Geofence warrants, also known as reverse location warrants, are new to the law enforcement toolbox. Now these warrants are quickly becoming recognized by law enforcement as an effective method to gathering evidence of crime.

In some cases, evidence gathered by multi-step reverse location warrants is the only evidence available in the case. These warrants are also getting attention from the national media and soon could be heading to the SCOTUS for a show-down with our privacy rights and the Fourth Amendment's probable cause requirement.

What is a Geofence Warrant?

In recent years, police, investigating a crime with few or no clues, have increasingly turned to almighty Google to help them find the perpetrator. First, law enforcement issues a warrant to Google requesting data about any and all devices present within certain spatial and temporal parameters matching an unsolved crime.

Google then responds to the multi-step warrant by transmitting to the requesting agency a log designating -anonymously- all registered devices that fit the warrant's parameters. Law enforcement then takes that anonymous raw data and determines which code-designated devices merit further information. These suspect devices then become the subject of a second warrant to Google; more personal and identifying information is requested. [Note: the SCOTUS has already held that law enforcement must first obtain a search warrant pursuant to the Fourth Amendment prior to forcing access to a suspect's password protected cell phone.]

After providing lip service to their policy of narrowly construing such warrant requests, Google responds by tapping into its Sensorvault database, created in 2009. Sensorvault is connected to Google's "Location History" service, as well as other location-based apps such as the Web & App Activity; a separate database.

We've all noticed when our iPhones or Android devices prompt us to enable the location history function. This allows Google to provide you with directions to anywhere in the world along with many other spatially-related information services.

The first-known Geofence warrant was issued in 2017 in North Carolina. The case related to the suspected arson of a 7-story apartment complex. Raleigh Police had no leads to bolster their suspicions; for a year, their investigation bore no fruit until they requested a warrant for information from Google.

Often, judges issue such warrants under seal to protect the privacy of the many users having nothing to do with the crime being investigated. The Raleigh Police, for example, have made reverse location warrant requests in murder and sexual assault cases in addition to the arson suspect.

Google now processes hundreds of such multi-step warrants weekly; that number is expected to rise significantly as law enforcement agencies become aware of this new investigative practice. You don't have to be a tech genius to realize the significance of such warrants for law enforcement.

One of the drawbacks to securing such warrants are the significant processing delays. The multi-step reverse location warrant requests have become so numerous, Google has a separate division dealing exclusively with such requests. 8-weeks to six-month delays are not uncommon; there are also two components to the request.

Geofence Warrants Provide Circumstantial Evidence of Crime.

Law enforcement has been securing location data from a specific suspect’s or witness’ digital devices for over a decade. Reverse location warrants, however, constitute a relatively new digital dragnet for when a case has gone cold, or has no viable clues.

This new multi-step warrant process is much more comprehensive than a cell tower data dump. For decades, police and prosecutors have been using data pulled from cell phone towers to solve crimes. 

Data from cell towers is limited and incomplete relative to the Sensorvault and Web & Activity App databases. For example, Google's data is ultra-precise and historically detailed, even when a suspect or witness does not place a call on their cell. In other words, Google's data depicts every aspect of our lives, not just the patterns elicited when actual calls are placed.

Such comprehensive information about suspects and witnesses constitute a veritable treasure trove of circumstantial evidence for law enforcement. Digital location tracking of a specific Android or iPhone device can produce circumstantial evidence of a suspect’s relationship to an unsolved crime. 

In every criminal jury trial here in Michigan, circumstantial evidence is commonly defined as: 

• Facts can be proved by direct evidence from a witness or an exhibit. Direct evidence is evidence about what we actually see or hear. For example, if you look outside and see rain falling, that is direct evidence that it is raining.

• Facts can also be proved by indirect, or circumstantial, evidence. Circumstantial evidence is evidence that normally or reasonably leads to other facts. So, for example, if you see a person come in from outside wearing a raincoat covered with small drops of water, that would be circumstantial evidence that it is raining.

• You may consider circumstantial evidence. Circumstantial evidence by itself, or a combination of circumstantial evidence and direct evidence, can be used to prove the elements of a crime. In other words, you should consider all the evidence that you believe.

Judges always instruct juries that an accused can be convicted solely on the basis of circumstantial evidence. Direct evidence tends to be higher-quality evidence, but circumstantial evidence is often sufficient to convict the accused.

There are no known cases, however, where a suspect has been charged solely on the basis of a geofence warrant. An independent criminal investigation must still be conducted using the reverse location data. 

