Sen. Commerce Committee Hearing :: Sept 26 :: Examining Consumer Privacy Protections

"WASHINGTON – U.S. Sen. John Thune (R-S.D.), chairman of the Senate Committee on Commerce, Science, and Transportation, will convene a hearing titled “Examining Safeguards for Consumer Data Privacy,”at 10:00 a.m. on Wednesday, September 26, 2018. This hearing will examine privacy policies of top technology and communications firms, review the current state of consumer data privacy, and offer members the opportunity to discuss possible approaches to safeguarding privacy more effectively.

“Consumers deserve clear answers and standards on data privacy protection,” said Thune. “This hearing will provide leading technology companies and internet service providers an opportunity to explain their approaches to privacy, how they plan to address new requirements from the European Union and California, and what Congress can do to promote clear privacy expectations without hurting innovation.”
Witnesses:

• Mr. Len Cali, Senior Vice President—Global Public Policy, AT&T Inc.
• Mr. Andrew DeVore, Vice President and Associate General Counsel, Amazon.com, Inc.
• Mr. Keith Enright, Chief Privacy Officer, Google LLC
• Mr. Damian Kieran, Global Data Protection Officer and Associate Legal Director, Twitter, Inc.
• Mr. Guy (Bud) Tribble, Vice President for Software Technology, Apple Inc.
• Ms. Rachel Welch, Senior Vice President, Policy & External Affairs, Charter Communications, Inc.

*Witness list subject to change.
Hearing Details:
Wednesday, September 26, 2018
10:00 a.m.
Full Committee
Dirksen Senate Office Building G50
Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov.

⚖ Pagan v. Google, DNH 2016 :: Defamation Cause of Action Dismissed per 47 USC 230(c)

FACTS: "Pagan's complaint names "Google Corporation" as the defendant and asserts that Google defamed him by publishing false information regarding his criminal record. Specifically, he states that Google published false information labeling him as a convicted sex offender for three counts of rape in New Hampshire. Pagan asserts that the information is incorrect, and he attributes the error to a communication problem in the New Hampshire courts."

RULE: "Google is afforded immunity under the Communications Decency Act of 1996 ("CDA"), 47 U.S.C. § 230, for the publication of defamatory content prepared or posted by others. O'Kroley v. Fastcase, Inc., 831 F.3d 352, 354-55 (6th Cir. 2016). The CDA provides that "[n]o cause of action may be brought" and "no liability may be imposed under any State or local law," 47 U.S.C. § 230(e)(3), for any claim that would treat a provider of an "interactive computer service" as the "publisher or speaker of any information provided" by someone else, 47 U.S.C. § 230(c)(1). See O'Kroley, 831 F.3d at 354-55 (claims against Google for third party content properly dismissed under CDA); Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014) (claims against Facebook properly dismissed under CDA)."

CONCLUSION: "[B]ased on the facts alleged in the complaint[, Google is] immune from plaintiff's defamation claims under the CDA, and, accordingly, those defamation claims should be dismissed."

Pagan v. GOOGLE CORPORATION, Dist. Court, D. New Hampshire 2016

America Income Life Ins Co v Google NDAL :: Dismissed Per Sec. 230(c) :: Case Summary

AMERICAN INCOME LIFE INSURANCE COMPANY v. GOOGLE, INC., Dist. Court, ND Alabama 2014

Facts Plaintiffs American Income Life Insurance Company and Scott Sonnenberg (collectively "plaintiffs") filed this action in the Circuit Court of Jefferson County, Bessemer Division, against Google and "X and Y, fictitious parties operating websites Google, Inc., chooses to reward with prominent placement in all its search engine results, known only to Plaintiff[s] as operators of `pissedconsumer.com' and `scam.com.'" Specifically, plaintiffs allege: The Fictitious Defendants' banners and content, broadcast via Defendant Google, Inc.'s search engine throughout Alabama, via hundreds of thousands of computer terminals, violates the Alabama Deceptive Trade Practices Act by falsely asserting that "American Income Life is a Scam."

Cause of Action: The substance of plaintiffs' Complaint is that certain business practices by defendants violate the Alabama Deceptive Trade Practices Act. Defendant moves to dismiss pursuant to 47 U.S.C. § 230(c), The Good Samaritan Provision of the Communications Decency Act.

Rule: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1).

Analysis "Google cannot be held liable for search results that yield content created by a third party."

[T]he only allegations in the Complaint about actions taken by Google in support of the conclusory allegation that Google "intentionally disparaged the goods, services, or business of Plaintiff by false and/or misleading representations of fact" are that Google "offer[s] dozens of product and services, including various forms of advertising and web applications," "determine[s] which [web pages] offer `content of value,'" "assess[es] the importance of every web page," "touts its patented `Page Rank' algorithm," "analyze[s] which sites are the `best sources of information across the web' for its seller-assisted marketing plan," "afford[s] prominent placement in its search engine broadcasting to the Fictitious Defendants," and "broadcast[s]" the "fictitious defendants' banners and content." After careful review of the Complaint, the court finds that plaintiffs clearly allege that Google is an interactive computer service, but not an information content provider because there are no allegations that Google originated, developed, or modified the disputed content. Instead, the face of the Complaint alleges that Google assesses the value of content across the internet and "broadcasts" the content provided by scam.com and pissedconsumer.com via its search engine. Without allegations that Google creates the disputed information, specifically the alleged false and misleading representations, plaintiffs' efforts to treat Google as the publisher of those representations fail under § 230. See [47 U.S.C.] § 230(f)(3).

