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 the 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.
By Shan Sivalingam
3 Shidler J. L. Com. & Tech. 9 (2007)
Litigation
2/14/2007
Early in 2005, a Florida intermediate appellate court ruled that a trial court adjudicating a divorce proceeding had properly excluded evidence that the wife obtained by installing a spyware program on the husband’s computer. The court held that the evidence was an intercepted electronic communication that violated a Florida statute modeled after the Federal Wiretap Act. The Florida court ruled that exclusion fell properly within the discretion of the trial court, despite the fact that the relevant Florida statute did not contain an exclusionary rule for intercepted electronic communications. This Article provides a short overview of the federal and state prohibitions on intercepting electronic communications before examining the Florida court’s analysis of how the spyware violated state law. The Article will also examine the scope of the court’s holding and whether information obtained from spyware could ever be admissible in court.
By Kelcey Nichols
3 Shidler J. L. Com. & Tech. 10 (2007)
Litigation
2/14/2007
In a recent case of first impression, Barton v. U.S. District Court for the Central District of California, the U.S. Court of Appeals for the Ninth Circuit held that an online communication involving an online intake form filled out by prospective clients gave rise to an attorney-client relationship governed by the duty of confidentiality and subject to attorney-client-privilege. The Ninth Circuit’s multi-factored analysis suggests a modified framework for evaluating when the duty of confidentiality and attorney-client relationship can be formed through online communications. This Article discusses Barton’s implications for attorneys and law firms that communicate with clients and potential clients online. Attorneys should be able to avoid an unexpected duty of confidentiality created through an online communication by clearly defining the attorney-client relationship and adhering to the Rules of Professional Conduct.
By Rachel Cormier Anderson
3 Shidler J. L. Com. & Tech. 11 (2007)
Corporate and Commercial
2/14/2007
Courts in three recent cases invalidated portions of consumer clickwrap agreements containing either forum selection or binding arbitration clauses. In the first case, a Washington State Court of Appeals case invalidated a forum selection clause found in a clickwrap agreement because the clause was contrary to state consumer protection clauses. In the second case, a California Court of Appeals rejected a clickwrap agreement calling for binding arbitration in a specified forum when the plaintiff sought to bring a class action claim. Finally, the U.S. Court of Appeals for the Fifth Circuit recently decelerated a binding arbitration clause because it was unconscionable. Although these cases address a relatively new form of contracting known as “clickwrap agreements,” the essential issue in each case was not new. These cases suggest that courts are willing to accept the validity of clickwrap agreements in general, but invalidated the specific clauses based on traditional contract doctrines such as unconscionability and public policy. This Article examines these recent cases in light of existing precedent concerning the enforceability of clickwrap agreements.
By Sylvia Mercado Kierkegaard
3 Shidler J. L. Com. & Tech. 12 (2007)
Corporate and Commercial
2/14/2007
The United States (“U.S.”) and the European Union (“EU”) offer contrasting approaches to contract formation in Cyberspace. Two foci can be identified with EU law: (1) consumer protection and (2) market harmonisation. The American approach, however, is characterized by self-regulation and economic rationale. This Article examines and compares the EU and U.S. regulatory approaches to electronic contracting.