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Privacy Plus+ Privacy, Technology and Perspective Data Accuracy Disclaimers – A “Yellow-Flag” Contracting Issue.  Many companies acquire data by buying it. When those companies buy personal information, however, privacy issues arise and the contracts underlying those purchases need a closer look. In particular, lately, we’ve been seeing a lot more disclaimers related to data accuracy. In this post, we’ll highlight why that raises a “yellow-flag” under which parties should proceed with caution. Accuracy Disclaimers.  As basic contracting issue, a disclaimer is contract clauses that limits the responsibility of the party providing the disclaimer.  In the context of a deal sourcing…
What’s the “Right of Publicity?”: Ever since 1898, when Brandeis and Warren published their pathfinding law review article “The Right of Privacy,” the right of an individual to control at least some aspects of their own likeness and identity – often called “The Right of Publicity” – has been widely recognized. The contours of this common-law right, however, have never been fixed and are fiercely debated to this day. An early paradigm (the right to control one’s own “endorsement” of products) arose when a woman discovered the image of her face on a food container. Professor Prosser expanded the analysis…
 Privacy Plus+ Privacy, Technology and Perspective Left Hand, it’s Time to Meet Right Hand.  Recently, the Electronic Frontier Foundation (“EFF”) revealed that the Illinois Department of Transportation (“IDOT”) bought the precise geolocation data of Illinois residents from a data broker funded by the former Saudi Intelligence Head.  We are not making this up, and a link to the EFF’s story on the subject follows: https://www.eff.org/deeplinks/2021/08/illinois-bought-invasive-phone-location-data-banned-broker-safegraph Today, however, let’s focus on the disconnect between Illinois’s purchase and use of that data (again, from a company funded by the former Saudi Intelligence Head) and that state’s privacy laws, which generally restrict the…
Privacy Plus+ Privacy, Technology and Perspective Thinking about a New Epoch in Antitrust Law (and One Timeless Tip). This week, we look at some of the larger themes of U.S. antitrust law, ask if the Federal Trade Commission’s newly amended complaint against Facebook triggers a new “epoch” in antitrust law, and offer one timeless tip for avoiding antitrust issues. The FTC’s new filing:  Earlier this year, a federal judge dismissed two antitrust complaints against Facebook, one filed by the FTC, and one filed by 48 states attorneys general.  Because the complaints were dismissed “without prejudice”, the FTC refiled in order…
 Privacy Plus+ Privacy, Technology and Perspective Data-centric Considerations for Mergers and Acquisitions. Private equity, low interest rates and a rising stock market are helping to spur deals. Mergers and acquisitions (“M&A”) are all the rage these days, as would-be national businesses try to “roll up” regional players or “roll in” to different verticals in the hope that the whole becomes worth more than the sum of its parts. So, this week let’s call attention to some data-centric opportunities attendant to M&A deals that can shrink trouble and raise value: As seller:  ·       Internal security assessments and fixes. In anticipation of…
Privacy Plus+ Privacy, Technology and Perspective When “Anonymous,” Isn’t.  Recently, priest was outed as gay by a Catholic news outlet, called the Pillar, using “an analysis of app data signals correlated to [the priest’s] mobile device show[ing] the priest…visited gay bars and private residences while using a location-based hookup app in numerous cities…” A link to the Pillar’s article, which includes that quote follows: https://www.pillarcatholic.com/p/pillar-investigates-usccb-gen-sec Where being gay is punishable by death in some places in the world, this story about the consequences of mishandling data deserves a strong spotlight, especially where it has been reported that such data was…
Privacy Plus+ Privacy, Technology and Perspective EU Fines Amazon, and the Future of the GDPR.  Recently, the Luxembourg National Commission for Data Protection (“CNPD”) issued a record €746 million fine against Amazon for its alleged violations of the EU’s General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”).  The fine was revealed on page 13 of Amazon’s quarterly report, which can reviewed by clicking on the following link: https://www.sec.gov/edgar/search/#/q=CNPD&dateRange=custom&startdt=2021-07-20&enddt=2021-07-30 To date, this fine against Amazon marks the greatest flex by EU regulators of their powers under the GDPR since it became effective in 2018.  Its timing coincides with a provocatively-titled article…
Privacy Plus+ Privacy, Technology and Perspective The New Proposed Uniform Personal Data Protection Act:  The Uniform Law Commission (“ULC”) has proposed a new uniform privacy act for states to consider. Called the Uniform Personal Data Protection Act (“UPDPA”), it establishes a framework for privacy protections at a state level. Uniform Acts in General: Also known as the “National Conference of Commissioners on Uniform States Laws,” the ULC is a volunteer, non-for-profit body of about 300 judges, lawyers, and scholars who draft, study, and recommend acts from time to time in subject areas where states have primary concern, where the subject…
Privacy Plus+ Privacy, Technology and Perspective New MSP Guidance and U.S. Government Ransomware Website.  This week, the US Cybersecurity and Infrastructure Security Agency (CISA) released new guidance for managed service providers (“MSPs”) and the U.S. Government launched a new website to help public and private organizations defend against ransomware. MSP Guidance: Many businesses use MSPs to manage IT systems, store data, or support other sensitive businesses processes, making MSPs prominent targets for malicious cyber actors.   The recent ransomware attacks leveraging a vulnerability in the software of Kaseya VSA products is just one example of how compromises of MSPs can have…
Privacy Plus+ Privacy, Technology and Perspective Virtual Currency in Texas:  The world’s ninth largest economy will soon allow virtual currency to be used as collateral, and state-chartered banks to serve as virtual-currency custodians.  Effective September 1, 2021, new amendments to Article 9 of the Texas Uniform Commercial Code will allow creditors to perfect security interests in “virtual currency” which they accept as collateral.  Background: Ordinarily, a creditor will file a “financing statement” (usually on a “UCC-1” form) with the Secretary of State and/or other appropriate authorities in order to “perfect” its security interest in collateral. The financing statement describes the…