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Litigation Options For Post-Cyberattack ‘Active Defense’

[This article also was published in Law360.] In March 2017, Rep. Tom Graves, R-Ga., introduced a draft bill titled the Active Cyber Defense Certainty Act. The bill would amend the Computer Fraud and Abuse Act to enable victims of cyberattacks to employ “limited defensive measures that exceed the boundaries of one’s network in order to … Continue Reading

Lawsuit Alleges That Self-Checkout Videos Violate the Song-Beverly Act

A class-action lawsuit filed last month alleges that Wal-Mart’s video recording technology at its self-service checkout kiosks collects “personal identification information” in violation of the California Song-Beverly Act Credit Card Act of 1971 (“Song-Beverly Act”).  The Song-Beverly Act, like analogous statutes in several other states, generally prohibits businesses from recording customers’ “personal identification information” as … Continue Reading

FCC Seeking Comment on Key TCPA Reform Issues in Wake of DC Circuit Ruling

By Melanie Ramey Yesterday, the Federal Communications Commission (“FCC”) released a Public Notice seeking comment on a range of issues relevant to its interpretation of the Telephone Consumer Protection Act (“TCPA”), including how the FCC should interpret what constitutes an “automatic telephone dialing system” in the wake of a recent decision by the U.S. Court … Continue Reading

Virginia Supreme Court Holds that Police License Plate Readers Collect Personal Information

The Virginia Supreme Court held that license plate images taken by law enforcement agencies constitute “personal information,” reviving a challenge to the police storage of license plate data. Automatic license plate readers (“ALPRs”) are used by police departments across the country to take thousands of photos of license plates per hour.  Officers check these numbers … Continue Reading

4th Circuit Affirms Dismissal of TCPA Suit Based on ‘Derivative Sovereign Immunity’

Earlier this week, the Fourth Circuit Court of Appeals affirmed a lower court decision to dismiss a Telephone Consumer Protection Act (“TCPA”) lawsuit against General Dynamics Information Technology, Inc. (“GDIT”), on the basis that GDIT was immune from suit as a government contractor under what is known as the “Yearsley doctrine.”  Craig Cunningham v. GDIT, … Continue Reading

Government’s Response to Malware Defendant’s Constitutional Challenge Falls Short

Last summer, Marcus Hutchins, the security researcher who stopped the “WannaCry” malware attack, was arrested and charged for his role in allegedly creating and conspiring to sell a different piece of malware, known as Kronos.  As we have previously discussed on this blog, however, the indictment was notable for its lack of allegations connecting Hutchins … Continue Reading

D.C. Circuit Rejects Portions of FCC Decision Interpreting Key TCPA Terms

The U.S. Court of Appeals for the D.C. Circuit on Friday issued a long-awaited ruling in a lawsuit challenging the Federal Communications Commission’s interpretations of key terms under the Telephone Consumer Protection Act of 1991 (“TCPA”), holding that the FCC in 2015 had adopted an unreasonably broad definition of the type of calling equipment subject … Continue Reading

Ninth Circuit Decision Provides Critical Win to FTC in its Authority over Internet Service Providers

In a ruling with implications for both net neutrality and privacy, the Ninth Circuit ruled en banc today that the common carrier exemption in Section 5 of the FTC Act is activity-based, reversing a 2016 panel ruling that the exemption was status-based.  Today’s decision bolsters the FTC’s authority to bring consumer protection (including privacy) and … Continue Reading

English High Court Finds Supermarket Liable for Data Breach by Employee in First Successful Privacy Class Action

By Joseph Jones and Ruth Scoles Mitchell On December 1, 2017, the High Court of England and Wales found the fourth-largest supermarket chain in the UK, Wm Morrisons (“Morrisons”), vicariously liable for a data breach caused by the intentional criminal actions of one of its employees, namely the leaking of payroll information online. The breach … Continue Reading

The Supreme Court Arguments in Carpenter Show that It May Be Time to Redefine the “Third-Party Doctrine”

On Wednesday, the Supreme Court heard oral arguments in Carpenter v.  U. S., a case that involved the collection of 127 days of Petitioner Thomas Carpenter’s cell site location information as part of an investigation into several armed robberies.  We attended the argument to gain any insights into how the Supreme Court may resolve this … Continue Reading

District Court Dismisses Multiple Counts in FTC’s Complaint Against D-Link

On September 19, 2017, the U.S. District Court for the Northern District of California dismissed three of the six counts in the Federal Trade Commission’s (“FTC’s”) January 2017 complaint against D-Link Systems, Inc., allowing the FTC until October 20, 2017 to amend its complaint. The FTC’s complaint alleged that D-Link engaged in unfair and deceptive … Continue Reading

Recent Cases on E-Mail “Spoofing” Coverage Highlight the Impact of Specific Crime Policy Wordings

