ECPE Agenda

Thursday, October 13, 2011


8:30-9:00 Registration and Continental Breakfast


Welcome by Professor Jennifer Urban
9:15-10:15 Tutorial 1: Internet Technology for Privacy Lawyers
Christopher Soghoian

Internet advertising has become incredibly complex, so much so that only industry insiders know how the technologies work. Familiarity with the technology and how to present it simply to a court is key to privacy claims. This session will be led by Christopher Soghoian, a former FTC staff technologist who investigated advertising companies for prosecution by the federal government.

10:15-10:45 Tutorial 2: US Privacy Law Fundamentals
Chris Hoofnagle The US protects privacy differently from all other nations.  The US system is sectoral, lacking generally-applicable privacy laws.  This session will outline the esoteric nature of privacy law in the country, and highlight lesser known causes of action that could be used to vindicate privacy rights.
10:45-11:15 Networking break
11:15-12:15 Panel 1: Understanding and Proving Privacy Harm

Rosemary Rivas
James K. Green
Moderated by
Prof. Paul M. Schwartz

The common law requirement of harm for recovery is being imposed even in cases where statutes grant individuals recovery absent harm.  Thus, plaintiff attorneys need theories and narratives of harm in order to succeed in statutory and common law actions.  Participants will also discuss cases where plaintiffs have obtained rulings that a statute has liquidated damages, or who have successfully navigated the problem courts dismissing claims because of the risk of “annihilation damages.”
12:15-1:30 Lunch
1:00-1:15 Consumer Privacy Complaint Tool
Beth Givens
Meghan Bohn
Beth Givens and Meghan Bohn of the Privacy Rights Clearinghouse will discuss their efforts to mobilize knowledge about consumer complaints to activists and litigators.
1:30-2:45 Panel 2: Class Action Discussion
Leslie A. Bailey
Monique Olivier
Moderated by
Prof. Ted Mermin
The Supreme Court’s decisions in Wal-Mart v. Dukes and AT&T v. Concepcion pose new challenges to those wishing to vindicate wrongs against consumers.  This discussion will focus upon the fallout from these cases, strategies to collectivize consumer complaints, and the economics of funding consumer cases.  
2:45-3:15 Networking Break
3:15-4:15 Tutorial 3: Key Privacy Statutes—The CFAA
David Stampley

The ever-expanding federal Computer Fraud & Abuse Act has become the vector for almost all suits concerning internet tracking technologies.  This is a complex statute, with many circuit splits on its interpretation.


Friday, October 14, 2011

8:45-9:15 Breakfast
9:15-10:00 Tutorial 4: California's Privacy Law
Joanne McNabb

California has the most aggressive privacy laws in the country, many of which have private rights of action, have liquidated damages, and create barriers to the alienation of privacy. This session will focus upon California's statutory framework for protecting privacy.

10:00-11:00 Tutorial 5: Key Privacy Statutes - The Anti-Marketing Laws
Daniel Balsam
Timothy Walton
These laws regulate how advertisers can use personal information and appliances to directly contact consumers.  They are the basis for many claims, especially in light of the fact that the TCPA’s facsimile provisions may be applicable to text messaging and other wireless-phone based marketing.  CAN-SPAM regulates how email addresses are collected, which is relevant in light of recent news that drug companies are scraping the content of message boards to learn the identities of individuals discussing their health issues.
11:00-11:30 Networking Break
11:30-12:30 Tutorial 6: Key Privacy Statutes - FCRA and Background Check Problems
Evan Hendricks

Increasingly, consumers are being asked to submit to a background check for access to employment, insurance, and utilities. These checks are subject to the Fair Credit Reporting Act, the nation's first information privacy law. The FCRA is complex and has 40 years of caselaw interpreting it. It can address issues such as consumer blacklists, where business share information in order to eliminate or discriminate against certain consumers. This session will focus problems with credit reporting errors (such as mixed files and identity theft) and upon background checks.

12:30-1:30 Working Lunch
12:45-1:15 Tutorial 7: Emerging Issues
Prof. Deirdre Mulligan
Prof. Brian Carver
This discussion will cover emerging issues in consumer privacy, and will be led by two experts in technology and consumer protection, Professors Mulligan and Carver.
1:30-2:30 Tutorial 8: Key Privacy Statutes - ECPA
Kevin Bankston

This complex, 1986 law governs how public and private entities can gain access to communications data, a key issue in recent cases such as the Google Buzz lawsuit, where it was alleged that the disclosure of individuals’ contacts to third parties violated the ECPA and other laws.  As with other federal privacy laws, ECPA has specific consent requirements, which may invalidate waivers that appear in EULAs.

2:30-2:45 Networking Break 
2:45-3:45 Panel 3: Ethics --Protecting Plaintiff Privacy as a Litigant
Colette Vogele
Chris Ridder
Individuals who sue to vindicate their privacy rights often fall victim to the “Streisand” effect.  The very fact of their lawsuit cases newspaper and bloggers to invade their privacy further and inspect their lives in all regards.  This Streisand effect causes many victims of privacy violations to not vindicate their rights.  There are techniques to shield the privacy of plaintiffs, but they are not well known among attorneys.
3:45-4:00 Closing Remarks