The Complaint contains no allegation that Google created any content that represented American Income Life as a scam. Although the gripe sites's content was broadcast and/or returned as a result of keyword searches of "American Income Life" on Google's website, the Complaint does not allege that Google created or otherwise developed any content stating that American Income Life is a scam.

WiFi Nets are not "Readily Accessible to the Public;" Google's Motion to Dismiss EPCA Claim in SpyFi Case Denied

In re Google Inc. Street View Electronic Communications Litigation, No. C 10-MD-02184 JW., United States District Court, N.D. California, San Francisco Division. June 29, 2011.

PROCEDURE:  Defendant Google's Motion to Dismiss. Fed. Rule 12(b)(6)

BACKGROUND: "Plaintiffs bring this putative class action against Google, Inc. ("Defendant"), alleging three causes of action for violation of the federal Wiretap Act, 18 U.S.C. §§ 2511, et seq., violation of Cal. Bus. & Prof. Code §§ 17200, et seq., and violation of various state wiretap statutes. Plaintiffs allege that Defendant intentionally intercepted data packets, including payload data, from Plaintiffs' Wi-Fi networks utilizing specially designed packet sniffer software installed on Defendant's Google Street View vehicles."

ANALYSIS:

Wiretap Act

• Defendant: Plaintiffs have failed to plead that their Wi-Fi broadcasts were not "readily accessible" and thus, Defendant is entitled to exemption from liability under the Wiretap Act 18 U.S.C. § 2511(2)(g)(i) ("exemption G1");

• Plaintiff: 
• the Wiretap Act's statutory definition of "readily accessible" relied on by Defendant solely applies to "radio communications" under § 2511(2)(g)(ii) ("exemption G2") and is, thus, inapplicable to "electronic communications" under exemption G1 and the ordinary meaning of "readily accessible" should be used; 
• exemption G1 only applies to unlawful interception and access, and Plaintiffs allege that Defendant further used and disclosed the intercepted communications; 
• Court: 
• Congress defined "readily accessible to the public" in the context of radio communications.  18 USC § 2510(16). The District Court through statutory construction concludes that "radio communications" means traditional radio broadcast communications and not all wireless electronic communications, specifically not WiFi.
• "the Court finds that Congress did not intend Section 2510(16)'s narrow definition of "readily accessible to the general public" to apply for purposes of exemption G1."  In other words, the G1 exception would only apply to traditional radio, not something like Wifi.
• Motion to Dismiss Wiretap Act Claim denied
  

Preemption

• Defendant: Plaintiffs' claims based on state law wiretap statutes are preempted by the Wiretap Act and, alternatively, fail to state a claim; 
• Plaintiff: the state wiretap statutes are not preempted by the Wiretap Act either expressly, by field preemption, or by conflict
• Court: 
• "the Court finds that, while the ECPA contains no express preemptive statement on the part of Congress, the ECPA was intended to comprehensively regulate the interception of electronic communications such that the scheme leaves no room in which the states may further regulate."
• Motion to Dismiss as to this cause of action granted

State Cause of Action

• Defendant: Plaintiffs' "unlawful" and "unfair" Cal. Bus. & Prof. Code §§ 17200 claims are also preempted by the Wiretap Act and, alternatively, fail to state a claim or plead standing under Proposition 64. (Motion at 5-19.) 
• Plaintiff: claims under Cal. Bus. & Prof. Code §§ 17200, et seq., are not preempted by the Wiretap Act as they are qualitatively different and are properly pleaded. (Opp'n at 3-25.) The Court addresses each ground in turn.
• Court:  "the Court finds that Plaintiffs fail to plead facts sufficient to support Proposition 64 standing."  Motion to Dismiss as to this cause of action granted without prejudice.

What's Google Upsidedown???

According to Dylan Stephen Jayne, it's his social security number. Kinda-a-bummer, if true. Dylan certainly thought it was a bummer, so he sue Google - for $5 Billion - for a civil rights violation pursuant to 42 USC s 1983. Dylan Stephen Jayne v Google Internet Search Engine Founders, No 3:07cv1677 (MDPA Sept 27, 2007).

The case was filed by Dylan on September 18. The court dismissed the action on September 27 on its own - it didnt even give Google the chance to respond!

A Sec. 1983 action is a civil rights action that protects us from the government doing bad things:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress . . . .

42 USC 1983. The problem here is that as big as Google is - it's not a state - it's not the government. So whatever "Google" spells upsidedown, there is no cause of action against Google as a state. Dylan has "failed to state a claim for which relief can be granted."

What's really cool? Dylan has managed to get his own Wikipedia page out of this. And Dylan has gotten a fair share of attention in the blogosphere. Stupid Man from Pennsylvania Sues Google for $5 Billion, Gizmodo.

And, er, ah, if anybody out there is wondering, Cybertelecom upsidedown spells "Jagr is a weenie!" and we are pretty sure that Cybertelecom is not a state actor either (So dont sue us Jaromir!).

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