January 06, 2021

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

Juliet Moringiello, Sara Beth A.R. Kohut

Data Privacy

Ninth Circuit Questions SCA Coverage of Web-Based Emails

By Roxanne M. Eastes,Young Conaway Stargatt & Taylor, LLP

The Ninth Circuit Court of Appeals recently determined in the Clare v. Clare case that an ex-husband who used his sleeping ex-wife’s thumb print to unlock her phone and read her work emails without her consent possibly violated the Stored Communications Act (“SCA”).

The three judge panel unanimously held that more information was necessary to determine whether cloud-based services, such as Microsoft Exchange, met the definition of “back-up storage” under the SCA and that the District Court had erred by not allowing testimony of an information technology employee responsible for managing data security at the ex-wife’s employer.

The Ninth Circuit held that the case raised an important question regarding whether “email messages maintained only on a web-based platform can fall within the purview of [an SCA] subsection” and that based on the limited information before them, they were unable to answer that question. Accordingly, the Court of Appeals reversed the District Court’s decision and remanded for further proceedings.

EDPA Approves Settlement for Publishing Criminal Records

Reuben Gottlieb, Young Conaway Stargatt & Taylor LLP

After years of litigation, the U.S. District Court for the Eastern District of Pennsylvania approved an amended settlement agreement of a class-action suit involving a privacy breach of criminal records.  Taha v. Bucks County, No. 12-6867 (E.D. Pa. Nov. 30, 2020).  A Pennsylvania suburban county used a non-secure database in publishing on the internet information including photographs, state fingerprint identification numbers, arrest dates, and arrest charges.  Plaintiff successfully asserted that the privacy breach enabled private companies to republish criminal records expunged from County records.  Finding that the County violated Pennsylvania’s Criminal History Record Information Act, the court approved a settlement available to more than 10,000 members who are now entitled to receive $600 each, or 60% of the jury award.

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.