Public disclosure of private facts

Justice Louis Brandeis's Right to Privacy outlined a legal theory which in the United States led to the creation of four privacy related courses of action. One of these is known as public disclosure of private facts, which is defined (roughly) as a

1. public disclosure
2. of one or more private facts
3. the release of which would offend a reasonable person.

A publisher can claim that the facts are newsworthy as a defense; however, the truth of the fact(s) is not a defense, as it is in defamation actions.

Google is perhaps setting itself up as the Napster of location disclosure. As part of its data collection effort for Street View, Google has been collecting private wireless hot spot data; Irish and German authorities caught them keeping private information and forced them to remove it in a fashion auditable by third parties. Google reports that they are using the data about your wireless routers to better locate the position of Internet users. They keep that wireless information in a huge database, associated with its physical location.

How does this work? An application running on your computer, or phone, or network router can continuously check to see what wireless hot spots are around you. The application can then submit that "MAC" information to Google's location service to find out where you are.Once that's determined, the application can send that information to an advertising service, or to a social network site, or basically anywhere else, to keep track of you and let others know where you are.

Is this a public disclosure of a private fact? A number of moving parts must be analyzed to answer that question.

First, is your current location a private fact about you? If so, does the disclosure of one's location offend a reasonable person? Those questions are probably best answered by a jury, should a case like this ever be brought to court.

Is there a public disclosure of your location? To whom is the location disclosed? At what point in the process is it disclosed? Who is at fault for the disclosure; what is the proximate cause? Certainly your computer or device can know your physical location (latitude and longitude) if you are using a GPS (Global Position Service) device; most phones have that built in, and you can buy a GPS device for your computer or laptop. Without such a device, which is presumably known to you and/or under your control, your computer and its applications can't know your location without a database like the one maintained by Google. Therefore it's definitely difficult to argue that Google is the cause of a disclosure, if one happens. They are only potentially an enabler, much like Napster was, and perhaps can be held liable under a similar theory.

More to the point is that it's the browser or other application which is taking the environmental information (local hot spots etc.), is using that to determine the location, and then is publishing your location (with explicit or implicit permission?) to other applications and services. Netscape/Mozilla has been here before in Specht v. Netscape Communications Corp., when it was sued over its "Smart Download" applet, which stored and transmitted information about user downloads back to Netscape Corporation. Litigating the disclosure of location information is more difficult, because there are likely a large number of applications and devices which are performing the public disclosure, each of which would have to be enjoined. That would be a lot of work. If Google and other "geolocation" services can be reached under a Napster-style enabling theory, then the problem goes away much more quickly, unless they can make a case that they are providing a compellingly important public service.

By the way, you can turn off location information in Firefox. Just browse to the bottom of that page to see how. Can you do that in other browsers?