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As shown above, the lack of experience and familiarity with copyright issues on the part of federal district court judges coupled with the unpredictability and biases of juries 92 leads to frustrating and contradictory results at the district court level. Specialized copyright courts, similar to bankruptcy and tax courts, would certainly help to alleviate the problem. However, problems of inconsistency are not limited to the district courts. Although "federal statutes are generally intended to have uniform nationwide application,"93 the federal circuit courts of appeals are inconsistent when it comes to interpreting the Copyright Act of 1976. 9 " There is, or has been, disagreement regarding almost every possible doctrine covered under federal copyright law from threshold issues of originality and ownership to infringement and damages. Some of these intercircuit disagreements have been resolved by the Supreme Court.9 5 Others have been resolved by Congress.96 Many of the differences- often polar disagreements- still remain unresolved and will inevitably lead to forum shopping. The outcome of a case should not depend upon the jurisdiction in which the suit is initiated; it should be a function of the law. It should be noted that even in those cases that have been resolved by either the Supreme Court or Congress, there was still a period of uncertainty- often a substantial period- and potential harm from forum shopping prior to the final resolution, in addition to the expenditure of untold thousands in legal fees. The existence of a single specialized copyright appellate forum would have brought about earlier closure to many of these issues, and would have expedited the formation of a uniform body of copyright law upon which all parties could rely. The following are examples of some of the extreme intercircuit disagreements among the federal appellate courts regarding copyright.

Data Broker Industry Following publication of an advanced notice of public rulemaking (“ANPR”) in August 2022 highlighting the FTC’s concerns about the , it came as no surprise when later that same month, the agency took action against data broker Kochava. The FTC argued that Kochava’s collection and sale of consumers’ precise geolocation from their mobile devices, enabling tracking of their movements to sensitive locations such as reproductive health clinics, places of worship, homeless and domestic violence shelters, and addiction recovery centers, exposes consumers to injury in the form of stigma, discrimination, physical violence, emotional distress, and other harms. The FTC sought a permanent injunction in Iowa federal court on the grounds that Kochava’s sale of sensitive data constituted an “unfair” practice in violation of Section 5 of the FTC Act in that it causes or is likely to cause substantial injury to consumers that they cannot reasonably avoid and that is not outweighed by countervailing benefits to consumers or competition. However, in May 2023, the judge granted Kochava’s motion to dismiss, finding that the FTC did not sufficiently allege substantial consumer harm, but allowing the agency to file an amended complaint. The FTC did so the next month, offering additional factual allegations in an amended complaint that was only just unsealed in November 2023 despite the opposition of Kochava, whose motion for Rule 11 sanctions against the FTC was denied. We expect 2024 to bring further intrigue in this ongoing saga. The data broker industry will undoubtedly continue to be under the spotlight in the new year and years to come. In addition to potential next steps by the FTC in connection with the ANPR discussed above, the Consumer Financial Protection Bureau this year announced an into data brokers’ business practices and specifically whether certain data brokers should be under the Fair Credit Reporting Act. States have also been active in this space, with Texas and Oregon passing data broker statutes in 2023, and California amending its existing data broker law. The California is particularly noteworthy for its novel requirement that by 2026 all data brokers respond to a single deletion mechanism, to be created by the California Privacy Protection Agency, through which consumers can direct data brokers to delete their personal information. Given the broad manner in which a data broker is defined under these state laws, companies should evaluate whether their practices may bring them within scope.

