The state of Virginia has backed away from its attempts to force Facebook to divulge the complete contents of a user's account to settle a dispute over workers' compensation, narrowly avoiding what promised to be a high-profile privacy battle in federal court.
On Monday, the Virginia's Workers Compensation Commission said it was no longer going to levy a $200-a-day fine on the social-networking site for refusing to comply with a subpoena from an airline that previously employed a flight attendant named Shana Hensley.
Facebook had objected to the June 4 subpoena from Colgan Air--the Manassas, Va.-based company that operates under the names United Express, US Airways Express, and Continental Connection--on privacy grounds. It said federal law prohibits divulging user data in response to a subpoena, and promised to "further litigate this issue by seeking, among other things, an injunction from the federal courts."
In principle, this isn't a novel concept: employers and insurance companies have long used private investigators to ferret out fraud and show that someone who claims to be a virtual cripple actually participates in waterskiing competitions.
Because social-networking sites offer such information-rich glimpses into a person's private life, insurers and employers have begun eyeing them. A personal injury lawyer in Elmira, N.Y., noted in July that an accident victim claiming to be severely injured was, thanks to Facebook, revealed to be playing in soccer games. An article last week in Business Insurance said that social-networking sites revealed exaggerated claims of injuries from a judo instructor, a bowler, and a rodeo bronco rider.
In the Colgan Air case, Facebook says it's happy that privacy rights prevailed. "We're pleased with the outcome and that our users' information will be protected," said Facebook spokesman Barry Schnitt.
Colgan Air, which is owned by the publicly traded Pinnacle Airlines, initially paid Hensley's disability benefits that were related to a back injury while on the job (she was diagnosed with a herniated disc that did not want surgery). After about 18 months, however, Colgan Air claimed that Hensley was not cooperating with its efforts to find her a desk job and appears to have concluded that Hensley's holiday vacation photos posted on her Facebook account would demonstrate that any back problems were not severe.
The airline's June 4 subpoena from Virginia attorney Charles Midkiff (PDF) demands "all documents, electronic or otherwise, related directly or indirectly, to all activities, writings, photos, comments, e-mails, and/or postings" on Hensley's Facebook account.
Six days later, Facebook responded, saying that the request must come from a California court, and that it was "overly broad" because the federal Electronic Communications Privacy Act (ECPA) protects the privacy of user accounts. Midkiff, the airline's lawyer, replied by requesting a "contempt citation against Facebook" from the Virginia's Workers Compensation Commission.
Randolph Tabb, a deputy worker's compensation commissioner, granted it. On August 28, Tabb held Facebook in contempt for "a failure to comply" and ordered a $200-a-day fine "until such time as compliance is satisfied by the production of said documentation."
Facebook's response to Tabb sent last week says that "users such as Ms. Hensley rely on Facebook to protect their data and vigorously enforce the privacy decisions they make on Facebook." It adds: "Courts have interpreted the ECPA to prohibit services such as Facebook from producing a non-consenting subscriber's communications even when those communications are sought pursuant to a court order or subpoena."
Put another way: unless you change your mind, we'll see you in federal court.
It worked. Tabb backed down, reversing his previous ruling and fine, and claimed that Facebook should have made the full scope of its objections clear earlier.
James Szablewicz, Virginia's chief deputy worker's compensation commissioner, said in an interview on Monday that he didn't know of any other case involving Facebook that his colleagues have faced. "I think it's a pretty good chance that this is a case of first impression for us," he said.
Privacy advocates applauded Monday's decision, likening it to Google's mostly successful effort to fend off a subpoena from the Justice Department three years ago. Jim Dempsey, a vice president of the Center for Democracy and Technology, said: "Too often, lawyers in civil cases are turning to service providers like Facebook, AOL, and Google with fishing requests. The law is clear--service providers cannot turn over content in civil cases."
Kevin Bankston, a senior staff attorney at the Electronic Frontier Foundation, said the principles are similar to the one involving Apple Computer's efforts to unmask product leakers (the case is O'Grady v. Superior Court). "We were very glad to see that the rule of law we helped to establish in the O'Grady case is being used to ensure that Facebook content is not disclosed in violation of federal privacy statutes."
There's an ironic ending to this story. Julie Heiden, a Virginia personal injury lawyer representing the former flight attendant, Shana Hensley, said in an interview on Monday that the subpoena won't be necessary after all.