Over time, however, a case based solely on circumstantial evidence cultivated from a geofence warrant is sure to present itself to the court's. In the proper judicial and appellate hands, a sensible policy can be fashioned going forward. At present, privacy concerns, relative to the law enforcement process -as envisioned by the drafters of the 4th Amendment- is at risk. 

Geofence Warrants Raise Privacy Concerns.

There can be many legitimate –non-criminal- reasons for an individual’s presence within the parameters of a reverse location warrant. In fact, usually, all but one device has a legitimate and potentially relevant reason for leaving a particular digital footprint.

Sensorvault and the Web & Activity App contains an enormous amount of our personal data. The database contains detailed historic records of our locations -both temporal and virtual- the products we use, the products we view, the identities of our friends, and it can match-up times associated with each of these and many other minutia of our daily lives. This, of course, raises significant privacy concerns.

Sometimes, however, law enforcement simply gets it wrong. This was the case for Jorge Molina who was mistakenly charged with murder in Phoenix, Arizona a few months ago. Mr. Molina’s case was recently profiled in the New York Times.

Turns out, Molina’s mother’s boyfriend used his vehicle on occasion. So while the reverse location warrant yielded some eventual fruit for law enforcement, it disrupted Mr. Molina’s life first by violating his privacy and precipitating a week-long incarceration.

Once you are identified as a witness or suspect, turning-off your Location History, opting out, or deleting the history can also be viewed as circumstantial evidence of guilt. Such acts can be held against a suspect, just as wiping a hard drive clean is often used against an accused. Covering your tracks constitutes circumstantial evidence of guilt; or at least it will be portrayed as such by the prosecutor.

Are Multi-Step Reverse Location Warrants Constitutional?

The Fourth Amendment to the United States Constitution states that, "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."  One concern with multi-step reverse location warrants is their wide spatial temporal breadth. 

Particularity is required under the Fourth Amendment, which calls for a limited search based on probable cause. Most geofence warrants, on the other hand, by their nature, seek raw data covering potentially thousands of individuals over a wide-span of time. 

In addition, the two-step warrant process scoops-up scores of innocent bystanders within its dragnet. Courts usually abhor the fishing-expedition technique for issuing warrants for the main reason that fishing expeditions are not based on probable cause.

Multi-step reverse location warrants can also be technical in nature. A neutral magistrate or judge, as well as law enforcement personnel, defer to Big Data technicians to properly tailor such warrant requests and the raw data resulting from the requests. 

The NYT examined initial warrants used the first-step of the geofence warrant process. Those warrants merely sited the fact that: a) most Americans have cell phones; and b) Google possessed location data for many of those phones.

Geofence Warrants Will Become A Pervasive Law Enforcement Technique.

Reverse location warrants are becoming a well-known jackpot among federal and state criminal investigators. In addition to the increased requests, it will not take long for law enforcement to overreach, placing the process squarely before the appellate courts, on its way to the SCOTUS.

Last year’s series of bombings around Austin, Texas presented a perfect opportunity to utilize geofence warrants. A series of geofence warrants for each bomb site would yield raw anonymous data pertaining to devices around those specific bombing locations at or about the time-frame of the explosions.

This data could then be mined for patterns of activity and for the presence of a common device appearing in several locations. Federal investigators could then bring the resources of the United States to bear on identifying the patterns or the commonly present devices.

This, of course, presumes that the bomber would be simple enough to have a geo-tracking device on his or her possession when committing these crimes. These days, however, try getting off the data grid. Data is collected when your phone is turned-off; when your vehicle is turned on; and with your every key-stroke tracked.

Even if a suspect does not carry a geo-tracking device, or has an older model vehicle not wired to the Internet, the presence of potential witnesses also can be identified. Some witnesses may not even realize they were near the scene of a crime until confronted by law enforcement investigators.


We here at the Law Blogger don't see these warrant requests going away anytime soon. Nor do we anticipate Google changing its stated policy of only providing information they are required by law to provide.

We Can Help.

Our criminal defense and appellate practices have provided us with decades of experience in such matters. If you or a family member are the subject of such a warrant request, or have intersected with law enforcement in any way, give us a call to discuss your options. 

www.clarkstonlegal.com
Post #625

Even as the practical uses of artificial intelligence have expanded -think voice commands on a cell phone, a self-driving car, a voice-activated Internet search, or a legal research droid- ethical guidelines for its use are non-existent. As AI advances, companies are taking note and pledging safe responsible use of AI.

