The European Union (EU) has classified Internet “cookies” and other systems that monitor online activities of individuals to be within the scope of the EU’s Data Protection Act, to the extent that those systems process personally identifiable information. 

This means that cookies capturing information which can be associated with specific people must be managed in a manner that complies with the data protection obligations established by the Act.

The EU’s approach to privacy with respect to online monitoring and tracking systems will likely have substantial impact on Internet practices and consumer expectations outside of Europe.

Cookies and other technologies are widely applied to identify and monitor the online activities and interests of individual Internet users. 

Those technologies can be helpful for consumers by making their online transactions faster and easier.

Yet at the same time, online monitoring systems also collect and distribute a wealth of personal information about individuals. 

Frequently, the individuals involved are not fully aware of the information being collected, the parties who will have access to that information, and the uses for which the information is being applied.

The online collection, distribution, and processing of personal information now constitutes a multi-billion dollar global industry.

The EU’s Data Protection Act establishes basic rights of protection and control for individuals with respect to information that can be specifically associated with them.

The Act also imposes obligations on parties who capture, distribute, or use personal information.

Under the Act, protected personally identifiable information includes a variety of materials including account numbers, e-mail addresses, and telephone numbers.

The Act grants individuals a range of rights, including the right to be informed of information collection and use practices, the right to choose the personal information they will disclose, and the right to review and modify personal information that has been collected.

The obligations imposed by the Act on parties who collect or use personal information include duties of notice and security.

By classifying cookies and other online monitoring and tracking systems to be within the scope of the Act, the EU extended its data privacy rights and obligations to a diverse set of information which includes personal data that individuals are often not even aware that they are disclosing.

This is an important step, as it recognizes that effective privacy protection must include management of new forms of personal information and information that individuals are not knowingly disclosing.

The EU’s action is also highly significant as it, in effect, creates a global standard for online privacy. 

Many companies and other organizations not based in Europe must, nonetheless, comply with the EU standards as they conduct business in that part of the world.

As those organizations implement EU-compliant processes and practices for their European online tracking and monitoring activities, it is likely that they will extend those processes and practices to their operations outside of Europe, as well. 

Finally, as individual Internet users, legislators, and regulators outside of Europe become aware of the EU’s privacy requirements for online monitoring systems, it is likely that they will demand and implement similar measures for protection of online privacy.

The EU has thus assumed a role of global leadership in the field of protection of online privacy.

Finally, as individual Internet users, legislators, and regulators outside of Europe become aware of the EU’s privacy requirements for online monitoring systems, it is likely that they will demand and implement similar measures for protection of online privacy.

The EU has thus assumed a role of global leadership in the field of protection of online privacy.

Last month, I read an article from the ABA Journal about how those who score the highest on the LSAT are becoming increasingly unlikely to actually apply to or attend law school.

Maybe that’s because the high scorers decided to teach LSAT prep courses instead.

For example, Robin Singh, the founder and owner of LSAT prep company TestMasters, claims to have scored a 180 on the LSAT a world record of 12 times.

Singh claims that he’s also attained a perfect score – that is, without missing a single question – once.

David Hall, the founder and owner of Velocity Test Prep LLC, another LSAT prep company, claimed to have achieved a score of 180 on the LSAT three times.

Hall also claimed that one of those three 180s was a perfect score.

Singh took exception with Hall’s claims and, after some apparent investigation, discovered that the claim was fraudulent, and sued Hall and Velocity over it.

Hot Doc: Robin Singh Educ. Serv. v. Hall

Source: Thomson Reuters News & Insight – National Litigation

What was fraudulent about these claims?

Though it isn’t abundantly clear from the complaint, it seems that the fraud all stems from one test that Hall took on September 26, 2009.

This is the test on which Hall claimed that he answered every single question correctly.

According to Singh’s complaint, not only did Hall fail to achieve a perfect score, he didn’t even score a 180 on the September 2009 LSAT (though he did indeed receive 180s on two earlier occasions, along with one 179 and two 177s).

In addition, Singh alleges that Hall forged official LSAT records to corroborate his claim, and posted these forgeries on various websites online.

This charge is somewhat verified on Velocity’s own website, which has posted an “open letter from Dave.”

The letter explains that, because Hall wouldn’t complete the September 2009 LSAT’s Certifying Statement attesting that he was taking the LSAT for the sole purpose of being considered for admission to law school, the test results were withheld by the Law School Admission Council (LSAC).

The letter goes on to say that Hall thoroughly believed that he had achieved a perfect score on that exam, and so he went on the Internet claiming as much.

When others confronted Hall about the veracity of this claim, he decided to create “a document intended to simulate the score report that [Hall] believed LSAC was withholding” (LSAC recently released Hall’s score – he got a 177).

