Monthly Archives

April 2017

Internet Privacy – What the U.S. Can Learn from the European Union

With respect to Internet privacy, as a result of recent U.S. government action, Americans now have less protection and are more at risk of government surveillance and potential misuse of their personal information, as compared with citizens of the European Union (EU).

By overturning the FCC’s privacy regulations and stripping the FCC’s authority to implement similar privacy regulations in the future, the U.S. government has created an enormous Internet privacy regulatory void. As a result of such action, there now appear to be no federal regulatory limitations on the types of personal information Internet Service Providers (ISPs) can collect, use and disclose regarding the Internet activities of their subscribers, nor any obligations imposed on ISPs with respect to data retention, data protection or breach notification.

This regulatory void in the U.S. contrasts sharply with EU law, which generally prohibits ISPs from using or disclosing any personal information without the opt-in consent of their subscribers. Under the EU’s new General

Filling the Void in Internet Privacy: Time to Turn to the Courts (Again)

Now that the U.S. government has overturned the FCC’s privacy regulations, are courts more likely to step in to protect the Internet privacy rights of individuals?

More specifically, how will courts respond when an Internet Service Provider (ISP) divulges to law enforcement the content and details of a subscriber’s Internet activity without obtaining a search warrant, despite law enforcement having complied with the judicial process set forth in the Electronic Communications Privacy Act (ECPA), in particular, the Stored Communications Act (SCA). Will courts require a search warrant even though the SCA does not require one?

If the past is any indication, I anticipate that an increasing number of federal and state courts, when faced with this question, will find that individuals have a “reasonable expectation of privacy” in the content and details of their Internet activity and that they will prohibit the government from obtaining warrantless access to such information under applicable constitutional law. The constitutional law could

U.S. Government’s Assault on Internet Privacy – Where Do We Go From Here?

The U.S. government’s action this week overturning the FCC’s recently passed privacy regulations and stripping the FCC’s authority to implement similar privacy regulations in the future, whether one agrees or disagrees with it, raises more questions than answers, and its long term implications are potentially far reaching and not very well understood.  Indeed, by shining a light on the issue, the government’s action will undoubtedly unleash a torrent of efforts by politicians, legislators, regulators, judges, technologists and others to find ways to improve the Internet privacy protection of U.S. citizens.

At the very least, the government’s decision may well mark the death knell for the Fourth Amendment’s much-criticized third party doctrine, judicial support for which has been slowly eroding with the advance of technology and the Internet. See, e.g., the concurring opinions of Justices Sotomayor and Alito in U.S. v. Jones, 132 S. Ct. 945 (2012).

The government’s decision creates an enormous void in Internet privacy regulation which is bound