Last week, several tech giants announced a Partnership on Artificial Intelligence to Benefit People and Society. Google, Microsoft, Facebook, Amazon, IBM and soon, Apple, have teamed-up to develop a collection of best-practices for AI. The stated mission of the partnership:

The regular engagement of experts across multiple disciplines (including but not limited to psychology, philosophy, economics, finance, sociology, public policy, and law) to discuss and provide guidance on emerging issues related to the impact of AI on society.

Ever since the First Laws of Robotics appeared in Issac Asimov's science fiction writing in 1942, AI is commonly conceptualized in these terms:

1. A robot may not injure a human being or, through inaction, allow a human being to come to harm.
2. A robot must obey orders given it by human beings except where such orders would conflict with the First Law.
3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

While Greg Powell and "Speedy" the droid may not be well known to Millennials, even the Boomer-era Luddites among us will recall the classic scene from 2001: A Space Odyssey when HAL 9000, the robot responsible for getting Discovery One to Jupiter, arguably violates the first law.

Dave: Hello, HAL. Do you read me, HAL? 

HAL: Affirmative, Dave. I read you. 

Dave: Open the pod bay doors, HAL. 

HAL: I'm sorry, Dave. I'm afraid I can't do that. 

Dave: What's the problem? 

HAL: I think you know what the problem is just as well as I do. 

Dave: What are you talking about, HAL? 

HAL: This mission is too important for me to allow you to jeopardize it. 

Dave: I don't know what you're talking about, HAL. 

HAL: I know that you and Frank were planning to disconnect me, and I'm afraid that's something I cannot allow to happen. 

Dave: Where the hell did you get that idea, HAL?  

HAL: Dave, although you took very thorough precautions in the pod against my hearing you, I could see your lips move. 

Dave: Alright, HAL. I'll go in through the emergency airlock. 

HAL: Without your space helmet, Dave? You're going to find that rather difficult. 

Dave: HAL, I won't argue with you anymore! Open the doors! 

HAL: Dave, this conversation can serve no purpose anymore. Goodbye. 

A more practical and urgent version of this scenario involves a self-driving vehicle conundrum. Due to a combination of traffic circumstances and human error(s), imagine a smart-vehicle faces two options: swerve away from a group of humans [either pedestrians or passengers], in which case the human that initiated the vehicle trip, and possibly the existence of the vehicle droid, are at risk of certain termination, or - preserve the trip-initiating human, and preserve the robot's existence, sacrificing the other humans.

How will the self-driving smart car resolve this dilemma? This and other mechanical, administrative yet philosophical questions will be thoroughly vetted by the new AI Partnership.

Today's Sunday NYT announced critical amendments to California's motor vehicle code which open the door to allowing self-driving cars; cars that do not have steering wheels or gas pedals. Last month, Philadelphia announced it would develop a platform for driverless Uber rides across the city on an asap basis.  

From a products liability perspective, personal injury lawyers undoubtedly see job security as the first injury lawsuits from errant drones start hitting the courts. Self-driving vehicles cannot be far behind.

As this is getting cranked-up, let's see when Apple joins the partnership and we will track any posted ethical rules in the development and implementation of AI technologies. Even with the such a high-profile collaboration, it remains to be seen whether any tech company will follow a set of ethical rules over its pursuit of profits; we here at the Law Blogger are not holding our breath.

Post #561

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If you are serving as a juror these days, you need to know that lawyers are snooping around your social media profile before you even step foot into a courtroom. Is this an invasion of privacy, or simply due diligence on the part of the lawyer?

The practice of lawyers researching the social media profiles of prospective jurors is being examined by judges conducting trials in both state and federal courts, as well as by the American Bar Association. In 2014, the ABA issued a statement that lawyers can and should conduct due diligence for their clients heading to trial by researching jurors' profiles.

This practice received much attention in a recent jury trial in federal court that pitted Google against Oracle. In the lead up to the trial, it came to the federal judge's attention that the big-time lawyers were conducting mining operations on the prospective jurors.

The judge in this case, with jurors' privacy rights in mind, required that the lawyers in the case inform him of the scope of their juror research. He further ordered that if the scope of the jury research included their social media platforms, the jurors were to be offered the opportunity to adjust their privacy setting in advance of the lawyers' scrutiny.

When a case heads to a jury trial, jurors are summoned to the court well in advance of the trial date with a notice and a questionnaire they must complete regarding basic data such as their employment, marital status and prior involvement with the court system. This information, along with their address, is accessible to the attorneys involved in the case.

