CORPORATE & COMMERCIAL:

The European Union’s Data Retention Directive and the United States’s Data Preservation Laws: Finding the Better Model

By Kristina Ringland
5 Shidler J. L. Com. & Tech. 13 (2009)
Corporate & Commercial
11/13/2009

The European Union’s Data Retention Directive (the “Directive”) seeks to assist law enforcement officials in their efforts to combat terrorism and to standardize disparate laws regarding data retention within the European Union (EU). The Directive requires companies to retain traffic and location data that identifies a subscriber or registered user of a Web site for a period of six to twenty-four months. Implementation of the Directive takes place at the national level and poses many challenges to providers of electronic communication services. There is no analogous United States federal law mandating data retention. The United States, however, has a data preservation requirement, which pertains only to specific information requested by the United States government. This Article compares the two distinct approaches and examines which approach better balances the interests of law enforcement officials combating terrorism, and the cost to companies and consumers to comply with the laws. This Article concludes that the United States’s current legal framework of data preservation strikes a more favorable balance between these competing interests.

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Electronic Pitfalls: The Online Modification of Ongoing Consumer Service Agreements

By Ben Casady
5 Shidler J. L. Com. & Tech. 12 (2009)
Corporate & Commercial
11/13/2009

This Article examines the procedure for online modification of an ongoing consumer contract. It reviews the relevant case law, including Douglas v. U.S. District Court, a recent Ninth Circuit decision that calls into question the validity of changing contractual terms by merely posting the changes on the service provider’s Web site. The Article also examines the discrete components found in an effective online contract modification and provides practical pointers for contract drafters.

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Border Searches of Laptop Computers after United States v. Arnold: Implications for Traveling Professionals

By Cooper Offenbecher
5 Shidler J.L. Com. & Tech. 9 (2009)
Corporate & Commercial
6/1/2009

The Ninth Circuit Court of Appeals recently held that border searches of laptop computers do not require reasonable suspicion. The decision, in United States v. Arnold, reflects the continued intent of the Ninth Circuit—along with the Fourth Circuit Court of Appeals—to continue analyzing laptop computer searches under the traditional border search doctrine. This article will examine recent laptop computer search cases in light of the border search doctrine and will consider the implications for lawyers and business professionals who travel abroad with confidential information on laptops and other electronic-storage devices. The article will also consider the implications of such searches on the ethical duty of confidentiality, the attorney-client privilege, and trade secrets law.

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Liability for Consumer Information Security Breaches: Deconstructing FTC Complaints and Settlements

By Joel B. Hanson
4 Shidler J. L. Com. & Tech. 11 (2008)
Commercial and Corporate
5/23/2008

For several years, hackers taking advantage of security holes in the information system of TJX Companies, Inc. stole sensitive credit and debit card information belonging to at least 45.7 million customers. The TJX breach is one of the largest thefts of consumer information in history and is illustrative of the recent wave of security breaches. Private lawsuits against companies that fail to protect consumer information have typically failed. However, the Federal Trade Commission has taken enforcement action against such companies that fail to implement reasonable security measures to protect customers’ personal information. These complaints have resulted in settlement agreements requiring the businesses to implement comprehensive security programs, complete with third party auditing, for up to 20 years. This Article analyzes the various types of legal violations alleged by the FTC in security breach cases, the factors cited as contributing to the violations, and the remedies typically agreed upon when the complaints are settled. This Article also distinguishes different violations that may result depending on the type of information stolen through a security breach.

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To Mine or Not to Mine: Recent Developments in the Legal Ethics Debate Regarding Metadata

By Boris Reznikov
4 Shidler J. L. Com. & Tech. 13 (2008)
Commercial and Corporate
5/23/2008

The American Bar Association recently decided that attorneys are not violating the Model Rules of Professional Conduct by reviewing opposing parties’ electronic documents for metadata. The stance taken by the American Bar Association contradicts views from ethics committees in other jurisdictions that have determined that lawyers who examine metadata are acting unethically. This Article summarizes the American Bar Association’s decision, as well as the other opinions on metadata, to help practicing attorneys understand the proper ethical considerations they must make when determining whether to look into an electronic document’s metadata.

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Applying the Americans with Disabilities Act to Private Websites after National Federation of the Blind v. Target

by Jeffrey Bashaw
4 Shidler J. L. Com. & Tech. 10 (2008)
Corporate & Commercial
2/25/2008

The United States District Court for the Northern District of California recently held that websites which are tightly integrated with a physical store must be accessible to the blind, or risk running afoul of the Americans with Disabilities Act (“ADA”). The court in this case, National Federation of the Blind v. Target (“Target”), declined to grant summary judgment for Target, a retailer which operates both physical stores and an e-commerce website, in a suit alleging that Target’s website, Target.com, was discriminating against the blind. This Article will describe the narrow application of Target, which found that websites which are tightly integrated with a physical store must be accessible to the blind to comply with the ADA. This Article also discusses the uncertainties this case leaves unanswered, such as at what point a business’ web presence becomes subject to this ruling and is required to be accessible to the blind. Finally, this Article will explore arguments about how the ADA may apply to pure e-commerce sites as well.

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“Can I See Some ID?” Age Verification Requirements for the Online Liquor Store

By Boris Reznikov
4 Shidler J. L. Com. & Tech. 5 (2007)
Corporate & Commercial
10/17/2007.