In other words, Hall created the forged document that Singh’s complaint alleges that he did, but with the added element that Hall claims to have done so in good faith.

One would think that, with the advanced logical reasoning skills that Hall must have to achieve such high scores on the LSAT, he would be able to come up with a better defense.

The good faith defense would only work in Hall’s case if LSAC had actually communicated to him that he had indeed attained a perfect score, which never happened.

To make things worse for Hall, it doesn’t appear from his “open letter” that he was actually 100% sure that he answered every question perfectly: Hall explicitly admits that his “absolute worst-case on that test” was a score of 179.

Okay, so Hall forged the alleged document, and did so without a viable legal defense.

Does that mean Singh will be able to recover damages?

That question opens up several others.

For instance, did Hall’s misrepresentations about that one LSAT score actually cause him a marked increase in business?

Were Hall’s claims widespread enough to “undermine consumer trust” in “TestMasters and the entire test preparation industry,” as the complaint claims?

Did Hall steal customers from TestMasters through these false claims?

Answering these questions affirmatively will take some work on Singh’s and TestMasters’ part, but they’ll be far likelier to succeed than Hall’s “good faith” defense.

In any case, though both Hall and Singh are among the highest scoring of LSAT test takers and never went to law school, both are creating work for attorneys.

Preservation requires that a party make a specific objection to provide the trial court an opportunity to correct any error it may have made, and does not enable counsel to comb the record on a treasure hunt for issues never properly brought before the trial judge.
Maloof v. Bonser, 769 A.2d 339 (N.H. 2000)

(Editor’s Note: Technology changes so quickly nowadays that it’s sometimes hard to keep up. To help with this, Westlaw Insider will be looking at recent developments and updates in social media law and cyberlaw throughout the month of May.)

For the first week’s post on a Facebook “Like” not being expressive, click here.

For the second week’s post on personal jurisdiction and Facebook, click here.

Or, at least, they aren’t protected in this case.

The court actually ruled that whatever was deleted off of the owner’s iPhone and iPad wasn’t protected since the owner didn’t actually specify what was deleted (but the facts make it pretty obvious what was deleted).

Here’s what happened.

Former employees of a law firm sued the law firm and the owner, Jeremiah Johnson.

The plaintiffs – all of them female – alleged that Johnson required them to wear skirts in the office.

The policy wasn’t only a matter of maintaining office decorum, according to the former employees.

Instead, the plaintiffs allege that Johnson used an application on his iPhone and iPad to conduct video surveillance of the area beneath a particular desk in the office such that he “secretly obtained video recordings of plaintiffs’ legs, lower torsos and undergarments.”

Johnson counterclaimed for violations of the Computer Fraud and Abuse Act, alleging that the former employees accessed Johnson’s iPhone and iPad in violation of the CFAA and deleted data from those devices.

The CFAA is a federal law that makes it a crime to intentionally access a computer without authorization or to exceed authorized access, and thereby obtain or modify information from any “protected computer” (check out this post for a little more information on the act).

The CFAA provides a civil cause of action for those violations under specified circumstances, and the one that Johnson is citing as grounds for his counterclaim applies if he lost at least $5,000 because of the violation.

As I mentioned above, he didn’t specify exactly what data was deleted by the plaintiffs, nor did he specify how he actually sustained the loss, so the court granted the plaintiffs’ motion to dismiss the counterclaim.

It should be pretty obvious by now why Johnson didn’t specify what was deleted off of his iPhone and iPad (hint: the upskirt videos of the former employees), but what’s less obvious is whether – had Johnson actually specified what was deleted – his counterclaim would have been successful.

Strictly speaking, the former employees did violate the CFAA (at least, its criminal provisions), though it is highly unlikely that, if the women were indeed only accessing Johnson’s devices to delete the secret videos, they would be formally charged.

The success of the civil cause of action would hinge on whether there was actually a $5,000 loss from what was deleted.

We could get into all kinds of potential scenarios involving schemes to sell the videos over the Internet, or Johnson himself valuing the videos in excess of $5,000, but all of those situations either involve additional legal liabilities for Johnson or just make him look even creepier.

If Johnson was willing and able to allege, arguendo, what was deleted and that it was worth over $5,000, he may have actually had a sound legal claim against the former employees (whether a judge would actually rule for him is a different story).

Regardless, though, even though it caused the dismissal of his counterclaim, not stating what was deleted from his iPhone and iPad was probably a smart move on Johnson’s part.

On the other hand, it would have been a smarter move if the videos were never created in the first place.

Not withstanding the right of a law school to refuse a contumacious student his degree, he is entitled to a certificate of attendance and that he passed a satisfactory examination.
People ex rel. O’Sullivan v. New York Law Sch., 22 N.Y.S. 663 (Gen. Term 1893)

It’s said you can find anything in New York City. 

