Jeff Neuburger

Jeff Neuburger

Proskauer Rose LLP

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California Legislature Nearing Final Debate of Biometric and Geolocation Data Security Bill

With the session ending on August 31st, the California legislature is debating a bill (AB 83) that would expand data security requirements for businesses that maintain personal information of California residents to include,...more

8/25/2016 - Biometric Information Data Security Facial Recognition Technology Geolocation Legislative Agendas

Browsewrap Agreement Held Unenforceable – Website Designers Take Note!

In Nghiem v Dick’s Sporting Goods, Inc., No. 16-00097 (C.D. Cal. July 5, 2016), the Central District of California held browsewrap terms to be unenforceable because the hyperlink to the terms was “sandwiched” between two...more

7/29/2016 - Arbitration Agreements Browsewrap Agreement Class Action Clickwrap Agreements Consumer Contracts Corporate Counsel Motion to Compel TCPA Terms of Use Unenforceable Contract Terms Website Design Websites Young Lawyers

CFAA Double Feature: Ninth Circuit Issues Two Important Decisions on the Scope of Liability Related to Data Scraping and...

This past week, the Ninth Circuit released two important decisions that clarify the scope of liability under the federal Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030. The Act was originally designed to target...more

7/15/2016 - Cease and Desist Computer Fraud and Abuse Act (CFAA) Corporate Counsel Criminal Prosecution Economic Espionage Act Facebook Former Employee Passwords Popular Summary Judgment Terms of Use Trade Secrets Unauthorized Access US v Nosal Web Scraping Young Lawyers

No VPPA Liability for Disclosure of Certain Anonymous Digital Identifiers

Another court has contributed to the ongoing debate over the scope of the term “personally identifiable information” under the Video Privacy Protection Act – a statute enacted in 1988 to protect the privacy of consumers’...more

7/1/2016 - Cookies COPPA Corporate Counsel Data-Sharing Google Invasion of Privacy IP Addresses Nickelodeon Personally Identifiable Information Third-Party Unique Device Identifiers Viacom VPPA Young Lawyers

NTIA Multistakeholder Process Finalizes General Privacy Guidelines for Commercial Facial Recognition Use

We’ve previously blogged about the National Telecommunications and Information Administration (NTIA) privacy multistakeholder process to address concerns associated with the emerging commercial use of facial recognition...more

6/24/2016 - Best Practices Biometric Information Biometric Information Privacy Act Consent Data Security Data-Sharing Facebook Facial Recognition Technology Google NTIA Privacy Concerns Shutterfly SnapChat Transparency

Craigslist Files Another Suit against Data Scraper

For years, craigslist has aggressively used technological and legal methods to prevent unauthorized parties from scraping, linking to or accessing user postings for their own commercial purposes. In a prior post, we briefly...more

6/2/2016 - APIs Breach of Contract CAN-SPAM Act Cease and Desist Compensatory Damages Computer Fraud and Abuse Act (CFAA) Content Aggregators Copyright Infringement Craigslist Injunctive Relief Unfair Competition

Proposed Amendment to Illinois Law Would Have Changed Shape of Biometric Privacy Litigation

Late last week, the Illinois state senate considered an amendment tacked onto to an unrelated bill that would have revised the Illinois’ Biometric Information Privacy Act, a law that has been the subject of much debate and...more

6/1/2016 - Biometric Information Biometric Information Privacy Act Facial Recognition Technology Photographs Proposed Amendments Social Media State Legislatures

Tenth Circuit Affirms Lower Court Ruling on Meaning of “User” in DMCA §512(c) Safe Harbor

Title II of the Digital Millennium Copyright Act (DMCA) offers safe harbors for qualifying service providers to limit their liability for claims of copyright infringement. To benefit from the Section 512(c) safe harbor, a...more

5/11/2016 - Copyright Infringement Copyright Litigation Corporate Counsel DMCA Internet Service Providers (ISPs) Photographs Safe Harbors User Agreements User-Generated Content Website Owner Liability

