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If you've been posting criticisms of corporations anonymously on billboards in cyberspace, your identity may be fair game. Dozens of companies have been using the courts in recent months to help track down their cyber-critics.
Companies have long had the right through the process of legal discovery to question employees about their actions and to subpoena documents, electronic or otherwise. But the Internet -- and the way many companies are reacting to how people use it -- is beginning to raise chilling questions for anyone who uses a home computer, too.
Consider the recent case of Northwest Airlines. It all began on a message board hosted by veteran flight attendant Kevin Griffin on his personal Web site. Just before Christmas last year, several anonymous employees urged co-workers to stage sickouts, which are outlawed by federal labor laws. The goal was to force Northwest to cancel profitable flights during last Christmas season. It worked: After a flood of sick calls forced the cancellation of 317 Northwest flights from Dec. 30 to Jan. 2, Northwest sued the flight attendants' union and several others for staging an illegal strike. Nothing surprising so far.
NEEDLESS INTRUSION.
But Northwest was able to win permission from a Minneapolis federal judge to search the personal hard drives of 22 flight attendants -- hard-drives in computers in the employees' homes and in union offices -- to find the identity of the perpetrators. Northwest says it investigated only messages having to do with the sickout and had no desire to infringe on free speech or invade the privacy of people who, it felt, weren't breaking the law.
Even if you accept the airline's allegations and acknowledge that computer data are no more immune from subpoena than any other kind of evidence, this search seems to me to be a needless intrusion on personal privacy. Before the Computer Age, Northwest would have had to obtain an order directing the employees, in consultation with attorneys, to go through their papers and submit any documents Northwest sought.
Had it tried to send its lawyers or other agents into their homes to rifle through their desks and file cabinets, the airline would have been turned down by most judges. But here, of course, it got a judge to require that the 22 turn over their machines to investigators hired by Northwest, who sifted through their contents and decided what the airline should be able to see.
DIGITAL TRACKS.
Northwest isn't alone. In recent months, Raytheon, Varian Medical Systems, and many other companies have sued over statements made anonymously online that the companies disagreed with or didn't like.
Few of these cases -- most have been filed over the past six months -- have reached final resolution. But so far, it looks like companies have found a way of unmasking their prey, thanks to the digital tracks people leave from their hard drives to the Net. Even the American Civil Liberties Union acknowledges that companies are entitled to prevent the release of trade secrets or the spread of lies about them. But they say actions such as Northwest's -- and lawsuits aimed at identifying those who criticize companies online -- go too far.
"Many of these cases seek to quash negative actions or comments...and the result is censorship and the end of privacy for many people," says Chris Hansen, senior legal counsel with the ACLU. "And most of the time, it's a giant corporation going after an individuals. What happens in these cases to individual rights?"
NO WARNING.
What further disturbs civil liberties groups is the ease with which Yahoo! and other Net message-board hosts give up the names of anonymous posters when lawsuits have been filed. By filing suit, companies gain immediate subpoena power, and many message-board hosts release information right away, often without notifying the poster. (Microsoft and America Online are exceptions. They provide chat-room posters 14 days' warning after a civil subpoena is served.)
To be sure, the Net can be a powerful tool for consumers, investors, and activists. But why should companies have more power over that tool than individual citizens and consumers? The point is this: Fundamental civil rights in society need not, and ought not, be abridged just because new technology makes it easier or more tempting for powerful forces to do so.
The lesson here? Computer users, beware. Just because a computer is personal doesn't mean it is private, especially if more companies are tempted to follow Northwest's lead. For the sake of the future of the Net and e-commerce, I hope they don't. People are already spooked by marketers' collection of digital data about them. Knowing that a company can actually seize somebody's hard-drive from their home PC? Let's just say that this, too, is bad for business, and behavior that courts should not encourage.
Stepanek's column runs twice a month on Business Week Online. She invites you to discuss these issues on our Privacy Matters forum EDITED BY DOUGLAS HARBRECHT
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