Various courts and administrative agencies have jurisdiction over businesses that operate trucks and their drivers.  Beyond simply handling their traffic tickets, trucking firms need knowledgeable and effective counsel to respond to situations as they arise and to help them to avoid future enforcement activity.  Clients call with issues ranging from A to Z: air emissions to zoning, and everything in between.

To thrive in this specialized market, I’ve learned several lessons that are applicable to any niche practice:

1. Know your market: My client base ranges from large national firms to individuals with a single truck.  But their objectives are largely the same:  A citation or notice of violation is a nuisance.  They want it disposed of with the least amount of effort and at a reasonable, predictable cost.  They don’t want their drivers to kill a day in court.  They don’t want their drivers’ licenses or the company’s safety rating to be impacted.  They want to know how to prevent future violations. And they want to learn of developments that might impact their operations
2. Know the players:  Of course its important to know the different judges and enforcement personnel.  But its also invaluable to know who to call if you have a question.  Most enforcement agents are happy to explain agency rules and policies.  Some even give classes or perform mock inspections.  Get to know the attorneys and non-legal people who practice in this area.  Some may cover areas you don’t. Someone may be a referral for an area that they don’t handle. Or, sometimes someone will cover a case for you when you have to be in three different courts at the same time.
3. Know the law:  That’s true in any practice.  Reread the laws relevant to your practice area frequently.  In a high volume court or agency tribunal, its easy to overlook essential legal elements of the matter to be resolved.  Also, watch for changes in agency rules and enforcement trends.  Monitor proposed local laws and stay on top of local news to keep abreast of issues of interest.  And read whatever trade publications you can get your hands on.
4. Network, Network, Network:  Of course there’s a networking component to each of the preceding paragraphs.  Join and become an active participant in relevant trade associations and chambers of commerce.  By active I mean “get involved”.  Join a committee.  Speak at a symposium.   Write for their newsletter.  Go with them when they call on City Hall or the State Capital.  Networking with other attorneys is very important.  And, always, tell everyone about your specialty.  You never know when someone might need your specialized services.

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Publish Your Cases

Parties to a settlement benefit by immediately resolving the litigation and receiving some measure of vindication for their positions while foregoing the opportunity to achieve an unmitigated victory; thus, the parties to a settlement will not be heard to complain that the relief afforded is substantially less than what they would have received from a successful resolution after trial.
In re AT & T Mobility Wireless Data Services Sales Litig., 270 F.R.D. 330 (N.D. Ill. 2010)

A fierce battle is underway for control of the booming electronic book market. 

Amazon, Apple, and the traditional book publishers are struggling to establish pricing and revenue-sharing structures that advance their competitive interests.

The U.S. Department of Justice recently charged Apple and five of the largest book publishers with antitrust law violations, alleging that the group conspired to keep e-book prices unreasonably high.

In the early days of the electronic book market, e-book pioneer, Amazon, established a $9.99 price point for the most popular e-books. 

Later, Apple altered the e-book pricing model, negotiating “agency” pricing systems with the publishers, which permitted publishers to set prices for e-books distributed through Apple’s iBooks system if they agreed to pay Apple 30 percent of the e-book revenues.

The agency pricing approach has led to higher prices for popular e-books, now often sold for $12.99 or $14.99.

The Justice Department alleges that the collusion over pricing led publishers to favor Apple over Amazon. 

The Department also claims that consumers were harmed as a result of the resulting higher e-book retail prices.

Publishers responded by alleging that Amazon’s pricing structure sells e-books at prices that are below cost.

Apple and the publishers face a similar antitrust action launched by the European Commission.

An additional antitrust suit was also filed by 16 states.

Three of the book publishers named as defendants by the Department of Justice agreed to a settlement to resolve the claims.

The settlement permits publishers to set the retail prices and to receive 70 percent of the e-book revenues.

E-book retailers are permitted to offer discounts; however, the total annual value of the discounts for all e-books can not be greater than the 30 percent of revenues earned by the retailers from their sale of all e-books.

The Justice Department anticipates that the settlement will result in lower prices for consumers, while preventing anti-competitive below cost pricing. 

Apple and two of the other defendants have not accepted the settlement terms.

Book publishers face dramatic changes in their business model as a result of evolving technology. 

Just as the music, television, and motion picture industries are wrestling with new distribution systems and rapidly changing expectations of their customers and their business partners, so too is the print publishing industry struggling through a time of dramatic upheaval.

Expect the antitrust and competition law disputes to continue well into the future as the publishing sector works to come to grips with the new realities of creative content development and distribution in the digital environment.

For example, in the Contracts topic, there is a subdevelopment (I) called Requisites and Validity. Within that subdevelopment there is a further subdevelopment (D) called Consideration. Within that subdevelopment there are dozens of Key Numbers devoted to the various issues pertaining to contractual consideration.

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