Blockshopper Case: Privacy Purchased at Retail

Quite a few stories have been written about BlockShopper's settlement of a trademark infringement lawsuit brought against it by Jones Day, a lawfirm that was (apparently) upset about Blockshopper's use of hyperlinks to biographies of firm partners and associates on its Web site. Familiar online themes of righteous indignation, David v. Goliath, Luddites messing with the Internet here and here, bad lawyer, and bad trademark law dominated the discussion.

Among all this techno-outrage, I didn't see any expressions of concern for the people whose names and faces and home addresses routinely pop up on Blockshopper for no reason other than the fact that they purchased or sold a dwelling. Why does Blockshopper get a free pass on privacy concerns? I think there are real privacy issues here. When I visited the Blockshopper Web site last year and saw a photograph of an apparently single female next to Google map of her new home and an indication of how much she paid for the property, I found it disconcerting and I immediately became concerned for the woman's safety.

I have a hard time expressing precisely why the Blockshopper Web site is worrisome to me. I can't put it into words, but I feel that some social value is being threatened there. Someone is being exploited. "Privacy" might not even be the right word for it. I agree with Bruce Schneier who wrote this morning on the BBC News Web site, "Being constantly scrutinized undermines our social norms; furthermore, it's creepy. Privacy isn't about having something to hide; it's a basic right that has enormous value to our democracy, liberty, and our humanity." That makes sense to me. As a society, we're making tradeoffs among values without enough discussion about the implications of the information infrastructure we are creating.

The foregoing (admittedly trite) remarks lead me to a few totally unsupported and possibly fanciful observations about why Jones Day brought a trademark suit against Blockshopper and why it settled the case the way it did.

First, good lawyers will always try to stretch the law, provided they have a good faith basis to do so, to serve their client. That's called zealous representation. That's the kind of lawyer you or I might want. Okay, so their trademark infringement claim was a weak one. A lawyer's job is like a baseball pitcher's: throw it near the plate and get the batter out. It's the judge's job to call balls and strikes. I wouldn't have called Jones Day's a pitch a strike, but reasonable people -- including the district judge -- are free to differ on that.

Second, if the Blockshopper case was really about privacy (and I think it was), Jones Day might understandably be reluctant to assert that kind of claim. If you look at the firm's list of representative clients you will see many large corporations: advertisers, publishers, financial institutions, database vendors (Experian, Thomson, Dun & Bradstreet to name a few), and health care companies. The interests of all of these companies would be adversely affected by a judicial ruling that individuals have privacy rights that limit the collection, aggregation, and distribution of personal information. If Jones Day were to file a lawsuit like that, it might be very expensive for the firm. Nobody wants to lose a good client, especially in tough economic times. A trademark claim avoids that headache. The settlement obtains a small measure of privacy for Jones Day only, under the guise of trademark rights, but no privacy protections for the rest of Web. We'll just have to sue for ourselves, I guess.

Third, Jones Day got value out of the settlement. They were able to remove their attorneys' photos from the Blockshopper Web site, which I think was their main objective. This gives Jones Day attorneys a measure of privacy they didn't have before. And they were able to force Blockshopper to display the firm's name each time it pulls data out of the Jones Day Web site. That's an exchange of value where it was once a one-way street. Worth something, I think. And then there is, of course, the "don't mess with Jones Day" aspect of the settlement that has been remarked on ad infinitum. This part of the settlement benefits both the firm and its clients.

Finally, it is indeed regrettable that a weak and possibly insincere trademark claim has been used to increase, in this instance, the cost of hyperlinking on the Web. I put it in the same category as abusive DMCA claims, trumped-up libel claims to out anonymous bloggers, and patent trolls attempting to cash in on technology Tim Berners-Lee gave the world for free. All bad. But spats over hyperlinking go back to the earliest days of the commercial Web (remember Washington Post v. Total News?). I'm surprised there are not more of these suits. In any event, blame here should be shared by Blockshopper. They should have hung in there and fought the case.

Comments

[Venkat]

You raise some good points, I think BlockShopper presents some privacy concerns, noted here: http://spamnotes.com/2009/02/20/blockshopper-privacy-concerns.aspx

[Marc J. Randazza]

I fully agree that there are privacy concerns, but I think that it is a bit hysterical to claim that it represents a safety concern. But, lets set that aside and agree that there *is* something troubling about using the lawyers' photos on the site. It is copyright infringement (a claim Jones Day could have brought, won, and never been criticized for). The lawyers themselves could have brought a claim for violations of their right of publicity or invasion of privacy. Not great claims, but they were "strikes."

