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Dante Stella is a creative, logical, and efficient problem solver who focuses his practice on litigation and investigations that involve challenging legal, factual, and data management issues. He also provides non-litigation counseling to clients on information lifecycle management, information infrastructure, and electronic discovery readiness planning.

This year may prove to be one in which the concepts of privacy vis-à-vis the government and private concerns may converge. In 2018, the United States Supreme Court ruled in Carpenter v. United States, 138 S. Ct. 2206 (2018), that individuals have an expectation of privacy in cell-tower locations, and consequently, the government must obtain a warrant to retrieve that location data from a carrier. The 5-4 decision held that cell tower data is subject to Fourth Amendment protections because it implicates an individual’s “legitimate expectation of privacy in the record of his physical movements.” The Court also noted that the data is “detailed, encyclopedic, and effortlessly compiled,” id. at 2216, and that functioning in modern society does not allow people to simply opt-out of using mobile devices:
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The California Consumer Privacy Act (“CCPA”), Cal. Civ. Code 1798.100-199, presents some interesting questions for mobility businesses and service providers that handle data developed or transmitted by vehicles. Although the CCPA was passed with an effective date of January 1, 2020, the regulations implementing it are still in flux—and are on their second iteration. But whether final regulations are in place or not, enforcement by the California Attorney General’s office could start as early as July 1, 2020.  Because the CCPA provided only limited exemptions for information collected by the automotive industry—information collected under the Driver’s Privacy Protection Act of 1994 and certain information developed and exchanged by new auto dealers and vehicle manufacturers in connection with warranty work or vehicle/part recalls—significant questions remain as to how the CCPA will be applied to the mobility industry.

For the past hundred or so years, most vehicles did not have the electronic brains to require a CCPA “gut check.” When electronics made their debut in automobiles, tools like OBD allowed vehicles to store diagnostic codes, and eventually event recorders (now regulated by the Driver Privacy Act of 2015) recorded pre-accident conditions. Telematics began to change the picture in the late 1990s, with automobiles transmitting information to central locations using cellular (and now wireless) technology. Modern connected vehicles can collect vast amounts of data when driven—and they can pass large amounts of it to manufacturers and service providers. And even when they are not actively transmitting this information, such information can be extracted from vehicles by service personnel. SAE Level 4 and Level 5 autonomous vehicles will necessarily be more dependent on connectivity both to central data sources and to each other—and can be expected to drive an explosion in data transmitted and analyzed on a central basis. Some of this will be regulated by data privacy laws, such as the CCPA, despite the above noted exceptions for automotive information.
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Hackers delight in targeting U.S. companies during the holiday season triggering a year-end spike in cyber-attacks, with Carbon Black reporting a 57.5 percent increase in attempted cyber-attacks during past holiday seasons. This year we can expect that threat actors across the globe will remain online throughout the holiday season, looking to capitalize on the distraction of the holidays and the increased internet traffic that comes with online holiday shopping.

Accordingly, now, more than ever, companies should remain alert to the possibility of a cyber-attack on their information systems, especially ransomware attacks, which have more than doubled this year alone according to McAfee Labs. The FBI has also gone so far as to issue a private bulletin to automotive companies warning of “a wide range of cyber threats and malicious activity in the near future,” according to an FBI report obtained by CNN. The FBI indicates that cyber-attacks “have resulted in ransomware infections, data breaches leading to the exfiltration of personally identifiable information, and unauthorized access to enterprise networks.” 
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Cookies are the subject of much discussion in data regulation. If you visited a website that complies with the European General Data Protection Regulation (GDPR), you have seen the usual cookies popup. Maybe you wondered why this is necessary. At a basic level, the use of cookies is regulated by GDPR and the California Consumer Privacy Act (“CCPA”), and concerned site owners. Conventional knowledge (and in many cases practice) is that cookies should be disclosed—and that non-essential cookies, particularly those involved in advertising, require consent.

What exactly are cookies?

The “what” is known. The “why” is rarely discussed. The term “cookies” has its roots in magic cookies—identification tokens – in UNIX. Web cookies made their appearance in 1994 with Netscape Navigator 0.9 beta—in other words, the beta of the first commercialized web browser. This technology, which was once patented(!) involves data that is placed on a user’s computer in response to a user action. That information can then be read by the site later. It was first designed for use in shopping carts—so that a commercial website would not have to create an ID and store shopping selections unless and until a user decided to buy. Cookies were recognized by Internet Explorer 2 by 1995, they hit the media in 1996 in the Financial Times, and in the same year, the Federal Trade Commission began public hearings on them. Just as they have always been a part of the internet landscape, so have they been controversial. 
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While U.S. companies focused on the imposition of burdensome data protection laws being implemented overseas, California was hard at work on revamping its own laws. As of June 25, 2018, the home of big technology, Silicon Valley, Facebook, and Google, was prepared to consider the California Consumer Personal Information Disclosure and Sale Initiative (“Initiative”) on the November 2018 ballot. The Initiative sought to enact a version of the California Consumer Privacy Act of 2018, requiring businesses to disclose, on a consumer’s demand, the personal information a business collects, the purpose for which it is used, and to whom it is sold or shared with. The Act also allows individuals to restrict the sharing of their information. Finally, the Act provides a simple path to recovery for violations. Although companies like Facebook and Google dropped their opposition to the Initiative, concerns remained among the business community, so California lawmakers stepped in.
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Congress’ 2,000-page Omnibus Spending Bill slipped in a trap for the unwary: a radical expansion of the reach of the Stored Communications Act, 18 USC §§ 2701-2712. The “Clarifying Overseas Use of Data Act,” aptly shorthanded as the CLOUD Act, successfully mooted the issue presented in the United States v. Microsoft Corp. case recently dismissed by the United States Supreme Court by instituting a new framework for cross-border discovery in criminal actions. Under the previous version of the Stored Communications Act (SCA), it was necessary to have a Mutual Legal Assistance Treaty (MLAT), essentially a treaty negotiated by a foreign nation and ratified by the Senate. The CLOUD Act, passed on March 23, 2018, allows authorities to bypass MLATs and gives law enforcement the ability to directly compel production of materials by a party storing its data abroad, as well as allowing foreign governments to access data stored in the U.S. 
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