Privacy related legal issues are constantly in flux, particularly at the level of the myriad of courts now confronting such issues that seem to continually proliferate. Cases analyzed because they are noteworthy to the public writ large and especially germane to the actual practice of law have often yet to reach final judgment, and thus subsequent developments require further explication. For instance, subsequent to a discussion in this column of a California state court requiring that the sole predicate to the search of a cell phone incident to arrest was a finding that such cell phone was “immediately associated” with such person, the U.S. Supreme Court took the case and decided it later in the summer. See Riley v. California, 134 S. Ct. 2473 (2014) (unanimous court holds such search in violation of the Constitution in part because greater privacy concerns are involved with large data repositories such as cell phones).
While the Supreme Court has for the time being decided the privacy concerns associated with Riley, two issues in this area of law remain hotly contested and in the forefront of the dockets of courts, executive task forces, legislatures and regulatory bodies: data breaches and anonymous online speech that is allegedly defamatory. Nary a week elapses without an often debilitating data breach at a prominent business, leading one commenter to label 2014 as the “Year of the Data Breach.” Likewise, an amicus brief filed in early 2015 in a defamation suit against an anonymous online defendant argued that unmasking such defendant without limited discovery designed to unearth whether the statements in question could undergird a legally cognizable claim for defamation would lead to the chilling of free speech not only in the United States but around the world.
