A federal court has ordered the giant of all Internet companies - Google,
to hand over documents concerning YouTube's viewing data to another
media monster - Viacom. Viacom and
Google are currently entangled in a no-holds barred lawsuit, concerning allegations
of intellectual property rights infringements.
Continue reading or click onto the above video presentation for a detailed
analysis of this issue.
Viacom wanted the viewing data to help it determine the extent to which
YouTube's success was built on the popularity of copyrighted clips that were illegally
posted to the site. Google contended that YouTube's viewing data should
be kept from Viacom to protect the privacy of its users.
Unfortunately for the millions of people who view
YouTube videos, the judge granted Viacom's request. The court's ruling
has caused many advocates of privacy rights to cry foul.
For the following reasons, I believe the federal judge was correct in
ruling against Google:
The Court's powers to access records cannot be denied.
Like millions of Americans and other people around the world I love Google.
I can say without a doubt that Google has been very good to me and my
family law practice. And if Google wants to be viewed by it's customers
as the champion of privacy rights, so be it. But, let's get real .
. . , the court's access to private records under appropriate circumstances
cannot be denied.
We cannot let people hide behind their computers to commit crimes or torts.
It would be absurd, for example, to give a child molester safe haven to
either post or view child pornography. It would be equally absurd to give
a person safe haven to infringe upon the property rights of another, to commit
defamation of character, or to violate someone's privacy rights.
No right is absolute!
The fact that the federal court did not buy into Google's privacy
right argument comes as no surprise to those of us who go to court for
a living and who know that the right of privacy is not absolute. Our courts
are vested with the power to issue search warrants and subpoenas to allow
lawyers access to private records. On every work day throughout America,
judges are granting motions similar to the one filed by Viacom.
Within my family law practice, for example, I serve
subpoenas for personal and employment records almost on a daily basis. Personal records
frequently lead to hard evidence concerning the opposing party's true
income for the purpose of paying child and spousal support. Likewise,
data collected from the opposing party's computer usage can also lead
to damaging evidence concerning the issues of child custody, community
property, or domestic violence. Thank goodness for those incriminating
little e-mails. There is nothing like cross examining a perpetrator of
domestic violence as to why he thought it was necessary to send 40 messages
to my client concerning her new boyfriend!
In case this information is beginning to scare you, keep in mind that our
legal system allows parties the right to object to invasions of their privacy. In California,
for example, before a subpoena for personal or employment records can
be served, the attorney serving the subpoena must give notice to the opposing
party and wait numerous days before sending the subpoena out for service.
In addition, there are special rules when it comes to any attempt to obtain
medical records, in which case the court is usually going to scrutinize the request for
said documents. So if your ex is trying to get your phone records to obtain
your friend's phone numbers, there are certain hurdles that need to
be cleared before the court will release such records.
Can you say . . . , "protective order?"
There is nothing new about the possibilities of an attorney or party releasing
confidential information. In the cruel world we live in, people misbehave
and private information is often dispensed to people who have no right
to the records. I'm sorry if I've just burst your bubble, but
this happens all the time, especially in divorce cases.
Fortunately, the court has a pretty strong remedy to this problem. Courts
issue "protective orders" that forbid the release of private
documents to third parties and impose huge sanctions on people for violating
such orders. And let us not forget the fact that an attorney's license
could be in serious jeopardy for intentionally releasing such information,
which is a pretty strong incentive for not violating the court's order.
Again, borrowing from my experience in litigating family law cases, I
often find it necessary to obtain protective orders on behalf of my clients.
In one case, where my client was an attorney who owned his own law practice,
his wife demanded copies of all the records pertaining to his client's
files. She purportedly wanted the records to assist her forensic accountant
in determining the value and cash flow of his law practice. Obviously
my client was concerned about the confidentiality of his client's
files, especially since his wife was on the war path to destroy him. We
could not get into court quick enough to obtain a protective order, which
was granted without hesitation!
What about Viacom's underlying motives?
For the purpose of this discussion, Viacom's motives are irrelevant.
Viacom has the right to our system of justice as any other company or
person. It is, after all, the court's responsibility to ensure that
Viacom does not release the information to third parties. If Viacom violates
the court's protective orders, well, look out for an astronomical monetary
The bottom line is that the information obtained by Viacom will be safeguarded
by a protective order restricting access to the data to outside lawyers
or others. The lawyers representing Viacom will probably make sure the
protective order is obeyed. Nevertheless, it behooves all of us to think
twice about the sites we choose to view within the privacy of our homes.
After all, the right to privacy is not absolute, and you never know who
may get their hands on your records.