The Federal Trade Commission has succeeded in keeping alive its first federal court case against a geolocation data broker that's allegedly unfairly selling large quantities of data in violation of the FTC Act. On Saturday, US District Judge Lynn Winmill denied Kochava's motion to dismiss an amended FTC complaint, which he said plausibly argued that "Kochava’s data sales invade consumers’ privacy and expose them to risks of secondary harms by third parties." Winmill's ruling reversed a dismissal of the FTC's initial complaint, which the court previously said failed to adequately allege that Kochava's data sales cause or are likely to cause a "substantial" injury to consumers. The FTC has accused Kochava of selling "a substantial amount of data obtained from millions of mobile devices across the world"—allegedly combining precise geolocation data with a "staggering amount of sensitive and identifying information" without users' knowledge or informed consent. This data, the FTC alleged, "is not anonymized and is linked or easily linkable to individual consumers" without mining "other sources of data." Kochava's data sales allegedly allow its customers—whom the FTC noted often pay tens of thousands of dollars monthly—to target specific individuals by combining Kochava data sets. Using just Kochava data, marketers can create "highly granular" portraits of ad targets such as "a woman who visits a particular building, the woman’s name, email address, and home address, and whether the woman is African-American, a parent (and if so, how many children), or has an app identifying symptoms of cancer on her phone." Just one of Kochava's databases "contains 'comprehensive profiles of individual consumers,' with up to '300 data points' for 'over 300 million unique individuals,'" the FTC reported. This harms consumers, the FTC alleged, in "two distinct ways"—by invading their privacy and by causing "an increased risk of suffering secondary harms, such as stigma, discrimination, physical violence, and emotional distress." In its amended complaint, the FTC overcame deficiencies in its initial complaint by citing specific examples of consumers already known to have been harmed by brokers sharing sensitive data without their consent. That included a Catholic priest who resigned after he was outed by a group using precise mobile geolocation data to track his personal use of Grindr and his movements to "LGBTQ+-associated locations." The FTC also pointed to invasive practices by journalists using precise mobile geolocation data to identify and track military and law enforcement officers over time, as well as data brokers tracking "abortion-minded women" who visited reproductive health clinics to target them with ads about abortion and alternatives to abortion. "Kochava’s practices intrude into the most private areas of consumers’ lives and cause or are likely to cause substantial injury to consumers," the FTC's amended complaint said. The FTC is seeking a permanent injunction to stop Kochava from allegedly selling sensitive data without user consent. Kochava considers the examples of consumer harms in the FTC's amended complaint as "anecdotes" disconnected from its own activities. The data broker was seemingly so confident that Winmill would agree to dismiss the FTC's amended complaint that the company sought sanctions against the FTC for what it construed as a "baseless" filing. According to Kochava, many of the FTC's allegations were "knowingly false." Ultimately, the court found no evidence that the FTC's complaints were baseless. Instead of dismissing the case and ordering the FTC to pay sanctions, Winmill wrote in his order that Kochava's motion to dismiss "misses the point" of the FTC's filing, which was to allege that Kochava's data sales are "likely" to cause alleged harms. Because the FTC had "significantly" expanded factual allegations, the agency "easily" satisfied the plausibility standard to allege substantial harms were likely, Winmill said. Kochava CEO and founder Charles Manning said in a statement provided to Ars that Kochava “expected" Winmill's ruling and is "confident" that Kochava "will prevail on the merits." "This case is really about the FTC attempting to make an end-run around Congress to create data privacy law," Manning said. "The FTC’s salacious hypotheticals in its amended complaint are mere scare tactics. Kochava has always operated consistently and proactively in compliance with all rules and laws, including those specific to privacy." In a press release announcing the FTC lawsuit in 2022, the director of the FTC’s Bureau of Consumer Protection, Samuel Levine, said that the FTC was determined to halt Kochava's allegedly harmful data sales. “Where consumers seek out health care, receive counseling, or celebrate their faith is private information that shouldn’t be sold to the highest bidder,” Levine said. “The FTC is taking Kochava to court to protect people’s privacy and halt the sale of their sensitive geolocation information.

We’re only a few weeks into 2024, and violations of people’s privacy are already making some big headlines! First we had the continued drama with the 23andMe data breach; then a major financial software company was shut down for inappropriately using private information; and then this week, the FTC took an unprecedented step and banned a data broker from selling people’s location data. It’s a major move that could signal some more aggressive action from policy makers to curb the corrosive effects that data brokers have on personal privacy. If you’re not familiar with data brokers, they make up a massive and growing industry that collects, buys, and analyzes personal data and sells it to other companies or groups, which use that information to target messages and advertisements or sell products. I wrote about the sector a few months ago, after researchers found brokers selling data about US military personnel and their families with little discretion and for mere pennies. The researchers told me they were “shocked” at how easy it was to buy sensitive data about military members. These companies, though, are often cloaked in extreme secrecy, and given that it’s a pretty new industry, they aren’t bound by a ton of regulations. It’s been really interesting to see how lawmakers and other government actors have responded to them over the past several years. Notably, these firms have been under particular scrutiny since the Supreme Court eliminated the legal right to abortion in 2022. After the Dobbs decision, a lot of Democrats in particular were concerned that data brokers would track and sell data about visits to sensitive locations, like a doctor’s office or abortion clinic. And in July 2022, President Joe Biden issued an executive order directing federal agencies to increase privacy protections related to reproductive care. So on Tuesday, the FTC announced that it was banning Outlogic, formerly X-Mode Social, from sharing and selling users’ sensitive information—particularly, precise location data that tracked people’s visits to places like medical clinics—and required that it delete all the previous location data it collected. X-Mode has been around since 2013, and its software has been integrated into hundreds of different apps to collect location data of millions of users worldwide. The new FTC settlement isn’t the first time the company has gotten into hot water. Back in 2020, an investigation by Vice revealed that data collected by X-Mode on a Muslim social app was shared with a US military intelligence contractor. The agency now alleges that the company did not protect geolocation data about sensitive locations, violated consumer privacy, and failed to put in place safeguards on the use of sensitive information by third parties. (In a statement reported by Reuters, Outlogic says there was no finding that it misused location data and has always prohibited customers from “associating its data with sensitive locations such as healthcare facilities.") In its settlement announcement, FTC chair Lina Khan said, “By securing a first-ever ban on the use and sale of sensitive location data, the FTC is continuing its critical work to protect Americans from intrusive data brokers and unchecked corporate surveillance.” One expert I spoke with thinks this could be a sign of what’s to come for the industry. “The FTC’s action is significant because of the prohibitions—barring the company from selling data about sensitive locations, rather than just paying fines,” says Justin Sherman, an adjunct professor at Duke’s Sanford School of Public Policy. In other words, it’s more than a slap on the wrist. Sherman, who runs a project at Duke focused on the industry and who was involved in the research about military members, adds that this new move is “also notable because the FTC is focused on how certain locations are more sensitive than others.” The idea that people have different rights to privacy in different contexts is similar to the argument the FTC is making in its ongoing lawsuit against the data broker Kochava, which it’s suing on the grounds that it identifies anonymous users without consent and tracks their sensitive location data. No matter what the FTC does next, data brokers are likely to continue to draw scrutiny for their sketchy practices. The new settlement is also likely to fuel more calls for forceful legislative action against them. In a statement, Senator Ron Wyden’s office said, “While the FTC’s action is encouraging, the agency should not have to play data broker whack-a-mole. Congress needs to pass tough privacy legislation to protect Americans’ personal information and prevent government agencies from going around the courts by buying our data from data brokers.” Maybe something to look forward to in 2024?

