Solove & Hertzog on the FTC and Privacy and Security Duties for the Cloud

Daniel J. Solove of George Washington and Woodrow Hartzog of Samford's Cumberland Law School and Stanford Law School's Center for Internet and Society have written The FTC and Privacy and Security Duties for the Cloud, 13 BNA Privacy & Security Law Report 577 (2014). Here's the abstract:

Increasingly, companies, hospitals, schools, and other organizations are using cloud service providers (and also other third party data service providers) to store and process the personal data of their customers, patients, clients, and others.  When an entity shares people’s personal data with a cloud service provider, this data is protected in large part through a contract between the organization and the cloud service provider.  In many cases, however, these contracts fail to contain key protections of data.  Because the consumer is not a direct party to these contracts and often cannot even have access to these contracts, the consumer is often powerless, and the consumer’s interests are often not adequately represented.  

In this short essay, we argue that there is a remedy in Section 5 of the Federal Trade Commission (FTC) Act that prohibits unfair and deceptive trade practices.  Certain key cases from the emerging body of FTC enforcement actions on data protection issues can be read together to create a double-edged set of duties – both on the organizations contracting with cloud service providers and on the cloud service providers themselves.  Not only does an organization owe a duty to consumers to appropriately represent their privacy and data security interests in the negotiation, but cloud service providers have an obligation to the consumer as well, and cannot enter into contracts that lack adequate protections and controls.

 

Congratulations to CL&P Blog contributor Paul Bland, new Executive Director of Public Justice

Read about it here.

Percentage of Americans without health insurance is dropping dramatically

Here.

Third Circuit denies en banc rehearing request in Carrera class-action "ascertainability" appeal

With four judges dissenting from en banc rehearing and the three original panel members explaining why they think they were right the first time around. Read today's opinions here. The dissenters, in an opinion written by Judge Thomas Ambro, say that the federal rules committee should take up the issues raised by the panel's decision.

For our previous discussions of Carrera, go here, here, here, and here.

Standing up for online privacy (finally), major tech companies to notify users of planned government snooping

Apple, Google, Microsoft and Facebook are going to start telling us when the government wants our online data. The government, predictably, isn't happy. The Washington Post has the story.

Important decision on federal rule amendments favors the "little guy" versus corporations

Many people's eyes probably start to glaze over at the mention of amendments to the Federal Rules of Civil Procedure. But a recent action by the federal Advisory Committee on Civil Rules bears mentioning, and not just for civil procedure nerds.

Stark Gender Disparities in Income Shown in Law Firm Survey

That's the title of this article by Katelyn Polantz. The survey says that big private law firms have the greatest disparities, and with smaller private firms have smaller disparities, with men making more than women in both settings. But there's this:

Public interest law and solo ­practices were the only job settings where the median income for women, at $90,000 in public interest and $65,000 in solo, outpaced men, at $70,000 and $60,000, respectively.

So, it's not just that public-interest lawyers have way more fun.

How much do district court judges tell us about the ideology of a President's appointees?

Earlier this month, the Washington Post blogged about a study purporting to show that President Obama’s judicial appointments are (in the words of the headline) “liberal, but not that liberal.” That may well be a fair characterization; anecdotally, it sounds right. But the study purports to do something much more serious than give an off-the-cuff subjective judgment: the study renders this conclusion as an empirical finding. Specifically, the authors, Professors Robert A. Carp (University of Houston) and Kenneth L. Manning (U. Mass.-Dartmouth) analyzed decisions by district court judges from 1933 to the present in order to render conclusions about the overall liberalism of President Obama’s appointees as compared with the appointees of previous Presidents.

The selection of this sample is dubious; as a result, the study does not demonstrate what it purports to demonstrate. The problem is that the authors chose to analyze the decisions of district court judges, who are the most constrained decisionmakers in the federal judicial hierarchy.

No longer too big to jail?

As the New York Times reports today,

Federal prosecutors are nearing criminal charges against some of the world’s biggest banks, according to lawyers briefed on the matter, a development that could produce the first guilty plea from a major bank in more than two decades.

The two banks highlighted are foreign banks, BNP Parabas and Credit Suisse, but the article suggests that U.S. banks are under investigations that aren't yet as far along.

The story cautions that despite the new aggressive approach by Attorney General Holder and U.S. Attorney for the Southern District of New York Preet Bharara, "[d]epending on the regulator — American and European banks are divided among a patchwork of agencies in New York and Washington — the path to filing charges could still be difficult."

Read the whole story here.

 

Congressional investigation of race-discrimination claims against the CFPB ramping up

Here.