Podcast
Scott S. Christie
Partner – McCarter/English Attorneys at Law – Newark
(973) 848-5388
IP, Copyright, and Trademark law specialist.
Topics:
Warrant-less searches
Private workplace: A warrant-less search satisfies the Fourth Amendment if the government’s conduct does not violate individual’s “reasonable expectation of privacy.â€
This can be overcome by an employer, supervisor, or co-worker who has control over your workspace and is able to give consent to the government.
An employer can search the employee’s workspace as much as they want as long as they’re not acting on behalf of the government. (i.e. government knows about the suspected conduct; the private employer intends to assist law enforcement, and the government affirmatively encourages, initiates or instigates the intrusive conduct)
Public workplace: Unique REP test for gov. employees.
- Is the workplace open to fellow employees or the public?
- Are there actual office practices and procedures or legitimate regulation that permit the search?
If yes, there’s no REP.
Public Employment and Banners: An intro screen at boot that forces you to submit to no REP in exchange for using the computer.
Mixed motives (investigating high bandwidth believing that there’s badness going on) are okay… as long as it’s reasonable in duration and scope.
Identity Theft
NJ Identity Theft protection act – went into force on Jan 1 2006, more safeguards against ID Theft.
Allows for opt-in mode of identity sharing. Police officers are now required to write a report on any given complaint.
Any “business or public entity†worldwide must destroy the customer records of NJ residents containing personal information that the entity doesn’t intend to retain. (no letting accounts languish)
All data security breaches must be reported to the NJ state police, disclose the breach to all people who may be affected (unless the NJ State Police exempt you from that).
If it’s encrypted and the encryption is robust, and the data is stolen, then you’re off the hook because there’s no reasonable chance that there will be a real compromise in data.
SSN’s
No public display of more than 3 consecutive digits.
No printing of SSN’s on mailed material unless required by state or fed. Law
No use of SSN on a card to access products or services
No communication of SSN to the general public
No requirement of use or transfer of SSN over the Internet unless secure connection.
Responsibility and Staff Content
Faculty and Staff Content: They are agents of the univ. and have authority to speak for the univ. within the scope of their employment. You have the authority and responsibility to monitor and censor what is posted on the univ. website by a professor.
Students: not an agent of the univ. (with few exceptions) and are not authorized to speak on its behalf. However the univ. cannot turn a blind eye to offensive content and thereby escape liability. Univ. must investigate any complaint about student offensive or illegal online behavior or speech, determine if the speech or behavior violates the law or a consented-to user agreement.
“Reasonable monitoring†could mean as little as having a written user policy, having the user sign an agreement to that policy, and the investigation of any complaints regarding a user’s site. Annual review would also be helpful, but most likely not mandatory.
Because the institution facilitates the communication of content on the web, even personal sites must be ADA compliant.
Links: Disclaim that the linked sites are not sponsored or authorized by and do not in any way reflect the views of the institution. Nevertheless, vet sites to which you link and be judicious about with which sites you choose to associate.
A sub-domain is no less your responsibility by virtue of the fact that it’s a sub-domain.
A faculty member is an employee of the institution acting within the scope of his or her job in creating web sites and course material and therefore, unless specified otherwise, the content contained therein is owned by the institution. There is a little wiggle room, so whenever possible there should be a pre-arranged agreement between faculty and administration on this subject.
The Americans with Disabilities Act
Goal: to allow access to individuals regardless of their physical, mental, or emotional disabilities.
Applicability to web site accessibility… it’s not entirely clear (yet again - unsettled law).
Title II: Covers public entities (public ed.)
Title III: Covers public accommodations (private ed.)
Must furnish auxiliary aids and services when necessary to ensure “effective communication,†unless an undue burden or fundamental alteration should occur.
Effective communication
- Timeliness of delivery
- Accuracy of comprehension
- In a manner and medium appropriate to the significance of the message and the abilities of the individual with the disability.
In the context of web site access
- Nature of relationship with disabled individual – more burden for known constituents
- Reasonably and effectively meeting the needs of the disabled individuals you seek to accommodate
- Comprehensive v. ad hoc approach to accommodation
- Consult community of persons with disability to seek guidance
Because there’s no precedent, there’s no technical legal liability on the part of the institution to provide accessibility. But it looks like we’re inching toward that inevitability.
Is the internet a place of “public accommodation†within the meaning of the ADA?
- No. Access Now v. Southwest Airlines
- That was a federal trial court in South Florida
- Case was decided in 2002 – no the website is not a “public accommodation,†therefore it is not subject to the requirements of the ADA.
- The opinion was unpublished by the court.
The law merely requires that there be some either affirmative request of accommodation, or that there be a reasonable expectation that the content will be viewed by somebody who needs accommodation. If there’s no reasonable expectation that the content will be viewed by a person with a disability (i.e. content for an extremely small non-disabled group) then there is no burden of accommodation.
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