The Federal Trade Commission filed a lawsuit against data broker Kochava Inc. for selling geolocation data from hundreds of millions of mobile devices that can be used to trace the movements of individuals to and from sensitive locations. Kochava’s data can reveal people’s visits to reproductive health clinics, places of worship, homeless and domestic violence shelters, and addiction recovery facilities. The FTC alleges that by selling data tracking people, Kochava is enabling others to identify individuals and exposing them to threats of stigma, stalking, discrimination, job loss, and even physical violence. The FTC’s lawsuit seeks to halt Kochava’s sale of sensitive geolocation data and require the company to delete the sensitive geolocation information it has collected. “Where consumers seek out health care, receive counseling, or celebrate their faith is private information that shouldn’t be sold to the highest bidder,” said Samuel Levine, Director of the FTC’s Bureau of Consumer Protection. “The FTC is taking Kochava to court to protect people’s privacy and halt the sale of their sensitive geolocation information.” Idaho-based Kochava purchases vast troves of location information derived from hundreds of millions of mobile devices. The information is packaged into customized data feeds that match unique mobile device identification numbers with timestamped latitude and longitude locations. According to Kochava, these data feeds can be used to assist clients in advertising and analyzing foot traffic at their stores and other locations. People are often unaware that their location data is being purchased and shared by Kochava and have no control over its sale or use. In a complaint filed against Kochava, the FTC alleges that the company’s customized data feeds allow purchasers to identify and track specific mobile device users. For example, the location of a mobile device at night is likely the user’s home address and could be combined with property records to uncover their identity. In fact, the data broker has touted identifying households as one of the possible uses of its data in some marketing materials. According to the FTC’s complaint, Kochava’s sale of geolocation data puts consumers at significant risk. The company’s data allows purchasers to track people at sensitive locations that could reveal information about their personal health decisions, religious beliefs, and steps they are taking to protect themselves from abusers. The release of this data could expose them to stigma, discrimination, physical violence, emotional distress, and other harms. The FTC alleges that Kochava fails to adequately protect its data from public exposure. Until at least June 2022, Kochava allowed anyone with little effort to obtain a large sample of sensitive data and use it without restriction. The data sample the FTC examined included precise, timestamped location data collected from more than 61 million unique mobile devices in the previous week. Using Kochava’s publicly available data sample, the FTC complaint details how it is possible to identify and track people at sensitive locations such as: Reproductive health clinics: The data could be used to identify people who have visited a reproductive health clinic and therefore expose their private medical decisions. Using the data sample, it is possible to track a mobile device from a reproductive health clinic to a single-family residence to other places routinely visited. The data may also be used to identify medical professionals who perform, or assist in the performance, of reproductive health services. Places of worship: The data could be used to track consumers to places of worship, and thus reveal the religious beliefs and practices of consumers. The data sample identifies mobile devices that were located at Jewish, Christian, Islamic, and other religious denominations’ places of worship. Homeless and domestic violence shelters: The data could be used to track consumers who visited a homeless shelter, domestic violence shelter, or other facilities directed to at-risk populations. This information could reveal the location of people who are escaping domestic violence or other crimes. The data sample identifies a mobile device that appears to have spent the night at a temporary shelter whose mission is to provide residence for at-risk, pregnant young women or new mothers. In addition, because Kochava’s data allows its customers to track people over time, the data could be used to identify their past conditions, such as homelessness. Addiction recovery centers: The data could be used to track consumers who have visited addiction recovery centers. The data could show how long consumers stayed at the center and whether a consumer potentially relapses and returns to a recovery center. Protecting sensitive consumer data, including geolocation and health data, is a top priority for the FTC. This month, the FTC announced that it is exploring rules to crack down on harmful commercial surveillance practices that collect, analyze, and profit from information about people. In July, the FTC warned businesses that the agency intends to enforce the law against the illegal use and sharing of highly sensitive consumer data, including sensitive health data. Last year, the FTC issued a policy statement warning health apps and connected devices that collect or use consumers’ health information that they must notify consumers and others when that data is breached as required by the Health Breach Notification Rule. In 2021, the agency also took action against the fertility app Flo Health for sharing sensitive health data with third parties. The Commission vote authorizing the staff to file the complaint against Kochava was 4-1. Commissioner Noah Joshua Phillips voted no. The complaint was filed in the U.S. District Court for the District of Idaho

The Federal Trade Commission released its Privacy and Data Security Update for 2023 that highlights the FTC’s work to protect consumer privacy and respond to the evolving ways that companies use consumer data such as in the development of artificial intelligence models and misuse of health data.

“The FTC is taking bold actions to challenge the indiscriminate collection and monetization of consumers’ data,” said Samuel Levine, Director of the FTC’s Bureau of Consumer Protection. “We are securing meaningful remedies to protect consumers’ information, rather than placing the burden on consumers to protect themselves.”