"We agreed to sign a release," Heiden said, meaning a document that authorizes Facebook to disclose the contents of Hensley's account to her former employer. "Shana has executed the release...She has nothing to hide."
Update 9/15/2009: Colgan Air spokesman Joe Williams says: "As you might expect, we do not comment on pending litigation."
Internet companies and privacy experts will appear before a Congressional subcommittee later on Thursday to discuss the privacy implications of behavioral advertising.
Representatives from Google, Yahoo, and Facebook will appear before two subcommittees of the U.S. House of Representatives' Committee on Energy and Commerce to discuss behavioral advertising, or the practice of tailoring Internet ads to a Web surfer's behavior on a particular Web site. In order to do that, Internet companies have to collect personal data, and members of Congress as well as privacy advocates are interested in hearing more about how that data is being handled.
Such ads have been contentious in the past, and it seems a new session of Congress wants to take a fresh look at the practice.
Yahoo and Google both plan to explain how their privacy policies work with respect to the data collected through behavioral advertising. Yahoo's Anne Toth said Wednesday she will emphasize that the company has introduced a plan (that it said won't be fully complete until 2010) to remove identifying links to personal data after 90 days and has taken steps such as linking one's decision to opt out of this type of ad serving to their Yahoo account, rather than a cookie.
Google will discuss similar measures, also pointing to the benefits of serving relevant ads--rather than random ads--to Web surfers, according to a copy of the prepared testimony submitted by Google's Nicole Wong, deputy general counsel.
But privacy activists such as Princeton University's Ed Felten, who is also the director of the Center for Information Technology Policy, will emphasize how many different parties have access to the data gathered through behavioral advertising, and the technical barriers that those parties can choose to erect around their data if they choose.
The hearing is supposed to begin at 7 a.m. PDT, and six speakers are expected to appear.
Facebook's targeted advertising program is "materially different from behavioral targeting as it is usually discussed," Chris Kelly, the social network's chief privacy officer, said in remarks prepared for a Thursday morning hearing before two House subcommittees.
"In offering its free service to users, Facebook is dedicated to developing advertising that is relevant and personal without invading users' privacy, and to giving users more control over how their personal information is used in the online advertising environment," read the remarks for two subcommittees of the U.S. House of Representatives Committee on Energy and Commerce.
The hearing, titled "Behavioral Advertising: Industry Practices And Consumers' Expectations," was also slated to include testimonies from Jeffrey Chester, executive director of the Center for Digital Democracy; Scott Cleland, president of Precursor; Charles Curran, executive director of the Network Advertising Initiative; Edward Felten, director of the Center for Information Technology Policy at Princeton University; Anne Toth, vice president of policy and head of privacy at Yahoo; and Nicole Wong, deputy general counsel at Google.
Chris Kelly
(Credit: Kelly2010.com)Kelly, a White House staffer under President Clinton, has announced an exploratory bid to run for attorney general in California.
Social-media sites like Facebook, where members fill out extensive personal profiles that can detail everything from their music tastes to travel plans to political leanings, are at the forefront of new developments in behavioral ad targeting. The Facebook Ads program lets advertisers fine-tune their campaigns to reach specific demographics and audiences. Kelly insisted that this does not constitute an invasion of user privacy, an Internet-wide concern that the Federal Trade Commission has been exploring at the request of privacy advocates.
"The FTC's behavioral advertising principles recognize the important distinctions made by Facebook in its ad targeting between the use of aggregate, non-personally identifiable information that is not shared or sold to third parties," Kelly's remarks read, "versus other sites' and companies surreptitious harvesting, sharing and sale of personally identifiable information to third party companies."
Privacy concerns are nothing new to Facebook. The social network went through a user backlash over the introduction of its News Feed in 2006, and a bigger one over the controversial Beacon advertising program. More recently, a revision to Facebook's terms of use prompted consumer advocacy blog The Consumerist to highlight language that it said meant that Facebook claimed ownership of user profile data and photos.
"In February of this year, we looked to revise our Terms of Use, simplifying them to cut out as much legalese as possible and explain them in plain language," Kelly's remarks explained. "When we released a first version of our new terms, a blog misinterpreted our simplification of our copyright license, claiming that it meant we were seeking to own user content. The user reaction was predictably swift and severe, and we needed to choose among weathering the storm, revising the language, and introducing an entirely new process that would directly involve users in the governance of the site."
