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Key Privacy Law Developments

By Jay Edelson and Chandler Givens
February 28, 2014

Earlier this year, President Obama addressed the nation to outline steps he will take to rein in the surveillance activities of the National Security Agency in the wake of the Edward Snowden leaks. During his speech, Obama noted that “challenges to our privacy do not come from government alone. Corporations of all shapes and sizes track what you buy, store and analyze our data, and use it for commercial purposes.” The President's remarks were the culmination of a year in which consumer privacy issues have roared into the public narrative, and they underscore a theme that privacy lawyers had already sensed about their practice by the end of 2013: The tide is changing.

Throughout the past decade, courts have mostly been reluctant to rule in favor of consumers litigating over technology-related privacy invasions. Among the hurdles that judges have pointed to in their rulings are: 1) a lack of Article III or statutory standing; 2) failure to show damages; and more generally 3) skepticism about applying now-antiquated federal and state privacy laws to new technologies. In hindsight, these rulings were understandable given the opacity surrounding the tech industry's data mining and analytics practices.

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