Privacy and Surveillance

Concerns about online privacy issues in recent years have led some people to wonder whether the collection of personal information on websites has begun to infringe on individuals’ constitutional rights. While the U.S. Constitution does not explicitly guarantee a general right to privacy, the Bill of Rights establishes privacy of beliefs, privacy of the home, and privacy of person and possessions from unreasonable searches. Additionally, in a number of court cases, the “right to liberty” clause has also been read as a guarantee of personal privacy.Doug Linder, “The Right of Privacy,” Exploring Constitutional Law, 2010, http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html. What do these constitutional rights mean when it comes to storing a person’s credit card data online, or tracking his or her Internet searches, or using cookies to collect information about his or her purchasing habits? Because online media is developing so rapidly, many of these issues have not been settled by federal legislation and remain the source of numerous courtroom battles. Consider the 2010 case in which the online services company Yahoo! entered into a legal struggle with government officials who wanted to search the e-mail account of a Yahoo! user for incriminating evidence. While Yahoo! claimed the government would need a search warrant to access a user’s e-mail, the government investigators claimed the Fourth Amendment does not apply in the case of an e-mail account.Electronic Frontier Foundation, “EFF Backs Yahoo! to Protect User from Warrantless Email Search,” news release, April 14, 2010, http://www.eff.org/press/archives/2010/04/13.

In defense of information collection and surveillance, many websites argue that, by using their services, individuals are agreeing to make their personal information available. However, many people don’t realize the extent of surveillance capabilities or know how to protect certain personal information while using online tools. The more people rely on the Internet for shopping, communication, social networking, and media consumption, the more their personal data is stored online. Every time a person subscribes to a magazine, joins an organization, donates money to charity, gives to a political cause, or searches the pages of a government agency, that information is stored in a computer.Privacy Rights Clearinghouse, “Privacy Today: A Review of Current Issues,” March 2010, http://www.privacyrights.org/ar/Privacy-IssuesList.htm#publicrecords. For example, cookies, text files that web page servers embed in users’ hard drives, help search engines like Google and Yahoo! track their customers’ search histories, buying habits, and browsing patterns. Cookies stored by Google last for 30 years.Maria Godoy, “Google Records Subpoena Raises Privacy Fears,” NPR, January 20, 2006, http://www.npr.org/templates/story/story.php?storyId=5165854. These search engine cookies are used to customize users’ searches and to deliver customized third-party ads based on a particular user’s demographics and behavior. However, privacy advocates claim this practice fosters predatory advertising.Tom Spring, “Good-Bye to Privacy?” PC World, May 23, 2010, http://www.pcworld.com/article/196787/goodbye_to_privacy.html. Additionally, considering that search engines receive multiple requests per day for specific information on their users (requests that are often tied to criminal investigations and lawsuits), there is a growing concern that unfair or even erroneous profiling may result.Godoy, “Google Records Subpoena.” Much of this information is stored without users’ knowledge or informed consent—although agreements for most software inform users when their data is being collected, few people have the patience or time to read and understand the dense legalistic language of these agreements. And even when users invest the time and effort to understand the agreements, they are left with the difficult choice of either agreeing to have their data recorded or going without useful software.

Internet users concerned about their privacy may also be unaware of another growing trend: the combination of online data with offline information to build profiles of web surfers. Data providers like BlueKai, Datalogic, and Nielsen are now able to pool offline data and demographics to create “digital dossiers” (detailed digital records of a particular subject or market) for online advertisers who want to reach a target market.Spring, “Good-Bye to Privacy?” This combination of online and offline information provides a nearly complete picture of someone’s life. If advertisers are looking for a 56-year-old retired female educator who is divorced, owns a home and a dog, suffers from arthritis, and plays tennis at the local fitness club, they can now find her. While advertisers have been careful to point out that people are identified by demographic subgroup but never by name, many organizations that advocate for privacy, such as the Electronic Frontier Foundation, believe that protections and greater transparency should be enforced.Ibid.