California Court Refuses to Dismiss Biometric Privacy Suit against Facebook

The District Court for the Northern District of California recently issued what could be a very significant decision on a number of important digital law issues. These include: the enforceability of “clickwrap” as compared...more

5/10/2016 - Biometric Information Biometric Information Privacy Act Choice-of-Law Clickwrap Agreements Corporate Counsel Data Collection Enforceability Facebook Facial Recognition Technology Shutterfly Terms of Use

User of Free App May Be “Consumer” under the Video Privacy Protection Act

This past week, the First Circuit issued a notable opinion concerning the contours of liability under the Video Privacy Protection Act (VPPA) – a decision that stirs up further uncertainty as to where to draw the line...more

5/4/2016 - Corporate Counsel Geolocation Mobile Apps Personally Identifiable Information Popular Reversal Subscribers Third-Party Service Provider Video Privacy Video Privacy Protection Act

Self-Publishing Platforms Deemed Distributors, Not Publishers in Privacy Suit over Unauthorized Book Cover

We live in a world that has rapidly redefined and blurred the roles of the “creator” of content, as compared to the roles of the “publisher” and “distributor” of such content. A recent case touches on some of the important...more

4/4/2016 - Amazon Barnes and Noble Distributors e-Books Intellectual Property Protection Invasion of Privacy Online Platforms Publishers Right of Publicity Right to Privacy Terms and Conditions User Agreements User-Generated Content

Google Is the Latest Online Provider to Face Class Action over Collection of Faceprints

As we have previously written about, there are several ongoing biometric privacy-related lawsuits alleging that facial recognition-based systems of photo tagging violate the Illinois Biometric Information Privacy Act (BIPA). ...more

3/18/2016 - Biometric Information Biometric Information Privacy Act Facial Recognition Technology Google Injunctive Relief Photographs Putative Class Actions Shutterfly Written Consent

Website HTML Is Copyrightable, Even If Look and Feel Is Not

In a notable ruling last month, a California district court ruled that the HTML underlying a custom search results page of an online advertising creation platform is copyrightable. In Media.net Advertising FZ-LLC v....more

2/8/2016 - Copyright Infringement Copyright Office Copyrightable Subject Matter E-Commerce Intellectual Property Protection Leave to Amend Websites

FTC Releases Big Data Report Outlining Risks, Benefits and Legal Hurdles

The big data revolution is quietly chugging along: devices, sensors, websites and networks are collecting and producing significant amounts of data, the cost of data storage continues to plummet, public and private sector...more

1/16/2016 - Big Data ECOA FCRA FTC FTC Act Section 5 Title VII

FTC Issues Enforcement Policy Statement on Native Advertising in New Media

Digital media marketers are aggressively increasing the use of so-called sponsored content, or native advertising to reach new customers. Particularly with the growing use of ad blockers on web and mobile browsers, marketers...more

1/5/2016 - Digital Media Disclosure Requirements FTC FTC Act Native Advertising Policy Statement Unfair or Deceptive Trade Practices

Photo Storage Service’s Collection of Faceprints May Violate Illinois Biometric Privacy Statute

As we have previously noted, there are several ongoing privacy-related lawsuits alleging that facial recognition-based systems of photo tagging violate the Illinois Biometric Information Privacy Act (BIPA). The photo storage...more

1/5/2016 - Biometric Information Privacy Act Consent Databases Facebook Facial Recognition Technology Personal Jurisdiction Putative Class Actions Shutterfly

Facebook Seeks Dismissal in Illinois Facial Recognition Biometric Privacy Suit

As we have previously noted, Facebook has been named as a defendant in a number of lawsuits claiming that its facial recognition-based system of photo tagging violates the Illinois Biometric Information Privacy Act (BIPA). ...more

11/25/2015 - Biometric Information Privacy Act Facebook Facial Recognition Technology Motion to Dismiss Photographs Popular

