First Amendment and Data Security Laws Quiz

First Amendment and Section 230

• The First Amendment protects free speech but doesn't stop private platforms from controlling content.
• Harmful speech (e.g., child exploitation, incitement) is limited.
• Section 230 grants immunity to online platforms for content posted by others (third-party).
• Platforms can moderate or remove content (even legal) without losing immunity.

FTC Data Security Enforcement

• Section 5 of the FTC Act prohibits unfair or deceptive acts/practices.
• "Unfairness Test" includes substantial consumer harm, unpreventable harm to consumers, and harms outweighing benefits to consumers & competition.
• Wyndham v. FTC: Court upheld the FTC's authority to regulate data security, finding foreseeable harm due to inadequate security falls under Section 5.
• LabMD v. FTC: Initial dismissal reversed; Eleventh Circuit vacated the FTC order for vague standards.

State Data Breach Notification Laws

• Data breaches trigger notification for unauthorized access to personal information (SSN, financial details).
• Encrypted data exceptions apply if no key access is involved.
• Notification timelines are "expeditious" or specified (e.g., Florida: 30 days).
• Notifications must describe the breach, mitigation steps, and contact info for FTC/credit bureaus/regulators.

Article III Standing Requirements

• Injury-in-fact: Concrete, particularized, actual or imminent harm.
• Causation: Defendant's actions must directly cause the injury.
• Redressability: Favorable decision must likely fix the injury.
• Krottner v. Starbucks: Stolen, unencrypted data established standing due to a credible harm threat.
• Reilly v. Ceridian Corp: Speculative harm wasn't enough for standing.

Data Breach Litigation Claims

• Negligence: Failure to ensure reasonable data security.
• Breach of contract: Violating privacy policies.
• Unjust enrichment: Profiting while failing to protect consumer data.
• Violations of consumer protection laws (e.g., Section 5 FTC Act).

Class Action Certification Requirements (Rule 23(a))

• Numerosity: Many plaintiffs, making individual suits impractical.
• Commonality: Shared legal or factual issues amongst the class.
• Typicality: Named plaintiffs' claims mirror the class.
• Adequacy: Named plaintiffs effectively represent the class.

Cybersecurity Information Discovery

• Attorney-client privilege protects communication between lawyer and client.
• Work product doctrine shields pre-litigation materials.
• Non-testifying expert privilege protects expert information not used at trial.

SEC Cybersecurity Disclosures

• Material cybersecurity incidents must be disclosed within four business days.
• Disclosures need details on incident nature, scope, impact, status, and mitigation.
• Annual disclosures involve risk management, board oversight, and strategies.

CFAA (Computer Fraud and Abuse Act)

• The CFAA applies to accessing computer systems without authorization.
• Exceeding terms of use (e.g., employer limits) generally doesn't violate the CFAA.
• Civil actions under the CFAA address economic harm; criminal actions cover fraud, theft, damage.

Economic Espionage Act

• The Economic Espionage Act protects trade secrets.
• Criminal penalties exist for stealing trade secrets or revealing them improperly.

Digital Millennium Copyright Act (DMCA)

• Anti-circumvention: Prohibits defeating digital locks.
• Safe Harbor protects platforms complying with takedown notices.
• Digital rights management info protection prevents tampering.

Surveillance Authorities

• Title I of FISA requires probable cause warrants when targeting U.S. agents.
• Section 702 of FISA allows surveillance of non-U.S. individuals abroad.
• Wiretap Act prohibits unauthorized interception of communications.
• Pen Register Act allows call metadata collection, not content.

Law of Armed Conflict in Cyber Operations

• Jus ad Bellum: Determines when force use is lawful.
• Cyberattacks may qualify as force use with severe effects.
• Jus in Bello: Rules of engagement in cyberwarfare, prohibiting targeting civilians, indiscriminate attacks, and disproportionate harm.

Ethical Frameworks

• Virtue ethics focuses on character and intent.
• Deontological ethics stresses duties and universal principles.
• Utilitarianism focuses on maximizing overall happiness.