Users also supply a wide range of information about themselves through online social networks that are connected with their names, contact information, and photographs. Creditors now look at individuals’ social networks to determine whether they would be good credit customers, and banks may access social network information to make loan decisions.Ginny Mies, “Skeptical Shopper: Can Your Online Life Ruin Your Credit?” PC World, March 23, 2010,. http://www.pcworld.com/article/192207/skeptical_shopper_can_your_online_life_ruin_your_credit.html. If users aren’t careful about their privacy settings on MySpace, Twitter, or Facebook, photographs and other private information may be easily accessible to anyone performing a Google search. Of even greater concern is the growing trend to publicize information that was previously private as the networking sites evolve and change their interfaces.

Surveillance can range from the monitoring of online activity by employers and other institutions that want to make sure users are following guidelines, to high-level government investigations of terrorist activity. The USA PATRIOT Act, passed just 6 weeks after the September 11, 2001, terrorist attacks, expanded the federal government’s rights to access citizens’ personal information. Under the Patriot Act, authorities have access to personal records held by Internet service providers and other third parties, and government officials can tap in to an individual’s e-mail communications and web searches if he or she is suspected of terrorist activity or of having connections to terrorist activity.American Civil Liberties Union, “Surveillance Under the USA PATRIOT Act,” April 3, 2003, http://www.aclu.org/national-security/surveillance-under-usa-patriot-act; Stefanie Olsen, “Patriot Act Draws Privacy Concerns,” CNET, October 26, 2001, http://news.cnet.com/2100-1023-275026.html. One concern among civil liberties organizations is that the Patriot Act might become a back door for the government to conduct undisclosed surveillance that doesn’t necessarily involve the threat of terrorism. For instance, under the Patriot Act the government can wiretap Internet communications even if the primary purpose is a criminal investigation, as long as intelligence gathering is a significant purpose of the investigation.Berkman Center for Internet and Society, “The USA Patriot Act, Foreign Intelligence Surveillance, and Cyberspace Privacy,” Harvard Law School, http://cyber.law.harvard.edu/privacy/module5.html.

Copyright Infringement

Copyright is a form of protection provided by U.S. law, under which the creator of an original artistic or intellectual work is automatically granted certain rights, including the right to distribute, copy, and modify the work.U.S. Copyright Office, “Copyright Basics,” http://www.copyright.gov/. If someone rents a movie from Netflix, for example, and watches it with his friends, he hasn’t violated any copyright laws because Netflix has paid for a license to loan the movie to its customers. However, if the same person rents a movie and burns himself a copy to watch later, he has violated copyright law because he has not paid for nor obtained the film creators’ permission to copy the movie. Copyright law applies to most books, songs, movies, art, essays, and other pieces of creative work. However, after a certain length of time (70 to 120 years depending on the publication circumstances), creative and intellectual works enter the public domain; that is, they are free to be used and copied without permission.

Some works are in the public domain because the creator has chosen to make them available to anyone without requiring permission. However, most works are in the public domain because their copyright has expired; in the United States, anything published before 1923 is automatically in the public domain. Additionally, there have been changes to U.S. copyright law over the years that caused some works to enter the public domain earlier. Before 1964, for instance, any published work had to have its copyright renewed during the 28th year after its publication. If no renewal was filed, the copyright was lost. Figure 14.8 shows significant changes to U.S. copyright law since 1790.Nolo Press, “Chapter 8: The Public Domain,” Stanford University Libraries and Academic Information Resources, 2007, http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/index.html.

While it is illegal to violate the rights granted by copyright law, the copyright holder’s rights are not unlimited. One of the significant limitations is the policy of “fair use,” under which the public is entitled to freely use copyrighted information for purposes such as criticism, commentary, news reporting, teaching, scholarship, research, or parody.U.S. Copyright Office, “Fair Use,” May 2009, http://www.copyright.gov/fls/fl102.html. If a critic were writing a book review for a magazine, for instance, according to fair use, she would be allowed to summarize and quote from the book she wanted to review, whether or not the author of the book agreed to this use. According to the U.S. government, there are four issues to consider when determining fair use:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use on the potential market for, or value of, the copyrighted workIbid.

