This is the last Infrastructure issue published under our Section’s leadership by Mark Darrell. We would be remiss if we failed to acknowledge Mark’s sage guidance this past year and his unwavering dedication and generous contributions to our Section over many years. As Editor of Infrastructure, I personally witnessed the challenges Mark faced in leading our Section while serving as the chief legal officer of a public company—and attempting to maintain some semblance of work-life balance. Mark: we will miss you as Section Chair, but we know we can count on your continuing contributions and friendship as an active member of our Infrastructure and Regulated Industries Section.
September 27, 2019 Columns
Editor’s Column
By William R. Drexel
This issue of Infrastructure features two articles addressing key developments in privacy law that impact infrastructure companies, among other sectors in our nation’s economy. The first article addresses the landmark California privacy legislation slated to take effect on January 1 of next year. The second article analyzes the Supreme Court decision last year in Carpenter v. United States recognizing a legitimate expectation of privacy regarding wireless cell-site location information.
Chris Binnig and Chris Comstock open this issue with an assessment of the expansive California Consumer Privacy Act enacted last year but not scheduled to take effect until January 1. Analogizing the Act to the European GDPR, Binnig and Comstock provide an overview of the main requirements of the Act and challenges businesses may face in complying with its sweeping scope, pervasive application, and ambiguous standards and definitions. Background on the politics that precipitated adoption of the Act provides further insight. The authors also describe amendments that already have been made to the Act and further efforts to clarify its meaning. Potential sources of litigation over its application are then explored and, finally, the potential for additional state or federal legislation impacting the Act are insightfully discussed.
In our second article, Christopher Fonzone, Kate Heinzelman, and Michael Roberts analyze the Supreme Court decision in Carpenter holding that an individual’s historic cell-site locational information (“CSLI”) is protected by the Fourth Amendment even though it was in the possession of a third-party cellular service provider. Although hailed by some commentators as a landmark decision, the authors note that the Court went out of its way to emphasize its decision was “narrow” and not a dramatic shift in Fourth Amendment jurisprudence. Our authors analyze the history of the third-party doctrine, which generally provides that information voluntarily provided to a third party is not subject to Fourth Amendment safeguards against warrantless searches. The authors then assess some of the potential implications of Carpenter suggested by preliminary decisions of lower courts, including those dealing with technologies relevant to many industries covered by our Section, like smart electric meter monitoring.
We hope you enjoy this issue. If you have suggested topics for future issues or would like to submit an article for consideration, please contact me at [email protected].