E-Commerce Law Week, Issue 621

Court Rules That What You Expose To The Public May Still Be Private

The D.C. Circuit ruled last month in United States v. Maynard that the use of a tracking device to follow a suspect over an extended period of time is a search within the meaning of the Fourth Amendment and therefore requires a warrant.  The decision is founded on the idea that a person can retain a reasonable expectation even in information that he exposes to the public -- in this case, his whereabouts in public places.  This rationale could thus have implications far beyond the tracking-device context, and affect how courts assess whether people retain legitimate privacy interests in other information they reveal to others -- whether their communications providers, financial institutions, or Facebook buddies.  But the court's ruling conflicts with the decisions of at least three other federal circuits, and is based on a very narrow interpretation of Supreme Court precedent.  We may therefore be tracking this case right up to the Supreme Court.

Is Third Time A Charm for California Breach Notification Amendment?

On August 19, the California senate passed SB 1166, which would, among other things, require any "agency, person, or business that is required to issue a security breach notification to more than 500 California residents pursuant to existing law" to also notify the state Attorney General.  The California legislature's two previous attempts to amend the state's seminal data breach notification law were vetoed by Governor Arnold Schwarzenegger.  Even though SB 1166 is identical to the bill the Governor terminated last year, the bill's sponsor, Sen. Joe Simitian, has said that, based on conversations with Schwarzenegger's office, “a signature by the Governor seems possible this year.”

Search Engines Score Victory in Argentina

In a country where soccer (er, football) is revered, Google and Yahoo! may have lost the first contest, but they came roaring back in the second game.  Last month, Argentina's National Civil Court of Appeals overturned a lower court's ruling that the two search engines were liable for defamation based on information contained in search results.  Entertainer Virginia Da Cunha asserted that Google and Yahoo! violated her rights by displaying, in response to searches for her name, not just her name and image but also links to pornographic sites.  In 2009, a trial court agreed, but the appellate court ruled 2-1 that search engines could not be held liable for third-party content unless they were informed of illegal content and subsequently failed to take action to "cease the injurious activities."

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