European Court Gives Bitcoin a Tax-Free Boost

In an important ruling for digital currency service providers, EU’s top court, the Court of Justice of the European Union (CJEU), ruled that transactions to exchange a traditional currency for bitcoin virtual currency, or...more

10/28/2015 - Bitcoin Currency Exchange EU European Court of Justice (ECJ) Exemptions Value-Added Tax Virtual Currency

Video Privacy Protection Act Narrowed – App’s Transmission of Roku ID Not Disclosure of Personal Information

A New York district court opinion is the latest addition to our watch of ongoing VPPA-related disputes, a notable decision on the issue of what exactly is a disclosure of “personally identifiable information” (PII) under the...more

10/28/2015 - Analytics Anonymization Corporate Counsel Data Privacy Data Protection Data Security Disclosure Disney Internet Streaming Mobile Devices Personally Identifiable Information Popular Roku Third-Party Video Privacy VPPA Young Lawyers

Biometrics: Facebook Files Motion to Dismiss Privacy Suit over Facial Recognition Technology

As discussed in a previous post on facial recognition technology, a putative class action has been filed against Facebook over the collection of “faceprints” for its online photo tagging function, Tag Suggestions. (See e.g.,...more

10/16/2015 - Biometric Information Biometric Information Privacy Act Consent Data Collection Data Privacy Data Protection Data Security Databases Facebook Facial Recognition Technology Injunctions Motion to Dismiss Personal Data Photographs Popular Putative Class Actions Shutterfly Statutory Damages

Important Circuit Court Ruling Limits Scope of VPPA Liability

The Eleventh Circuit issued a notable ruling this week limiting a mobile app’s liability under the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710, a law enacted in 1988 to preserve “consumer” personal privacy with...more

10/15/2015 - Advertising Android App Developers Cartoon Network Data Privacy Data Protection Data Security Digital Downloads Internet Streaming Mobile Apps Nonsubscribers Online Videos Personally Identifiable Information Third-Party VPPA Web Tracking

Section 230 of the Communications Decency Act: More Lessons to Be Learned

Courts continue to struggle with the application of CDA immunity to shield service provider defendants from liability in extreme cases. In this case, the Washington Supreme Court, in a 6-3 decision, affirmed the lower court’s...more

10/1/2015 - Affirmative Defense Communications Decency Act Immunity Internet Service Providers (ISPs) Online Advertisements Sexual Assault Third-Party Service Provider User-Generated Content Websites

Clickwrap Agreement Available Only Through Hyperlink Enforceable Under New York Law

Last week, the Southern District of New York followed a long line of precedent under New York law and upheld the enforceability of a website clickwrap agreement, granting a website operator’s motion to compel arbitration...more

7/24/2015 - Actual or Constructive Knowledge Arbitration Borrowers Clickwrap Agreements Contract Terms Loans Motion to Compel Online Contracts Terms and Conditions

Supreme Court Rejects Google’s Appeal in Java API Dispute

On June 29th, the Supreme Court denied certiorari in Google’s appeal of the Federal Circuit’s 2014 ruling that that the declaring code and the structure, sequence, and organization of 37 Java API packages are entitled to...more

7/1/2015 - APIs Copyright Google Oracle Oracle v Google Popular SCOTUS The Copyright Act

Facial Recognition Technology: Social Media and Beyond, an Emerging Concern

This week, a major self-regulatory initiative intended to address privacy concerns associated with facial recognition technology hit a significant stumbling block. Nine consumer advocacy groups withdrew from the National...more

6/24/2015 - Biometric Information Clickwrap Agreements Corporate Counsel Facebook Facial Recognition Technology Fair Use FTC Informed Consent NTIA Opt-Outs Popular Prior Express Consent Privacy Concerns Privacy Disclosures Privacy Policy Putative Class Actions Self-Regulatory Organizations Social Media Transparency Young Lawyers

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