Don’t Drone On My Bean Picking!

I was picking green beans in our garden recently, carefully trying to avoid spiders and other insects hiding amongst the leaves.  Suddenly, I heard a buzzing noise.  It grew louder.  I jumped back from the bean trellis, wondering whether there was a yellow jacket nest hidden there.  After a few seconds, I realized that the noise came from a drone, not from insects.  I felt relieved that I was not about to be attacked by stinging insects, but annoyed that my neighbor chose to fly his drone over my property.  I don’t like my neighbor flying his drone over my property, but what are my rights to tell him to stop it?

The right to control airspace is one issue.  Another issue is the spying issue.  Most drones have cameras, allowing the operator to view what’s happening on the ground below.  The spying issue involves my neighbor’s ability to observe me and my property and gather from air information about me, and my other neighbors, that is otherwise unavailable to him.  My drone flying neighbor and I can’t see each other’s homes from the ground.  I’m more concerned about the spying issue than I am the air space issue.  Regardless of the right to control airspace, individuals still have privacy rights that must be protected.

Continue reading “Don’t Drone On My Bean Picking!”

Common Law Tort of Intrusion Upon Seclusion Revitalized in Internet Age

In the past year, the federal law claims in two cases involving Google’s cookie collection practices have been dismissed.  Federal Wiretap Act, Stored Communications Act and Computer Fraud and Abuse Act claims against Google were dismissed in In re: Google Inc. Cookie Placement Consumer Privacy Litigation.  Federal Wiretap Act, Stored Communications Act and Video Privacy Protection Act claims were dismissed in In re: Nickelodeon Consumer Privacy Litigation.  Left standing in both cases were the state law intrusion upon seclusion claims.  Intrusion upon seclusion is one of the four privacy torts arising out of litigation during the years following the 1890 Warren and Brandeis article, The Right to PrivacyThe Right to Privacy brought public awareness to the need to protect individual privacy and provided a legal basis for doing so.  Public disclosure of private facts, false light and appropriation are the other three common law privacy torts. 

With all of the federal and state statutes that have been enacted specifically addressing computers and online activity, who would have thought that the analog age tort of intrusion upon seclusion would swoop in like a super hero to act as the vanguard for online consumer privacy rights?  

Continue reading “Common Law Tort of Intrusion Upon Seclusion Revitalized in Internet Age”

Circuit Split on Video Privacy Protection for Smart Device Free App Users

Alexander Yershov sued Gannett, owner of USA Today, for Video Privacy Protection Act (VPPA) violations.  Yershov alleged that the USA Today Mobile App he downloaded and installed on his Android device collected and sent his personally identifiable information (PII) to Adobe, a third party, without Yershov’s consent.

The district court ruled that Gannett disclosed Yershov’s PII to Adobe, but that Yershov was not a consumer protected by the VPPA.  The First Circuit Court of Appeals held that Gannett distributed Yershov’s PII and that Yershov was a consumer under the VPPA, reversing the district court’s dismissal of the complaint.  There is now a circuit split on this issue.  My post Users of Free Video Apps Can Forget About Video Privacy Protection discusses the Eleventh Circuit’s ruling that the smartphone video app user was not entitled to VPPA protection.

Continue reading “Circuit Split on Video Privacy Protection for Smart Device Free App Users”

State Law Privacy Claims Still Baking in Google Cookie Suit

Consumers brought a class action case against Google, alleging that Google placed tracking cookies on users’ web browsers by disabling users’ cookie blockers, in contradiction to Google’s privacy policy statements.  In particular, users allege that Google discovered and surreptitiously exploited loopholes in the Safari cookie blocker and the Internet Explorer cookie blocker.  But on its public webpage describing how to block cookies, “Google assured visitors that ‘Safari is set by default to block all third party cookies. If you have not changed those settings, this option essentially accomplishes the same thing as setting the opt-out cookie.’” (Opinion pdf pages 8-9).  Google’s private actions allegedly contradicted its public statements.

The users alleged a number of federal and state law violations by Google.  The district court dismissed all claims against Google.  The Third Circuit reversed as to the California Constitution privacy and California tort law intrusion upon seclusion claims.  This post discusses only those two state law claims.

Continue reading “State Law Privacy Claims Still Baking in Google Cookie Suit”

Users of Free Video Apps Can Forget About Video Privacy Protection

Can a person who downloads and uses a free mobile app on her smartphone sue the app provider for invading her privacy when the app provider shares her viewing history with a third party?  No, says the Eleventh Circuit Court of Appeals.

The Video Privacy Protection Act (VPPA), 18 U.S.C. §2710, prohibits video tape service providers from knowingly disclosing personally identifiable information about a consumer to a third party.  Consumers whose rights have been violated under the VPPA can recover damages against the offending video tape service provider.

Continue reading “Users of Free Video Apps Can Forget About Video Privacy Protection”

Netflix Not Responsible for Nosy Friends and Family Viewing History and Queue

This case is interesting and significant because it is both a case of first impression in the Ninth Circuit and involves the Video Privacy Protection Act (VPPA), which has entertaining historical roots.

Meghan Mollett is a Netflix subscriber, who, along with other Netflix subscribers, brought a class action claim against Netflix for violating the VPPA with the Netflix video streaming service.  For instant streaming subscribers, Netflix automatically displays a list of recently watched video titles, the subscriber’s queue and lists of recommended video titles on the subscriber’s home page.  Netflix appears on any Netflix-ready device without the need to log in.  The contents of the home page are therefore available for viewing by anyone who is present when a Netflix subscriber accesses her account through her Netflix-ready device, including family members, friends and guests.  The class action plaintiffs alleged that these disclosure violate the VPPA.

