Daniel Solove

[Commentary] The Federal Communications Commission Internet service provider privacy rules had many reasonable protections. Judging from the extensive media attention and negative public reaction, it strikes many people as creepy and wrong for ISPs to share their browsing history or health information without affirmative consent. Given these sentiments, I don’t think that repealing the FCC rules will be the last move.

[Daniel J. Solove is a professor at George Washington University]

[Commentary] Recently, the US Court of Appeals for the 9th Circuit issued a decision with profound implications for consumer privacy protection law. In FTC v. AT&T Mobility (9th Cir. Aug. 29, 2016), a 3-judge panel of the 9th Circuit held that the Federal Trade Commission (FTC) lacks jurisdiction over companies that engage in common carrier activity. The result is that there is now a gaping hole in consumer privacy protection law.

Ironically, if this decision isn’t reconsidered and if this hole isn’t patched up, the result will not be a great boon for companies falling outside of FTC regulation. Instead, in the long run, these companies will likely be much worse off. Everybody will lose — consumers and industry. There is nothing good about the 9th Circuit decision, which is foolhardy and naive, the product of abstract musings in the clouds without sufficient consideration of the consequences.

[Daniel Solove is a profess at George Washington University School of Law]

[Commentary] Suppose your personal data is lost, stolen, improperly disclosed, or improperly used. Are you harmed?

Suppose a company violates its privacy policy and improperly shares your data with another company. Does this cause a harm? In most cases, courts say no. This is the case even when a company is acting negligently or recklessly. No harm, no foul.

[Solove is Professor of Law at George Washington University]

[Commentary] The US Supreme Court handed down a decision on two cases involving the police searching cell phones incident to arrest. The Court held 9-0 in an opinion written by Chief Justice Roberts that the Fourth Amendment requires a warrant to search a cell phone even after a person is placed under arrest.

The two cases are Riley v. California and United States v. Wurie, and they are decided in the same opinion with the title Riley v. California. I applaud the Supreme Court's decision.

The Court's reasoning in Riley suggests that perhaps the Court is finally recognizing that old physical considerations -- location, size, etc. -- are no longer as relevant in light of modern technology. What matters is the data involved and how much it reveals about a person's private life.

If this is the larger principle the Court is recognizing today, then it strongly undermines some of the reasoning behind the third party doctrine.

[Solove is the John Marshall Harlan Research Professor of Law at George Washington University Law School]