Statutory and Common Law Claims to Protect Online Privacy

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  • Use this page to list sources related to statutory or common law claims regarding online or computer privacy. These are typically those in which there is no government actor that would implicate Fourth Amendment concerns. Where a government entity is involved in a privacy matter, the source should probably be listed instead in Fourth Amendment as Applied to Online Privacy. The Federal Trade Commission's online privacy enforcement actions under Section 5 of the FTC Act, which prohibits unfair or deceptive practices, should typically be listed instead in Spam and Unfair or Deceptive Practices Online.

News / Editorial

Legal Briefs / Opinions / Statutes

  • American Civil Liberties Union v. DOJ, 10-5159 (D.C. Cir. 2011) (Affirming the district court's order requiring release of certain documents under the Freedom of Information Act relating to the government's use of cell phone location data in criminal prosecutions and remanding for further development of the record regarding other requested documents).
  • United States v. Amanuel, No. 06-1103 (2d Cir. Jul. 29, 2010) (law enforcement's failure to properly record electronic pager evidence not a constitutional violation yet testimonial uses barred for failure to comply with ECPA's sealing requirements. However, non-testimonial uses permitted, thus suppression of evidence from follow-on warrants vacated. Defendants may nonetheless be eligible for civil remedies for violative interception.).
  • Complaint Melkonian v. Facebook, Orange County Superior Court Case No. 30-2009-00293755-CU-BT-CJC (privacy lawsuit against Facebook that was voluntarily dismissed).
  • Zheng v. Yahoo! Inc., No. 08-1068 (N.D. Cal. Dec. 2, 2009) (ECPA does not apply extra-territorially to disclosures by Yahoo!'s Chinese subsidiary of stored communications of plaintiffs that resulted in torture and imprisonment).
  • Alamar Ranch, LLC v. County of Boise, No. 09-004, 2009 U.S. Dist. LEXIS 101866 (D. Ida. Nov. 2, 2009) (knowledge of employer monitoring of employee communications over its network could be imputed, not only to the employee but to employee's attorney, resulting in waiver of attorney-client privilege for messages sent by employee to attorney using employer-assigned e-mail account, and vice versa).
  • Stengart v. Loving Care Agency, Inc., No. A-3506-08T1 (Sup. Ct. N.J. Jun. 26, 2009) (employer was not entitled to read e-mails exchanged between an employee and her attorneys through her Yahoo! account, even though the emails were stored on the employee's company-issued laptop).
  • Steinbach v. Village of Forest Park, No. 06-04215, 2009 U.S. Dist. LEXIS 59907, 2009 WL 2060054 (N.D. Ill. Jul. 14, 2009) (where government employee's personal email accessed without authorization, Stored Communications Act and intrusion upon seclusion claims survive motion to dismiss).
  • In re United States, Nos. 08-9131 and 08-9147 (D. Or. Jun. 23, 2009) (§ 2703(a) of the Stored Communications Act incorporates all procedural aspects of Rule 41, including the so-called "notice" requirement of Rule 41(f)(1)(C), which is satisfied by leaving a copy of the warrant with the third-party ISP, and where no property is actually seized—as is true in most cases involving search warrants for e-mail—the notice requirement of Rule 41(f)(1)(C) is not even triggered).
  • Yath v. Fairview Clinics, No. A08-1556, 2009 Minn. App. LEXIS 117 (Minn. Ct. App. 2009) (unauthorized posting of personal medical information on MySpace is "publicity" per se for invasion of privacy tort).
  • Burnett v. County of Bergen, 198 N.J. 408 (N.J. 2009) (under the Open Public Records Act, SSNs must be removed from documents sought before they are provided, and the requestor must pay for the cost of this removal).
  • Van Alstyne v. Electronic Scriptorium Ltd., 560 F.3d 199 (4th Cir. 2009) (plaintiffs pursuing claims under the Stored Communications Act must prove actual damages in order to be eligible for statutory damages, but not for punitive damages or attorney’s fees).
  • Moreno v. Hanford Sentinel Inc., 172 Cal. App. 4th 1125 (Cal. Ct. App. 2009) (an author who posts on a public social networking website cannot state a cause of action in CA for invasion of privacy, but may state a cause of action for IIED against a person who submits that article to a newspaper for republication).
  • Brahmana v. Lembo, No. 09-106, 2009 WL 1424438 (N.D. Cal. May 20, 2009) (recording keystrokes using software and hardware monitoring tools is sufficient to render plausible the claim that communications were monitored, but the keystrokes must also affect interstate commerce under the Wiretap Act).
  • Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008) reh'g denied 554 F.3d 769 (9th Cir. 2009).
  • Hall v. Earthlink Network, Inc., 396 F.3d 500 (2d Cir. 2005).
  • Orin Kerr, Amicus Brief on behalf of CDT, EFF, EPIC, ALA, ACLU, and CNSS in United States v. Councilman, 418 F.3d 67 (1st Cir. 2005).
  • Patricia L. Bellia and Peter P. Swire, Amicus Brief on behalf of Sen. Patrick J. Leahy in United States v. Councilman, 418 F.3d 67 (1st Cir. 2005).
  • Marc Rotenberg and Marcia Hoffman, Amicus Brief on behalf of Dr. Whitfield Diffie, Dr. Edward W. Felten, Dr. John R. Levine, Dr. Peter G. Neumann, and Dr. Bruce Schneier in United States v. Councilman, 418 F.3d 67 (1st Cir. 2005).
  • Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004).
  • Fraser v. Nationwide Mutual Ins. Co., 352 F.3d 108 (3d Cir 2003).
  • Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003).
  • Bourke v. Nissan Motor Corp., No. B068705 (Cal. Ct. App., July 26, 1993).