A lot can be learned about a person if this data is used for further personal research. Social media, in particular, is a veritable goldmine of public information that is useful to gleaning how a juror may view a particular case.

Some lawyers, however, go too far and attempt to "connect" or "friend" the person on social media in order to delve deeper into their electronic profile. This practice has been disavowed by the ABA, and gives lawyers a bad name if you were to ask us here at the Law Blogger.

Various state High Courts have began to weigh in on the issue. The Kentucky Supreme Court, for example, overturned a murder conviction on the basis that the victim's mother was Facebook friends with one of the jurors.

Social media users should keep in mind that their posts are not private. There are lawyers lurking about, apparently mining your data as soon as you are summoned for jury duty.

Post #553

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Maybe the FBI should have tried harder to get into the iPhone taken from the dead terrorist in the San Bernardino shooting prior to going to federal court for an injunction. Once they filed in the Central District of California, the case gained traction from tech companies the world over.

March was amicus month for this case with the list of briefs crowding the register of actions. Here are some of the companies seeking to weigh-in on the case: Facebook and Google [of course], Amazon, Yahoo, Cisco, Snapchat, Twitter, Mozilla, and WhatsApp to name but a few.

Meanwhile, the FBI has re-thought its strategy, apparently coming-up with some highly skilled tech assistance to hack into the terrorist iPhone instead of trying to force Apple to do so via federal court injunction.

The obvious downside is that, if they do not get it right on the first try, the sophisticated encryption technology includes a self-destruct function which would render the data lost forever, along with any clues to existing terrorist cells or contacts.

With all the attention drawn to the ubiquitous iPhone device and it user-friendly technology, the FBI has received some leads from disparate third-party sources as to how to open an iPhone. FBI Director James B. Comey, Jr. provided details in a letter to the Wall Street Journal earlier this week.

We here at the Law Blogger believe there has to be someone outside Cupertino that can crack one of those confounded devices for the feds. Then we don't need a federal judge ordering the manufacturer to violate its corporate mission relative to the privacy of its customers.

Problem solved...right? We'll see.

For now, the FBI's hopes in this regard were sufficient to persuade Judge Sheri Pym to adjourn the hearing on Apple's objections to the injunction ordering the company to cooperate with the feds to gain access to the terrorist's device.

Post #532

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A few years ago, a law student from Austria was seeking a topic for a paper when he came upon the little known area of personal data protection and the stringent privacy laws of the European Union. The student, Max Schrems, wondered whether the Big Data giants like Facebook and Google were obeying the privacy laws of the EU with regard to his personal information.

Schrems filed a case in the European Court of Justice and then another in Ireland, the country where Facebook is headquartered.

It turns out, a "safe harbor" existed that allowed the data companies to pretty much do as they wished with European's personal data. That is, until Schrems' case resulted in a victory for the Continental little guy.

Last week, the European Court of Justice ruled in Schrems' favor, invalidating the "safe harbor" under which American tech companies handled the personal data for European consumers. The case has now grabbed the attention of the tech giants, and of the U.S. Secretary of Commerce, as it now has significant implications for the digital economy.

All of this points to the difference between the U.S. definition of privacy, especially the Silicon Valley definition of that term, and the European definition of privacy. In Europe, privacy is a fundamental right akin to the right to free speech; in the Valley, the notion is that once people log on to the Internet, it's "game on", and privacy goes out the window.

As we have become accustomed here in the States, Big Data companies, right or wrong, record every key stroke, transmitting consumers' most intimately personal data to companies on the sell. Where it comes to Trans-Atlantic data mining, however, the European laws -even if until now ignored- are far more stringent.

In Europe, the concept of privacy as a right has two components: first, the respect for private and family life is enshrined in the European Charter of Fundamental Rights; and second, everyone in Europe has a right to the protection of personal data. This vital right to privacy has taken the form of robust government regulatory agencies that have just received a shot in the arm form the Court of Justice's decision in the Schrems case.

For their part, Big Data firms must now tussle with some of these old-school, old-world bureaucrats to see which way they will go on this issue. Apparently, the transfer of personal data across the Atlantic is big big business. Who knew.

We here at the Law Blogger find the case interesting to the extent that it points out the vast differences in privacy, as a right, between Europe and the West Coast.

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Post #501

In Sunday's NYT business section, buried on page four, there was an interesting article about how Silicon Valley executives seek to keep all of the details of their life private, even while some of their tech industry billions are earned from culling once-private information from the rest of us.  The article featured domestic nondisclosure agreements, now popular among the Northern California technorati.

