How privacy rights could haunt the 2010 campaign

by Robert Salladay, California Watch

California voters will carry plenty of baggage into the 2010 election. A jobless rate higher than the national average. A budget deficit bordering on apocalyptic. But lurking in the shadows is another emotional issue: privacy.

Don’t expect the 2010 campaign narrative to focus extensively on privacy protection ‘ the economy is too screwed up for that. But a remarkable number of California candidates have been deeply involved in the debate over personal privacy, enough to surely catch the attention of political operatives looking for any line of attack.

The most obvious candidate to face questions is Democrat Chris Kelly, the chief privacy officer for Facebook, who recently announced he was running for attorney general, dumping $2 million of his own money into a warchest. Privacy experts have complained about the inability to hide certain personal information on the massive Web site, and they were alarmed when Facebook founder Mark Zuckerberg recently declared personal privacy was no longer the "social norm."

Meanwhile, Republican Carly Fiorina already has been linked by Democrats to a spying scandal at HP, where she once served as CEO. Democratic gubernatorial candidate Jerry Brown, the current attorney general, has been slammed because his office secretly recorded conversations with reporters. And Meg Whitman, a GOP candidate for governor, ran the auction behemoth eBay while the company faced criticism from privacy experts for its eager sharing of information with law enforcement.

"I do think privacy will be an issue," said Barbara O’Connor, professor of political communications at Sacramento State University. "When you raise use of their personal information and other First Amendment issues they do care. Wiretapping and recording without permission are in the old-school values and they do believe in them. I do think campaigns should use personal liberty as a theme especially in California with older, Latino and other immigrant voters. For example, they really hate something as simple as robo calls at a privacy level."

Although its privacy policy has been praised in the past, a few critics have called eBay "Big Brother" for cooperating with law enforcement on their investigations into its users. Under Whitman, eBay appears to have been distributing information to police investigators without a subpoena. Joseph Sullivan, the company’s law enforcement compliance officer and a former Justice Department official, told a cybercrime conference in 2003:

We don’t make you show a subpoena, except in exceptional cases. When someone uses our site and clicks on the `I Agree’ button, it is as if he agrees to let us submit all of his data to the legal authorities. Which means that if you are a law enforcement officer, all you have to do is send us a fax with a request for information, and ask about the person behind the seller’s identity number, and we will provide you with his name, address, sales history and other details ‘ all without having to produce a court order. We want law enforcement people to spend time on our site.

According to the Haaretz newspaper, Sullivan told the audience of law enforcement officials and industry executives that he didn’t "know another website that has a privacy policy as flexible as eBay’s." Sullivan then allegedly offered to enlist eBay’s employees in sting operations: "Tell us what you want to ask the bad guys. We’ll send them a form, signed by us, and ask them your questions. We will send their answers directly to your e-mail."

Whitman’s campaign referred questions on privacy to eBay. At the time, eBay spokesman Kevin Pursglove said the Haaretz report exaggerated the lengths to which the company would cooperate with prosecutors. And Simon Darling, marketing director at eBay, said Sullivan was "severely misquoted," adding that the company provides law enforcement with a member’s name, phone number and city of registration through a written request, but all other information, including IP addresses and credit card information, requires a subpoena.

Whether this becomes an issue in the campaign depends on how it’s framed. California voters may think it’s a good thing that Whitman’s company was rooting out criminals, or it may see eBay as stepping over the line between civil liberty and public safety.

On the other side of the governor’s race, it also remains to be seen if the secret recording of conversations in Brown’s office will get much traction with the public, which generally dislikes journalists as much as it distrusts politicians. And there are some questions over whether Brown’s office did anything illegal. State law requires full disclosure when any confidential conversation is being recorded. After the scandal was revealed by the San Francisco Chronicle, Brown’s communications director resigned.

First Amendment expert Peter Scheer says the whole incident was overblown:

"Talking to a reporter on the phone (or in person) is about as open and nonconfidential  an exchange as sitting for a live television interview or typing into a blog on a public, unrestricted Web site. The whole point of a conversation with a print journalist is to provide her with information to be communicated to her paper’s entire readership. A genuinely confidential communication with a reporter is the rare exception, not the rule."

