2011 Seems to be the Year of On-Line Privacy Laws…Finally


One day after an internet privacy bill was introduced in the senate, one was introduced in the house. The senate bill called the Commercial Privacy Bill of Rights introduced by Sens. John F. Kerry and John McCain includes measures to address consumer concerns that their sensitive data could be misused. The senate bill does not however include the “Do Not track” provision asked for by many. The unrestrained collection and sale of our data and on-line habits to retailers and others have raised wide concern.

The house bill, referred to as “the Consumer Privacy Protection Act of 2011” was introduced by U.S. Rep. Cliff Stearns. The Stearns bill would require web sites to clearly state what personally identifiable information is being collected and how it is used. If a consumer opts out from having his information collected, the opt-out will last for five years unless the consumer changes his mind before then.

“The Consumer Privacy Protection Act of 2011” bill joins another House bill introduced in February by Congresswoman Jackie Speier, Democrat from California, that also targets privacy issues. Speier’s “Do Not Track Me Online Act of 2011” directs the FTC to develop a “do not track” mechanism that allows consumers to opt out of having their data collected, used or sold. The California State Legislature also is considering a bill at the state level that would give consumers more control over how their online behavior is tracked and shared with marketers and retailers.

What do these potential laws mean to consumers? Well, if one or more of them are finally passed into law, your electronic footprints, habits and on-line purchasing information will not be sold to organizations that you don’t know and don’t approve of. These types of laws need to be passed into law so the average consumer is not afraid to utilize all aspects and capabilities of our electronic frontier.

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French Email Privacy Restrictions Not Always FRCP Obstruction


The two blog entries below point out some slightly different views of an interesting case about employee email privacy decided in France on Dec 15, 2009. The case was: Bruno B. vs. Giraud et Migot, Cour de Cassation, Chambre Sociale, Paris, 15 Dec. 2009, No. 07-44264

http://chrisdale.wordpress.com/2010/02/22/the-extent-of-te-right-to-privacy-in-french-employee%E2%80%99s-e-mails/

http://www.hhdataprotection.com/2010/02/articles/litigation/new-french-case-removes-automatic-privacy-shield-from-employee-emails-making-them-more-amenable-to-us-discovery/

From the Hogan & Hartson blog: The French high labor court (the Cour de Cassation Chambre Sociale) may have provided some grounds for arguing that a party in France can review a French employee’s e-mails and electronically stored information to determine whether the data is relevant to a U.S. litigation, without the employee’s knowledge or presence.  This is a significant development in the perennial tension between EU privacy law and U.S. discovery principles.

French employee privacy protection policies usually block U.S. FRCP eDiscovery requests that request French employee email for a case in the United States.  This case, on the face of it, seemed to set a precedent in the ruling saying the employer could review French employee email and ESI without the employees knowledge.

From the e-Disclosure Information Project Blog: There is no doubt, however, that many will use it as a reason to ignore everything they have heard about EU privacy. The case may well have implications for US litigants, but I do not think that a single Labour Court case in which an employee neglected to mark private e-mails as such will open the floodgates to FRCP discovery. It’s most likely consequence, I suspect, is that all French employees will start marking the e-mails” Private”, making it harder rather than easier to discriminate between those which are and those which are not genuinely private.

The bottom line for this case was this; the French employee’s email and ESI was searchable and reviewable without the employee’s approval or knowledge because the documents had not been marked as “Private” by the employee. My guess is that French employee committees will quickly instruct French employees on the proper marking of all emails and ESI as “Private”.