By Benjamin Duke, Matt Schlesinger, and Scott Levitt [This article was also published as a Client Alert.] Two recent federal district court decisions involving computer “spoofing” scams highlight the uncertainty about whether such incidents may be covered under standard “computer fraud” provisions in widely used crime insurance forms. The conflicting results in these cases provide … Continue Reading

Ninth Circuit Holds That Spokeo Plaintiff Has Standing to Proceed on Claim Over Inaccurate Information

The closely watched lawsuit alleging Spokeo, Inc., violated the Fair Credit Reporting Act (“FCRA”) may proceed, after a federal appeals court ruled — on remand from the Supreme Court — that publication of the inaccuracies alleged by the plaintiff would constitute a sufficiently “concrete” harm to give the plaintiff standing to sue in federal court.  … Continue Reading

Is The Hutchins Indictment Over Malware Unconstitutional?

By Alex Berengaut [This article also was published in Law360.] In May 2017, the “WannaCry” malware was used to launch a worldwide ransomware cyberattack. WannaCry encrypted files on victim computers and demanded a ransom payable in bitcoin to provide the encryption key. The attack was stopped when a British security researcher, Marcus Hutchins, accidentally discovered … Continue Reading

D.C. Circuit: Data Breach Plaintiffs Plausibly Allege ‘Substantial Risk’ of
ID Theft Sufficient to Support Standing

Customers’ allegations that they face a substantial risk of identity theft as a result of a 2014 data breach are sufficiently plausible to allow their suit against health insurer CareFirst to proceed, the U.S. Court of Appeals for the D.C. Circuit held in an August 1 decision. CareFirst discovered in April 2015 — and announced … Continue Reading

Second Circuit in Silk Road Appeal: No Fourth Amendment Protection in IP Addresses under the Third Party Doctrine

In February 2015, a jury convicted Ross Ulbricht of drug trafficking and other crimes associated with his creation and operation of Silk Road, an online marketplace whose users primarily purchased and sold illegal goods and services.  A federal judge in the U.S. District Court for the Southern District of New York then sentenced Ulbricht to … Continue Reading

Ninth Circuit Will Rehear Dismissal of FTC Throttling Suit

The Ninth Circuit announced today that the full court will rehear the case in which the three-judge panel opinion had dismissed the FTC’s lawsuit against AT&T for allegedly violating Section 5 of the FTC Act due to past “throttling” practices around unlimited data plans.  According to the panel opinion, the FTC lacked jurisdiction over AT&T’s … Continue Reading

Eleventh Circuit Hands Another VPPA Loss to Video App Plaintiffs

In Perry v. Cable News Network, the Eleventh Circuit dealt another loss to putative class-action plaintiffs seeking to use the Video Privacy Protection Act (“VPPA”) as a weapon against free online video services. The court affirmed that to be a “subscriber” of a video service—someone who can sue under the VPPA—one must have a genuine … Continue Reading

U.S. Supreme Court Denies Cert In VPPA Case

Yesterday, the Supreme Court denied certiorari in In re Nickelodeon Consumer Privacy Litigation, a case addressing whether static digital identifiers like internet protocol (IP) addresses qualify as personally identifiable information (PII) under the Video Privacy Protection Act (VPPA).  As a result, the Third Circuit’s June 27, 2016 decision in the case—which held that IP addresses … Continue Reading

Data Breach Allegations Sufficient for Standing After Spokeo, Court Says

On Monday, the U.S. District Court for the District of Kansas ruled that the named plaintiff for a putative class of CareCentrix employees whose personal information was compromised had alleged enough harm for standing under Spokeo, Inc. v. Robins.  The case is Hapka v. CareCentrix, Inc. In early 2016, a phishing attack compromised defendant CareCentrix’s systems, … Continue Reading

California Judge Upholds CPUC Order to Share Confidential Subscriber Data, But Subject to Adequate Protective Order

On November 3, Judge Vince Chhabria of the U.S. District Court of the Northern District of California held that federal law does not bar the California Public Utilities Commission (CPUC) from requiring telecommunications companies to hand over, under an adequate protective order, confidential subscriber data to The Utility Reform Network (TURN) as part of an … Continue Reading

Ninth Circuit Upholds CDA Immunity Against Plaintiff’s Attempt to “Push[] the Envelope of Creative Pleading”

On Monday, a panel of the Ninth Circuit unanimously ruled that Section 230 of the Communications Decency Act (“CDA”) protected Yelp from liability relating to an allegedly defamatory user-generated review.  In doing so, the Court rejected several attempts by the Plaintiff to plead around the CDA’s broad immunity provisions by accusing Yelp of playing a … Continue Reading

Ninth Circuit Dismisses FTC’s Throttling Suit Against AT&T

In an opinion released today, the Ninth Circuit dismissed the Federal Trade Commission’s (“FTC”) lawsuit against AT&T for violating Section 5 of the FTC Act due to its throttling practices.  AT&T’s practice of throttling the speed of customers with unlimited data plans once they reached a certain data usage threshold had been challenged by the … Continue Reading
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