Welcome back for another week of What's Next, where we report on the intersection of law and technology. Here's what we've got for you this week:

>> How California is enforcing Illinois' privacy law.

>> State AGs clear a hurdle in Google antitrust probe.

>> California appellate courts outline privacy overreach for criminal offenders.

Let's chat: Email me at [email protected] and follow me on Twitter at @a_lancaster.

Correction: Last week's issue of What's Next misspelled Karin Cogbill's name.

 

Is California a Better Venue for BIPA Litigation?

The Northern District of California could take on a new role in the enforcement of the Illinois Biometric Information Privacy Act after Facebook proposed a head-turning $550 million class action settlement over alleged violations of the out-of-state legislation, some lawyers say.

Since the Jan. 29 settlement, two proposed BIPA class actions against Google over the company's use of facial recognition technology in its Google Photos product have landed in the district.

Besides the allure of a half-billion dollar settlement, another reason plaintiffs could be staking claims in the Northern District of California is jurisdiction, said Sean Wieber, co-chair of Winston & Strawn's regulated personal information practice group and chair of the firm's TCPA and BIPA litigation practices.

The Chicago lawyer pointed to Rivera v. Google, a 2018 BIPA case against Google over its photos app in the Northern District of Illinois. In that case, U.S. District Judge Edmond Chang ruled the court did not have jurisdiction to hear the case, since the plaintiffs did not allege the "concrete injuries" necessary to establish Article III standing. On the other hand, the U.S. Court of Appeals for the Ninth Circuit ruled in the Facebook case that a violation of the statute and the creation and retention of a face template "for all time" is enough harm to trigger standing.

When tech companies such as Google are sued in their home state, where they're subject to general jurisdiction, "you're actually removing what I think is a potential expensive fight over venue," Wieber said. "Whereas if you sue in Illinois you not only have this Article III standing issue, but you also have this metaphysical fight over whether a substantial portion of the BIPA violation actually occured in Illinois."

Mary Smigielski of Lewis Brisbois, who is licensed in both Chicago and California, said the Northern District of California could set the tone for how those class certification questions are handled in the future. "Obviously the tech companies are based in their neck of the woods, and to the extent they have the appropriate connection with BIPA to maintain jurisdiction, I think they absolutely would play a huge role," Smigielski said.

U.S. District Judge James Donato's certified the Facebook class action in 2018, but said he might have to unwind it later in the litigation. But questions on certification remain since the case settled before it reached those arguments. Smigielski said the Northern District of California might be the venue to clarify those unknowns going forward. "I think those are the type of questions that as this evolves, and depending on the judge, there might be a more rigorous analysis of the standards of individual inquiries," she said.

Although Eric Macey of Novack and Macey in Chicago agrees that plaintiffs might flock to California over Illinois to remain in federal court under the Ninth Circuit's standard for harm, he noted that BIPA is bigger than the Northern District. "I expect to see more cases pop up everywhere," Macey said. "Anywhere someone can find people using biometric data that somehow touches the state of Illinois."

Stay tuned for the full story on The Recorder.

 

Consultants Free to Probe Google

Google has come to an agreement on the use of outside consultants by a group of state attorneys general who are investigating the company for potential antitrust activities, a deal that removes a key obstacle to the investigation.

Law.com's Sue Reisinger reports that Google will no longer be fighting to limit the access of documents to hired consultants such as Eugene Burrus, Microsoft's former assistant general counsel.

Google filed a petition last fall in Travis County, Texas, asking for a court-imposed cooling-off period between when outside consultants in the investigation could work with the company's competitors, noting, "Burrus likely will attempt to use his experience on this investigation, including his access to confidential Google information, to market himself to prospective clients with interests adverse to Google."

Instead of a cooling-off period, consultants will be forced to sign a non-disclosure agreement for confidential information and trade secrets.

In a statement, Texas Attorney General Ken Paxton, who is leading the inquiry, said, "Experts retained by the state will not be burdened with the unreasonable prohibitions sought by Google. They will be able to lend their important expertise to the state without fear of being frozen out of other employment within their field."

 

Privacy and Probation

As state prosecutors expand the use of warrantless electronic device searches as a condition of probation, California courts are drawing the lines on what constitutes an overreach when it comes to privacy for young criminal offenders.

On Friday, the First District Court of Appeal reversed and remanded a ruling requiring juvenile Amber K. to submit her electronic devices for searches to ensure she is complying with all the terms of her probation. That includes cutting off all communication with a girl she assaulted, who is referred to as B. in the opinion.

The opinion states that California Attorney General Xavier Becerra insisted the teenage girl hand over access to her texts, voicemails, photos, emails and other social media apps such as Snapchat, Instagram, Facebook and Kik, because classmates filmed the assault and posted it to Snapchat. Amber's attorney, Kevin Lindsley of The Law Office of Kevin J. Lindsley in Pleasanton, California, argued that particular condition of probation was unconstitutional and not properly tailored, according to the opinion.

The court punted on the constitutional questions, but agreed with Lindsley that the searches did not meet the standard created by the 1975 People v. Lent decision, which requires probation conditions to relate to the crime at hand, criminal behavior and future criminality.

"We agree with Amber that the record does not show a relationship between her use of electronic devices and the offending conduct sufficient to justify the electronic search condition under the first prong of Lent," wrote Associate Justice Marla Miller on behalf of acting Presiding Justice James Richman and Associate Justice Therese Stewart. "Although the record suggests that the assault resulted from hostility between Amber and B. that had played out in part over social media, we are not persuaded by the attorney general's contention that 'substantial evidence in the record connects appellant's use of electronic devices and social media to the assault.'"

The decision comes after California's Sixth District Court of Appeal ruled that warrantless electronic device searches as part of a probation for a high-school-aged boy, who used cell phone videos and photos to extort a former juvenile sexual partner for money and sexual favors for a friend, were constitutional and narrowly tailored since his electronic devices were a key component of his crimes.

From left, Lisa Gelobter, CEO and co-founder of tEQuitable, and Tekedra Mawakana, chief operating officer of Waymo, at Leading Women Defined. Photo: Stephanie Macris

On the Radar

 

A Steptoe Stepping Stone BET Networks general counsel and CEO Debra Lee and Waymo Chief Operation Officer Tekedra Mawakana shared their experiences as women of color transitioning from Big Law to Big Tech at the network's inaugural Leading Women Defined event. After stints at Yahoo, eBay Inc. and now Alphabet Inc, Mawakana said her experience shows she's a "super risk-averse human being." Both women previously held roles at Steptoe & Johnson. Read more from Kibkabe Araya here.

Fairweather Amici There's nothing like a Supreme Court battle to find out who your real friends are. In a blog post, Oracle's Executive Vice President Ken Glueck accused Microsoft, IBM and other tech goliaths of throwing their amicus weight toward Google purely out of financial interest in Oracle's epic copyright case against the company. "What changed Microsoft's stance in this litigation was that commercial agreement," Glueck writes. "Microsoft's position is as principled as that." Read more from Scott Graham here.

AI Regulations in the EU The European Union unveiled a plan to regulate artificial intelligence last week. The strategy calls for strict rules for high-risk uses and a voluntary labeling scheme for low-risk applications of AI. Noticeably absent from the guidelines was a five-year ban against facial recognition technology, which was included in the draft version of the bill. Read more from Simon Taylor here.

Thanks for reading. We will be back next week with more What's Next.