Feb 242011
 February 24, 2011  Posted by  Business, Court, Online, Surveillance

The article by Eric C. Bosset, Simon J. Frankel, Mali B. Friedman, Stephen P. Satterfield, “Private actions challenging online data collection practices are increasing: Assessing the legal landscape,”  in the February 2011 volume of Intellectual Property & Technology Law Journal is available online. Here’s a snippet from the introduction:

…  The outcome of these suits may well depend on how far courts will extend the prohibitions in federal statutes such as the Electronic Communications Privacy Act (ECPA) and the Computer Fraud and Abuse Act (CFAA). These statutes were drafted long before today’s online environment could be envisioned, so their application to the technologies at issue in these suits poses interpretive difficulties for courts. As one federal court has observed, there is no “legislative or judicial history [for these statutes] to suggest that Congress intended to prohibit” Internet tracking activities. “To the contrary,” that court noted, “the histories of these statutes reveal specific Congressional goals—punishing destructive hacking, preventing wiretapping for criminal or tortious purposes, securing the operations of electronic communication service providers—that are carefully embodied in these criminal statutes and their corresponding civil

rights of action.”

The outcome of these lawsuits also may turn on whether traditional sources of commercial liability under state law, such as unfair competition and unjust enrichment, will be applied to electronic communications and digitally stored information.

An overview of the primary legal claims and defenses being asserted in these cases follows.

You can read the full article on Covington & Burling’s web site.

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