The U.S. Supreme Court dealt a blow last week to litigants—both criminal and civil—who have attempted to use the “exceeds authorized access” provision of the Computer Fraud and Abuse Act (“CFAA” or “Act”), 18 U.S.C. § 1030, to hold former employees, competitors and others accountable for inappropriately utilizing electronic information.  In its 6-3 decision in Van Buren v. United States, the Court resolved a long-standing split on the scope of Section 1030(a)(2), providing a narrow answer to the question of whether an individual “exceeds authorized access” to electronic information in violation of the CFAA if he or she is authorized to access the information but does so for an improper purpose.  The holding will make it more difficult for prosecutors and civil litigants to wield the CFAA in some scenarios where data is misused, but not necessarily stolen.
Continue Reading Supreme Court Slashes CFAA Claims Involving Authorized Access for an Illicit Purpose

Welcome back to Vedder Price’s BIPA Bellwether series. As with our TCPA Turnstile, we intend for the BIPA Bellwether to serve as a periodic report on latest developments.

Last week, the Southern District of Illinois decided to dismiss the lawsuit in Barton v. Swan Surfaces LLC, No. 20-CV-499-SPM, 2021 WL 793983 (S.D. Ill. Mar. 2, 2021). In doing so, the Southern District joined the U.S. Northern District’s trend of finding claims brought under the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14 et seq., to be preempted by the federal Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, when interpretation of a collective bargaining agreement is required. This growing trend suggests that Illinois federal courts are beginning to rein in the cottage industry among class action attorneys that BIPA has sparked.


Continue Reading BIPA Bellwether: New U.S. Southern District of Illinois Decision Holds Labor Management Relations Act Preempts Employee BIPA Claims

Business man on laptopLast month, the California Attorney General approved the final set of regulations interpreting the requirements of the California Consumer Privacy Act (Cal. Civ. Code Sections 1798.100 et seq.) (the “CCPA”).

What does it include?

The final CCPA regulations include a number of points of clarification such as what it means to provide “notice at collection,” the methods to provide a consumer with access to a business’s privacy policy and what content is required to be disclosed in that privacy policy, and the methods by which a company must provide consumers with a right to opt out from the sale of their personal information.
Continue Reading What do the final CCPA regulations mean for you?

“Should we do a Zoom?” It has taken little more than a month for the Zoom video conference platform to take its place among the likes of Google, Kleenex and Xerox as brand names synonymous with the product or service being offered. But with that name recognition comes scrutiny, and Zoom is getting plenty. The privacy and security issues associated with Zoom have been well-documented. As a result, Zoom is now facing class action lawsuits from both shareholders and users. And the use of Zoom (and other platforms) can raise ethics issues for lawyers.


Continue Reading Zooming into New Privacy Issues

Match stick DeskJust when you thought it was safe to open your e-mail again without being inundated with updated privacy policies, here comes the California Consumer Privacy Act of 2018 (“CCPA”).  The new law, which goes into effect on January 1, 2020, will expand the privacy rights of California residents and bring some of the EU’s widely discussed General Data Protection Regulation (“GDPR”) to the United States.  There will be lots to talk about over the next year and a half as companies gear up for compliance, but here are some key features to be aware of:

Continue Reading California and GDPR “light”: A Match Made in Plaintiffs’ Lawyers’ Heaven?

On April 10, 2018, the Federal Financial Institutions Examination Council (the “FFIEC”), an interagency body composed of the Board of Governors of the Federal Reserve System, Consumer Financial Protection Bureau, Federal Deposit Insurance Corporation, National Credit Union Administration, Office of the Comptroller of the Currency and the State Liaison Committee, issued guidance to assist financial institutions in analyzing the use of cyber insurance in an effective risk management program (the “Guidance”).


Continue Reading How to Evaluate Cyber Insurance Options?

This is the third in a series of blog articles relating to the topics to be discussed at the 30th Annual Media and the Law Seminar in Kansas City, Missouri on May 4-5, 2017. Blaine C. Kimrey and Bryan K. Clark of Vedder Price are on the planning committee for the conference. In this article, we discuss the Tor Browser and its relationship to privacy laws. Tor’s impact on anonymous speech and the tension between First Amendment rights and online threats to reputation, privacy and public safety will be among the topics discussed at the 2017 seminar.

Even among somewhat sophisticated privacy professionals and lawyers, the Tor Browser is sometimes a bit of a mystery. What is Tor, is it even legal, and, if so, what are the pros and cons associated with Tor? At a fundamental level, Tor is actually quite simple—Tor protects the privacy of its users by spreading communications across of a series of servers around the world to make it difficult to determine who or where the individual user is. Tor is a volunteer operation and it is available to anyone willing and able to download the free software from Tor’s Web site.

In some circles, using Tor has taken on a negative connotation because (not surprisingly) individuals engaged in nefarious activities online have turned to Tor as a way to mask their identities. But there is nothing per se illegal about using Tor, and it can be a legitimate way to avoid unwanted digital tracking from corporations and circumvent censorship in countries under the thumb of oppressive regimes. In fact, the U.S. State Department has contributed millions of dollars over the years to help with the development of Tor in the interest of encouraging free speech in other countries.
Continue Reading Tor Presents Compelling Privacy Puzzle

Businesses have largely benefitted from the proliferation of mobile devices and text messaging apps that facilitate quick, round-the-clock communications. However, such technologies also make it increasingly difficult to monitor and control the unauthorized distribution of confidential data. On March 30, UK regulators fined a former managing director of Jeffries Group for divulging confidential client information. The banker, Christopher Niehaus, shared confidential information with two friends using WhatsApp, a popular text messaging app. The exposed information included the identity of a Jeffries Group client, the details of a deal involving the client, and the bank’s fee for the transaction. Perhaps the most surprising aspect of this story is that the leak was discovered at all. Because data sent on WhatsApp are encrypted and Mr. Niehaus used his personal mobile phone to send the messages, Jeffries Group only viewed the communications—and subsequently informed regulators—after Mr. Niehaus turned his device over to the bank in connection with an unrelated investigation.
Continue Reading Encrypted Messaging Apps Create New Data Privacy Headaches for Employers

Change bulb idea to money with smartphone

On December 6, 2016, the U.S. Supreme Court, in Samsung Electronics Co. Ltd., v. Apple Inc., 580 U.S. ____ (2016), unanimously ruled that in multicomponent products, the “article of manufacture” subject to an award of damages under 35 U.S.C. §289 is not required to be the end product sold to consumers but may only be a component of the product.

In 2007, when Apple launched the iPhone, it had secured several design patents in connection with the launch. When Samsung released a series of smartphones resembling the iPhone, Apple sued Samsung, alleging that the various Samsung smartphones infringed Apple’s design patents. A jury found that several Samsung smartphones did infringe those patents. Apple was awarded $399 million in damages for Samsung’s design patent infringement, the entire profit Samsung made from its sales of the infringing smartphones. The Federal Circuit affirmed the damages award, rejecting Samsung’s argument that damages should be limited because the relevant articles of manufacture were the front face or screen rather than the entire smartphone.
Continue Reading U.S. Supreme Court Revisits Design Patent Damages