what if we had a paragraph that expressed a sort of privacy statement regarding this questionnaire, and in it we described with technical specificity the lengths we were taking to protect the anonymity of respondents, but that we can’t protect against that which we cannot foresee? it would be a “best efforts” statement, with the acknowledgment that there may be some risk of unknown magnitude regarding this element of anonymity.
Any time you promise (or just say) that you will try to keep information private, you’re opening yourself up to the probability of some ass claiming that you didn’t make a “best effort” if he or his lawyer can think of SOMETHING you didn’t do that MIGHT have kept his info private. Admittedly, I don’t know what that could be off the top of my head, but I’ve seen enough good intentions go horribly wrong to give pause over promising to try to do anything at all. It’s sad that it’s come to that in many aspects, but if you want to be as safe as you can, you do two things: (1) don’t promise anything, (2) be very clear that you’re not promising anything.
That said, in all likelihood, you’d never hear a peep out of anyone taking your survey. As you well know, only you can decide if the risk – however large or minimal – is worth taking. My sense of your endeavor is that the risk of a lawsuit (much less a successful one) is incredibly small, even if you don’t use a disclaimer at all. If you choose to use one, how narrow or broad it is will necessarily impact your exposure to liability. I would bet that your suggested privacy statement would be just fine. In typical lawyer fashion, though, I will stop short of recommending one path over another!
“it appears that you will be sending email invitations regarding the questionnaire”
i don’t intend to send out email invitations, but i will probably include a mention of it in my normal slowtwitch newsletter (the one you get when you sign up using the fill-in form above this forum table. i think i’m cool with the spam act, as the provisions that make me able to send mass emails are those i believe i’m in compliance with.
First off, reminder that you are in California, so if this survey reduces someone’s ESP, you may be liable…
Secondly, in case it matters, it is very possible to keep the survey answers separate from IP addresses. I.e., you will know that a given IP address took the survey, but do not have to know which answers are his/hers (its?). For example, the survey could just tally all X, Y, Z responses, without actually making it clear which IP contributed which. Even if you had long answer type questions, it is not necessary to link the IP to answers. So, in that way, the survey really could be totally anonymous, if you wanted it to be so.
Then, if the results of your findings indicated that, for example, gay persons found the sport inaccessible, you could just put a request for an author who is gay to contact you to write an article, thereby acknowledging in that case that they are giving up their right to anonymity, at least with respect to you.
I write this not because I am a lawyer, but to let you (and the lawyers here) know what can be done in how the survey data can be collected, in case that makes a difference as to how they advise you. So it’s not a problem to collect the data for the survey in a truly anonymous fashion, should that be the best thing from a legal standpoint.
“lawyers are typically the most interesting people i know.”
It is seldom that we lawyers get complimented like his. I for one am holding onto my wallet
You have been provided with good advice so far, although I am obligated under the legal canons of ethics to report all of these legal Good Samaritans to their state bar disciplinary committees for providing free legal advice.
I am obligated under the legal canons of ethics to report all of these legal Good Samaritans to their state bar disciplinary committees for providing free legal advice.
Shit, I’m counting this as my pro bono contribution!
I also agree with Brick for the most part. Would need more information as to exactly what the information would be and the potential for damages before we could really get into the “it depends category”. As for a “best efforts statement” I do not see the value. Hard to make something like that complete enough and it is often better not to attempt to explain things too much. As for disclaimers, you usually can’t disclaim negligence or intentional conduct, so they hardly ever save anyone from the “big one”.
Really is hard to imagine a liability situation resulting from the unintentional or even intentional release of personal information voluntarily provided in response to a survey - but then plaintiff’s lawyers are pretty damn creative sometimes…
don’t give it all away in this thread. that request is coming in my NEXT legal question (chapter 2).
so, what if i simply say that we are not asking for identification because we do not intend to attach identifiers to responses. further, we’ll explain the technical steps we’re taking in order to keep names and IPs separate. and then leave it at that, with no claim to protect anonymity.
would that be any better, or am in the same virtual position, because the statements detailing the steps to protect anonymity are an implicit promise of anonymity?
This is not my field of expertise. The biggest legal landmine on privacy is medical information. It does not sound like you are asking those questions. The second possible concern would be breaches of your security. You can judge for yourself how secure your system is. Third, consider giving people the option of mailing in their response (so you can’t tell who they are). Fourth, don’t gather information from the many employees of Slowtwitch Inc.
That aside, assuming you accurately disclose the purpose for which you are gathering the information you should not have a problem.