Netflix argued that the personal information disclosures are made to the subscribers themselves and are therefore permissible and that any disclosures to third parties were not knowingly made, so don’t violate the VPPA.  The district court granted Netflix’s motion to dismiss for failure to state a claim.  The Ninth Circuit affirmed the district court’s decision.

Continue reading “Netflix Not Responsible for Nosy Friends and Family Viewing History and Queue”

Do Not Call Keeps Ringing

The Telephone Consumer Protection Act (TCPA) prohibits the initiation of “any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior consent of the called party.” 47 U.S.C. § 227(b)(1)(B).  Ron and Dorit Golan were registered on both federal and Missouri State do not call lists.  The Golans received two unsolicited, prerecorded messages about the movie Last Ounce of Courage on their home phone line in September 2012.  The Golans did not answer the call, so they received a truncated version of the message and not the longer version of the message that was played to people who answered the call.  erThe film’s owners arranged for a telemarketing campaign, in which 4 million residential phone lines were called.  The Golans brought a class action lawsuit against those involved in the telemarketing campaign, from Veritas Entertainment, LLC and Veritas Management, LLC, (Veritas), which owned interests in the film, to Mike Huckabee, the “celebrity voice” on the recorded message.

The district court ruled 1) the Golans did not suffer an injury in fact because the messages they received did not contain an advertisement or solicitation in violation of the TCPA and 2) that because the Golans received the shorter version of the recorded message, their claims were not typical of the putative class members and they were therefore inadequate class representatives.  The district court dismissed the case.  The Eighth Circuit reversed and remanded.

Continue reading “Do Not Call Keeps Ringing”

Former Professional Football Players Rumble Over Use of Their Likenesses

Electronic Arts (EA) develops and publishes Madden NFL, a video game that allows users to play virtual football games by controlling avatars of real life NFL players.  EA pays to license current NFL players’ likenesses.  Madden NFL also used former players’ likenesses from 2001 through 2009 for its “historic teams” version.  EA did not get a license to use the former players’ likenesses.  Some of the former players sued EA for violating their California state law rights of publicity and other rights.

This case is similar to Keller v. Electronic Arts, in which a college football player, Samuel Keller, sued EA for violating his California state law right of publicity by using Keller’s likeness without permission.  My post on the Keller case is College QB’s Right of Publicity Slaps Video Game Developer’s Free Speech Rights

Regarding the former NFL players, the Ninth Circuit stated

In Keller, we rejected several of the First Amendment defenses EA raises here on materially indistinguishable grounds.  EA advances one additional argument in this appeal – its use of former players’ likenesses is protected under the First Amendment as ‘incidental use.’  (Opinion pdf pages 3-4).

This post discusses only the new argument made by EA, its incidental use argument.

Continue reading “Former Professional Football Players Rumble Over Use of Their Likenesses”

Dissed Thomas M. Cooley Law School Gets No Satisfaction from the Sixth Circuit

Attorney David Anziska made statements about the Thomas M. Cooley Law School, some of which were posted on the Internet and some of which were alleged in a complaint.  Thomas M. Cooley Law School sued Anziska and his firm for the state law claims of defamation, tortious interference with business relations, breach of contract, and false light.  Strangely, no allegations of wrong doing were made about my favorite statement by Anziska:  “These schools are preying on the blithe ignorance of naive, clueless 22-year-olds who have absolutely no idea what a terrible investment obtaining a JD degree is. Perhaps one of the worst offenders is the Thomas Cooley School of Law, which grossly inflates its post-graduate employment data and salary information.”  (Opinion pdf page 2).  Looking back at myself as a K through JD, I was definitely naïve and clueless at age 22.  That didn’t stop me from going back for my IP LL.M. years later.  Silly me.

The district court granted summary judgment in favor of Anziska and the other defendants.  The district court determined that Thomas M. Cooley Law School was a limited-purpose public figure and that no reasonable jury could conclude that Anziska published the statements with actual malice.  The Sixth Circuit Court of Appeals affirmed.

Continue reading “Dissed Thomas M. Cooley Law School Gets No Satisfaction from the Sixth Circuit”

Google’s Payload Data Sniffing Activities Snagged by Wiretap Act

Google’s Street View feature provides street-level photographs of places shown on Google Maps.  Google acquired these photographs by sending camera-mounted Street View cars out on public roads to take photographs.  Google also equipped the Street View cars with Wi-Fi antennas to collect data transmitted by Wi-Fi networks in homes and business located along Street View car routes.  In addition to collecting network data, such as the name of the network and the router’s unique number, the Street View cars collected “payload data,” such as emails, usernames, passwords, videos and documents, sent over unencrypted Wi-Fi networks.  Google collected this data between 2007 and 2010, has discontinued the practice, apologized, and made the personal data collected inaccessible. 

Several class action lawsuits were filed against Google as a result of its collection of payload data from the unencrypted Wi-Fi networks.  The class actions were consolidated to a single class action in the Northern District of California.  The class actions plaintiffs claim that Google violated the federal Wiretap Act (18 U.S.C. §2511) in collecting the data from the Wi-Fi networks.  Google moved to dismiss the complaint, arguing that it lawfully intercepted “electronic communications” that are “readily accessible to the general public.”  The district court denied Google’s motion to dismiss.  The Ninth Circuit Court of Appeals affirmed the district court’s ruling.

Continue reading “Google’s Payload Data Sniffing Activities Snagged by Wiretap Act”