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The Ninth Circuit recently held that the Children’s Online Privacy Protection Act, which gives the Federal Trade Commission  authority to regulate the online collection of personal information from children under the age of 13, does not preempt consistent state law, potentially increasing the risk of class action litigation based on alleged COPPA violations.  See Jones …

After several twist and turns, on July 7th Intel Corp. succeeded in achieving final dismissal of class claims alleging that Intel knew about purported security vulnerabilities in its microprocessors and failed to disclose or mitigate those vulnerabilities.  The case, In Re Intel Corp. CPU Marketing, Sales Practices and Products Liability Litigation, 3:18-md-02828, had…

Last week, an Illinois federal district court granted the defendant’s motion to stay in Stegmann v. PetSmart, No. 1:22-cv-01179 (N.D. Ill.).  The case implicates the evolving law surrounding the scope of the Illinois Biometric Information Privacy Act (“BIPA”) and  a pending Illinois Supreme Court case that could provide an important defense to certain BIPA suits.…

Continue Reading Federal Court Stays Suit Implicating Accrual of Claims Under the Illinois Biometric Information Privacy Act

Recent months have seen a growing trend of data privacy class actions asserting claims for alleged violations of federal and state video privacy laws.  In this year alone, plaintiffs have filed dozens of new class actions in courts across the country asserting claims under the federal Video Privacy Protection Act (“VPPA”), Michigan’s Preservation of Personal Privacy Act (“MPPPA”), and New York’s Video Consumer Privacy Act (“NYVCPA”).…

Continue Reading Emerging Trends: Renewed Wave of Video Privacy Class Actions

In March, the Supreme Court issued its decision in Federal Bureau of Investigation v. Fazaga, No. 20-828, holding that the state secrets privilege—and its dismissal remedy—applies to cases that may also be subject to the judicial review procedures set forth in the Foreign Intelligence Surveillance Act (“FISA”).  In so holding, the Court reversed the Ninth Circuit’s 2020 ruling that FISA displaces the state secrets privilege in cases involving electronic surveillance.
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Continue Reading Supreme Court Holds FISA Does Not Displace the State Secrets Privilege

Last Thursday, the Eastern District of Virginia in United States v. Chatrie, No. 19-cr-00130, 2022 WL 628905, denied a motion to suppress evidence obtained from Google pursuant to a geofence search warrant.  Geofence warrants are a relatively new investigative tool that target private companies’ databases of location data, compelling these companies to produce the location data of every user that was in a particular area over a particular span of time.  The court invalidated the warrant for lack of particularized probable cause, but declined to suppress the evidence obtained from Google—which linked the defendant to the scene of a 2019 bank robbery—because the officers sought the warrant in good faith.
Continue Reading Federal Court Expresses Skepticism About Validity of Geofence Warrants But Declines Suppression Remedy

An Illinois federal district court recently rejected dismissal of Illinois Biometric Information Privacy Act (“BIPA”) claims in In re Clearview AI, Inc., Consumer Privacy Litigation, No. 21-cv-135 (N.D. Ill.).  The Clearview plaintiffs alleged that Clearview violated their privacy rights without their knowledge and consent by scraping more than three billion photographs of facial images from the internet and using artificial intelligence algorithms on the images to harvest individuals’ unique facial biometric identifiers and corresponding biometric information.  Clearview sought dismissal of the BIPA claims under the First Amendment, extraterritoriality doctrine, dormant commerce clause, and BIPA’s express exemption for  photographs.  The court rejected these grounds, and declined to dismiss the BIPA claims.
Continue Reading Court Rejects Dismissal of Illinois Biometric Information Privacy Act Against Clearview AI in Pending Multidistrict Litigation

2021 was another busy year for data privacy regulatory enforcement and litigation. With some distance to reflect on last year, we have prepared this post identifying and describing important trends from 2021 that can help provide insight into what to expect in the data privacy landscape in 2022.

Data Privacy Regulatory Enforcement Trends

Federal Trade Commission (FTC) and state enforcement action in 2021 centered on several key areas, including protecting children.

An FTC enforcement action last year alleged that the maker of an online coloring book application violated the Children’s Online Privacy Protection Act (COPPA) by collecting personal information about children who used the app without notifying their parents and obtaining their consent.  The allegations note that the app included a “Kids” category that was targeted to children.  The FTC further claimed that the app’s social media features collected personal information from users and that some parents, lacking knowledge of these features, may have inadvertently permitted their young children to use the app.
Continue Reading 2021 Trends in Privacy Regulatory Enforcement and Litigation