November 01, 2019

MONTH-IN-BRIEF: Internet Law & Cyber-Security

Juliet Moringiello, Sara Beth A.R. Kohut

Data Privacy

Increased Privacy Concerns Not Enough to Limit the Disclosure of Juror Information

By Antoine Bedard, Penn State Law

On January 18, 2019, the U.S. Court of Appeals for the First Circuit vacated and remanded a District Court’s order that had limited the disclosure of juror information without making particularized findings to support such a limitation. United States of America v. Glenn A. Chin, 913 F.3d 251 (1st Cir. 2019). The Court of Appeals held that, pursuant to In re Globe Newspaper Co., 920 F.2d 88 (1st Cir. 1990) (“Globe”), the interpretation of the “District of Massachusetts Plan for Random Selection of Jurors” applied and, therefore, the District Court must disclose both a juror’s name and home address post-verdict, absent particularized findings – “credible threats of jury tampering, risk of personal harm to individual jurors, or other evils affecting the administration of justice” – that reasonably justify withholding or delaying the release of such information.

In addressing the argument that new technology creates greater privacy concerns than those considered in Globe, the Court of Appeals stated that “these technological changes have by no means diminished the need for accountability and transparency in our system of justice.” Globe addressed the privacy concerns by balancing between multiple competing interests, such as “the press’s First Amendment right of access to criminal trials, defendant’s Sixth Amendment right to a fair trial, . . . the jurors’ interest in having their privacy protected[,]” and the justice system’s interest in ensuring fairness. The Chin Court concluded that the balance struck in Globe could not be revisited in this matter because its decisions were bound by the prior interpretation under the law of the circuit doctrine (a subset of stare decisis). Accordingly, the Court of Appeals held that a juror’s name and home addresses must be disclosed to the public post-verdict unless particularized findings were made to justify the withholding of information.

California AG Releases Proposed Regulations for CCPA

By Dredeir Roberts, In-House Counsel at Core States Group and ABA Business Law Fellow

On October 10, 2019, Attorney General Xavier Becerra released draft regulations under the California Consumer Protection Act (CCPA) for public comment. Enacted in 2018, the CCPA creates new consumer rights relating to the access to, deletion of, and sharing of personal information that is collected by businesses. The regulations cover several topics to clarify actions businesses must take to be in compliance with the CCPA and its amendments.

Topics covered by the proposed regulations include the following:

  • Notices businesses must provide to consumers under the CCPA;
  • Business practices for handling consumer requests made pursuant to the CCPA;
  • Guidance on which business actions are considered discrimination versus business actions which qualify as financial incentives

Any interested party may submit a written comment to the Attorney General via email to privacyregulations@doj.ca.gov by December 6, 2019 at 5:00 pm (PST).

Georgia Requires Warrant to Search Automobile Data

By John A. Rothchild, Wayne State University Law School

On October 21, 2019, in Mobley v. State, the Georgia Supreme Court ruled that the trial court and appellate court erred when they denied a defendant’s motion to suppress evidence that police gathered from an automobile’s “black box” without first obtaining a warrant.

Police attached a device to the data port of the defendant’s car and downloaded data from the airbag control module (“ACM”), which indicated the defendant was driving nearly 100 miles per hour at the time of a fatal crash. The next day, without relying on the previously collected data, police obtained a warrant to search the car and remove the ACM.  The defendant moved to suppress the data on the ground that it resulted from an unreasonable search and seizure in violation of the Fourth Amendment.  The trial court found the evidence was admissible under the inevitable discovery exception to the exclusionary rule.  The defendant was convicted, and the Court of Appeals affirmed.

The Georgia Supreme Court reversed, holding that retrieval of the ACM information was a search under the common law trespass standard.  The search was unreasonable since it was conducted without a warrant and covered by neither the “automobile” exception (the vehicle is operable and might be driven away) nor the “exigent circumstances” exception (the data might be lost or damaged if not immediately accessed).  Finally, the exclusionary rule required that the evidence be suppressed. The court applied a stringent version of the “inevitable discovery” exception, according to which “the prosecution must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the illegal conduct.”  Because the police did not begin applying for the warrant until after the occurrence of the illegal search, the exception was inapplicable.

