Jan.-Feb. 2012 Quick Links, Part 6 (Privacy and more)

By Eric Goldman


It was a really busy two months for privacy, and I’m sorry I didn’t get to grok a number of these developments in more detail!

* State AGs are unhappy with Google’s privacy integration of its services, especially that it doesn’t have adequate opt-outs. In fact, every regulator is unhappy about this!

* The White House’s Consumer Privacy Bill of Rights

* California AG signs an agreement with various app retailers requiring that the apps they distribute display privacy policies. News.com coverage.

* Browsers are going to incorporate do-not-track options in the software (whatever do-not-track means).

* Fraley v. Facebook, 2012 WL 555071 (N.D. Cal. Feb. 21, 2012) (footnotes omitted):

the court must conclude that Fraley’s legitimate desire to protect her privacy does not outweigh the relevance or propriety of Facebook proceeding to take Fraley’s deposition. As Fraley herself notes in her declaration, by agreeing to be a class representative, she understood that she would have to participate in discovery and provide testimony. Although the court is sympathetic to Fraley’s concerns regarding the scope and intensity of Facebook’s likely scrutiny during the course of discovery and particularly in a deposition setting, these are concerns that should have been addressed earlier in the process by Plaintiffs’ counsel. Moreover, Plaintiffs have not shown that Facebook’s attempts at discovery have been so intrusive or inappropriate, in light of the nature of the litigation and claims at issue, as to require the protection of the court up until this point. In addition, the protective order already in place between the parties is available to Plaintiffs for the specific reason that certain information disclosed during the course of discovery is not appropriate for public dissemination. The fact that other named plaintiffs remain in the case does not render Fraley’s testimony concerning her allegations to be any less relevant. If anything, the fact that Fraley may soon be dismissed from the lawsuit makes even more relevant Facebook’s discovery into the basis for Fraley’s allegations that will be a part of the record in this case. Even if Fraley is dismissed from the case, the court may consider the relevance of her earlier testimony to Facebook’s ongoing defense

* In re Facebook Internet Tracking Litigation, 2012 WL 432607 (U.S. Jud. Pan. Mult. Lit. Feb. 8, 2012). Facebook’s tracking cases are consolidated in Northern District of California.

* Netflix is paying $9M to settle its Video Privacy Protection Act (VPPA) lawsuit.

* Some interesting work from Jane Yakowitz (incoming law professor at University of Arizona):

– On the EU Data Protection Directive: More Crap From the E.U.

– Jane Yakowitz, Tragedy of the Data Commons, 25 Harv. J.L. & Tech. 1 (Fall 2011). An important rely to Paul Ohm’s reidentification paper.

* How offline retailers target their consumers, with some background on the science of neuromarketing: “we found out that as long as a pregnant woman thinks she hasn’t been spied on, she’ll use the coupons. She just assumes that everyone else on her block got the same mailer for diapers and cribs. As long as we don’t spook her, it works.” A reminder that all of the panic about online data collection may be missing the point.

* WSJ: Is Google tracking iPhone users impermissibly? Plaintiffs’ lawyers have already filed multiple suits.

* Gaos v. Google, Inc., 2011 WL 7295480 (N.D. Cal. April 7, 2011). This one just came through Westlaw. Court dismissed a privacy lawsuit over Google including search terms in referral URLs on Article III grounds.

* In re Indiana Newspapers Inc., 2012 WL 540796 (Ind. App. Ct. Feb. 21, 2012). “Under our Shield Law, we hold that an anonymous person who comments on an already-published online story and whose comment was not used by the news organization in carrying out its newsgathering and reporting function cannot be considered “the source of any information procured or obtained in the course of the person’s employment or representation of a newspaper” ”

* Red Tape: Govt. agencies, colleges demand applicants’ Facebook passwords.


* Economists adopt a conflicts-of-interest statement for their academic publications. Law professors desperately need an equivalent.

* Smith v. eBay Corp., 2012 WL 27718 (N.D. Cal. Jan. 5, 2012): antitrust claim against eBay for tying PayPal with eBay’s auction fees partially survives motion to dismiss.

* BNA (unfortunately paywalled) previews some of the key cases pending at federal appellate courts that might produce an opinion in 2012. The list includes:

Viacom Int’l Inc. v. YouTube LLC, No. 10-32780 (2d Cir.)

– Capitol Records Inc. v. Thomas-Rasset, No. 11-2820 (8th Cir.)

Flava Works v. Gunter d/b/a myVidster.com, No. 11-3190 (7th Cir.)

Righthaven LLC v. Hoehn, No. 11-16751 (9th Cir.)

United States v. Nosal, No. 10-10038 (9th Cir.)

Rosetta Stone Ltd. v. Google Inc., No. 10-2007 (4th Cir.)

Cohen v. Facebook, No. 11-17840 (9th Cir.)

Stayart v. Google Inc., No. 11–3012 (7th Cir.)

Others include Graf v. Zynga, Levitt v. Yelp, Parisi v. Sinclair, Jones v. Dirty World and Maximized Living v. Google.

* Universal Grading Service v. eBay, Inc., 2012 WL 70644 (N.D.Cal, Jan. 9, 2012). Another antitrust lawsuit against eBay dismissed, this time involving eBay’s use of third party coin grading services. This case has been appealed to the Ninth Circuit.

* WSJ on fine print in consumer contracts.

* NYT: Young, in Love and Sharing Everything, Including a Password. A spectacularly bad idea. Famous last words: “I know he’d never do anything to hurt my reputation” An adult is quoted: “I’ve known plenty of couples who have shared passwords, and not a single one has not regretted it,”

* Burgess v. eBay appealed.

* Only 20% like Facebook’s new Timeline. I’m holding out as long as I can.

* LA Weekly: A gentlemen’s hypersensitivity to how his name is spelled + a law degree = recipe for disaster.

* William Mitchell Law Review had a symposium issue on Contemporary Issues in Cyberlaw. I’ve posted the published version of my essay “Revisiting Search Engine Bias” on Google & antitrust issues.

* Ceglia v. Zuckerberg, 2012 WL 503810 (W.D.N.Y. February 14, 2012). “Defendants are awarded in connection with their Accelerated Motion to Compel $75,776.70 in attorney’s fees, and are also entitled to an award of costs, including attorney’s fees, incurred preparing and defending the Fee Application, but Defendants’ request for an order prohibiting Plaintiff from filing any papers in support of this action until such fees are paid is DENIED.”