by Mike Masnick

Filed Under:
breach, harm, privacy

the gap

Once Again, Court Says If There's No Real Harm, There's No Legal Recourse For Privacy Breach

from the why-doesn't-that-apply-elsewhere? dept

Way back in 2006, we noted a series of cases where people had brought lawsuits over claimed "privacy" breaches, involving lost or leaked data, where the courts repeatedly ruled that if there was no evidence that the leaked data was used for nefarious purposes, there was no case. Odd that this applies to things like privacy, but when you see a similar situation with copyright, no one ever has to show any actual harm. Either way, it looks like courts are continuing to follow this particular line of thought, as a lawsuit against Gap for losing private data has been rejected under the same line of thinking. This also almost certainly means that all those class action lawsuits against Google for possibly collecting some WiFi data, are completely dead in the water. In those cases, the plaintiffs don't even show any evidence that their data was collected, let alone give any proof of harm.

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  1. icon
    fogbugzd (profile), 7 Jun 2010 @ 8:46am


    >>I think if a corporate trade secret was leaked by an individual harm would almost certainly be assumed.

    There are several problems that would make even the leak of a trade secret claim hard to enforce.

    1) To enforce a trade secret claim you usually have to demonstrate that you made reasonable efforts to keep the information secret. Putting unencrypted data out over an unsecured wifi connection would seem to be prima facia evidence that the company failed this test.

    2) The data was picked up during a van driving by. It is likely that only some isolated packets are picked up. A chuck out of the middle of a document is most likely to be of limited usefulness.

    3) If google just captured the data, dumped it on a hard drive, and never used the data then it would be hard to prove that any harm was done. Google didn't even realize that it had the data. Ironically, the damage would actually result from governments demanding that Google turn over the documents. Now a freedom of information type of request or a grandstanding politician could put it out in the public forums. Governments should have just asked Google to destroy the information. Of course, that ends the media gravy train for the politicians.

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