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

Mon, Jun 7th 2010 2:26am — Mike Masnick

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.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: breach, harm, privacy
Companies: the gap

18 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 7 Jun 2010 @ 3:12am

Where the hell are last Monday's posts? I can't find any.
[ link to this | view in thread ]
Beverly Crandon, 7 Jun 2010 @ 3:48am

Google may be different
With much government agency chatter about Google's so called 'monopoly ', privacy issues may not go away as easy for them. We should also remember that many of the countries where privacy suits exist for Google are also areas where groups have lobbied government, for some reason or other, to close down Google.
Don't get me wrong - I don't agree at all, but just sayin' that Google may have a harder time when it comes to putting privacy issues to bed.
[ link to this | view in thread ]
Anonymous Coward, 7 Jun 2010 @ 4:26am

No harm no foul. In the case of copyrights, its much more difficult to show harm and the court may just assume it. Common law and statutory law is different for torts and intellectual property.
[ link to this | view in thread ]
fogbugzd (profile), 7 Jun 2010 @ 5:54am

Re:
Last Monday was a major US holiday, so "weekend rules" probably applied. In other words, no new blogs are posted, but people can still comment.

I am guessing that you didn't notice until you sat down to write your monthly report about how many AC astroturf and FUD posts you made on your employer's behalf each day.
[ link to this | view in thread ]
out_of_the_blue, 7 Jun 2010 @ 6:31am

Public loses rights in both examples.
Just look for the common element and there's no contradiction: police state is moving ahead in both areas.
[ link to this | view in thread ]
abc gum, 7 Jun 2010 @ 6:47am

The Gap & others like them
Yep - no harm, no foul.
And there is no reason for the leak to be addressed by those in a position to fix it because apparently it is not a problem and therefore not something to spend any hard earned cash upon.
Business as usual, damn the poor security, full speed ahead.
[ link to this | view in thread ]
Peter (profile), 7 Jun 2010 @ 6:55am

why damages are available for copyright infringement without proof of harm
If the legislature sees fit to allow damages even in the absence of proof of harm, it can do so. And Congress has done so in the Copyright Act. There is no statutory provision for damages in the absence of proof of harm for the privacy violations that are the subject of the post. Thus, the default legal rule applies: no proof of harm, no damages (or, as AC#2 has it: no harm, no foul).
[ link to this | view in thread ]
WammerJammer (profile), 7 Jun 2010 @ 7:29am

No Gap Crap
Don't shop there! Ignore them. If you don't like a companies actions, boycott them. That shouldn't be hard with the Gap! My 2 kids call it Gap Crap here in California and would rather wear Target than to be caught in uncool Gap clothes. So who shops there anyway?
I agree with the general consensus on this blog about No Harm, No Foul. Of course if you can prove harm in any way you have a case.
In the case of copyrights: The copyright is supposed to protect your right to earn income from your copyrighted work. Of course this is not the only right you receive but that is enough to make the court take notice in a Capitalist society. Any loss of income for any reason is grounds for suit.
[ link to this | view in thread ]
Anonymous Coward, 7 Jun 2010 @ 7:39am

Re: why damages are available for copyright infringement without proof of harm
It seems to me that a requirement to show a NET monetary harm in order to allow monetary damages would be a good fix for many copyright problems. So if I start a bootleg publishing service I can (and should be) sued big time. On the other hand, if I quote you in my own writing, or sample your music for my own derivative art it would be hard to demonstrate monetary harm, especially if my work draws attention to your work and generates more sales for you. Including the net monetary reward would encourage people to cite and give credit for the work that inspired them.
[ link to this | view in thread ]
Anonymous Coward, 7 Jun 2010 @ 7:40am

"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."

I think if a corporate trade secret was leaked by an individual harm would almost certainly be assumed. The key here involved who is being protected and who is not. Copyright is mostly for evil rich corporations so the judges tend to favor it. Personal privacy breach suits against a big corporation to protect individuals isn't likely to lead anywhere. Google, which is hated by most big corporations, might be a different story. Yes, the courts will find other excuses and reasons, but the reason the judgments may reflect my opinion is simply because there truly is a double standard. But the judges obviously won't admit it. Remember, the corporation (criminal) has more rights than the individual.
[ link to this | view in thread ]
Anonymous Coward, 7 Jun 2010 @ 7:40am

Re:
the victim *
[ link to this | view in thread ]
Anonymous Coward, 7 Jun 2010 @ 7:43am

Re:
If harm is much less likely for copyright then it should be much more difficult to show harm.
[ link to this | view in thread ]
Anonymous Coward, 7 Jun 2010 @ 7:45am

Re: The Gap & others like them
"And there is no reason for the leak to be addressed by those in a position to fix it"

Exactly, these court decisions are bad ones because they give corporations less incentive to implement security measures ensuring that critical private personal data isn't leaked.
[ link to this | view in thread ]
abc gum, 7 Jun 2010 @ 8:13am

Re: No Gap Crap
"If you don't like a companies actions, boycott them."

This is true in a market where there is competition ....
[ link to this | view in thread ]
fogbugzd (profile), 7 Jun 2010 @ 8:46am

Re:
>>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.
[ link to this | view in thread ]
Anonymous Coward, 14 Jun 2010 @ 8:51pm

Re: Re:
I don't post FUD posts for anyone. I mostly agree with what Techdirt posts in the way of opinions. You must have me confused with a different anonymous poster.

As for a major holiday, I noticed none. It was business as usual that day.
[ link to this | view in thread ]
JJ, 14 Jun 2010 @ 10:37pm

Re: Re: Re:
> As for a major holiday, I noticed none. It was business as usual that day.

http://en.wikipedia.org/wiki/Memorial_Day
[ link to this | view in thread ]
sprearson81 (profile), 9 Jun 2012 @ 6:58am

Wish it was a holiday.
[ link to this | view in thread ]