Data is the "new" gold. As companies vie to aggregate large amounts of user data for business enterprises or create analytic platforms for the information that runs through their own companies, the legal complexity grows. With significant, precedent-setting legal victories for businesses that own or collect data and app developers whose models rely on gathering massive troves of data, Farella's Data Analytics Industry Team is poised to provide experienced counsel in a variety of legal specialties. We have successfully defended company rights in this evolving, cutting-edge area of law.
Breaking Ground
Farella's data analytics team is acutely aware of the continual three-way tug of war between the data owner (the individual user), the company that obtains information from the user, and the businesses that get data from the second party source. This complex dynamic is governed by intellectual property law and anti-hacking regimes such as the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and state law corollaries like the California Computer Data Access and Fraud Act. It is becoming even more challenging with the advent of privacy regimes such as the EU General Data Protection Regulation (GDPR) and California Consumer Privacy Act (CCPA). We stay up-to-date on developments in these realms so we can provide best in class advice to our clients who are at the cutting edge of data analytics.
With a wealth of experience in these areas, we often find ourselves facing first-of-a-kind questions and cases. But our immersion in the subject matter and law means we can get to the core issues quickly and focus on the most efficient resolutions.
We serve as legal counsel for a multitude of enterprises—from large Fortune 500 corporations to smaller start-ups and everything in between that create or use tools to parse electronic data and inform decision making, strategy, and more.
Our clients are involved in all aspects of data analytics for disciplines that range from human resources and recruiting to fintech, medical research, genetics, healthcare, consumer product, transportation, and hospitality.
Serious Challenges
We address a full range of laws at the nexus of data collection, privacy, and anti-competitive behavior. We have deep experience in current state and federal laws, including the potent statutory frameworks of the Computer Fraud and Abuse Act; the Digital Millennium Copyright Act; and the California Penal Code § 502(c). With data as the new gold, analytics companies are increasingly facing questions of competition law so we can add value for our clients by employing our deep experience in the federal Sherman Act and California Cartwright Act frameworks as well as common law causes of action, such as intentional interference with business relationships and prospective economic events.
Insurance coverage in cyber and data privacy risks is rapidly developing and changing in response to new risks, laws, and market demands. Our insurance recovery lawyers apply in-depth knowledge of these trends in drafting and negotiating cutting-edge insurance policies to cover cyber and data privacy risks. They also engage in claims advocacy work to ensure that cyber, technology errors & omissions liability, media liability, and general liability policies provide the coverage needed by some of the largest technology companies in the world to smaller cloud-service providers and cybersecurity firms.
As employers grabble with new privacy laws, Farella’s employment lawyers work with companies to develop best practices for generating, preserving and, when required, producing personnel data in compliance with local, state, and federal laws governing personnel privacy and safe-keeping.
We understand how to make established laws work for data analytics businesses and how also to operate in the interstices where law is often unsettled, such as in the case of hiQ vs. LinkedIn.
hiQ vs. LinkedIn
In a precedent-setting lawsuit, Farella represented hiQ Labs, a venture capital-backed app developer, in securing a preliminary injunction that prevented LinkedIn from terminating its access to LinkedIn members' public profile information. hiQ raised sufficient questions as to whether LinkedIn could utilize the Computer Fraud and Abuse Act—the anti-hacking statute from the eighties—to restrict hiQ's access to member profiles that the profile owner had expressly designated for public posting on the Internet.
Further, we raised important questions as to whether LinkedIn's motives in terminating hiQ were anti-competitive. If the social networking site was developing a similar application, this could constitute an intentional interference with hiQ's economic relationships, thus giving legal voice to concerns about data monopolization.
In light of these questions and the irreparable harm that LinkedIn's actions would cause hiQ, the court ordered LinkedIn to allow hiQ to continue accessing member public profiles on the LinkedIn platform.
Looking Ahead
Data analytics and its esoteric counterpart “data science” are no longer fringe disciplines. Enterprise relies on data to increase knowledge, improve products, and provide better services. Analytics are used to help marketers in the transportation and hospitality sectors; to assist finance companies in credit-related analysis; to compile customer review data and address reputational issues; and to fine-tune processes and procedures in medicine, education, hiring, and more.
Whether your company is using analytic platforms for the data that runs through your business or is creating platforms for the benefit of many clients, our Data Analytics Industry Group can provide a fully informed team and effective representation.