Facebook ultimately underwent a "notice and comment period modeled in part on the federal government's rulemaking procedure...(with) a user vote at the end of the process."
The points he tried to drive home the most: that Facebook members have extensive control over their personal information and that Facebook does not allow advertisers access to "personally identifiable" data in the Facebook Ads program.
Kelly also included a general mea culpa of sorts: "Perhaps because our site has developed so quickly, Facebook may have sometimes been inartful in communicating with our users and the general public about our advertising products," he stated. "We learned many lessons about the importance of user education and extensive control from the imperfect introduction of our Beacon product in 2007. As a result, Facebook continues to be dedicated to empowering consumers to control their information in both the noncommercial and the commercial context because we believe that should be the future of advertising."
A few other interesting tidbits from Kelly's remarks: out of Facebook's 200-million-plus active users, about 65 million are in the U.S.; more than 10,000 sites are using the Facebook Connect universal log-in product; and Facebook plans to continue the discussion-and-feedback-period strategy on any future changes to its "critical site documents."
A State Department press briefing gives some insight into why the U.S. government requested that Twitter postpone a scheduled downtime during a crucial period in the post-election upheaval in Iran.
"I think, as I was following this, these developments over the weekend...I began to recognize the importance of new social media as a vital tool for citizens' empowerment and as a way for people to get their messages out," State Department spokesman Ian Kelly said Tuesday, according to a transcript of the department's daily press briefing (which was not held specifically to address the Twitter question). "And it was very clear to me that these kinds of social media played a very important role in democracy, spreading the word about what was going on."
CNN reported Tuesday that the State Department had been behind the decision by Twitter and its hosting provider to reschedule the downtime for an hour when it would be the middle of the night in the Iranian capital of Tehran.
Kelly was then asked to comment on "discussions that (the State Department is) having with networking sites about maintaining the technology, about how the State Department as an institution is monitoring these type of sites to gain information about what's going on."
His response: "We're monitoring many different media, including some of these sites. And we've had, of course, talks with Twitter as well...I don't want to go into the detail of the nature of those talks right now."
Another reporter then pointed out that "by not providing any information on the nature of the talks, it indicates that you have some role in kind of providing messages to Twitter, messages to Iranians."
Kelly denied this. He said he was not sure who exactly within the State Department had been in touch with Twitter and added that "we use a number of social media outlets, and we're in constant contact with them. And as I said before, we were, of course, monitoring the situation through a number of different media, including social media networks like Facebook and Twitter...this is about the Iranian people. This is about giving their voices a chance to be heard. One of the ways that their voices are heard are through new media."
With the Iranian government clamping down on foreign journalists, Kelly has a point: access to Twitter and ilk are crucial sources of information.
Social media tools like Twitter and Facebook have already emerged as sources of raw news in disasters and political crises before--from the Hudson River emergency plane landing to the terrorist attacks in Mumbai. But this is the first time they've been highlighted as vital information channels in Iran--both for protesters trying to spread information and for government authorities trying to gather it.
Sanford Wallace in 1997, around the time he dubbed himself the king of spam.
(Credit: CNET News)In a move that could land Sanford Wallace in jail if convicted, a federal judge on Friday referred a lawsuit Facebook filed against the "spam king" to the U.S. Attorney's office for possible criminal proceedings.
A written ruling from Judge Jeremy Fogel in U.S. District in San Jose, Calif., is expected early next week, a court clerk said. The action came at a hearing on a Facebook motion that Wallace be found in criminal contempt for allegedly continuing to send spam on Facebook.
Facebook sued Sanford and two others in February alleging they used phishing sites or other means to fraudulently gain access to Facebook accounts and used them to distribute phishing spam throughout the network.
The judge had earlier entered a preliminary injunction against Wallace for failing to appear in court for the original proceedings, said Sam O'Rourke, Facebook's lead counsel for litigation and intellectual property. Wallace appeared in court on Friday in what is believed to be his first court appearance in any of the cases filed against him, according to O'Rourke.
