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 Privacy. The 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?