On March 28, the Federal Trade Commission (FTC) released a Privacy and Data Security Update, highlighting the FTC’s activities in recent years through December 2023. The FTC underscored its work on issues related to artificial intelligence (AI), health data, geolocation tracking, children and teens’ data, data security, credit reporting and financial privacy, as well as spam calls and emails. In the update, the FTC noted its consistent call on Congress to restore its ability under Section 13(b) of the FTC Act to seek monetary relief, including consumer refunds, in federal court, and to pass comprehensive privacy legislation. Artificial Intelligence. The FTC has brought several enforcement actions, alleging that companies violated the FTC Act or other laws in connection with their collection, retention, or use of consumers’ personal information to develop or deploy machine learning or similar algorithms. The FTC has also sought to ensure that unlawfully obtained or retained data cannot be used to develop algorithms or for machine learning. As discussed here, the FTC recently announced that it is proposing changes to the Impersonation Rule to address the production of AI “deepfakes” that can impersonate individuals’ voices through voice cloning, which could be used in communications and marketing efforts to misrepresent products or services that could be harmful to consumers. Steps to Minimize Regulatory Impact. How do you begin to implement a responsible AI approach to minimize regulatory scrutiny? Utilize AI to help map data to the right use case. Develop methods and tools that enable analysis of use cases in order to understand feasibility, complexity, suitability, and risk. Leverage cross-functional teams that have technology, business, and risk experience. Ensure that governance mechanisms have the right speed, scale, and enterprise reach so that there is a common enterprisewide view of AI and its risks. Governance needs to cover third-party risk management, privacy, data, compliance, as well as other functions where it might come into play. Develop an AI risk taxonomy that covers (i) AI models, (ii) data collection, processing, storage, management, and use of systems, (iii) systems and infrastructure, taking into account potential privacy and cybersecurity risks, (iv) risks posed by users, e.g., misuse, malicious actions, and cyberattacks, (v) applicable laws, rules, and regulations, and (vi) the impact on existing workflows. Emphasize governance from the start as consideration is given to AI initiatives. Establish clear roles and responsibilities and develop training for better understanding of AI. This may also include developing or updating codes of conduct and acceptable use policies. Health Data. According to the update, recent FTC orders have imposed strong injunctive relief, requiring health-related businesses to: (a) stop sharing health information with third parties for advertising purposes, (b) obtain affirmative express consent for other disclosures of health data, (c) instruct third parties to delete improperly disclosed data, (d) provide notice to consumers about illegal third-party disclosures, and (e) establish privacy or data security programs without independent assessments. In addition, recent FTC orders have included civil penalties under the Health Breach Notification Rule. Last year, the FTC brought an action against a telehealth and drug discount provider for sharing users’ information with third-party advertising platforms contrary to its privacy promises and focused on the company’s third-party tracking capabilities. Steps to Minimize Regulatory Impact. Increase focus on advertising practices. Enhance third-party service provider contracts and data processing agreements to prohibit the sharing of health information for advertising purposes without the user’s express written consent. Establish processes and procedures to analyze the information that might be shared with third parties through pixels, cookies, and software development kids (SDK). Incorporate protections against sharing of health information for advertising purposes in privacy and safeguards security policies. Geolocation Tracking. Over the past few years, the FTC has focused on preventing harm to consumers that can result from exposure of highly sensitive information about an individual’s location, such as their visits to cancer treatment or reproductive clinics, places of worship, or domestic violence shelters. Steps to Address Tracking Issues. The following steps can be taken to help address tracking issues: Develop and keep an updated inventory of cookies and tracking technologies. Determine how the data will be used internally and in what form it will be retained (aggregated or de-identified) as well as who will have access. Make sure that data that is shared with third parties is being used only for permitted purposes and that any secondary uses are limited. Update contracts and agreements to deal with data use restrictions. Develop checkpoints to be certain that tracking technology is being properly used. Children and Teen’s Data. According to the update, the FTC has brought 42 Children’s Online Privacy Protection Act (COPPA) cases and collected more than $532 million in civil penalties since 2000. The FTC is continuing in its efforts to update the COPPA Rule to address the evolving methods of collecting, using, and disclosing personal information from children, including those in their teenage years. It recently denied an application, without prejudice, for the use of “Privacy — Protective Facial Age Estimation” technology, which utilizes the geometry of a user’s face to confirm that they are an adult. The FTC took no position on the merits of the application, indicating that more information is needed to better understand age verification technologies and their application. Tips to Minimize Regulatory Impact. While this area is in state of regulatory flux, there are areas that can be addressed to minimize drawing regulator attention: Aside from requiring verifiable consent from parents for using or disclosing children’s data, ensure that internal operations and/or AI are not used in a way to encourage or prompt use of website or online services without sufficient notice to parents so that they can provide informed consent. Tailor security safeguards to take into account the sensitivity of children’s information. Minimize the use of children’s information to that which is only reasonably necessary, e.g., participating in a game. Consider developing age gating processes that incorporate knowledge based authentication and facial recognition technologies. Data Security. Since 2000, the FTC has brought 89 enforcement actions against companies alleging inadequate protection of consumers’ personal data. The FTC noted that it is imposing stronger terms in its data security cases. For example, the update listed new terms in settlements such as requiring the company to implement a comprehensive security program, to obtain robust third-party biennial assessments of the program, and to submit annual certifications by a senior officer about the company’s compliance with the order. Steps to Minimize Regulatory Impact. Consider the following suggested steps: Perform a comprehensive review of your privacy and information security policies and procedures to ensure that they address FTC safeguards. Implement assessment and testing processes to make certain that control processes are working effectively. Develop external sources of information to keep the organization aware of potential threats. Develop and test incident response plans to be certain they are working effectively and that employees understand their responsibilities in the event of an incident or security breach involving data. Performing tabletop exercises to reinforce responsibilities and responses required in the event of an incident is highly recommended. Enhance training and communication related to privacy and information security to increase awareness. Credit Reporting and Financial Privacy. The FTC has brought 117 cases against companies for violating the Fair Credit Reporting Act (FCRA) and has obtained more than $137 million in civil penalties. According to the FTC, these cases have helped ensure that consumer reporting agencies follow reasonable procedures to assure the maximum possible accuracy of consumer report information. Since 2005, the FTC has brought about 35 cases alleging violations of the Gramm-Leach-Bliley Act (GLB). The GLB requires financial institutions to send customers initial and annual privacy notices and allow them to opt out of sharing their information with unaffiliated third parties.

