“The court is raising the level of the expectation of privacy in data closer to that of someone’s own human body and further away from that of human property, essentially creating a new standard for data and information,” Shawn E. Tuma of Texas-based law firm BrittonTuma said Monday. “Now, if someone is carrying trade secrets or other intellectual property in a device that is seized at the border, that will have a higher expectation of privacy than other property.”
The impact of this new standard on data breach litigation could extend beyond border issues. According to attorneys, courts often dismiss these suits, finding the plaintiffs didn’t suffer any damages in losing control of their personal data.But if more followed the Ninth Circuit’s example, plaintiffs could gain a stronger argument on the value of compromised or misused information, Tuma noted. And employees could use the decision to oppose policies that allow their employer to search personal devices used for business purposes.
“I can see … an argument based on this case, saying that because the Ninth Circuit found that devices at the border are entitled to a greater expectation of privacy, employers should be held to the same reasonable suspicion standard before being allowed to search employee devices,” Tuma said.
Here is a link to the full article: http://www.law360.com/articles/422542/9th-circ-pioneers-laptop-search-limits-in-border-case
Tuma provided more explanation of these data privacy implications in two other posts:
Shawn Tuma is an attorney who is internationally recognized in cybersecurity, computer fraud and data privacy law, areas in which he has practiced for nearly two decades. He is a Partner at Spencer Fane, LLP where he regularly serves as outside cybersecurity and privacy counsel to a wide range of companies from small to midsized businesses to Fortune 100 enterprises. You can reach Shawn by telephone at 972.324.0317 or email him at firstname.lastname@example.org.
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