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Jeffrey Neuburger

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Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise, combined with his professional experience at General Electric and academic experience in computer science, makes him a leader in the field.

As one of the architects of the technology law discipline, Jeff continues to lead on a range of business-critical transactions involving the use of emerging technology and distribution methods. For example, Jeff has become one of the foremost private practice lawyers in the country for the implementation of blockchain-based technology solutions, helping clients in a wide variety of industries capture the business opportunities presented by the rapid evolution of blockchain. He is a member of the New York State Bar Association’s Task Force on Emerging Digital Finance and Currency.

 

Jeff counsels on a variety of e-commerce, social media and advertising matters; represents many organizations in large infrastructure-related projects, such as outsourcing, technology acquisitions, cloud computing initiatives and related services agreements; advises on the implementation of biometric technology; and represents clients on a wide range of data aggregation, privacy and data security matters. In addition, Jeff assists clients on a wide range of issues related to intellectual property and publishing matters in the context of both technology-based applications and traditional media.

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Yes, it’s time for the end-of-year blog post – a look back at interesting issues of 2018 and a look forward to what we see coming down the pike in the new year.

The Look Back

  • In the past year, blockchain buzz was everywhere. Although still early, blockchain has in fact began to show promise as a technology bringing efficiency and cost reduction to many business operations. In 2018, many industries tested the technology and started pilot programs with an eye to replacing or supplementing traditional client-server systems with a distributed ledger-based system. 2019 promises much more in the adoption of blockchain. For continuing coverage of some of the more novel issues that blockchain presents, subscribe to our Blockchain and the Law blog.
  • “Web scraping” (also known as spidering and crawling) remained at the forefront in 2018 as companies used scraping for purposes such as consumer-facing data aggregation, real-time e-commerce analytics (e.g., dynamic pricing strategies), competitive intelligence, user sentiment analysis, etc. 2018 produced many important scraping decisions in the courts, including those about CFAA liability and the intersection of scraping and software licensing, and we await the Ninth Circuit’s decision in the closely-watched hiQ appeal, which will hopefully address a number of important open issues presented by the practice.
  • Privacy and data security continued to be a hot-button boardroom issue this year. The GDPR became effective, and California passed major privacy legislation which will take effect in 2020. The almost daily announcement of data security breaches continues to spawn class action litigation, testing the principles of standing after Spokeo. The federal government has pushed multiple initiatives to improve the nation’s cyber defenses. The wave of litigation under the Illinois biometric privacy law (BIPA) against Illinois employers and businesses persisted in 2018, and the continued viability of such suits may hinge on an upcoming ruling by the Illinois Supreme Court, as well as the outcome in California courts regarding the BIPA actions against social media entities.  See our Privacy Law Blog for more discussion on 2018 privacy and data security developments.

This post discusses some of the contractual requirements imposed by Apple and Google regarding the collection and sharing of locational information.  What consents, if any, do Apple and Google require that app publishers obtain before collecting and using locational information?  This is a question that is being asked with increasing frequency.  In fact, a regular beat of media coverage on the issue  (see, e.g., here or here), has reached crescendo levels with a much-discussed article this past week in the New York Times. Coincidentally (or maybe not?), the NYT article was published the day before Google CEO Sundar Pichai testified before the House Judiciary Committee on Google’s privacy and data collection practices, among other things.

A recent dispute between an advertiser AXTS Inc. (“AXTS”) and a video production company GY6vids (“GY6”) produced an interesting issue involving the federal Computer Fraud and Abuse Act (CFAA) – that is, whether an entity that allegedly overloaded another company’s YouTube channel content with a flood of “dislikes” following a contractual dispute is liable under the CFAA for accessing a protected computer “without authorization.”  (AXTS Inc. v. GY6vids LLC, No. 18-00821 (D. Ore. Oct. 24, 2018)).

We have been closely monitoring the evolving state of the law regarding CFAA liability for certain commercial web scraping and related practices.  The instant case between AXTS and GY6 is a little different in that the claim did not arise from AXTS’s alleged access to video content stored on GY6’s network, but publically-accessible videos stored on a third-party’s (e.g., YouTube) servers.   