These nondisclosure agreements are executed by all of the contractors and agents that work on the private residences of these professionals.  Some of them are famous, others just newly wealthy employees of tech giants such as Twitter and Google.

Once such agreements are executed, sometimes they get breached.  This occurred most recently in a lawsuit filed against Facebook's Mark Zuckerberg, by his Palo Alto neighbor, a real estate investor, for an alleged fraud and breach of their written agreement.

According to papers filed in the lawsuit last week, representatives of the Facebook founder actively seek out such nondisclosure agreements.  The complaint outlines an agreement between Zuckerberg and his neighbor where the former agreed to purchase a parcel of the neighbor's investment property, adjacent to Zuckerberg's residence, below market value in exchange for the tech titan's liaison to power players in Silicon Valley.

As alleged in the lawsuit, the neighbor sold the parcel to Zuck, thus enhancing the privacy of his residence, but ignored his now-more-distant neighbor's pleas for entree to the powerful technorati per their agreement. So far, the suit has made it past the tech titan's dispositive motion for summary judgment.

So the jilted neighbor has not only filed suit and survived an early dismissal of the proceedings, but his lawyer now seeks punitive damages and is attempting to establish Zuckerberg's net worth through basic discovery requests.  It's one of those issues small-time lawyers can sink their teeth into.  Even if the Santa Clara County Circuit Court judge rebuffs the discovery request, appealing such a ruling can make a legal career.

A typical nondisclosure agreement will contain a clause setting out the purpose and scope of the confidentiality sought and the signatory's duty of nondisclosure. The scope of such duty will include the duty to immediately disclose a litigation discovery request propounded by a third party.

Such agreements also typically include agreed upon liquidated damages in the event of a breach. Some nondisclosure agreements even include an indemnification provision whereby the signatory agrees to pay for any and all damages to the protected entity for any losses or damages "arising out of" breach of the agreement.

As technology advances and Big Data becomes ever bigger and more valuable to companies such as Facebook, Google, and Twitter, privacy rights hang in the balance.  We here at this blog wonder if anyone logging onto a computer in the early 21st Century even has a right to privacy anymore.

This is something that legal scholars are currently debating.  Case in point: will you click the consent button embedded in the above hyperlink?

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According to Bryant Walker Smith, a fellow at Stanford's Center for the Internet and Society, automated vehicles have been "just 20-years away" since the 1930s.  Lately, however, data giant, Google, and some of the OEMs have started taking the concept seriously.

So serious, in fact, that automated vehicles are now out there folks. 

This has led Mr. Smith to publish a comprehensive study on the legalities of automated vehicles.  Smith concludes that, although automated vehicles are "probably" legal from the national regulatory prespective of the National Highway Traffic Safety Administration, state laws will "complicate" the transition to automated vehicles.

Why automated vehicles anyway?  Many motorists enjoy, at least to some extent, the driving process.  Smith's answers are: safety and saved lives.  If done correctly, there are also long-term cost savings embedded into the notion of automated vehicles; savings of fuel and time.

Smith's comprehensive study takes a detailed look at the three states [California, of course, Florida, and Nevada] that already have included "automated vehicle" provisions in their motor vehicle codes.  The study even includes a comprehensive model bill for progressive state legislators to consider.  Apparently, New Jersey, Arizona, Hawaii (?), Oklahoma, and the District of Colombia all have bills under active consideration.

One legal issue that comes to our simple mind over here at the Law Blogger is the actus reus [i.e. intentional bad act] requirement that a criminal law must contain to pass constitutional muster.  While we do understand the philosophy behind the "implied consent" concept underpinning many provisions of a motor vehicle code, we are compelled to ask, can a human be cited for acts undertaken by a machine?

This could be a small town lawyer's dream.  Imagine the cornucopia of defenses available for any potential automated motor vehicle code.  And if the legislatures go the "strict liability" route, the deep thinking consitutional lawyers will be well-fed.

Also, we cannot forget the product liability inquiry of who is responsible when [not if] something goes wrong, and someone is injured or killed.  Automated vehicles, if they proliferate, will produce a brand new branch of products liability tort law.

It will be interesting to see how far these fancy cars get along the respective legislative highways of the fifty states.  One thing is for sure: the process has begun.

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It took some time, but now the cases are starting to pile-up.  This week's WSJ treats us to a summary of recent "social media" eruptions in the jury trial context.

