TechLaw

Selective Outrage in Rocky Mountain Bank Case

I am a little bit mystified at the expressions of shock and outrage (yes, "outrage") at the news that Judge Ware has granted Rocky Mountain Bank's request for a TRO deactivating a Gmail account to which the bank had carelessly e-mailed detailed financial information on 1,325 bank customers.

Apparently this development alarms the many people out there in cyberspace who have the same attachment to their e-mail accounts as the National Rifle Association does to firearms.

The victims here are the bank customers, whose personal information is now certainly residing on several Google servers and possibly countless other online locations. The reasoning in the bank's motion for a temporary restraining order and the declaration of its president strikes me as unassailable.  The bank has a duty to do what it can to safeguard the personal, financial information of its customers.

The bank's customers are presently at risk of identity theft. The bank's shareholders are at risk of seeing their investment wiped away by a nasty data breach incident. Inaction, not action, is what should provoke "outrage" in these circumstances.

Google is also doing the right thing, following its privacy policy and the Electronic Communications Privacy Act by insisting on a court order before turning over information about its users. Now it has just such an order. Google's lawyer, Al Gidari of Perkins Coie in Seattle, filed an appearance in the case this afternoon. In another case, Google offered only token opposition, see the "Skanks of NYC" ruling, a precedent that may be relevant here.

As for the owner of the Gmail account, who has not yet been identified and who did not respond to the bank's subsequent attempts to contact him or her via the Gmail account, it is very difficult to see what rights might have been infringed by the bank's action against the account. Speculation about whether computer users have First Amendment claims against private computer network operators is interesting but fanciful.

Here are three cases that say computer users have no First Amendment rights against network operators:

• Kinderstart.com v. Google Inc., No. 06-2057 (N.D. Cal., July 13, 2006) (Google has no First Amendment duty to protect free speech rights of websites it indexes);
• Howard v. America Online Inc., 208 F.3d 741 (9th Cir. 2000)(interactive computer network is not a common carrier under Communications Act, not a state actor for First Amendment purposes);
• Estavillo v. Sony Computer Entertainment, No. 09-3007 (N.D. Cal., Sept. 22, 2009)(Sony Playstation 3 Network owed no First Amendment duty to user terminated for allegedly violating terms of use).

I'm not aware of any cases going the other way, or cases remotely suggesting that the owner of the Gmail account at issue in the Rocky Mountain Bank case has been denied due process or any other constitutional or statutory right. Hey, he or she has already gotten more due process than you get at Twitter.

Venkat has more to say here.

Real Judges Shouldn't Have Blogs

It calls into question their impartiality.

That's the teaching of Stengle v. Office of Dispute Resolution, No. 06-cv-1913 (M.D. Pa. April 27, 2009), a case involving a blogger whose passionate writing about special education issues cost her her job as a hearing officer for disputes arising within Pennsylvania's special education system.

Turning back the plaintiff's First Amendment challenge to her firing, the court said that even if her blogging was not an administrative headache (state officials were dealing with real and threatened recusal motions that questioned the plaintiff's impartiality), and even if the plaintiff was in fact impartial regarding the special education issues she was called upon to decide, these facts would be irrelevant for First Amendment purposes.

The First Amendment permits the state to restrict the plaintiff's speech if it has "some potential" to affect the state's operations, the court said.

Similarly, the court said, even if the plaintiff was able to "firewall" her blogging so that it did not interfere with her duty to impartially decide special education disputes, "the public perception was that such a feat was impossible." This is a case in which the public perception about the plaintiff became reality, it said. "No matter how many reassurances she uttered, in the minds of the public and bar there arose a fundamental conflict between the Plaintiff's blogging activities and her duties as a hearing officer that could not be resolved."

In a footnote, the court said that same analysis would apply to blogging by higher-ranking members of the judiciary as well:

Consider if a Pennsylvania Supreme Court Justice created a blog to discuss important legal issues of the day, some of which were involved in cases before the Court. Problems similar to those in the case sub judice would arise in this instance. Lawyers practicing in front of the Supreme Court would be obligated to read the Justice’s blog and identify any biases that would materially affect his ability to remain impartial in a particular case. If one was located, the lawyer might properly move for recusal of that Justice. If such a sequence occurred with regularity, not only would the efficiency of the Pennsylvania Supreme Court be adversely effected, but the prudence of retaining the Justice would also be called into question.

Does this mean that lawyers practicing in the Seventh Circuit are obligated to read the Becker-Posner blog?