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Privacy v. Data Security
The year 2005 really marked the beginning of the “era of data breaches,” and with it, the “era of data breach lawsuits.” The ChoicePoint data breach in late 2004, which first became newsworthy in early 2005, was the catalyst. See, “The ChoicePoint Data Security Breach (Feb. '05): What It Means for You,” Privacy Rights Clearinghouse. That breach involved approximately 163,000 records, which by 2005 standards was a “major” data breach, and ChoicePoint was the first organization to notify the data subjects of the breach under the first (and only) data breach notification law in the country ' the California law known back then by privacy experts simply as SB 1386. The media floodgates that opened in the aftermath of ChoicePoint's notification set off a chain reaction that ultimately resulted in similar data breach notification statutes being passed in 47 states, the District of Columbia, and three U.S. Territories, as well as under various federal statutes, including the Gramm-Leach Bliley Act and HIPAA (Health Insurance Portability and Accountability Act). It also resulted in what is now commonplace in the wake of major data breaches ' class action “privacy” litigation on behalf of data subjects, seeking millions of dollars in damages, under a dizzying array of legal theories.
What's perhaps not widely realized is that, more than 10 years later, significant obstacles to would-be class action plaintiffs still exist. In fact, there is still a divide among various U.S. circuit courts as to what is necessary to even establish standing by data subjects in these cases. Many pundits have been theorizing for years that this issue of standing is finally about to be resolved in favor of plaintiffs. But even in the few courts where plaintiffs have achieved favorable decisions on standing, there still has never been a single jury verdict in a consumer class action data breach case. One reason for that is because not a single court in the country has ever even certified a class in such a case. Not one ' in more than 10 years.
There have been many settlements, and many of them have been quite large. But the settlements have been driven mostly by the non-legal risks of data breaches ' the public relations nightmare, the customer churn, the glare of the regulatory spotlight, and the mounting legal fees.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.