Facebook also had asked for a default judgment in the case, but the judge was prevented from taking action on that since Wallace filed for Chapter 11 bankruptcy protection on Thursday and civil actions seeking monetary sanctions are automatically stayed when a defendant files for bankruptcy, O'Rourke said. Facebook believes Wallace filed for bankruptcy to avoid a default judgment and criminal contempt order, he said.
Facebook plans to ask the bankruptcy court to lift the stay so a ruling can be made on the default judgment to become a creditor, O'Rourke said.
"We're very pleased Judge Jeremy Fogel agreed that there were grounds for criminal contempt and that the U.S. Attorney's office should investigate Wallace," Facebook said in an e-mail statement. "Wallace filed for bankruptcy, which is not unexpected and only delays our judgment temporarily. We will continue to pursue the judgment and will be reviewing his filing very closely."
The order should serve as a strong deterrent against spammers, Facebook said. "Fogel's ruling demonstrates that judges will enforce restraining orders and spammers who violate them face criminal prosecution" the statement said.
A year ago, Wallace and another defendant were ordered to pay MySpace.com $234 million following a trial at which Wallace repeatedly failed to turn over documents or even show up in court.
In the largest judgment in history for a case brought under the Can-Spam Act, the federal court in San Jose awarded Facebook $873 million in damages late last year against a Canadian man accused of spamming users of the site.
In a move that some Silicon Valley insiders had anticipated might happen, Facebook chief privacy officer Chris Kelly has announced his exploratory bid for the elected post as attorney general of California.
He has set up the Web site www.kelly2010.com as his online campaign headquarters. Kelly also has an official Facebook fan page for his campaign.
(Credit:
Kelly2010.com)
"Over the past year, many people I respect have asked me to run for California Attorney General in 2010. Today, after much consideration, I am announcing that I've launched a committee to further explore the race," Kelly, who is a Democrat, said in a statement. "As the next Attorney General of California, I would utilize my experience to protect California consumers, maintain an open and accountable government, and guarantee an effective legal system."
Kelly's background is in politics. In a video on his Web site, he explains that he got his start as a staffer on Bill Clinton's successful 1992 presidential campaign and then at the White House, where he focused on establishing public service programs like AmeriCorps. Rumors that he was looking into a run for attorney general began to swirl late last year.
In his campaign, Kelly has indicated that he will run on a platform of high-tech innovation and accountability, particularly in the wake of economic decline and uncertainty.
"(At Facebook) I have dealt first-hand with the complex legal challenges and privacy issues that effect California businesses and consumers," Kelly explained in the video. "We need a strong consumer protection advocate as California's chief law enforcement officer, defending people against unfair practices and schemes. As California faces a budget deficit of more than $41 billion, rising home foreclosure rates, and an uncertain economic future, it is imperative that we prevent consumer fraud and protect California residents from scam artists offering once-in-a-lifetime opportunities for home ownership, phony foreclosure avoidance scams, and any financial fraud."
Among the other issues he mentioned were online safety and privacy for both adults and children, and tech-savvy improvements to law enforcement and border patrol.
Facebook said in a statement that Kelly is not leaving his post to run for attorney general, at least not yet.
"Chris Kelly is a valued member of the Facebook Team and has been for the past several years," the statement read. "Chris is currently exploring a possible run for California Attorney General on his own time and in compliance with all applicable Facebook policies. If, over the next few months, Chris decides to devote himself full-time to campaign, he's indicated that he will take time off or a leave of absence to do so."
As an executive at a social network with over 200 million members that has become a Silicon Valley success stories, Kelly has credibility as a digital-age candidate. Yet under Kelly's watch, Facebook went through a number of embarrassing privacy flubs, most notably the launch of its Beacon advertising program--which some critics charged as intrusive.
Facebook was also at the center of a legal back-and-forth with several states' lawmakers about whether it was doing enough to keep its members safe from known sex offenders. That, however, appears to have ended in agreement and cooperation.
Kelly won't be the only Silicon Valley type running for statewide office. Former eBay CEO Meg Whitman, a Republican, is running for governor. San Francisco mayor Gavin Newsom, a Democrat who has appealed to the Valley set with green-tech initiatives and "Second Life" interviews, has also launched an exploratory bid for governor. The state's elections are next fall.
California's current attorney general is Edmund G. Brown, Jr.
This post was expanded at 1:35 p.m. PT.