[Kerry]

I see privacy as being framed by consent over how any information about me is to be used. In this case, what I found on blockshopper appeared to be information taken from the county assessor and other real estate records. Now, while those are not avowedly 'private' records, I was never asked when buying my home to give my permission to make all that information public, and I most certainly did not volunteer that permission.

The legitimate privacy concerns voiced by Mr. O'Toole are rooted in the concept that we must be asked for our consent before having information aired. Not all information should be public. If we lose this fundamental approach to keeping the private, private, it will be a lethal erosion of the standard of individual rights we have heretofore enjoyed.

[PamelaRC]

I had never heard of Blockshopper until I learned yesterday that my address, name, husband's name and value and photo of our home came up on a Google search. While I understand Blockshopper has a right to access public records, I never gave my consent for them to use public information for their gain. I pay to have an unlisted home phone number; I took special pains to keep my home address private while handling routine procedures to set up my home-based business. Now, anyone can Google me and find out where I live and how to get there. I believe Blockshopper has crossed a boundary, and I'm troubled by the fact that they can get away with this.

[KiKi]

I agree with PamelaRC 100%. I pay to have an unlisted number and wanted to keep my home address private as well. I went through a very messy divorce and do not want my ex-husband and a few other people to know where I live as my life has been threatened numerous times. I was mortified after a Google search revealed my name, home address, purchase price and a map to my home and have been a nervous wreck ever since. Blockshopper has made this information readily available for anyone to see. When I sent them an email expressing my concern, they stated that "Blockshopper publishes public records" and suggested I contact their Legal/Marketing First Amendment team in the Chicago office. Blockshopper is a sleezebag organization that makes a living off of disclosing other people's information which, in my opinion, should be considered private.

[cc]

I completely agree with PamelaRC and KiKi...
I too pay to have an unlisted number and go through many measures to keep my address private. The fact that Blockshopper makes this information so easily accessible is extremely frightening! I don't care if it is public record... someone who wants to access it would have to go through proper measures to access that information and a paper trail would follow them which would make it less attractive for them to do so. I am thinking of contacting an attorney about this, I find it extremely invasive.

[Lisa]

It's obvious that we single women are the ones who are most disturbed by this information being so easily obtained. Is there anyone out there with a Legal background who can give us some advice as to how we can fight Blockshopper?

[Concerned]

This is not just about lawyers at Jones Day. This is about everyday people like myself. I have a right to privacy. I was shocked to google myself and find my name with my address published on blockshopper. Yes blockshopper is exploiting everyone's info they use to make a buck and compromising the safety of those they're exploiting. I purposely don't post information about myself on the net. I don't use any social networking sites, I pay for an unpublished phone number, etc. This site compromises my safety by advertising my name linked with my home address in such a way that it can be googled. That is the difference. Yes, home sales are public information and I am not comfortable with that especially since it does not apply to everyone. In many regions people with "sensitive positions," or in positions of power can be exempt from the practice. The difference with blockshopper is that they exploit this already existing invasion of privacy that exists because of the lag between laws around technology and technology itself, and take accessibility to an even more invasive and dangerous, in terms of personal safety, level. They program personal information to pop up on google type searches, by just entering a name. Without their help people have to know the info is available, where to look for it and how to access it. Just because something can be done doesn't mean it should be. Wouldn't it be ironic if a friend or family member of the people who profit from blockshopper are harmed at their home by a troubled individual who accessed their name and address using blockshopper? Karma trumps technology.

[Lisa]

Marc, there *IS* a safety concern! Don't believe me? Read this:

http://www.blockshoppervictim.com/

[dore teichman]

I am stunned to see my name address and what I paid for my home publised by Block Shopper for their own profit- I am going to be following thru with an attorney also- but.. at the present time BlockShipper has the law on their side- this information is public.. no one ever considered that Google, combined with Block Shopper would completely obviate anyones ability to remain private. I wrote to my state senator in florida and got no response- even though I sent the guy a photo of his house with all the necessary information required to stage a marvelous home invasion.. even he didnt get it. There is a reason the state does not published addresses on drivers license reports anymore.. An actress in California was murdered by a whacko who got her address from her california dl.. Now.. he just has to scan Google-
If you care about this.. write to your congressman- this is an egregious voilation of my privacy.