Why are the people in the U.S. so blase' about Privacy?

So this was the question I received today about privacy: "Why are people in the U.S. so blase' about privacy?"

Frankly, my dear, I don't know.

I do have some theories that my mind is sorting through as I write - and if you have some thoughts (yes, you, the one person who is reading this), please do write me and let me know your opinion.

First, I do not think it is related to the fact that we do not have an explicit right to privacy guaranteed to us in the U.S. Constitution. However, I do think it is related to what rights we are guaranteed and how those rights have been enforced over the years. Most importantly, I think the freedom of speech as personified through the freedom of the press has been a huge factor in how blase' we are about privacy. As citizens, we are allowed to say what we want to say (in general), do what we want to do (shy of breaking laws), move where we want to move, live how we want to live, love as we desire - and act on that love. Freedom of speech includes our actions, our apparel, and our writings. And this freedom comes with a price - that we are ever so willing to pay - the lack of privacy.

Next, the American dream reinforces the lack of privacy. To achieve our dreams - or at least for those ridiculously mega-rich people to achieve their dreams, they take chances and go where no one has gone before, with information, brazenness, and wild willingness to use any tools at their disposal. Information is mostly free and can be used in ways that the average person would find mind-boggling.

Additionally, most Americans have not suffered atrocious crimes and deeply personal invasions like countries with currently strong privacy laws have in the past - where thousands of people were tortured and killed based on information, like their race, religion, or even just their name.

Thus on one hand, we see benefits in the freedom of information and on the other hand, we see no penalties in the misuse of information. I have often been told that if a company treats personal information with the respect other nations require, the company would lose its competitive edge. So what would motivate us to care? When I posted previously questioning why we are not outraged at the NSA, one of the responses I got was that once the PATRIOT ACT was enacted, any person who read it or watched the news knew that we now had no right to privacy. In a way, I agree. Not enough people were outraged then - and you cannot let the exploding holes in the dam go unnoticed and then complain about a flooded home.

We need a fundamental shift in our thinking. Information is a power tool. And it can be dangerous in the wrong hands. It can be dangerous in the right hands - if those are not your hands holding your own information. We need to be stingy. For example, unless you are on a government health insurance program or workers' comp, your doctor does not need your social security number. Such a simple thing. But try telling your doctor he/she does not need it and they freak out - they are so used to getting it, they just want to fill the blank. So I just pretend not to know it. "Ooops sorry. Don't carry the card either, but I'll really try to remember to bring it the next time." Not.

Happy Birthday, Facebook!

So today is Facebook's 10th anniversary or birthday...

What were you doing 10 years ago? It was 2004...I was graduating law school. I recall hearing about the new service for college kids and some scandal about posting pictures. My daughters were in junior high, so they were on the infamous MySpace (where is that now, anyway?).  That proves that first-to-market is not always market leader.

Facebook has faced (pardon the pun) many challenges in the U.S. and globally about their privacy practices, which seem to change daily without notice. Which is not true, by the way. Facebook does not change its policies daily. On the other hand, since they eliminated the public voting process last year or so, now we as users don't know when it is changed.

Much of the controversy over Facebook has been based in its for-profit side - we, as users, don't provide it any money directly so they have to get it from somewhere. They get it from ads. You may recall how users' likes were used as product endorsements at one time. Now, we get served targeted behavioral ads in our newsfeeds. You can report these as spam. 

But let's move away from the negatives and look at the positives. There are people I have not even thought about in over 25 years...and now, through Facebook, I see what they are doing in their lives - pictures of them and their children, families, colleagues, and friends. It is kinda cool. Many people who I love that I do not get to see for years, now I am a permitted peeping Tom in their lives. It's wonderful.

Facebook made our 25th high school reunion a huge success - cause we could find people!

Facebook let me know when some older family friends passed away - I could send flowers and/or make it to the funeral.

Facebook sometimes provides me more of a look into lives than I wish to have - don't need to know when someone has a bowel movement or is mad at the cashier at Wal-Mart. But in general, I like Facebook, which is why I use it. Under my real name. I also get to "like" the pages of actors and writers I like and they frequently have contests and cool information. It's fun.