WASHINGTON--State governments are turning to tools like Twitter to manage elections in order to cut costs and keep up with increasingly Net-savvy citizens.
Both California and Ohio are using more Web tools to communicate with citizens and their own staff during elections, the states' respective secretaries of state said Monday.
Through projects such as the Voting Information Project, states have been moving voter information online, such as voter registration instructions, polling locations, and descriptions of issues and candidates on the ballot. Millions of citizens also turn to state-run sites to track election results.
Now, the state of California is planning to utilize cloud computing for its election night services with the aim of saving money by storing data with external hosting providers, said California Secretary of State Debra Bowen.
Ohio Secretary of State Jennifer Brunner and California Secretary of State Debra Bowen on Monday discussed the use of Web 2.0 tools to manage elections.
(Credit: Stephanie Condon/CNET)Maintaining reliable servers "to have a giant party two or three times a year that lasts four or five hours," is not the best use of the states' resources, Bowen said at the Politics Online Conference here, hosted by the Institute for Politics, Democracy and the Internet at George Washington University and by Campaigns & Elections' Politics Magazine.
That state also intends to use the micro-blogging site Twitter as a means to communicate with its poll workers. Bowen's office currently lacks an effective way to give a quick, direct message to the state's nearly 24,000 precincts, she said.
Such a platform could have been useful during the 2008 presidential primaries, Bowen said, when there was confusion over whether some citizens were eligible to participate in the primaries.
"All it takes is one of our five or six polling workers to have a BlackBerry," she said. "That information (about primary voting eligibility) would have been more than 140 characters, but we could have directed people to a URL with a simple text explanation."
Bowen said she manages her own Twitter and Facebook accounts but redirects complicated questions she receives through constituent services to ensure citizens get complete answers.
"Neither Facebook or Twitter are good for having a complex discussion," she said.
Facebook has proven useful, however, for upholding election laws. Bowen received a Facebook message last year regarding someone misrepresenting the contents of a petition for which they were gathering signatures. The secretary of state's investigators discovered they had an outstanding warrant for the arrest of the individual in question on a previous violation of California elections code on signature gathering.
Ohio has started using online courses to train poll workers-- part of the state's efforts to attract poll workers below the current average age of the volunteers, which is 72.
"It's been a constant struggle," said Ohio Secretary of State Jennifer Brunner said.
Brunner previously suggested recruiting poll workers in the same manner the state recruits jurors.
"That's not sounding so outlandish now with the trouble we've had keeping people engaged, especially some of the older people who may not be familiar with the technology," she said.
The state also makes widgets available for third-party sites to embed with online voter registration tools.
"We look at 2.0 solutions as a way to increase access to democracy," Brunner said. "There are so many ways to reach voters, and there's no one silver bullet."
It's unlikely, however, that voters will be able to vote online anytime soon, the officials said, given the privacy concerns that would arise. Moreover, creating an online voting system would be "phenomenally expensive," Bowen said, given how complicated it would be.
"We have to know exactly who are you are up to the minute you cast your vote, but we cannot know anything about how you cast your ballot," she said. "We use these voting systems twice every other year, and ... we already have a relatively inexpensive means of voting."
In contrast, there are no privacy concerns associated with using cloud computing to host election night data, Bowen said.
"With election night results, there's nothing that's private," she said. "The question is what is the most efficient, cost-effective way to provide that service."
The U.K. government is considering the mass surveillance and retention of all user communications on social-networking sites, including Facebook, MySpace, and Bebo.
Vernon Coaker the U.K. Home Office security minister, on Monday said the EU Data Retention Directive, under which Internet service providers must store communications data for 12 months, does not go far enough. Communications such as those on social-networking sites and via instant-messaging services could also be monitored, he said.
"Social-networking sites such as MySpace or Bebo are not covered by the directive," said Coaker, speaking at a meeting of the House of Commons Fourth Delegated Legislation Committee. "That is one reason why the government (is) looking at what we should do about the Intercept(ion) Modernisation Programme, because there are certain aspects of communications which are not covered by the directive."
Under the EU Data Retention Directive, from March 15, 2009, all U.K. ISPs are required to store customer traffic data for a year. The Interception Modernisation Programme, or IMP, is a government proposal, introduced last year, for legislation to use mass monitoring of traffic data as an antiterrorism tool.
