In a ruling on April 22, 2021, the United States Supreme Court unanimously held that § 13(b) of the Federal Trade Commission Act (the Act) does not authorize the Federal Trade Commission (FTC) to seek, or a court to award, equitable monetary relief such as restitution or disgorgement. The FTC previously used § 13(b) as
Supreme Court strikes physical presence requirement for sales tax, with big ramifications for the Internet economy
Reversing a 1992 precedent in Quill v. North Dakota, on June 21, 2018, the U.S. Supreme Court issued a decision in South Dakota v. Wayfair, Inc., holding that physical presence in a state is not necessary to require a remote seller to collect sales tax. In many respects this decision sets the stage …
Nation on Hold for Supreme Court Carpenter v. United States Decision
On November 29, many interested audience members packed into the Supreme Court to witness oral argument on the issue of whether the Fourth Amendment demands that the government obtain a warrant in order to acquire long-term, cell-site location information (CSLI) from wireless service providers, in what could be one of the most influential privacy decisions of this generation: Carpenter v. United States.
In the wake of a string of armed robberies at electronic retail stores in the Detroit area in 2011, the Federal Bureau of Investigation (FBI) obtained orders pursuant to the Stored Communications Act (SCA) requesting “transactional records” from wireless service providers, including CSLI pertaining to the call origination and termination of the arrested suspects’ phone numbers. Under the SCA, the government may require disclosure of such records upon a finding of “specific and articulable facts” that “there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. 2703(d). Defendant Timothy Carpenter moved to suppress the government’s cell-site evidence before trial, claiming the government obtaining CSLI from his wireless service provider constituted a warrantless search in violation of the Fourth Amendment. The district court denied the motion, the Sixth Circuit affirmed, and the Supreme Court granted certiorari last June.…
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Spokeo, Palatine Cases Discuss Negligible Harm from Privacy Breaches, Could Put Damper on Suits
A recent argument and non-decision at the Supreme Court could have significant effects on plaintiffs’ lawsuits under consumer data protection and privacy laws. Last week, the Court heard arguments on the standard of harm for establishing standing under the Fair Credit Reporting Act, and declined to review a Driver’s Privacy Protection Act case in which the harm to the potential class was uncertain.
The cases, Spokeo Inc. v. Robins, et al. and Senne v. Palatine, Illinois, interpret actual or potential harm as a requirement for standing in actions brought under laws that protect consumers’ personal information. While the justices appeared divided on whether Spokeo’s publication of false consumer information online constituted injury sufficient to allow a plaintiff to sue under FCRA, the Court’s denial of the plaintiff’s appeal in Palatine let stand the Seventh Circuit’s decision that the benefits of including personal information on parking tickets should be balanced against the “negligible harm” of disclosing the information. The law that results in Spokeo and the new Seventh Circuit interpretation of the DPPA have the potential to make it more difficult for plaintiffs to get their privacy law cases into court.
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Supreme Court Ruling in Clapper v. Amnesty International Leaving Data Breach Class Actions in Danger?
In Clapper vs. Amnesty International, a group including journalists, human right activists, and labor leaders challenged the 2008 amendments made to the Foreign Intelligence Surveillance Act. The amendments included broadening the surveillance powers of the federal government with respect to communications outside the U.S.
Plaintiffs claimed that their work required open communication with persons…