Last week the WSJ published an article detailing how companies are monetizing smartphone location data by selling it to hedge fund clients.  The data vendor featured in the WSJ article obtains geolocation data from about 1,000 apps that fund managers use to predict trends involving public companies.  However, as we’ve…

Last December, we noted the continuing robust wave of Illinois biometric privacy suits.  At that time, dozens of suits had been filed in Illinois state court against Illinois-based employers and other businesses alleging violation of Illinois’s Biometric Information Privacy Act (BIPA), which generally regulates the collection, retention, and disclosure of personal biometric identifiers and biometric information, and encourages businesses that collect such personal data to employ reasonable safeguards.  More and more BIPA actions against employers and businesses based upon alleged violations of the notice and consent provisions of the statute continue to be filed, even as the Illinois Supreme Court considers the appeal of the Rosenbach decision.  In that case, the Illinois Supreme Court will presumably answer the question of whether a person “aggrieved” by a violation of BIPA must allege some injury or harm beyond a procedural violation.  The ruling will certainly have an effect on the pending lawsuits alleging mere procedural BIPA violations.

Late last month, an Illinois appellate court reversed a lower court’s dismissal of biometric privacy claims against a tanning salon franchisee that had collected the plaintiff’s fingerprint to allow entry in its own salon and any L.A. Tan salon location nationwide.  (Sekura v. Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 180175 (Ill. App. Sept. 28, 2018)).  The plaintiff alleged that the tanning salon violated the Biometric Information Privacy Act (BIPA), which regulates the collection, retention, and disclosure of personal biometric identifiers and biometric information, by collecting her fingerprints without obtaining the required written release and providing the required disclosure concerning its retention policy, and further by disclosing her fingerprints to a third-party vendor. [Note: In 2016, in a separate suit, the same plaintiff settled BIPA claims with L.A. Tan Enterprises, Inc., operator (directly and through franchisees) of L.A. Tan tanning salons].

Licensors of software typically utilize software license agreements providing for their ownership of the licensed software and related IP, as well as restrictions barring licensees from reverse engineering the code at issue.  The scope of protection, of course, depends on the final language of the licensing agreement and disputes can arise when licensees decide to develop similar software in-house, or with a third party.  Indeed, a recent case, Ford Motor Co. v. Versata Software Inc., No. 15-10628 (E.D. Mich. Sept. 7, 2018), tackled some of these issues. 

A D.C. district court ruled that an eBay user did not assent to a later-added arbitration clause to the user agreement by virtue of a provision that stated eBay could amend the agreement at any time, as the user may not have received sufficient notice of the amendment. (Daniel v. eBay, Inc., No. 15-1294 (D.D.C. July 26, 2018)). Notably, the court declined to find adequate notice sufficient to demonstrate an agreement to arbitrate merely based on the fact that the amended user agreements were posted on eBay’s website (at least under Utah, Louisiana or Texas law). This case is interesting as many websites and services have added mandatory arbitration clauses to their terms in recent years, yet may have a stable of legacy users that agreed to a prior set of terms that did not contain such a provision.

UPDATE: On January 22, 2019, the Supreme Court denied review of the California Supreme Court decision.

In a closely-followed dispute, the California Supreme Court vacated a lower court order, based upon a default judgment in a defamation action, which had directed Yelp, Inc. (“Yelp”), a non-party to the original suit, to take down certain consumer reviews posted on its site. (Hassell v. Bird, No. S235968, 2018 WL 3213933 (Cal. July 2, 2018)).  If the plaintiffs had included Yelp as a defendant in the original suit, such a suit would have likely been barred by Section 230 of the Communications Decency Act (“CDA” or “CDA Section 230”); instead, the plaintiffs adopted a litigation strategy to bypass such legal immunities.  In refusing to allow plaintiff’s “creative pleading” to avoid the CDA, the outcome was a win for online companies and platforms that host user-generated content (“A Case for the Internet,” declared Yelp).