The Jaded JD

Two things you may not have known

Courtesy of Wired.com's story about Aaron Schwartz and the PACER affair:

1. If you live on a cul-de-sac, the FBI will not stake out your house because their cars are too conspicuous.  (I think that's a factor James Bacon and E.M. Risse ought to take into consideration when they write about land use and development.)
2. Amazon.com's user agreement allows the company to turn over everything it knows about you to the government without a subpoena.  (Another reason to buy only from Borders and Barnes & Noble, in person, and with cash.)

(Link to Wired.com via Howard.)

A law review article waiting to be written

The ABA Journal reports that the City of Bozeman, Montana, requires its municipal job applicants not only to list the names of "any and all, current personal or business websites, web pages or memberships on any Internet-based chat rooms, social clubs or forums, to include, but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc." but to provide the applicant's usernames and passwords to those sites as well.

By asking for the usernames and passwords, Bozeman goes farther than the once-controversial Obama Transition Team questionnaire for prospective Administration appointees did:  Question 58 merely asked for the URLs to sites "featur[ing] [the applicant] in either a personal or professional capacity (e.g., Facebook, My Space [sic], etc.)."  While it may be interesting to explore whether a public employer can demand waiver of the applicant's privacy interests in exchange for consideration for employment, the most interesting questions are whether Bozeman would be liable either to the applicable website or to third-party users for violations of third-party's privacy interests and whether Bozeman can require X to make himself civilly liable to others.

For example, assume X has a Facebook page and that X and Y are Facebook friends.  Assume that Y restricts access to certain information on his own Facebook page to his friends.  A, a Bozeman official, uses X's username and password to access X's Facebook account and thereby accesses Y's restricted information.  Is A, or Bozeman, liable to Y?  Is A, or Bozeman, liable to Facebook?  Suppose Facebook has a terms of service agreement prohibiting any person from using the username and password of any other person, whether that person has consented to the use or not?  (In other words, the terms of service agreement requires each person to use his own, and only his own, username and password; the use of any other person's username and password is a violation of the agreement.)  What if A has his own personal Facebook account and is therefore independently subject to Facebook's terms of service agreement?

I think both Y and Facebook have an interest in ensuring that actions putatively taken by X are in fact taken by X and not by someone pretending to be X, with or without X's consent.  Obviously X is most proximately liable (most likely for breach of contract with Facebook by sharing his username and password, if the terms of service agreement prohibits doing so), but I still wonder whether (and how) Facebook or Y could make A, or Bozeman, directly liable if not vicariously liable.  I wonder too whether the fact that Bozeman's policy likely requires X to expose himself to civil liability as a precondition for considering his employment application eclipses the issue of whether Bozeman can require X to waive any privacy interest he may have in the content of his own webpages.

Lost in the intertubes

From Howard Bashman comes this cautionary tale of federal appellate practice:  When you file a notice of appeal 4 months late, don't tell the appeals court that you never got notice of the appealable order because the trial court's electronic case filing system ("ECF") failed to email it to you.  Especially not when a forensic expert examining your office computer can determine that the first thing you did on that computer the morning after the ECF email was sent was to search the Internet for instructions on how to download your email to another computer.

American Boat Co. v. Unknown Sunken Barge, No. 08-2166 (8th Cir. June 4, 2009).