So Happy Birthday, Facebook - may the next decade see you enjoy even more success and more maturity in your practices.

When can Employers share your Information?

My daughter, Dazlin, asked this question on privacy..."Under what circumstances can or should my employer share my information?"

What a brilliant inquiry.

And I have no brilliant, quick responses, yet I am forcing her to wait for the answer on here even though I am currently comfortably ensconced in her apartment, sitting across from her. 

First, for me, the easy answer is about medical information. Any information in the medical context, whether as part of disability accommodation, employment prescreening, genetic information, employer medical coverage, or workers' compensation must be kept confidential. This means, generally, in HR, there are two files for each employee or a bifurcated file where the health information is kept separated from discipline, hiring and firing, pay, etc.

Can they ever share it? Of course they can. They can share it with people and entities who have a need to know, such as benefit managers, health care professionals who are treating you, risk management, and so forth. But in general, the information should not be shared anywhere without a legitimate reason. Most of the protection here is federal - EEOC (disability, genetic information), OSHA (injuries on the job) - but there is also state law that applies (workers' comp, HR law, data breach law).

I am not going into a terrible amount of detail here if for no other reason than it is a blog and not a legal treatise. Some factors also depend on whether your employer is a public or private entity and/or what job you hold. But if anyone is curious, write me and let me know that you have questions. I'll see what I can do.

Now, for the sharing...in almost all laws, there are exceptions and privacy law is no exception to that. In general, the exceptions are around subpoenas, law enforcement, public health, emergencies, and business operations that require disclosures. Business operations could include mergers, account houses, and other entities that are contracted to perform some duty on your employer's behalf, like mailing 1099s. To do so, the other entity has your information. Do you also remember all the stories about how many subpoenas and requests for information are being served on internet service providers? If information is part of an investigation, your employer will likely give it up.

Other than medical information, employers are required to keep certain information secure - like your date of birth and social security number. In countries other than the U.S., who have data protection laws, certain information is considered sensitive information. Sensitive information includes ethnicity, political views, member of professional organizations, etc. Now here in the U.S., race, age, gender is also considered confidential, but mainly because an employer can be sued for discrimination if negative decisions are based on race, gender, being over 40, disabled - things that make you a member of a protected class. Also, credit reports and background checks must be performed and retained securely. In fact, after the financial troubles of 2008, several states placed background check laws in place - mainly either the employer could not ask certain questions in an application or could not do a background check before meeting the person.

Many states have laws protecting certain information, although Massachusetts with 17 CMR 201 is the strongest. In Massachusetts, if you have information on their residents, to include name (either first name/initial with last name) plus some other elements (SSN, driver license number, or financial account number), then you are required to have a security program in place and provide certain data protections.

Mainly states have data breach notification laws, meaning that if your data is breached somehow, your employer must let you know (these are general law not employment laws, but apply to entities that collect certain information). Thus, if your employer wants to be excluded in most of these states from notification provisions, then they need to encrypt and take precautions with your information. Not all states recognize encryption as an exception, but most do - and of course, this only applies to electronic information.

Speaking of electronic information: analyzing whether employers can access your electronic communications such as email, texts, and social media is a full blog on its own. Morality consideration is another - think of teachers fired for posting naked party pictures on their own facebook or sports figures who get into scandals and lose endorsements. And last, lifestyle (which includes morality) is also a very deep discussion of law. 

So this is part of her answer. In reality, not all employers follow the laws - and certainly not all employees of your employer will follow the law. Training and awareness are huge for data protection and training is not generally a high budget item for many employers, especially towards protecting their employees' data.

So my advice point coming out of this is to be careful of your own information in the workplace. It is not necessarily a good idea to friend people on social media that you work with - you just may have information disclosed to your employer that you wish was not - and if a negative action is taken towards you based on this information, then you likely will have a very hard time proving it.

