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A closer look at the privacy issue

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It has recently been reported that Attorneys General from about a dozen US States, including Connecticut, Georgia, Hawaii, Idaho, Mississippi, Maryland, New Hampshire, North Carolina, Ohio and Pennsylvania have demanded that News Corporation's social networking site MySpace voluntarily deliver a list of all sex offenders who have registered for or used the MySpace social networking service.

Noting the possibility that sex offenders might use the service to find and solicit other members for sex, the chief state law enforcement officers merely demanded that MySpace pony up the records.

When MySpace, citing its own privacy policies and federal privacy laws, refused to produce the records without a subpoena, the Attorneys General initially went on a public relations campaign against the social networking site - almost calling them complicit in child abduction and sexual predation.

This case points out the problem of establishing an online privacy policy and then trying to stick to it under pressure from the very agencies that enforce the policies.

It is clear that people - both registered sex offenders and others - use social networking sites like MySpace and Facebook to meet other people. It is also clear that these sites can be used by individuals interested in violent criminal activity - including sexual predation, abduction and other crimes, to further criminal activity.

The question is, however, the extent to which the operators of the sites should step into the shoes of law enforcement and identify not just those who are engaging in criminal activity on the site, but also to identify FOR law enforcement those who might later engage in criminal activity based upon the fact that they had committed crimes in the past.

A Privacy Policy

MySpace, like most websites, has a privacy policy that sets out, in general terms, what information it collects and what it can and may do with that information. Indeed, the terms of these privacy policies are generally enforced by federal agencies like the Federal Trade Commission, or State Attorney's General under unfair or deceptive trade practices statutes.

In other countries, enforcement of data privacy agreements may be within the purview of federal or local data privacy commissioners. The MySpace policy, is fairly loose, and gives MySpace a good deal of latitude about what it can do with what it collects. The policy states that:

Sharing and Disclosure of Information MySpace.com Collects ... MySpace will not disclose personal information to any third party unless we believe that disclosure is necessary: (1) to conform to legal requirements or to respond to a subpoena, search warrant or other legal process received by MySpace.com, whether or not a response is required by applicable law; (2) to enforce the MySpace.com Terms of Use Agreement or to protect our rights; or (3) to protect the safety of members of the public and users of the service...

So, MySpace can use or disclose information about you - including your IP information, subscriber information, even the contents of MySpace IM or email if it wants to enforce its policies, protect its rights, or if there is a threat to the safety of the public. Why then was it appropriate for them to demand that the AGs get a subpoena for the sex offender information?

The AG's Response

Partially in response to public criticism, and partly to act as a "good corporate citizen", MySpace recently started using an online name, address, and criminal history verification service provided by Sentinel Tech Holding Company to help it determine if people who joined the site using their real names, real addresses, and real email addresses were convicted of sex offenses.

Clearly MySpace was trying to do something about the problem of sexual predators using its service. If it found a convicted and registered sex offender, MySpace would kick them off, and they would remain off the service (at least until they could figure out how to use a fictitious email address). The sentry service does not purport to determine the nature of the restrictions on the person convicted - the terms of parole or probation, etc, only the fact that they were convicted. Nevertheless, if you were a convicted sex offender AND the Sentinel software detected you, MySpace would kick you off.

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Next page: Privacy Law

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