If it were me, I would have the following disclaimer:
ALTHOUGH IT IS SLOWTWITCH’S INTENTION TO MAINTAIN THE CONFIDENTIALITY OF ANY INFORMATION WHICH YOU PROVIDE US, YOU AGREE BY PROVIDING ANY INFORMATION TO SLOWTWITCH THAT NEITHER SLOWTWITCH NOR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS, EMPLOYEES OR AGENTS HAVE ANY OBLIGATION TO MAINTAIN THE CONFIDENTIALITY OF ANY INFORMATION WHICH YOU PROVIDE AND YOU ALSO AGREE TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND TO HOLD THEM HARMLESS FROM ANY CLAIMS WHICH YOU MAY HAVE AGAINST ANY OF THEM FOR THEIR DISCLOSURE OR USE OF ANY INFORMATION WHICH YOU PROVIDE.
This may be legal overkill and may inhibit responses but it seems like you want to be legally cautious.
So that Danno or one of the others doesn’t turn me in for providing free legal advice, just to be safe you should pay me for this advice. I’m a slow typist, so a check for $1,000 should do the trick.
I would make the most simple, categorical statements possible, and disclaim everything and all privacy concerns. Tell contributors you are collecting every aspect of information relating to the contribution, and state in big letters the exclusive list of information that WILL NOT be disclosed (if you think you need to do that to get people to participate). The more complicated your statement, the more someone can poke on it. You might find someone you know who would have a bullet-proof privacy policy (maybe check the American Idol website for their stock disclaimer). You might also Google the recent controversey over avvo.com, a new lawyer rating site, as it seems to deal directly with the passing on of information collected in part anonymously by avvo.com by voluntary participation of others and the consequences to the consolidator of passing such information on to others.
"so, what if i simply say that we are not asking for identification because we do not intend to attach identifiers to responses. further, we’ll explain the technical steps we’re taking in order to keep names and IPs separate. and then leave it at that, with no claim to protect anonymity. "
Dang your overthinking this. I am not a lawyer, I am a market researcher. Here is a sample of our disclaimer which we include in the email invitations to take the surveys:
All results will be kept confidential and only reported in aggregate.
Yes we made that promise, because we don’t take anybody’s responses and report on them individually and if we did, we wouldn’t attribute them to anybody. At the end of the survey we include the language: If you would like a representative to call you please list your name and number and your question in the box below. You could easily change that to: If you would like to contribute to a series of articles regarding this survey we would love to hear about your experiences as a bi-sexual green hermaphrodite involved in triathlons in the box below. Please leave your name and number so we can contact you further:
I was fortunate enough to work in an industry with the same kind of loyalty and devotion as Triathlon and was amazed at the response rates we would get, usually within 24 hours of sending out invites we would get 15-20% response rates. Our first survey we invited too many in the first wave and our hosting company took our site down thinking we were getting attacked by a hacker. And with that, we would get 5 or 10 cranky bastteeerds who wanted off our email list, can live with that pretty easy.
Your problem won’t be getting enough response, it will be wading through al of the repsonses.
I have also spent quite a bit of time going through the can-spam act, basically it says, you cannot promote illegal items through email nor promote guns, porn, drugs, or alcohol to minors. Its really a very very weak law aimed at only the most dispicable of spammers.
Agreed. The more you say, the more loopholes and angles of attack you can create. A broad, but clear waiver/disclaimer is much better. While it doesn’t prevent lawsuits outright, it makes it much easier to argue that a plaintiff knew what he/she was doing and assumed the risk of disclosure by giving the information to you.
Edit: I like the wording used in the post just above this one. The promise doesn’t really mean much and isn’t really a harmful one to make.
I think someone would be hard pressed to argue that they had a fourth amendment expectation of privacy in their internet communications to this forum, especially since you are not promising to maintain confidentiality. Secondly, unless you defame the participant what would their damages be?
Follow Brick’s original response. Let Rappstar figure out how to collect the information and store it while seperating it from the sender’s IP address. You won’t have promised anything or otherwise created a duty of care. You will have taken reasonable steps to protect the anonymity of the survey respondents.
You may even have some statutory protection, as I think you do from liability for things people might post on this site, from the Communications Decency Act 47 U.S.C. sec. 230: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
I am obligated under the legal canons of ethics to report all of these legal Good Samaritans to their state bar disciplinary committees for providing free legal advice.
Shit, I’m counting this as my pro bono contribution!
And I’m sure you all ran Dan Empfield and slowtwitch though your firm’s conflict of interest databases, yes?
And then there is the fuzzy area of slowtwitch being a California company, so are you all giving advice on California law and if so, I assume you are admitted in CA???
clm, who just spent three days doing a professional responsiblity audit
And I’m sure you all ran Dan Empfield and slowtwitch though your firm’s conflict of interest databases, yes?
Unless Dan sued the State of Texas anytime in the last 7 years, I think I’m golden.
And then there is the fuzzy area of slowtwitch being a California company, so are you all giving advice on California law and if so, I assume you are admitted in CA???
Hey, hey! I expressly disclaim having given any “legal advice.” We’re just a bunch of folks talkin’ here.