In 2022, the Federal Trade Commission (FTC) sued the data broker Kochava, alleging the company sold data that could tie an individual to sensitive locations and potentially cause them harm. It was a warning shot to the advertising industry. And in 2024, the commission is continuing to focus on data brokers and the sale of location data. Already this year, the FTC has announced settlements with two data brokers that will prohibit them from selling sensitive location data: Outlogic, formerly known as X-Mode, and InMarket, both of which the commission found to have violated the FTC Act, the agency recently alleged in separate complaints against the companies. “All too often, Americans are tracked by serial data hoarders that endlessly vacuum up and use personal information,” FTC Chair Lina Khan said in a press release announcing a settlement with InMarket last week. “Today’s FTC action makes clear that firms do not have free license to monetize data tracking people’s precise location.” The FTC’s interest in the data broker industry follows a 2022 executive order that President Joe Biden signed shortly after the Supreme Court overturned Roe v. Wade; the order was designed to protect the privacy of those seeking reproductive healthcare. “We share the FTC’s commitment to advancing consumer privacy, and while we fundamentally disagree with the FTC’s allegations, we are happy to reaffirm the steps InMarket is taking to further our policies around data disclosure and use,” InMarket spokesperson Nicole Lorusso wrote in a statement to Marketing Brew. X-Mode/Outlogic didn’t respond to Marketing Brew’s request for comment by publication time. Consent = details, details, details Both InMarket and X-Mode/Outlogic asked consumers for consent to collect their data. According to the FTC complaint against InMarket: CheckPoints, an app owned by InMarket that rewards consumers for sharing shopping information like receipts, asked Android and iOS users to share location data in exchange for “extra points” or “nearby earning opportunities,” the FTC said. In another InMarket shopping app called ListEase, consumers were asked to share their location to “unlock reminders” when shopping. The FTC alleges that “the consent screens used…tell consumers that their location will be used for the app’s functionality…which are misleading half-truths,” adding that “at no point during the consent process for either the CheckPoints or ListEase Apps did InMarket also disclose that it was collecting users’ precise location, often multiple times per hour…to be used to precisely target them with advertising.” More Stories AD TECH & PROGRAMMATIC How Target became an OG retail media network AGENCIES Quirky is in, stuffy is out: Why some ad agencies are choosing unconventional names BRAND STRATEGY Coworking with Brittney Polka Meanwhile, X-Mode/Outlogic allegedly failed to “fully inform consumers how their data would be used and that their data would be provided to government contractors for national security purposes,” according to the FTC complaint. In some cases, X-Mode/Outlogic “used language suggesting that consumers’ location data would be used solely for ‘ad personalization and location-based analytics,’” the FTC said. Get marketing news you'll actually want to read Marketing Brew informs marketing pros of the latest on brand strategy, social media, and ad tech via our weekday newsletter, virtual events, marketing conferences, and digital guides. Subscribe Perhaps most relevant to anyone who isn’t a data broker is that the FTC is alleging that both X-Mode/Outlogic and InMarket failed to verify whether the third parties they work with—in this case, other apps—notified consumers about how their location data might be used. While these settlements are with data brokers, the rest of the industry should be paying attention, Odia Kagan, a privacy lawyer and partner at Fox Rothschild, explained. “I don’t think we should assume that this is strictly associated to data brokers,” she said. “The focus is on the sensitivity of the data, mass surveillance, and monetization.” Sensitive times The commission recently clarified what exactly it considers to be a sensitive location. When the FTC sued Kochava, the commission alleged that the company had sold data that could tie consumers to sensitive locations, including, “among others, locations associated with medical care, reproductive health, religious worship, mental health, temporary shelters, such as shelters for the homeless, domestic violence survivors, or other at-risk populations, and addiction recovery.” At the time, Kochava CEO Charles Manning told Marketing Brew that the company had asked the FTC to clarify that definition. It didn’t, he said, and Kochava countersued. A judge dismissed the FTC’s suit, but the commission filed an amended complaint, which was unsealed in November; litigation is still pending.

