There were a lot of items this week, so we are publishing a Wednesday Morning JETLawg in addition to our usual Monday Morning JETLawg:

  • The shutdown of the Federal Government has delayed further action in the Wyndham v. FTC data breach case (previously mentioned here). The FTC is arguing  for the authority to regulate the information security practices of some companies by suing in the event of a preventable breach, while Wyndham . The court stayed the case on Monday.
  • An attorney with the Nebraska State Bar Association accidentally makes an ex parte communication to Nebraska Supreme Court Chief Justice Michael Heavican via the email distribution list for the Executive Board of the NBSA–which included the Chief Justice. Though I have not delved too deeply into the law on this issue, I tend to agree with the linked Above The Law post arguing that sitting on the executive board of an organization, even as a Supreme Court Liaison, should probably mean recusal.
  • Prominent e-discovery expert (and litigator) Ralph Losey comments on a case in which a federal judge requires a producing party to disclose how it went about looking for electronically stored information, including keywords used and information sources searched. Losey likens relying solely on keyword-based searches and preservation efforts, without doing anything more, to Learned Hand’s famous analysis of technology adoption in The T.J. Hooper, 60 F.2d 737 (2nd Cir. 1932): “The day will come when a judge as brilliant and bold as Learned Hand finds that [the legal] profession has unduly lagged in the adoption of new and available devices.” Like Judge Hand, who held that conforming to industry custom alone could not establish reasonable care, finding a tugboat operator negligent for failing to use then-newly available radio technology to monitor the weather. According to Losey, it won’t be long before “[a] learned judge hold[s] that the mere use of keywords alone, even though a professional norm of the legal industry, was still negligent.”
  • Orin Kerr comments on the Northern District of California’s recent ruling in the Gmail wiretapping case, which denied Google’s motion to dismiss based on explicit consent. I find Professor Kerr’s argument persuasive, but I still think there could be an issue as to the scope of consent — what data it would collect, though not Google’s post-acquisition purpose in scanning user emails — based on the language in Google’s terms of service and privacy policy. Google has said that it takes pains to make its privacy policies and terms of service agreements easier for non-lawyers to read, but will this court eventually find that the company did not adequately disclose the scope of its information collection activities? Also, while this doesn’t go to the merits of the case or the motion to dismiss, kudos to the attorney who thought to go for a Wiretap Act claim based on the fact that multiple systems process email messages before they land in an inbox.
  • AirBnB, the couchsurfing marketplace that has been fighting legal battles in heavily-regulated New York City for a while, received a subpoena from the state’s attorney general for records on all 15,000 people who have rented out rooms, apartments, or couches using the service. The attorney general says he is only going after landlords who may be renting apartments illegally in the long term.
  • Scientists in Germany have developed an enormous new CT scanner that can be used to scan an entire automobile or an airplane wing after an accident to find out what happened to its internal structure. They also mention the possibility of scanning shipping containers or other large objects for explosives or contraband. [H/T Slashdot]
  • The Wall Street Journal’s Siobhan Gorman, in a paywalled article, reports that the NSA’s alleged Utah datacenter has been delayed by serious electrical problems, which have destroyed equipment and significantly hindered the intelligence agency’s ability to use the datacenter for (presumably) storage and analysis of data. [H/T Just Security]

–Brad Edmondson

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