The IMP has two objectives: that the government use deep-packet inspection to monitor the Web communications of all U.K. citizens; and that all of the traffic data relating to those communications are stored in a centralized government database.
The U.K. government has previously said communications interception is "vital" and has hinted that social-networking sites may be put under surveillance. And responding to a question from Liberal Democrat Parliament member Tom Brake, Coaker said all traffic data on social-networking sites and through instant-messaging services may be harvested and stored.
"The honorable member for Carshalton and Wallington will also know the controversy that currently surrounds the Intercept(ion) Modernisation Programme," Coaker said. "I look forward to his support when we present (IMP) proposals, which may include requiring the retention of data on Facebook, Bebo, MySpace, and all other similar sites."
Deep-packet inspection, the second strand of the IMP, involves intercepting and examining the contents of all data packets that flow over a network. In Monday's meeting, Coaker said the government still intends to have a consultation on whether to inspect and then store all Internet traffic data in a centralized government database.
"What is the point of having a consultation if, as the honorable gentleman implies, the government (has) already made up (its) mind to have a central database?" Coaker asked. "We have not made up our mind. We have said we will consult on a variety of options."
Opposition to the government's IMP proposal has been fierce. Cambridge University computer security expert Richard Clayton told ZDNet UK on Wednesday that the government proposal to monitor social-networking traffic was "extremely intrusive."
"The question is whether it's necessary or proportionate, and the short answer is no, it doesn't look that way," said Clayton. "If the government wants to make us safer, having a few more police on the electronic beat would be a good idea."
Clayton said the problem for the government is that the Data Retention Directive applies only to data held by Internet service providers, but that a large number of people don't use ISPs' systems to communicate, instead using online services such as Web mail and social-networking sites. Servers may be located in different jurisdictions, Clayton said, and data retention times may be short.
"The government wants to collect all of this data on everybody, just in case," Clayton said. "Suppose you use (an e-mail service based in Pakistan), and you blow up the Houses of Parliament. The government would have to persuade the Pakistani authorities to turn over the logs, which may then turn out only to have been retained for three days."
However, Clayton believes that the cost of harvesting this information, which would involve all U.K. Internet infrastructure providers and ISPs having "black boxes" to monitor data, would be prohibitively expensive. Clayton said taxpayers' money would be better spent on the police, who could target investigations to those they suspect of criminal activity, rather than on performing blanket surveillance of everybody.
"To deploy deep-packet inspection equipment isn't cheap--the word 'billion' is appropriate," Clayton said. "It took the Home Office the best part of a year to find 3 million pounds for the Police e-Crime Unit. That's what is wrong with this picture."
Web inventor Sir Tim Berners-Lee also opposes the use of deep-packet inspection to inspect people's data. Berners-Lee told ZDNet UK last week that the Internet should not be "snooped" upon.
"If (third parties) are using the data for political ends or commercial interest, there we have to draw the line," Berners-Lee said. "There's a gap between running a successful Internet service and looking inside data packets."
Tom Espiner of ZDNet UK reported from London.
Police Blotter is a regular CNET report on the intersection of technology and the law.
What: Facebook photograph shows part-time teaching aide at Ohio high school with three cheerleaders holding Smirnoff bottles.
When: The Court of Appeals of Ohio, Twelfth District, rules on February 9.
Outcome: Conviction for allowing minors to possess alcohol upheld.
What happened, according to court documents and other sources:
Most people are merely embarrassed by photos a friend tosses onto Facebook. Mary Ellen Hause went to jail because of them.
Hause, who worked as a part-time teaching aide at Springboro High School, near Dayton, Ohio, was photographed in her basement posing with three cheerleaders holding Smirnoff bottles. The cheerleaders were friends with her son.
That photo, of course, ended up on Facebook. And Springboro High School Resource Officer Sgt. Don Wilson, who regularly poked around students' Facebook accounts, discovered it and turned it over to the local police.
Hause was charged with three counts of violating Ohio code 4301.69, which says no person "shall knowingly allow any underage person to remain in or on the place while possessing or consuming beer or intoxicating liquor," unless a parent or legal guardian is present and approves. (Underage person is defined as someone under 21 years old.)
State prosecutors alleged that Hause allowed the cheerleaders to consume Smirnoff, Sparks, and beer at her home and presented testimony from two of the minors who claimed that Hause participated in drinking games with them.
