By

Alan Charles Raul

29 August 2016

Despite Lenient View of Standing, Appellate Court Dismisses “Clearly Meritless” Case on 12(b)(6) Grounds Not Considered by the District Court; Lessons Abound

In Carlsen v GameStop, Inc. the Eighth Circuit held that a plaintiff had standing to bring privacy claims that his personal information, specifically web browsing data, was provided to a third party in violation of an allegedly express agreement not to do so (namely, the defendant’s privacy policy). The district court had previously dismissed the complaint on the grounds of lack of standing because the plaintiff – a paying customer of Gamestop’s online video game magazine – failed to allege that he paid any specific amount for the privacy policy or that he bargained for any additional privacy beyond what non-paying users obtained. However, even though the district court did not consider the defendant’s 12(b)(6) motion to dismiss the complaint on grounds of failure to state a claim, the appellate court nonetheless affirmed the dismissal on that basis.

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08 August 2016

Second Circuit Microsoft Ruling: A Plea for Congressional Action

*This article originally appeared in Law360 on August 1, 2016.

On July 14, 2016, the U.S. Court of Appeals for the Second Circuit issued a long-awaited decision that — to the surprise of many observers — rejected the government’s construction of the Stored Communications Act and instead embraced a more restrictive view that Microsoft Corp. had advanced, backed by much of the tech industry and many privacy groups. The decision holds that electronic communications that are stored exclusively on foreign servers cannot be reached by U.S. prosecutors under the SCA’s warrant provisions — not even where the warrant is served on a U.S. provider that can access the foreign-stored information, and deliver it to U.S. officials, entirely by using computers and personnel based here in the United States. Microsoft Corp. v. USA, In the Matter of a Warrant to Search a Certain E‐Mail Account Controlled and Maintained by Microsoft Corporation (2d Cir. July 14, 2016)( Docket No. 14‐2985).

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01 August 2016

Privacy Shield Now Available for Certification

From Monday August 1, 2016, companies will be able to self-certify under the EU-US Privacy Shield (www.privacyshield.gov). The Privacy Shield was adopted on July 12, 2016 and is intended as a replacement to the now invalidated Safe Harbor framework. Companies preparing to self-certify their adherence to the Privacy Shield Principles should carefully review the associated documentation to understand the new requirements and consider carrying out a gap analysis against their existing privacy program. This is particularly important given the potential for increased enforcement action from the US Federal Trade Commission against participating companies that fail to comply with the Principles. (more…)

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28 July 2016

EU Data Protection Authorities Adopt One-Year “Wait and See” Position On Privacy Shield

The Article 29 Working Party, on July 26, 2016 issued a statement on the final form of the EU-US Privacy Shield, which was formally adopted on July 12, 2016. Speaking at a press conference, Isabelle Falque-Pierrotin, chairman of the Article 29 Working Party, stated that the EU data protection authorities would not launch legal action of their own initiative in the next year but instead will wait until after the first annual review: “the first joint review will be a time in which we will make an evaluation of the Privacy Shield and also a time where additional propositions could be made … we want to be provided with additional clarification, additional evidence, possibly changes in the legislation.” (more…)

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26 July 2016

Second Circuit Sides With Microsoft; Data Exclusively Stored On Foreign Servers Not Subject to SCA Search Warrant

On July 14, 2016, the U.S. Court of Appeals for the Second Circuit issued a long-awaited decision that—to the surprise of many observers—rejected the government’s construction of the Stored Communications Act (SCA) and instead embraced a more restrictive view that Microsoft had advanced, backed by much of the tech industry and many privacy groups.  Microsoft Corp. v USA, In the Matter of a Warrant to Search a Certain E‐Mail Account Controlled and Maintained by Microsoft Corporation (2d Cir. July 14, 2016)( Docket No. 14‐2985).  (Sidley Austin LLP represented a number of amici in support of Microsoft before the Court of Appeals and District Court.) The decision holds that electronic communications that are stored exclusively on foreign servers cannot be reached by U.S. prosecutors under the SCA’s warrant provisions—not even where the warrant is served on a U.S. provider that can access the foreign-stored information, and deliver it to U.S. officials, by using computers and personnel based here in the United States.

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06 July 2016

Privacy Shield Text Updated

The final text of the much anticipated EU-US Privacy Shield has been sent by the European Commission for review and approval to the Article 31 Committee, which includes representatives from all 28 Member States.  Approval by the Article 31 Committee will pave the way for a final decision by the Commission adopting the Privacy Shield, expected on 11 July, 2016.  If approved, the Privacy Shield will take effect as soon as the US Department of Commerce establishes a new process for US companies that wish to use the Privacy Shield as a legal basis for data transfers of personal data from the EU to certify in accordance with the new framework.  Businesses should examine the final Privacy Shield documents and requirements and determine whether to proceed with certification once the Privacy Shield is approved.

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27 June 2016

Amid news of Brexit, UK ICO seeks to provide reassurance

As the world began to grapple with the implications of the UK’s vote to withdraw from the European Union, or “Brexit,” the UK Information Commissioner has sought to provide reassurance, issuing a statement reinforcing continuity of data protection principles and a commitment to the digital economy.

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17 June 2016

DHS and DOJ released final rules for treatment of shared cybersecurity threat information under CISA

The DHS and DOJ have issued final rules and guidance for receipt of cyber threat indicators and defensive measures, including Guidelines for privacy and civil liberties protections. On June 15, the DHS and DOJ announced the release of their joint rules for government handling of cybersecurity information shared by companies, along with expanded guidance for companies wishing to share cybersecurity threat information and take advantage of CISA’s liability shields for certain information sharing and defensive monitoring activities. The newly released rules incorporate and implement provisions of the Cybersecurity Information Sharing Act (CISA) which was passed in December 2015.  CISA authorizes and protects information-sharing for certain cybersecurity purposes. It applies to all organizations and it offers companies a broad safeguard from liability for voluntarily sharing “cyber threat indicators” or engaging in certain cybersecurity “defensive measures.”

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13 June 2016

SEC Interest in Cybersecurity Continues; Chair Views Cybersecurity as Biggest Risk to the Financial System

Securities and Exchange Commission Chair Mary Jo White emphasized the agency’s focus on cybersecurity preparedness and response at a conference in Washington, D.C. in mid May, stating “we can’t do enough in this sector.”  Reuters reports that Chair White views cybersecurity as the biggest risk facing the financial system, quoting her as saying that “what we [have] found…is a lot of preparedness, a lot of awareness but also….policies and procedures [that] are not tailored to [entities’] particular risks.”

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23 May 2016

Supreme Court to Ninth Circuit in Spokeo–Get ‘Real’ on Injury

This article originally appeared in the Bloomberg BNA Privacy and Security Law Report on May 23, 2016.

In Spokeo, Inc. v. Robins, decided May 16, the U.S. Supreme Court ruled that plaintiffs who allege violations of statutes that contain a private right of action and statutory damages do not have automatic ‘‘standing’’ to sue. The Court instead found that to meet the constitutional requirement of standing, the plaintiff must establish not only the ‘‘invasion of a legally protected interest’’ defined by Congress, but also that the plaintiff suffered a “concrete and particularized” harm to that interest.

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