Key Privacy Law Developments

Throughout the past decade, courts have mostly been reluctant to rule in favor of consumers litigating over technology-related privacy invasions. Among the hurdles that judges have pointed to in their rulings are: 1) a lack of Article III or statutory standing; 2) failure to show damages; and more generally 3) skepticism about applying now-antiquated federal and state privacy laws to new technologies. In hindsight, these rulings were understandable given the opacity surrounding the tech industry's data mining and analytics practices.

Yet 2013 marked an inflection point, as the true scope and depth of both the government and the private sector's ability to collect and analyze consumer data has taken center stage. These revelations have also been accompanied by a perceivable trend in privacy law jurisprudence. Courts are heightening their scrutiny of companies accused of violating consumers' privacy, and are demonstrating a willingness to permit litigation to progress in ways that seemed highly unlikely only a few years ago. This holds true for lawsuits waged under federal and state privacy statutes, as well as common law claims. For this article, we've selected a handful of decisions from 2013 that are illustrative of this trend. (Note that we've excluded discussion of data breach litigation, as developments in that area warrant an entirely separate article). We conclude with our privacy law predictions for 2014.