Paulians and their perspicacious privacy warnings; profligate phlyarologists. (Their legal disclaimer is horseshit)
OK, show of hands, how many of you have this idiotic facebook disclaimer up on your page:
Warning–any person and/or institution and/or Agent and/or Agency of any governmental structure including but not limited to the United States Federal Government also using or monitoring/using this website or any of its associated websites, you do NOT have my permission to utilize any of my profile information nor any of the content contained herein including, but not limited to my photos, and/ or the comments made about my photo’s or any other “picture” art posted on my profile. You are hereby notified that you are strictly prohibited from disclosing, copying, distributing, disseminating, or taking any other action against me with regard to this profile and the contents herein. The foregoing prohibitions also apply to your employee(s), agent(s), student(s) or any personnel under your direction or control. The contents of this profile are private and legally privileged and confidential information, and the violation of my personal privacy is punishable by law. Without reservation U.C.C. § 1-308.
Look, I don’t mean to be a dick (except to you Paulians, Oathkeepers and assorted other cranial rectal inversion enthusiasts) but the above stated disclaimer, (hereinafter “horseshit”) has as much legal bearing as reading the peanut and corn splatters in a port-a-john like a Rorschach test.
There is so much going on here, I am not sure where to even start. It’s like I once heard Rush Limbaugh wonder in his book, where he was trying to figure out who the first dude that licked a toad and got high. Like, how did that dude brag to his buddies that he found a way to get high by tonguing an amphibian? “Oh, I slipped and fell and my tongue went into this swamp creature?” Likewise, who was the keen legal mind that first thought up the concept that a social networking site, wherein you detail the mundane minutia of your day for the hundreds of folks that are your friends is somehow “private and legally privileged and confidential information”? I’d sooner lick the toad than claim birthright to that one.
Anyway, let’s start with the legal authority referenced, U.C.C. § 1-308. Must be legit, it has that squiggly line shit and some numbers…well, no, not really. You see, the U.C.C. is the “Uniform Commercial Code.” It’s not a law, it’s a bunch of drafts on what the law should look like from the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute (ALI). (Your standard wiki link.) The second obvious problem is that it deals with the commercial code, which has jack shit to do with keeping the Feds from snooping in your shit. The specific language of that section of not-law, states:
§ 1-308. Performance or Acceptance Under Reservation of Rights.
(a) A party that with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as “without prejudice,” “under protest,” or the like are sufficient.
(b) Subsection (a) does not apply to an accord and satisfaction.
So let’s review….the legal authority they cite is not a law, it deals with commercial transactions not criminal or 4th Amendment type stuff, and has to do with the performance in a contract. Which parts of all that horseshit apply to Facebook?
So yesterday a wackadoodle shot up a school in Ohio, as you all know. And the pictures they used were all from dickhead’s Facebook. Now, how many of you out there think that had he had this disclaimer up, then no one would be allowed to use it? Not CBS News, not the evil Feds, no one….For all of you, here’s your sign:
I don’t want to get all legal on you, but “private and legally privileged and confidential information” actually has a meaning in the law, and it doesn’t apply to shit you toss up on your Facebook. For instance, my discussion this morning about how my wife noted that Jabba the Hutt looks like a poop….yeah, not privileged. Now, there is the spousal communications privilege and the spousal/marital testimonial privilege, but when you disclose that stuff to someone else, it is no longer privileged. So, my wife’s thoughts on Hutt/Fecal similarities conveyed to me in the car might be confidential to us, but when I put them up on my Facebook for Blackfive to call me a Ghey, they lose their inherent privileged status.
Likewise, your communication with your lawyer is mostly privileged, but if you communicate with him via stripagram, or a full page ad in the Boston Globe, not so much. For a legal look at some of this stuff, I would recommend this guy who notes that even emails between lawyer and client are not ALWAYS privileged thanks in part to overuse of idiotic disclaimers:
By overusing [disclaimers], lawyers may be undermining the effectiveness of disclaimers in protecting the confidential or privileged nature of the information in the e-mail in the (hopefully) rare event that an e-mail is misdirected (or inadvertently produced in discovery). In a recent case, Scott v. Beth Israel Medical Center Inc., 847 N.Y.S.2d 436, 444 (2007), the court refused to find that a series of e-mails were privileged just because they contained a disclaimer that was found in every e-mail sent by the plaintiff. Lawyers are also training the world to ignore disclaimers and privilege warnings, which is precisely what we don’t want people to do.
The takeaway: if the disclaimer makes you feel warm and fuzzy, by all means keep it on your Facebook page. But, if you think that it will actually serve the purpose that it seems to be intended for, you have bigger problems that the Gov’t monitoring your Facebook page.