Judge Disqualified for Social Media Interaction with Litigant

By Joseph Turk, Drexel University Thomas R. Kline School of Law

The Wisconsin Court of Appeals recently reversed and remanded a custody order because of bias after the judge accepted a Facebook friend request from one of the parties. In re Paternity of B.J.M., 2019 WI App 10 (Wis. Ct. App. Feb. 20, 2019).

Angela Carroll’s motion for sole custody asserted that Timothy Miller engaged in a pattern of domestic abuse against her. Judge Michael Bitney accepted Carroll’s Facebook friend request three days after the parties submitted their final written arguments on the motion, and weeks before Judge Bitney entered a final judgement. In the time between accepting Carroll’s friend request and rendering judgement, Carroll “liked” and commented on several of Judge Bitney’s posts. Judge Bitney did not “like” or comment on any of Carroll’s posts, nor did he respond to Carroll’s comments on his posts. Carroll also “shared” a photograph related to domestic violence, which could have appeared on Judge Bitney’s “newsfeed.” Judge Bitney ultimately rendered judgement in favor of Carroll due to her domestic violence allegations against Miller, granting her sole custody of their son.

On appeal, the Wisconsin Court of Appeals found objective bias. The court specifically noted that the timing of the friend request and acceptance created an appearance of partiality because Carroll was a current litigant awaiting a decision on a hearing where Judge Bitney was the sole decision-maker. The court also considered that Judge Bitney took the “affirmative step” of accepting the friend request, the Facebook friendship was not disclosed to the opposing parties, and the Facebook relationship constituted prohibited ex parte communication between Judge Bitney and Carroll. The court categorized this activity as a due process violation, and ordered the case to proceed before a different judge.

International Law

EU Court Clarifies Laws Surrounding Cookies

By Melissa Hall, MacRoberts LLP

On 1 October 2019, the Court of Justice of the European Union published its judgement for a case involving the online gaming company, Planet49. The judgement provides some helpful clarifications on the laws surrounding the use cookies, and in particular:

  1. Where consent is required for cookies under the EU’s e-Privacy Directive (2002/58/EC), the GDPR standard of consent applies, and pre-ticked boxes are not valid. Under the GDPR, ‘consent’ must be freely given, specific, informed and an unambiguous indication of the individual’s wishes by a clear affirmative action. 
  2. The court issued a reminder that the consent rules for cookies as outlined in the e-Privacy Directive apply regardless of whether any personal data is processed by the cookie.
  3. Website operators must inform users about the duration of the cookie (e.g. how long it will last on a user’s device) and any third party access and sharing.

Juliet Moringiello

Commonwealth Professor of Business Law, Widener University Commonwealth Law School

Juliet Moringiello is the Commonwealth Professor of Business Law at Widener University Commonwealth Law School in Harrisburg, PA, where she teaches Property, Bankruptcy, Secured Transactions, Sales, and a seminar on Cities in Crisis. She earned her B.S.F.S. at Georgetown University, her J.D. at Fordham University School of Law, and her LL.M in Legal Education at Temple University School of Law. Professor Moringiello is Chair of the Pennsylvania Bar Association Business Law Section, a Uniform Law Commissioner for Pennsylvania, and a member of the American Law Institute. She is also a Fellow of the American College of Commercial Finance Lawyers and has held several leadership positions in the American Bar Association Business Law Section.

Sara Beth A.R. Kohut

Co-Chair; Cybersecurity, Privacy, and Data Protection Group; Young Conaway

Sara Beth’s practice focuses on advising legal representatives for future claimants in connection with asbestos mass tort insolvency matters and settlement trusts. She has also represented national and local businesses in cases involving intellectual property, corporate and commercial issues in the federal and state courts in Delaware. Sara Beth has advised clients on strategies for protecting intellectual property rights and complying with obligations governing the privacy and security of sensitive data. She currently co-chairs Young Conaway’s Cybersecurity, Privacy, and Data Protection group.