A top Federal Trade Commission official told Axios the agency won't hesitate to sue companies that play fast and loose with customers' data. In a rare interview, Samuel Levine, director of the Federal Trade Commission's bureau of consumer protection, also warned companies that operate under FTC consent decrees — which includes Twitter — that "there's no pause button" on such agreements. What they're saying: "We are not afraid to take companies to court," Levine told Axios. "We are not afraid to litigate." "Yes, we're a government agency," he said, but the FTC is also — in the words of former FTC chair Michael Pertschuk — the "greatest public-interest law firm in the country." "We try to focus on cases where we can have the most impact... we want to send a message to other companies in the marketplace." Zoom in: Levine, a top deputy of tech-industry critic FTC chair Lina Khan, is playing a key role in shaping the agency's potential new rules on "commercial surveillance" — which includes the targeted advertising that drives so many online business models. Those rules also focus on data security, and privacy advocates see them as a key means to restrain industry abuses in the absence of a federal online privacy law. The agency could issue them next year. Driving the news: Part of Levine's job is overseeing consent orders — legal agreements companies can enter if an agency investigation alleges that they broke consumer protection laws. "As far as I'm concerned, it's up to companies to ensure they are constantly in compliance with the FTC and responding to our requests," he said. Be smart: Twitter, now owned by Elon Musk, has been under a consent order with the FTC since 2011, subject to financial penalties if the company misrepresents "the extent to which [Twitter] maintains and protects the security, privacy, confidentiality, or integrity of any nonpublic consumer information." Twitter has shed much of its staff working on privacy, security, policy and government relations, and it's not clear who within the company is now in charge of compliance with the FTC order. Musk attorney Alex Spiro told Bloomberg Law last month Twitter would continue complying with the order. But Spiro is no longer at Twitter, and Musk is filling his legal department with lawyers from his other companies, including Tesla, per the New York Times. Twitter did not respond to a request for comment. Earlier this year, Twitter was fined $150 million to settle allegations it failed to comply with the 2011 order by targeting ads using emails and phone numbers users provided in setting up accounts. The intrigue: In the Axios interview, Levine would not comment specifically on the Twitter order. But he said generally: "One example [of a violation] that the agency has seen repeatedly over the last decade is business models where the people really are the products, business models that rely on harvesting our data and making it available to advertisers." "What we really try to do in our orders is trying to reverse those incentives," Levine said. He said the FTC is in constant communication with companies that are under consent orders. "We can demand information from them, and they need to turn over that information, or they'll be in violation of the order," he said. "We expect strict compliance with our orders, and we monitor them carefully to ensure that companies stay on the right side of the line." Typically, companies have 14 days to respond to these types of questions. Levine said: "They're aggressive provisions." The latest: Twitter is mulling a more aggressive strategy to push more users to accept targeted advertising, per the Platformer newsletter. Right now many users opt out. The plan could run afoul of state privacy laws, and also potentially the FTC consent order, a former FTC official told Axios. The order bars Twitter from misrepresenting the measures it provides to honor users' choice and the extent to which users can control their privacy. The order also requires privacy and security audits before the company implements new products or services. What's next: Levine said the FTC's consumer protection bureau will keep working with its bureau of competition, which is in charge of antitrust cases, to gauge where a lack of competition may be affecting consumer privacy and other experiences online. "We have to not just think about the ads we see — we have to look under the hood and think about what those represent, and how that might be fueling practices that can pose real harm to consumers and potentially competition," he said. "I think our record speaks for itself," Levine said of the agency under Khan's leadership. "There's going to be more to come before the end of the year."