A second Facebook photo from the same gathering showed another minor holding a can of Sparks, a caffeinated alcoholic beverage.
For her part, Hause said that she didn't know at first that the cheerleaders were drinking, and when she found out, she kicked them out.
"I went downstairs and I saw the kids down there," she said, according to a report by the local ABC affiliate. "I sat on the couch and the girls -- they know me because of working at the school --they all jumped in my lap. And I did take the picture and I didn't notice anything right away."
Her testimony proved to be less than convincing: a jury convicted her and she was sentenced to 30 days in jail, a $500 fine, 10 days of trash pickup, and three years of probation that prohibits her from drinking alcohol or having it in her house.
"What should have happened when you discovered that these kids were drinking is that immediate action should have taken place... that all of these parents should have been notified and that your actions should have been very, very different," trial judge Judge Donald Oda II said, according to the transcript.
Hause appealed, saying the no-alcohol-on-probation rule was an abuse of the judge's discretion, that there should have been one charge instead of three, and the law is unconstitutionally overbroad. On February 9, an appeals court upheld her conviction and sentence.
The Dayton Daily News reported last year that the school decided not to punish the cheerleaders.
Excerpts from the recent opinion from the Court of Appeals of Ohio, Twelfth District, Warren County:
Appellant argues the trial court abused its discretion in imposing as conditions of community control that she not consume or possess alcohol and that she not have alcohol in her household. Appellant argues these conditions do not relate to the crimes for which she was found guilty.
The trial court has broad discretion in imposing conditions of community control pursuant to R.C. 2929.25(A)(1), which governs the authority of the trial court to impose one or more community control sanctions in misdemeanor violations, including residential, nonresidential, and financial sanctions, and any other conditions the court considers appropriate. We will not reverse such conditions imposed absent an abuse of the trial court's discretion.
A trial court's discretion in imposing community control conditions is not limitless, however. In determining whether a condition reasonably relates to the three probationary goals -- doing justice, rehabilitating the offender, and insuring good behavior -- a court "should consider whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation." In addition, the community control conditions "cannot be overly broad so as to unnecessarily impinge upon the probationer's liberty."
After reviewing the entire record, we find the trial court acted within its discretion by concluding the restrictions on alcohol use and possession as conditions of appellant's community control, as applied to appellant only, are reasonably related to rehabilitating the offender, have a reasonable relationship to the crime charged, are reasonably related to future criminality and serve the statutory ends of probation. Appellant was convicted of an alcohol-related offense-allowing juveniles to consume alcohol in her home. If she is not allowed to possess or consume alcohol or have alcohol in her home, it is less likely that juveniles will consume alcohol in her home...
Judgment affirmed.
TechCrunch suggests that Facebook's chief privacy officer, Chris Kelly, will shortly announce his candidacy to become California's attorney general in 2010. Given how poorly Facebook has handled privacy, it's difficult to see why California voters should assume Kelly would do better in the higher matters of public office.
Specifically, California's attorney general is charged with the following responsibilities:
The attorney general represents the people of California in civil and criminal matters before trial, appellate and the supreme courts of California and the United States. The attorney general also serves as legal counsel to state officers and, with few exceptions, to state agencies, boards and commissions...
The attorney general also assists district attorneys, local law enforcement, and federal and international criminal justice agencies in the administration of justice...
In addition, the attorney general establishes and operates projects and programs to protect Californians from fraudulent, unfair, and illegal activities that victimize consumers or threaten public safety, and enforces laws that safeguard the environment and natural resources.
Kelly is an experienced and competent attorney, having worked at Baker & Mckenzie and Wilson Sonsini Goodrich & Rosatti before joining Facebook. But if he's in any way implicated in Facebook's failed foray into consumer privacy (Beacon, anyone?), and he will be by virtue of throwing his hat in the campaign ring, he needs to answer for his involvement in Facebook's privacy faux-pas before California voters should vote him their trust.
He has answered critics before, and it's possible that being on the front line of electronic privacy issues actually makes him a better candidate than most, even despite missteps. But he first needs to demonstrate that he's done more good than harm relative to protecting people from "fraudulent, unfair, and illegal activities" on Facebook before attempting to protect the broader California public as attorney general.
It's very possible that he can, but I've yet to hear that campaign speech.