Writing Papers to Publish

This week, I have been working on finishing papers to submit for publication.  It is a rite of passage and a way of life for those in academia.  A year ago, I would have stated that being an academia was my one goal. Now, I have a job I love, pays well, in a great area albeit an expensive one, and I am not sure I want to give this up to be in academia.  But I still want to publish to have that option open to me.  Unfortunately, part of my rationale is to prove a professor wrong. He spent an awful amount of time reiterating to us students that working in academia at a research institution was stressful and difficult.  That if he had to start over now, he would not do so. It's a tremendous amount of work.

Considering that the people he was talking to worked full-time jobs, high-stress ones, and attended a PhD program part-time...I'm thinking that not even a tenure-track professorship at a research university could be more demanding than an average of 60-70 hours on the job, plus school, kids, home, animals, chronic disabilities, volunteer work, mentoring, and well - whatever else I had going on at the same time. So I'd like to show him that he should not judge how un-busy we are not. Good googli moo.

But back to the topic.  The two papers are vastly different and wonderfully interesting.  One is on electronic communications in the workplace that the professor volunteered to help me prep for submission for publication as long as he could be co-listed.  Sure - he had good feedback and hopefully, connections.

The other is related to my desired dissertation topic, jury decision-making and reform. I asked a friend of mine from law school to join with me on this paper - cause I like the way she thinks and writes.  She has two published papers already, so apparently, she knows the formula.  I want to know the formula. So together, we are writing a paper on how civic education can improve jury decision making as part of the jury reform movement.  It's turning out to be a heck of a paper.

E-communications: an introduction

Technology has had a profound effect on both the workplace and communication. Electronic communication has been well-established as a mainstay of today’s workforce.  However, this generation is seeing virtual communication become the default interaction method.   While we may lament the loss of formal communication skills, such as hand-written notes, we must realize that a certain population has an immediate gratification attitude towards interpersonal relations.  Before text messaging, there remained a cautionary principle of “think twice before sending” to prevent hasty reactions.  With this current always-connected existence, the new generation of professionals may have little concept of boundaries or communication prudence.  Further, critical non-verbal cues that people learn through in-person interaction may be overlooked in this era of electronic communication.  We have started seeing issues of e-communication infringe upon the workplace.  There have been lawsuits on privacy expectations of e-mail and texting, harassment via electronics quaintly termed “textual harassment,” and corporate policies on social media.  Employees are frequently expected to be available electronically outside traditional work hours and in some cases, to use personal devices for business purposes.  It is critical to understand these issues when considering personnel policies, disciplinary issues, risk management, and corporate strategy regarding communication both internally and externally.


Prevalence of electronic communications
Electronic communication devices and means have become ubiquitous in American life. 83% of American adults own some kind of cell phone, indicating slightly over 100 million people in the U.S. over the age of 18 people have cell phones.  More than half of the respondents indicated that their cell phones were useful for accessing information quickly, to the extent that when not available, 27% said they were unable to accomplish some task.  42% use cell phones to relieve boredom and 13% pretend to use cell phones in order to avoid some social interaction. Almost a third of us have turned off our cell phones just to take a break from them.  Over ten billion videos were streamed in the U.S. in one month last year (Nielson Wire 2010).  This is a staggering statistic when one considers that the world population just reached seven billion (U.S. Census Bureau). A recent study by the International Center for Media & the Public Agenda in 2010 showed that American college students are addicted to the internet, cell phones, social media and show symptoms similar to drug and alcohol withdrawal when asked to “unplug” for 24 hours.

Social Media has a penetration rate of 98% in young adults, with only a 7% less rate among Americans in general (Experian 2011).  129 million Americans use social media in some capacity each month, with 20% using mobile technology, i.e. cell phone, to access their social media sites (Experian 2011).  Increasing social media use equates to an increase in email usage.  Additionally, studies show that most videos watched online are between 12 pm and 2 pm, during a typical workday.  Nielson reports that in September, 2011, 164 million individuals spent an average of five hours watching 18 billion videos in the U.S. alone.  This was a significant increase from the 10 billion videos streamed in June, 2010, indicating the growth rate and prevalence of online media use.  60% of Americans with smartphones and/or tablet PCs checked email while watching television at home.  This last figure speaks to the potential of performing work duties on private time.