being the focus of more lawsuits from large corporate licensees.  On a brighter note, maybe the litigation will turn around the economy? <kidding>

Stay tuned for more updates.  I’m sure they are coming.

Comments Off Posted in: Commentary on January 14, 2010

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