The Biden administration escalated its legal assault on Big Tech this week with a against the world’s second-largest company, , over alleged abuse of its iPhone monopoly. The lawsuit comes months after federal agencies filed a lawsuit against Amazon and prosecuted a trial against Google -- both of which targeted the respective companies' market dominance. An ongoing case against Meta, meanwhile, aims to unwind its ownership of Instagram and Whatsapp. The campaign in the courts reflects a growing bipartisan consensus concerned about the power of sprawling tech companies whose products and services pervade the lives of everyday Americans, experts told ABC News. But, they added, the push also indicates a concrete effort to protect consumers and enhance private sector competition, as well as update anti-monopoly enforcement to address 21st century problems. "These cases are quite a big deal," Bill Baer, a fellow with the Brookings Institution and former head of antitrust at the Department of Justice under President Barack Obama, told ABC News. "These tech platforms have amassed enormous power." Amazon did not immediately respond to a request for comment. Neither did Google nor Meta. In a statement to ABC News, Apple strongly rebuked the case brought by the Biden administration. "This lawsuit threatens who we are and the principles that set Apple products apart in fiercely competitive markets," the company said. Amazon rejected the allegations against it and vowed to fight the case. In court proceedings, Google argued that its success owed to its superior product. In response to ABC News’ request for comment, the White House said it supports protecting consumers and competitive markets. "The Biden-Harris administration has made clear that no American should pay higher prices and lose choices because companies break the law. President Biden strongly supports fair and robust enforcement of the antitrust laws, and recently launched his Strike Force on Unfair and Illegal Pricing to ensure accountability when companies break the law and keep prices high," White House assistant press secretary Michael Kikukawa said. Here’s what to know about why the Biden administration is going after Big Tech: Rein in the power of big tech President Joe Biden has made no secret of his concern about the power of Big Tech firms, especially when it involves risks to consumers or small businesses. In 2020, on the campaign trail, Biden backed robust antitrust enforcement and stiff scrutiny for the tech giants, though he stopped short of supporting a breakup of the firms. The following year, he signed an calling on federal agencies to crackdown on anticompetitive practices in a handful of key sectors, including tech."Capitalism without competition isn't capitalism; it's exploitation," Biden at a White House signing ceremony. The aggressive posture toward Big Tech has coincided with a shift in public opinion against the firms from both Republicans and Democrats. Only one in three Americans hold positive views of the Big Tech firms, according to a 2021 . That finding marked a sizable decline from two years earlier, when 46% of Americans held positive views of the companies. The darkening view is more stark among Republicans. Sixty-five percent of Republicans held a negative view of Big Tech in 2021, up from 37% in 2019, the poll showed. The court proceeding against Google, in September, resulted from a case filed originally by the Trump administration. "There is shared concern among Democrats and some Republicans that these companies have this much power," Baer said. Across its various cases against big tech, the Biden administration has centered on two key harms: damage to consumers and threats to competition. In the case against Apple, for instance, the Department of Justice alleged that the company’s dominance in the smartphone market helped balloon the price of the iPhone. In its lawsuit against Amazon, the Federal Trade Commission argues that the company uses illegal business tactics to stop rivals from selling products at lower prices. The Biden administration has combined its concern for consumer welfare with a push for competitive markets, arguing that competition brings innovation, which in turn benefits consumers, Rebecca Allensworth, a professor at Vanderbilt Law School who focuses on antitrust, told ABC News. "Future consumers lose out on innovative new products down the line if we don’t keep the competitive environment healthy today," Allensworth said. Herbert Hovenkamp, a professor at the University of Pennsylvania, criticized the notion that Big Tech firms stifle innovation, saying that the companies file more patents than most firms and roll out new products. "What the current agencies won’t accept is that frequently we need large firms in order to bring us low prices and high rates of innovation," Hovenkamp said. Strengthen antitrust law In addition to seeking a change in business practices, the Biden administration wants to strengthen antitrust enforcement for decades to come, some experts said. In the 1970s and 1980s, a series of legal decisions narrowed antitrust law to a determination of consumer harm, specifically whether a given example of market concentration led to higher prices. In turn, if a dominant company enhances its position in a manner that costs customers at the cash register, then the conduct violates the law; otherwise it doesn’t. In pursuing a series of high-profile cases against Big Tech, the Biden administration is pushing courts to expand their notions of consumer harm to include issues like privacy violations and data collection, Baer said. "We need to expand our horizons in looking at how there can be anticompetitive conduct that results in invasion of our personal life," he added. Allensworth said the Biden administration is seeking a wider view of consumer harm that would expand the evidence deemed proof of misconduct. "The standards of proof of consumer harm that have come about over the last 40 years are disproportionately high," she added. However, the strategy carries significant risks, said Hovenkamp. In seeking to land a major blow against each company on a wide range of practices, the Biden administration may lose cases it could have won if attempting to redress a more limited set of specific misconduct, Hovenkamp said. "I think the fix is to bring much narrower cases," he added. Allensworth and Baer acknowledged the difficulty of the antitrust cases, saying the outcome could hinge on the willingness of the court to adapt the law to modern day industry. "They have the power to adjust antitrust to the policy needs of the moment," Allensworth said. "We’re going to have to see."

U.S. patent litigation has declined significantly. From 2012 through 2022, plaintiffs filed, on average, 4,700 patent suits. This year, expect to see almost a third less than this historical average. The District of Delaware is the plaintiffs' third most popular forum.  Unlike the Texas forums, the District of Delaware is preferred primarily by practicing entities.  New rules requiring discovery of litigation financing that apply in some cases has likely caused many non-practicing litigants to initiate suits elsewhere.  

While both the number of patents issued by the U.S. Patent and Trademark Office and the number of patent litigation case filings in the U.S. District Court have steadily increased up to 2013, a divergence has occurred over the last ten years. The number of patents issued by the USPTO has continued to grow, whereas the number of filings in U.S. District Court has declined from the peak set in 2013 of 6,497.

Over the last five years, from 2018 to 2022, cases filed have declined significantly, ranging from 3,275 to 3,802, with an average of 3,567 cases annually. In the preceding five-year period from 2013 to 2017, cases filed annually ranged from 4,182 to 6,497, averaging 5,402 cases annually.

Intellectual property has been in the spotlight this past year, from a landmark Copyright Fair Use case in the U.S. Supreme Court, to the more than 100 AI-related lawsuits working their way through the legal system. Despite the publicity surrounding intellectual property, patent litigation filings were down roughly 25 percent in 2023, due in part to a large decline in IP Edge filings, which normally account for hundreds of cases each year. The number of new trademark cases stayed about the same while copyright filings increased slightly.

Overall, filings in federal district court and U.S. courts of appeal declined this past year. In district courts, this change occurred largely because of a reduction in multidistrict litigation (MDL) cases directly filed in a single district. At the same time, terminations of cases rose greatly, most, again, being a subset of MDL cases. Because MDL cases disproportionately affect both the new filings this past year and skew the time to termination, they have been excluded from the calculation of the average number of months from filing to disposition shown in the map to the right.

