1. Privacy Law Today - What’s at Stake? Part One: Digital Communications and Technology

    “Here’s a thought that might make even the most conscientious e-mail user nervous: ‘When the CIA director cannot hide his activities online, what hope is there for the rest of us?’ …

    [David Petraeus’] story has gotten lots of media attention, in part for its soap-operatic qualities. Less discussed, however, at least outside the technology press, is what this e-mail-based investigation says about privacy and surveillance in the digital age.” (John Sutter, What the Petraeus scandal says about digital spying and your e-mail, CNN) 

    As we follow the very public downfall of four-star general and former CIA head David Petraeus, it’s easy to wonder just how far the notion of “privacy” has evolved – and will evolve, in the face of ever-changing technology. 

    Petreaus was brought down by an FBI agent who accessed his personal emails, relying on laws that were written before emails even existed. By now we’ve grown used to – and lended our collective support - federal spying into digital activities of terrorists and criminals. Do we feel the same when law enforcement read our emails to Aunt Sally and our best friend from high school? It may already be happening:

    “The extent of modern government surveillance is underscored by the numbers: requests for personal information on 34,000 Google accounts; the 1.7 billion e-mails, phone calls and other communications intercepted and stored each day by the National Security Agency.” (Petraeus scandal reveals threat to privacy, San Francisco Chronicle) 

    Government access of emails and other communications, however, is but one of the many privacy issues that define these modern times. In this five-part series, we’ll be taking a look at how lawyers and law firms are both framing the questions and identifying the solutions regarding: 

    1. Digital privacy and security
    2. Consumer data protection
    3. Health care 
    4. Employee privacy
    5. Telemarketing and “Robocalls”

    First up - key considerations regarding technology and digital security:

    1. Digital communications:

    “[T]he South Carolina Supreme Court held that emails opened and retained by the recipient in a web-based email system are not protected under the Stored Communications Act (SCA), because they are not stored for the purposes of backup protection… The plaintiff sued an individual that gained unauthorized access to the plaintiff’s web-based email system, alleging, among other things, that the hacker violated the SCA.” (BuckleySandler

    2. Online tracking:

    “Amid the chatter regarding the elections, the Berkeley Center for Law and Technology recently released a report on Americans’ views of “Do Not Track”.  They found that 87% of the 1,200 people surveyed had never heard of Do Not Track.  The Do Not Track regulations that privacy groups began advocating for over 5 years ago calls for an opt-out mechanism that would allow people to opt-out once from all behavioral advertising.  The Federal Trade Commission supported this measure and in 2010 they offered testimony to Congress stating that industry self-regulation has fallen short and that legislation may be the best course for a uniform approach.” (Mintz Levin

    3. Biometrics and facial recognition:

    “Cameras in public locations can now employ facial recognition to direct advertising to us based upon an assessment of our age, sex, and other characteristics. Cameras can determine our reaction to and engagement in video games and movies. It sounds a bit like a world composed of two-way mirrors. But instead of shuddering, we sometimes knowingly, sometimes carelessly, support the technology – and other data collection practices – through our online and commercial activities” (Ifrah Law

    4. Data privacy:

    “[T]he Federal Trade Commission announced a settlement with Google over the search engine’s alleged misrepresentations in its online privacy disclosures concerning the use of ‘cookies’ and targeted ads directed to users of Apple, Inc.’s Safari Internet browser. Under the terms of the settlement, although Google denied liability, it agreed to pay a $22.5 million civil penalty, and to disable all DoubleClick advertising cookies placed through Safari browsers, except opt-out cookies.” (Davis Wright Tremaine

    5. Cybersecurity:

    “The re-election of President Obama, and the continuation of a divided Congress, make it more likely that cybersecurity policy will be accomplished through executive order. Such an executive order had been drafted prior to the election, and seems likely to gain speed. Prudence dictates that technology, compliance, and legal executives, as well as the boards of directors of large public companies, begin a reappraisal of their cybersecurity practices even if they are currently in a highly regulated industry, as the ‘voluntary’ standards contemplated in a draft executive order are really anything but.” (Reed Smith

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    The updates:

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