Calling for “Backup” – Indemnification for Digital Volunteers

Editor’s note: This guest blog is by Edward S. Robson, Esq.

In the past I have written about the tort liability that digital volunteers face when making responses.  In addition to a number of other strategies, one method for reducing liability is to obtain indemnification from the governmental agency or NGO requesting the services of the digital volunteers.

First, a few words about indemnification: This means to require a requestor to pay any expenses or awards associated with the claims brought against digital volunteers as a result of their work for the requesting party.  If a member of a digital volunteer group negligently released information causing a disaster victim to be injured, the requesting agency would be contractually required to pay attorney’s fees incurred in defense, or any awards.  An indemnification agreement would not necessarily cover all conduct of digital volunteers, including acts of gross negligence or recklessness.

To obtain indemnification, groups need an agreement with the party requesting service.  The agreement need not be actively negotiated but could be contained in an online activation request.  The acceptance of terms and conditions, including acceptance of indemnification, would be a prerequisite for submission of an activation request.

Many groups are developing activation protocols or criteria for determining which calls for assistance they will answer.  The willingness of a requestor to indemnify a group and its members seems a logical criterion for separating the sometimes overwhelming requests for help.  It could provide a layer of confidence for digital volunteers and encourage action.

Nader, Onassis, and Jones: Privacy in Public and Limits on the Private Sector

The GPS case – the Supreme Court’s decision in U.S. v. Jones – raises a whole host of issues about privacy in public. The case was about the Fourth Amendment and the government’s ability to follow individuals on public roads. Of the three opinions in the case, that of Justice Sonia Sotomayor’s was the most interesting and, potentially, the furthest reaching.

Sotomayor asked “whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.” Sotomayor and all the other justices found limits in the Fourth Amendment. I want to look more broadly.

The Fourth Amendment establishes the boundary for government action, but it does not constrain the private sector. What happens if the government cannot follow people because of Fourth Amendment restrictions but the private sector can? After all, what good is the Fourth Amendment if a private company can follow you down every street and sell the information to marketers, profilers, and government agencies too?

Sotomayor raised this question indirectly when she questioned existing case law that holds that an individual has no expectation of privacy in information given to banks and other third parties:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., [Smith v. Maryland – 442 U.S. 735, 742 (1979)] United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.

Many in the privacy community stood up and cheered when reading these words. Privacy advocates were critical of the Miller decision from the start. Much more so than in 1976 when the Court decided Miller, we live in a world where much of our personal information is held by third parties, including banks, schools, utilities, supermarkets, credit bureaus, credit grantors, and Internet providers of goods and services. Many of us live our lives on the Internet and in the cloud. Amazon, Microsoft, Google, EBay, and other companies have our aggregated, detailed data in their files. The issues here are major, and I need to shed complex issues cavalierly as we proceed.

Legislating Privacy After US v Jones

Legislating Privacy after U.S. v. Jones: Can Congress Limit Government Use of New Surveillance Technologies?

The Supreme Court’s decision in U.S. v. Jones, a case that addressed the use of global positioning system (GPS) tracking devices for law enforcement purposes, is hot privacy news. Almost immediately, the decision sparked numerous and sometimes conflicting comments. The issue here is whether the decision will prompt Congress to consider legislation and what that legislation might look like.

The majority opinion by Justice Antonin Scalia used a property-based approach to conclude that attaching a GPS device to a car and using the GPS to monitor the car’s movements on public streets constitutes a search or seizure within the meaning of the Fourth Amendment to the Constitution. The narrow basis for the decision turned on the fact that the government physically occupied private property (the car) for the purpose of obtaining information.

A concurring opinion by Justice Samuel Alito and joined by three of his colleagues reached the same outcome, but Alito wanted to determine whether the car owner’s reasonable expectations of privacy were violated by the long-term monitoring of his car. Essentially, Alito thought that the majority’s property analysis was not scalable to present day surveillance issues and that an expectation of privacy standard would reach the same result without the baggage of the property-based approach.

Justice Sonia Sotomayor joined the majority opinion, but she also filed a concurring opinion. She observed that physical intrusion is not always necessary for surveillance (e.g., by tracking a cell phone) and argued that how surveillance is done may affect an expectation of privacy. So in her opinion Sotomayor asked whether people reasonably expect that their movements will be recorded in a manner that allows the government to ascertain their political and religious beliefs, sexual habits, and more. She even questioned the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. That was the holding in United States v. Miller, 425 U. S. 435, 443 (1976), a case increasingly criticized by privacy advocates as inconsistent with life today.

INTERVIEW: Professor David Grier on using Crowdsourcing for Scientific Progress and Development

Dr. David Alan Grier is an Associate Professor of International Science and Policy and International Affairs at The Elliot School of International Affairs, George Washington University. Professor Grier is the author of When Computers Were Human (Princeton, 2005) and Too Soon to Tell (John Wiley, 2009). He was also recently elected as 2012 IEEE President. Professor Grier recently gave a talk, entitled “Crowdsourcing and Social Computation in International Development,” and was kind enough to meet with me to discuss the highlights of his presentation.

As the world tries to keep up to speed with the rapid pace of technological change, we can’t help but wonder how these scientific advances are changing the way science itself is done. Walls seem to be coming down everywhere as the internet facilitates communication and transfer of information; new communication technologies allow for the average citizen to participate in extensive data collection and sharing. The buzz seems to be around crowdsourcing and social media. Citizen-based science, participatory sensing, and volunteered geographic information (VGI) are all examples of crowdsourcing: using large-scale labor markets to get work done. Citizen-based science is any scientific work, such as data collection, that can be done by those without formal scientific or technical training; participatory sensing uses large labor markets of citizens as sensors for the world around them, and can make use of smartphones and other mobile sensing devices. Volunteered geographic information usually involves qualitative observations from average citizens about the physical observations made about a particular place that could go to constructing a contributor-based map or database. This work can be as simple as taking pictures, writing up a short description of what you see, and uploading it onto a website, or much more complex and specialized tasks, such as using software to bend protein structures to contribute to immense databases (Folding@Home).

Potential Liability for Crowdsourced Disaster Response Groups

Volunteer and technical communities organize to create and build tools that collect, search and organize data coming from crisis areas.  These crowdsourcing groups have effectively responded to a variety of disasters, including the Haitian and Chilean earthquakes, the Japanese tsunami and the gulf oil spill.

At the same time, these groups raise liability questions that courts have yet to address.  Volunteer and technical communicates should take proactive steps to reduce this liability.  If not properly managed, tort liability has the potential to destroy the model before it realizes its potential.

In the United States, for example, the law does not require a person to rescue another, even if the person can do so safely.  Uncomfortable with this general rule, courts have narrowed it with several exceptions.  Under U.S. law, a duty to rescue arises when: 1) a person undertakes rescue; 2) where a person’s conduct puts another in danger; and 3) when a special relationship exists between the rescuer and the victim.

Mapping and Spatial Data: Infrastructures and Imagination

Cartographers, imagery analysts, geographic information system (GIS) specialists and others who work with maps and geospatial information operate on the premise that location or place is the most effective organizing principal for bringing together information and making it understandable for use.  Others outside of the geospatial community are also increasingly recognizing that “where” is the most common integrating element of almost all data and information.

In May 2011 the U.S. Congressional Research Service released a Report that highlighted the challenges to coordinating how geospatial data are acquired and used at the local, state, and federal levels, in collaboration with the private sector.  The Report concluded that the issues of coordination are not yet resolved and that it will likely take some time, and several budget cycles, to evaluate whether the current model of geospatial data management is the best available model for managing the federal geospatial assets.