Electronic Communications Privacy Act

Google has previously admitted that it accidentally collected some open WiFi data. It is not exactly clear what Google was using the data for. If data is unencrypted, anyone using a WiFi network can see data used by others on that same access point. Is this legal? We will soon find out.

The  first class action against Google’s so-called data collecting has been filed by three attorneys from Oregon. The complaint alleges that the company violated Washington and Oregon privacy laws as well as the federal Electronic Communications Privacy Act.

The plaintiffs are seeking up to $10,000 per violation suffered by each class member plus other damages. See the complaint below.

Van Valin v Google Complaint

Reading the complaint, I have no idea why the plaintiffs believe that their data was collected by Google.  Granted, the plaintiff’s will have the opportunity during discovery to find out why and how their data was collected.  At this stage, it looks to me that the lawyers went fishing for two plaintiffs and found them.

It is unclear what type of damages the plaintiffs can hope to receive.  According to the Recorder,

federal law may not offer the damages that the plaintiffs are seeking. The Electronic Communications Privacy Act offers a safe harbor for some breaches if the collected information is publicly accessible, said Orrick, Herrington & Sutcliffe partner I. Neel Chatterjee. Companies have typically been protected too if they can prove they collected the data unintentionally.

One of the plaintiffs admits that her data was not encrypted. Where are the damages there?

As a publicity stunt, the lawyers may win.  However,  the case is premised on a weak legal basis and will likely be dismissed.

If you have any questions about privacy law in New York, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.

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What privacy rights do you have on social networks? Nearly everyday, civil litigators like myself and law enforcement officials request information from Facebook regarding user information.  Understandably, Facebook has been very difficult in responding to such requests, believing that users have a right to privacy concerning its users information. But how much right should users of social networks have over information that is of public record?

Many social networking sites have taken the position that they will not respond to requests for information without a subpoena.  This is a problem because users cannot obtain access to their accounts even if their account has been hacked.

This is especially problematic when it comes to the problem of cyber bullying. I have been trying to obtain records from Facebook for a client whose child whose account has been hacked by a cyber bully.  Facebook has been unwilling to provide information to me about my clients own account.

According to Law.com, the Deputy General Counsel of Facebook, Mark Howitson told lawyers at the Legal Tech Conference in New York today that they are ready to fight requests for user  information without a subpoena.

Unfortunately, you can only serve that subpoena in California which is problematic if you live in New York. Even with a subpoena, they will only provide basic subscriber information unless that user gives his or her consent.  The company believes that it does not have to provide user information under the Electronic Communications Privacy Act which was passed before Mark Zuckerberg, the founder of Facebook, danced to his first disco tune at his bar mitzvah. Since this issue is relatively new, a congressional hearing is forthcoming.

Mr. Howiston suggests that the best way to obtain information from Facebook is to make a simple friend request, which is of little utility.

What do you think?  What right of privacy should you have on social networks?  Should there be a cyber bullying exception?

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