A federal court has ordered the giant of all Internet companies - Google, to hand over documents concerning YouTube's viewing data to another media monster - Viacom. Viacom and Google are currently entangled in a no-holds barred lawsuit, concerning allegations of infringement of intellectual property rights. Viacom wanted the viewing data to help it determine the extent to which YouTube's success was built on the popularity of copyrighted clips that were illegally posted to the site. Google contended that YouTube's viewing data should be kept from Viacom to protect the privacy of its users.



Unfortunately for the millions of people who view YouTube videos, the judge granted Viacom's request. The court's ruling has caused many advocates of privacy rights to cry foul. For the following reasons, I believe the federal judge was correct in ruling against Google.

The Court's powers to access records cannot be denied.

Like millions of Americans and other people around the world I love Google. I can say without a doubt that Google has been very good to me and my family law practice. And if Google wants to be viewed by it's customers as the champion of privacy rights, so be it. But, let's get real . . . , the court's access to private records under appropriate circumstances cannot be denied. We cannot let people hide behind their computers to commit crimes or torts. It would be absurd, for example, to give a child molester safe haven to either post or view child pornography. It would be equally absurd to give a person safe haven to infringe upon the property rights of another, to commit defamation of character, or to violate someone's privacy rights

No right is absolute!

The fact that the federal court did not buy into Google's privacy right argument comes as no surprise to those of us who go to court for a living and who know that the right of privacy is not absolute. Our courts are vested with the power to issue search warrants and subpoenas to allow lawyers access to private records. On every work day throughout America, judges are granting motions similar to the one filed by Viacom.

Within my family law practice, for example, I serve subpoenas for personal and employment records almost on a daily basis. Personal records frequently lead to hard evidence concerning the opposing party's true income for the purpose of paying child and spousal support. Likewise, data collected from the opposing party's computer usage can also lead to damaging evidence concerning the issues of child custody, community property, or domestic violence. Thank goodness for those incriminating little e-mails. There is nothing like cross examining a perpetrator of domestic violence as to why he thought it was necessary to send 40 messages to my client concerning her new boyfriend! In case this information is beginning to scare you, keep in mind that our legal system allows parties the right to object to invasions of their privacy. In California, for example, before a subpoena for personal or employment records can be served, the attorney serving the subpoena must give notice to the opposing party and wait numerous days before sending the subpoena out for service. In addition, there are special rules when it comes to any attempt to obtain medical records, in which case the court is usually going to scrutinize the request for said documents. So if your ex is trying to get your phone records to obtain your friend's phone numbers, there are certain hurdles that need to be cleared before the court will release such records.

Can you say . . . , "protective order?"

There is nothing new about the possibilities of an attorney or party releasing confidential information. In the cruel world we live in, people misbehave and private information is often dispensed to people who have no right to the records. I'm sorry if I've just burst your bubble, but this happens all the time, especially in divorce cases.

Fortunately, the court has a pretty strong remedy to this problem. Courts issue "protective orders" that forbid the release of private documents to third parties and impose huge sanctions on people for violating such orders. And let us not forget the fact that an attorney's license could be in serious jeopardy for intentionally releasing such information, which is a pretty strong incentive for not violating the court's order.

Again, borrowing from my experience in litigating family law cases, I often find it necessary to obtain protective orders on behalf of my clients. In one case, where my client was an attorney who owned his own law practice, his wife demanded copies of all the records pertaining to his client's files. She purportedly wanted the records to assist her forensic accountant in determining the value and cash flow of his law practice. Obviously my client was concerned about the confidentiality of his client's files, especially since his wife was on the war path to destroy him. We could not get into court quick enough to obtain a protective order, which was granted without hesitation!

What about Viacom's underlying motives?

For the purpose of this discussion, Viacom's motives are irrelevant. Viacom has the right to our system of justice as any other company or person. It is, after all, the court's responsibility to ensure that Viacom does not release the information to third parties. If Viacom violates the court's protective orders, well, look out for an astronomical monetary sanction.

Be careful!

The bottom line is that the information obtained by Viacom will be safeguarded by a protective order restricting access to the data to outside lawyers or others. The lawyers representing Viacom will probably make sure the protective order is obeyed. Nevertheless, it behooves all of us to think twice about the sites we choose to view within the privacy of our homes. After all, the right to privacy is not absolute, and you never know who may get their hands on your records.

Written by Donald P. Schweitzer