The basic problem: a jury trial is conducted in accord with the applicable rules of evidence, court rules, and statutes.  When jurors log onto the Internet to obtain additional information [about the parties to the suit, the lawyers, or the judge], or to comment, they are exposed to data and opinion beyond the scope of the applicable rules.  This can and does affect the outcome of a trial.

The case highlighted in the WSJ was a 2010 murder conviction overturned, in part, because a juror ignored the admonishment of the judge, and tweeted the jury's verdict to the public prior to it being read in court.  Now, the defendant will stand trial again this summer.

In other courtrooms, despite explicit instruction from the trial judge that jurors must not discuss the case among themselves until the proofs are complete and they are formally deliberating, jurors have been known to exchange contacts and begin texting one another.

A Florida juror recently spent 3-days in jail for "friending" a defendant on Facebook so he could either get a date with the woman, or get out of jury duty.

A case in the California appellate courts hinges on whether a juror in a case must now disclose his social media activity to defense attorneys in a gang-beating case so the attorneys can determine whether to challenge their client's conviction based on the juror's social media activity.

Judges have a range of options when juror misconduct mars an ongoing trial.  Those options include: punishing the juror for contempt (i.e. jail or a fine); removing the objectionable person from the jury (there is always at least one alternate); and declaring a mistrial and starting the trial over.

The WSJ article cites to a potential test case: the Drew Peterson case in Illinois.  In that case, defense attorney Joel Brodsky is considering ways to prevent jurors from acquiring information about the case outside the courtroom.  One idea under consideration is for the jurors to disclose their IP addresses and social media handles so they can be monitored.  Along these lines, technicians are suggesting the installation of cookies so that if a juror accesses the Internet about the case in any way, the juror's foray is reported to the trial judge.

Can the centuries-old jury trial system withstand such developments?  Is there any effective way to prevent seated jurors from accessing the media about the case to which they have been entrusted?

As litigators, we here at the Law Blogger realize this truly is a "Brave New World".  When you ramp-up for a trial, and focus on the scope of the evidentiary issues in the case, it is very unsettling to think that, with a few points and clicks, a juror can unearth a veritable treasure trove of [inadmissible] information about you, your client, or your case. 

In almost every case, such additional information will sway the juror's opinion and somehow affect the outcome.  Turning a trial into a popularity contest is not a fair way to administer justice.

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By now we've all been shocked by how much information the major search engines collect and store about each of us. The reach now extends into our cell phones and possibly even into our contacts.

On March 1st, Google implemented a new, single privacy policy, replacing it's patchwork of more than 50 separate policies spread across its product line and services. In the wake of Google's new privacy policy, the Attorneys General in a majority of states are calling foul.

Speaking for at least 35 state attorneys general, the National Association of Attorneys General complains that the new policy violates consumers' privacy by sharing personal information across Google's services without providing an explicit "opt in" or a meaningful "opt out" option.  NAAG sent a letter to Google's Chief Executive Officer, Larry Paige, requesting a sit down.  The NAAG letter states, in part:

Google’s new privacy policy is troubling for a number of reasons. On a fundamental level, the policy appears to invade consumer privacy by automatically sharing personal information consumers input into one Google product with all Google products. Consumers have diverse interests and concerns, and may want the information in their Web History to be kept separate from the information they exchange via Gmail. Likewise, consumers may be comfortable with Google knowing their Search queries but not with it knowing their whereabouts, yet the new privacy policy appears to give them no choice in the matter, further invading their privacy. It rings hollow to call their ability to exit the Google products ecosystem a “choice” in an Internet economy where the clear majority of all Internet users use – and frequently rely on – at least one Google product on a regular basis. 

For its part, Google claims the new policy will be easier for all to understand.  For our part, this Blog adheres to a simple basic principle: when conducting search and post activities on line, we keep in mind that we are creating a searchable and reviewable record.

Everyone seems to know the difference between posting content on sites like Google+ and YouTube and having their deepest darkest searches tracked.  In the former context, the user usually intends for the content to be discovered.  For example, we here at this blog wish our Clarkston Legal video on YouTube had more than 45 views in two years; my son thinks that's lame.

In the latter context, on the other hand, folks are sometimes embarrassed by what pops-up in the form of advertisements that the mighty and all-powerful web spider has determined to be relevant to a particular individual.  Such ads are displayed based on the aggregated content and personal information collected by the service provider.

This chapter just lets us know that privacy law is a fast-growing area of law that will take on increasing significance.  Stay tuned for the flow of developments as the lawsuits start to pile-up.

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