Teenagers are starting to use the Internet to circumvent the ordinarily stringent restrictions on the sale of alcohol to underage individuals. Since states have always punished vendors for furnishing alcohol to minors, companies that choose to sell alcohol online must recognize that they could be criminally and civilly liable if they do not take reasonable precautions to ensure that minors do not obtain their product. This Article examines the steps online alcohol vendors might take in order to protect themselves from liability so that they can continue to run their ventures in a profitable manner.

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Employee Internet Misuse: How Failing to Investigate Pornography May Lead To Tort Liability

By Jamila Johnson
4 Shidler J. L. Com. & Tech. 1 (2007)
Corporate & Commercial
6/6/2007

This Article addresses a New Jersey appellate court’s holding which suggests that employers have a common law duty to investigate online misconduct by their employees. In Doe v. XYC Corp., the Appellate Division of the Superior Court of New Jersey held that an employer has a duty to act when (1) it knows that an employee’s use of the Internet would endanger a third person; and (2) it has reason to believe that it may discipline the employee for online activities in the workplace. The court stated that, under this duty to act, an employer must investigate, discipline, and inform authorities of the danger. This Article discusses the implications of the case for employers.

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Reach Out and Text Someone: How Text Message Spam May Be a Call Under the TCPA

by Daniel L. Hadjinian
4 Shidler J. L. Com. & Tech. 3 (2007)
Corporate & Commercial
6/6/2007

The Arizona Court of Appeals recently found a business liable for sending an unsolicited advertisement email to a recipient’s wireless phone in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”). The court concluded that an email sent to a wireless phone constitutes a “call,” and noted that such a commercial call created the same concerns about consumer privacy that Congress intended to remedy with the TCPA. This finding is consistent with an earlier Federal Communications Commission ruling. Preliminary cases indicate that other courts may be willing to adopt a similar interpretation of the TCPA. In light of this recent ruling, this article will consider how various new advertising media and technologies may fall within the scope of the TCPA. Businesses that advertise using electronic delivery methods should consider the effect of this case on their current practices as well as any practices adopted in the future.

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Follow that Car! Legal issues arising from installation of tracking devices in leased consumer goods and equipment

By Leah Altaras
3 Shidler J. L. Com. & Tech. 8 (2007)
Corporate & Commercial
2/14/2007

Recent court cases in Connecticut and California have challenged the commercial use of Global Positioning Systems (GPS) for tracking and gathering data about consumers. Specifically, these cases focused on the terms and disclosures contained in automobile rental contracts relating to the use of GPS to monitor the driving patterns of rental car drivers. In response to concerns about consumer privacy, several states have also enacted legislation that addresses the use of tracking technology in the rental car market. This Article examines recent litigation concerning the use of GPS in rental cars and related legislative efforts. Although recent legislation and litigation focuses on the automobile rental industry's use of GPS, similar legal issues may arise in other circumstances where devices containing tracking technology may be leased to consumers or commercial parties. Such devices include cellular telephones, heavy machinery, and other types of tracking and remote technologies such as ignition kill devices.

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ARCHIVED ARTICLES:

Title: Date Posted:
Enforcement of Contractual Terms in Clickwrap Agreements: Courts Refusing to Enforce Forum Selection and Binding Arbitration Clauses< 2/14/2007
E-Contract Formation: U.S. and EU Perspectives 2/14/2007
Clicking Away the Competition: The Legal Ramifications of Click Fraud for Companies that Offer Pay Per Click Advertising Services 12/4/2006
The Union Workplace Meets Big Brother: Advising clients on employer conduct with regard to hidden surveillance 8/24/2006
American and French Perspectives on Trademark Keying: The Courts Leave Businesses Searching for Answers 12/16/2005
When Small Technology is a Big Deal: Legal Issues Arising From Business Use of RFID
12/16/2005
Streamlined Sales and Use Tax Agreement: Is Your Business Ready for Compliance? 10/24/2005
Defining Spyware: Necessary or Dangerous 8/12/2005
Bigger Fish, Deeper Pockets: Business Blogs, Defamation and the Communications Decency Act 8/12/2005
Will Wi-Fi Make Your Private Network Public? Wardriving, Criminal and Civil Liability, and the Security Risks of Wireless Networks 8/2/2005
Safe Harbor Agreement - Boon or Bane? 8/2/2005
A Few Degrees off the Mark: Miniature Missteps that Can Render the Safe Harbors of the DMCA Inaccessible 8/2/2005
Pop Goes The Trademark? Competitive Advertising on the Internet 8/2/2005
Tax Implications of Using Out-of-State Computer Servers 2/2/2005
Tangible Cash for an Intangible Loss? Insurance Coverage for Damage or Loss of Third-Party Data 2/2/2005
Risky Business: What Must Employers Do to Shield Against Liability for Employee Wrongdoings in the Internet Age? 2/2/2005
When Invisible Electronic Ink Leaves Red Faces: Tactical, Legal and Ethical Consequences of the Failure to Remove Metadata 2/2/2005
Not Child's Play: Compliance with the Children's Online Privacy Protection Rule 7/1/2004
Oops! The Legal Consequences of and Solutions to Online Pricing Errors 5/26/2004