April 01, 2014

Does “I Accept” Really Mean “Abandon All Hope of Privacy, Ye Who Enter Here”?

Recently, courts have been allowing suits about online privacy to proceed to class certification. We present a fictional case that lays out arguments about the very real issues.

Simon Goodfellow

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You are about to read closing arguments in a jury trial of an online privacy class action case: In re Amalgam, Inc. Online Privacy Litigation. Amalgam, Inc.—a fictional conflation of Google, Facebook, Twitter, LinkedIn, Yahoo, and others, and an online provider of search engine, email, social networking, business links, and other services—has been accused of improperly aggregating its users’ personal information and selling it to advertisers and vendors. Case law and relevant facts are interspersed to aid your understanding of the issues. Are you thinking that reading this would be a useless exercise because such cases are routinely tossed at the pleadings stage for lack of standing? Not so fast. That may have seemed true in the past, but courts have recently denied several motions to dismiss, allowing cases to proceed to class certification. Litigators need to start thinking beyond the motion to dismiss.

Before we begin, ask yourself: Can I (or my client) have any expectation of privacy in the personal information we share with friends, family, and colleagues using an online service provider whose terms of use we have accepted, if those terms expressly state the provider will use that information to give us advertising specifically relevant to us?

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