The distinction between what is considered fair and what constitutes copyright infringement is not always clearly defined. For one thing, there are no guidelines that specify a number of words, lines, or notes that can be taken without permission. Table 14.1 “Cases Involving Fair Use” provides some examples of distinctions between fair use and copyright infringement.

Plagiarism

Sometimes plagiarism becomes confused with copyright violation. However, the two words are not synonymous; while there can be some overlap between them, not every instance of plagiarism involves copyright violation, and not every instance of copyright violation is an act of plagiarism. For one thing, while copyright violation can involve a wide range of acts, plagiarism is defined more narrowly as using someone else’s information, writing, or speech without properly documenting or citing the source. In other words, plagiarism involves representing another person’s work as one’s own.

As the U.S. Copyright Office points out, it is possible to cite a copyrighted source of information without obtaining permission to reproduce that information.U.S. Copyright Office, “Fair Use.” In such a case, the user has violated copyright law even though she has not plagiarized the material. Similarly, a student writing a paper could copy sections of a document that is in the public domain without properly citing his sources, in which case he would not have broken any copyright laws. However, representing the information as his own work would be an instance of plagiarism.

Plagiarism, a perennially serious problem at academic institutions, has recently become even more prevalent. The ease of copying and pasting online content into a word-processing document can make it highly tempting for students to plagiarize material for research projects and critical papers. Additionally, a number of online “paper mills” contain archives where students can download papers for free or, in some cases, purchase them.Andy Denhart, “The Web’s Plagiarism Police,” Salon, June 14, 1999, http://www.salon.com/technology/feature/1999/06/14/plagiarism. In 2003, The New York Times surveyed students at 23 college campuses and reported that 38 percent of students admitted to having committed copy-and-paste plagiarism within the previous year.Michelle De Leon, “Internet Plagiarism on the Rise in Colleges,” Lehigh University Brown and White, November 12, 2007, http://media.www.thebrownandwhite.com/media/storage/paper1233/news/2007/11/12/News/Internet.Plagiarism.On.The.Rise.In.Colleges-3094622.shtml.

To combat the rise in plagiarism, many schools and universities now subscribe to services that allow instructors to check students’ work for plagiarized material. Plagiarism.org, for instance, offers an analytics tool that compares student writing against a database that includes work from online paper mills, academic databases, documents available through major search engines, and other student papers submitted to Plagiarism.org.Denhart, “The Web’s Plagiarism Police.” According to many researchers, part of the issue may be that students don’t understand what constitutes plagiarism. Some students, for instance, claim they think information available online is in the public domain.Nicole J. Auer and Ellen M. Krupar, “Mouse Click Plagiarism: The Role of Technology in Plagiarism and the Librarian’s Role in Combating It,” Library Trends, Winter 2001, http://findarticles.com/p/articles/mi_m1387/is_3_49/ai_75278304/. The following list offers suggestions for ways to avoid plagiarism in your own work.

• Don’t procrastinate.
• Avoid taking shortcuts.
• Take thorough notes and keep accurate records.
• Rephrase ideas in your own words.
• Provide citations or attributions for all sources.
• Ask your instructor when in doubt.Longman Publishers, “Avoiding Plagiarism,” Pearson Education, http://wps.pearsoncustom.com/pcp_longman_ap_2/32/8420/2155775.cw/content/index.html.

While plagiarism is an issue of concern in academia, it occurs in print media as well. Writers, whether through carelessness or laziness, may lift content from existing materials without properly citing or reinterpreting them. In an academic setting, plagiarism may lead to consequences as severe as failure or even expulsion from an institution. However, outside of academia the consequences may be even more damaging. Writers have lost publishing contracts, permanently damaged their reputations, and even ruined their careers over instances of plagiarism. For example, the late George Harrison, of the Beatles, was successfully sued by Ronald Mack for copyright infringement of his song “He’s So Fine.”Bright Tunes Music v. Harrisongs Music, 420 F. Supp. 177 (S.D.N.Y. 1976). It was determined by the court that Harrison unconsciously plagiarized the musical essence of Mack’s song for his composition “My Sweet Lord.”

You should now have an understanding of the key issues in media ethics, particularly as they relate to privacy rights, plagiarism, and copyright laws. Please ensure you understand the key concepts listed below.