Crowell & Moring has issued its “Litigation Forecast 2018: What Corporate Counsel Need to Know for the Coming Year.”
The Forecast cover story, “Data, Data Everywhere,” takes an in-depth look at the opportunities and challenges general counsel face in navigating the Big Data revolution.
While data is a driver for innovation
The Ninth Circuit Court of Appeals has joined the Third and Eleventh Circuits in ruling that any disclosure of an individual’s online viewing history along with their personally identifiable information confers standing to bring a suit for violation of the Video Privacy Protection Act (VPPA) in federal court. The case, Eichenberger v. ESPN, Inc.,
On November 28, 2017, the Sixth Circuit, in a 2:1 decision, ruled on the anonymous copyright infringement case we discussed back in April. The central issue in the case involved whether an adjudicated copyright infringer can remain anonymous. A decision in favor of the infringer could encourage anonymous unlawful speech. A decision in favor of the judgment plaintiff could encourage suits designed only to “out” the name of an anonymous critic.
In a case of first impression, the Sixth Circuit didn’t make a final decision. See Signature Management Team, LLC v. Doe, No. 16-2188, 2017 WL 5710571 (6th Cir. Nov. 28, 2017).
The Court remanded the case back to the district court to balance the infringer’s anonymity interest against both the judgment plaintiff’s interest in unmasking the infringer and the public’s interest in open judicial proceedings, with a presumption in favor of disclosure of the infringer. In short, the Court held that the infringer’s anonymity was not automatically lost upon his defeat in the litigation … at least under these circumstances.
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The U.S. Court of Appeals for the D.C. Circuit has now weighed in on whether plaintiffs can bring a putative class action arising from an alleged data breach in lieu of allegations of actual misuse of compromised data. Emphasizing the “low bar to establish [] standing at the pleading stage,” the D.C. Circuit reversed a
“There are many ways to surveil each other now, unfortunately,” including “microwaves that turn into cameras, et cetera. So we know that that is just a fact of modern life.” Kellyanne Conway, March 12, 2017 Interview with New Jersey’s The Record.
Data from microwaves-turned-cameras has yet to appear in court, but data from other IoT
Earlier this week, a federal Illinois court dismissed a class action against book retailer Barnes & Noble that alleged breach of contract, invasion of privacy, and violations of state consumer fraud and breach reporting laws. The case, dismissed for failing to establish economic harm, marks another data point in demarcating actionable data breaches and highlights
Yesterday, the Supreme Court announced that it will hear a case with significant ramifications for privacy in the digital age. The case involves a man convicted of armed robbery based in part on cellphone location data obtained without a probable cause warrant. The conviction was appealed at the Sixth Circuit Court of Appeals, which held
… outside your main jurisdiction can have collateral consequences.
In Gunning v. Doe, 2017 WL 1739442 (Me. May 4, 2017), Maine’s highest court just dodged the issue of the applicable First Amendment test for the disclosure of an anonymous speaker accused of defamation. Instead, it deferred to California’s test. Why? Collateral estoppel: the defamation plaintiff lost her effort to subpoena a California website host for identifying information of the John Doe defendant, and that decision barred the plaintiff from relitigating the disclosure issue in Maine.
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Yesterday, the Sixth Circuit heard an anonymous copyright infringement case of first impression. See Signature Management Team, LLC v. Doe, No. 16-2188 (6th Cir.). The issue: whether an adjudicated copyright infringer can remain anonymous.
The infringer said he can.
“John Doe” appeared in the case through counsel and defended against Signature’s infringement claim. He lost. But he maintained his right to anonymity under the First Amendment. According to Doe, a court should balance a defendant’s right to remain anonymous against a plaintiff’s need for the defendant’s identity at all stages of litigation, including post-judgment. And here, as the lower court held, Signature prevailed but it didn’t need Doe’s identity where no damages were sought and Doe agreed to cease the infringement.
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