The Face in the Mirror

Sometimes the poetic justice of it all is just too delightful.

Facebook has been in the news of late for disclosures of its misuse of the privacy rights of its members. See my previous posts, Suckface and Two Faced.

Yet Mark Zuckerberg has been assiduously trying to protect himself from the same level of scrutiny about his own affairs. Zuckerberg is the face behind Facebook. The NYTimes exposes the hypocrisy of Facebook's founder in Facebook Founder Finds He Wants Some Privacy:

Social networking Web sites can seem dedicated to the idea that nobody’s personal life is worth keeping private, but when it comes to Mark Zuckerberg — the founder of Facebook, one of the largest networks — Facebook disagrees.

Facebook tried last week to force the magazine 02138 to remove some unflattering documents about Mr. Zuckerberg from its Web site. But a federal judge turned down the company’s request for a court order to take down the material, according to the magazine’s lawyers.

The dispute stemmed from a lawsuit charging that in 2003 and 2004, as a student at Harvard, Mr. Zuckerberg stole the idea and some of the computer source code for Facebook from some fellow students. They were planning a networking site of their own and had hired Mr. Zuckerberg to help with the programming.

Their project fizzled, while Facebook made Mr. Zuckerberg a billionaire — at least on paper — at the age of 23.

As The Harvard Crimson describes it, Facebook Founder Loses Court Battle:

A federal judge ruled against Facebook Inc. on Friday, denying two emergency motions to force 02138 magazine to take down documents regarding Mark E. Zuckerberg, the company’s founder.

The documents—which included Zuckerberg’s Harvard College application, his personal diary, and an e-mail he wrote to the College’s Administrative Board—are evidence in an ongoing court battle between Facebook and ConnectU, a social networking site founded by Harvard students who employed Zuckerberg before he went on to found Facebook.

The ConnectU founders allege that Zuckerberg, formerly of the Class of 2006, stole their ideas, including some of the source code for their site.

The information was inadvertently disclosed by the First Circuit Court of Appeals in Boston. Apparently, the Court had sealed the documents, but a reporter was able to review the documents in the Clerk's Office. A similar court error happened to Richard Mellon Scaife, who tried to keep details of his personal fortune confidential during the course of his nasty divorce. The clerk's office accidentally put the information on-line and the Pittsburgh paper published the information on its website. This of course is the same Scaife who spent millions trying to find and publish unflattering information about Bill Clinton. See Mr. Mellonhead. Hard to feel to badly for either of these fellows.

Looking at the issue from a pure privacy perspective, Daniel Solove of Concurring Opinions, in Facebook Founder Zuckerberg's Lost Privacy, discusses the real concerns raised with the inadvertent disclosures by the court. As he explains:

Since the documents were leaked by the court, the First Amendment bars the newspaper from being sued for publishing them. See Cox Broadcasting v. Cohn, 420 U.S. 469 (1975).

The Zuckerberg incident raises an issue that I find to be occurring far too often -- courts inadvertently leaking sealed and confidential documents. As businesses have discovered, after the spate of data security breaches in 2005, keeping people's data secure is no easy task and demands training and resources. But courts, it seems, have not thought much about data security. One of the problems is that a victim of a judicial leak of information has little recourse. The First Amendment prevents stopping a newspaper or blogger or anyone who obtains the information from publicizing it. As for the court, the court clerk and officials are typically immune from liability. So if a court leaks your confidential personal information, it's tough luck for you.

There needs to be a better incentive for courts to protect personal information. "Oops, I'm sorry" just doesn't cut it if a court is negligent in keeping information secure.

While I certainly agree with that sentiment, I cannot but wonder whether the problem arises because the court is too willing to grant certain parties (read that: rich and famous) additional confidentiality protections that the rest of us don't ordinarily get. If most the information that is accidentally disclosed is of the kind that is ordinarily public, then it's understandable that the mistake is made. Some of the documents referred to in these high profile cases don't necessarily seem the type of information that is put under court seal. I admit that I am rusty on this, since I have been a litigator in a million years, so I can't speak on the issue with any degree of certainty.

To the extent that there is a legitimate protective order, however, I do concur that the court needs to do a better job protecting the confidentiality that it granted to the party. The fallout that can occur when the information is disclosed because of the reach of the internet is much more devastating than merely being viewed by a few people in the confines of the courthouse.

The fascinating, in depth look at Zuckerberg and the details of the case can be found here: Poking Facebook.

Tags: Law, Facebook, Technology, Zuckerberg