Amid this, privacy advocates also criticized Brown after he announced he would create an online prescription drug database, in the wake of the death of model Anna Nicole Smith. At the time it was announced, Zack Kaldveer of the Consumer Federation of California, said the Brown database "raises a whole slew of privacy concerns" when it comes to police access to the records. The system went online in September, with Brown saying: "We have so much (drugs) moving on the streets and we have so much moving in doctors’ suites, and we have to attack both," and his office vowing limited police viewing of the information.

Privacy concerns could emerge as well in the U.S. Senate race, although they would be a stretch. During the 2008 presidential campaign, the Democratic party implied that Fiorina, HP’s former CEO, had something to do with a spying scandal at the California-based computer giant. Fiorina was fired from the company in 2005, and was not implicated in a subsequent witchhunt to find the names of people who had leaked information to reporters about the HP board.

Nevertheless, "HP Spying Scandal Began with Leak Under Fiorina," was the headline on a Democratic party page devoted to Fiorina as a possible vice presidential candidate to U.S. Sen. John McCain. Democrats wrote:

 Co-CEO Mark Hurd admitted in September of 2006 that Hewlett-Packard used ‘disturbing’ tactics in an internal leak investigation into the board of directors. The investigation began after a Wall Street Journal article revealed in January of 2005 presumably only what board members would have known ‘ that the board was unhappy with Carly Fiorina’s performance. … The investigation to plug the leaks used a range of extraordinary tactics, including obtaining private phone records using false pretenses and tailing both a director and a reporter for The Wall Street Journal. Another reporter, for CNET, was sent a doctored e-mail by HP investigators that could provide the sender information about where it was sent.

For her part, Fiorina said she’d never even heard of "pretexting," and she told Forbes she was surprised to see her name appear in the company’s internal investigation report, code named Kona I. "I’ve never seen anything like it. It’s chilling to see your own name, your telephone number." Fiorina told Forbes she blames her abrupt dismissal in early 2005 on the HP board’s dysfunction: "My dismissal from the company had nothing to do with performance."

Meanwhile, Facebook’s new privacy policy, which AG candidate Chris Kelly helped develop, has come under criticism from the Electronic Frontier Foundation, which said: "These new ‘privacy’ changes are clearly intended to push Facebook users to publicly share even more information than before. Even worse, the changes will actually reduce the amount of control that users have over some of their personal data. Not to say that many of the changes aren’t good for privacy. But other changes are bad, while a few are just plain ugly."

On his campaign Web site, Kelly touts his work at Facebook developing "safeguards to protect children from sexual predators" in all 50 states ‘ in other words, how the company cooperates with law enforcement to root out these horrendous crimes. And Kelly defends the Web site’s new privacy settings as a way to give users more control over their own information. "Our goal is to ensure that people understand the changes to our privacy settings and make choices that reflect their comfort level."

All of this comes with a recognition that privacy is a fluid matter. When Facebook founder Zuckerberg declared that personal privacy was no longer "the social norm," he was speaking as a business owner intent on making a lot of money from other people’s personal thoughts, preferences and friendships. But in public he sounds more like a harmless sociologist, as the video below illustrates.

During a speech at the 2009 Crunchies Awards ceremony, in San Francisco early this month, Zuckerberg said Facebook was changing its privacy policies to "reflect what the current social norms are." He said about the Web site, which has 350 million users:

When we got started, the question people asked was, ‘Why would I want to put any information on the Internet?’ … In the last five or six years, blogging has taken off in a huge way. People have really gotten comfortable sharing more information and different kinds but more openly and with more people.

A Facebook spokesman said Zuckerberg’s comments have been blown out of proportion, noting that the Facebook honcho was merely observing how society has changed. His speech surely wasn’t the most outrageous from a Silicon Valley entrepreneur: In 1999, Sun CEO Scott McNealy famously declared: "You have zero privacy anyway. Get over it."