If the headlines are to be believed, every aspect of American life, from farming to football, is under threat due to excessive patent litigation. While these anecdotes may seem compelling, it is important to look at the underlying data before drawing any conclusions about the state of the U.S. patent system. As an economist and one of the authors of the Federal Trade Commission’s  (PAEs), I understand the value data can bring to patent policy debates, and have also seen firsthand the damage evidence-free policymaking has on America’s innovation ecosystem. On World IP Day, Marcum, LLP, a leading accounting and advisory firm, released a  that examines 20 years of patent infringement decisions at U.S. district courts. A careful reading of their report reveals that not only is patent litigation not excessive, but patent owners struggle to enforce their patents against infringers. The report shows that overall patent litigation is declining, injunction grants are low, and litigation by non-practicing entities (NPEs) is not pervasive.

Patent Litigation Is Declining

The latest Judicial Business report from the Administrative Office of the U.S. Courts provides statistical data about federal caseloads by circuit, district and offense for the fiscal year ending Sept. 30, 2022, compared with data for prior years. Total case filings in U.S. district courts fell 18% last year to 343,253. Civil case filings declined 20% to 274,771, and criminal filings dropped by 8% to 68,482.

Civil case filings in the U.S. district courts dropped 8 percent (down 24,882 cases) to 284,220. This change occurred largely because of a reduction in multidistrict litigation (MDL) cases directly filed in a single district that alleged that the 3M Company sold its Combat Arms earplugs to the U.S. military without disclosing defects that reduced hearing protection. Filings of cases involving diversity of citizenship (i.e., disputes between citizens of different states and/or between U.S. citizens and citizens of foreign nations) fell 23 percent to 109,095.

Of course, not every case requires the same level of work. A death penalty or patent case takes, on average, far more time and effort than the typical social security benefit or drug possession case. In 2005, the Federal Judicial Center completed a study and updated its protocol for assigning relative weights to different types of civil and criminal cases. 370 To compare the caseload in the early 1970s with today's caseload, we retroactively applied the 2005 case weights to all cases from 1970 through 2017. 371 Figures 4 and 5 show the number of weighted district court cases filed and terminated per year.

[[FN 371]]

A world dominated by totalitarian states would be more incompetent, more war-prone, less cooperative, and more inhibitive of progress than one dominated by democratic states. Our current world is not particularly competent, peaceful, cooperative, or progressive—a totalitarian-dominated world would be worse. It would increase the risk of another collapse and extinction and could shape the future toward less desirable trajectories (Beckstead, 2013).

Totalitarian states are incompetent. They are bad at forecasting and dealing with disasters (Caplan, 2008).16 This can be seen most clearly in the great famines of Communist China and the USSR, in which millions died (Applebaum, 2017; Becker, 1996; Dikotter, 2010; Snyder, 2010). In comparison, functioning multiparty democracies rarely, if ever, experience famines (Sen, 2010). “Established autocracies” (or “personal”/“sultanist”) are particularly bad, as there are few checks or restraints on arbitrary rule and the whims and ideology of the single individual, even from other elites (Svolik, 2012). From the inside, the “inner circle” around Mao, Stalin, and Hitler seems incredibly chaotic, with elites strongly incentivized to conceal information and encouraged by the autocrat to squabble and feud—so they are divided (Conquest, 1992; Kershaw, 2008; Zhang & Halliday, 2006). If totalitarian states are worse at addressing social, environmental, and technological problems, then a world dominated by them would likely be worse at responding to risks of collapse and extinction.

The United States has yet to show up to this information fight. U.S. cyber strategists prioritize defending physical infrastructure—routers, servers, and endpoint devices such as laptops and smartphones—but consistently underestimate the economic and political significance of the information carried on that infrastructure. The U.S. private sector, which rarely acts in the American national interest, is primarily responsible for protecting data and information platforms.

It can be tough to craft regulations and national security policies for data and technology that do not fall afoul of democratic and capitalist values. A national information strategy can sound, or indeed become, Orwellian without the right political leadership. But to thrive in the twenty-first century, democracies must now put information at the center of domestic, security, and foreign policy.

Some have argued that mediation is the process best suited to handle many intellectual property disputes. 76 Intellectual property disputes -- whether rooted in copyright, trademark, or patent law -- are often more complex and difficult [*1014] to comprehend than other types of litigation. 77 However, many important figures in the civil litigation process, such as judges and jurors, may not understand the issues before them due to an inability to understand confusing scientific or technical issues. 78 By participating in mediation, parties in intellectual property disputes can select neutrals that possess the expertise necessary to "concentrate on the details and specifics of the case, as opposed to trying to learn or better understand the technical process," which should "result in a fairer resolution to both parties." 79

Economic concerns, however, likely explain why mediation and other forms of alternative dispute resolution are often promoted as alternatives to traditional litigation in intellectual property disputes. Due to their highly complex nature, intellectual property disputes are among the most costly to litigate, with the typical intellectual property lawsuit costing more than $ 400,000. 80 While copyright lawsuits are often less expensive to litigate than trademark or patent disputes, 81 they remain costly -- for instance, the median cost to litigate a "low stakes" copyright dispute (defined as damages less than $ 1 million) through discovery is $ 101,000, with the median cost of litigating a "low stakes" dispute through trial and appeal is $ 249,000. 82 In contrast, the average cost of resolving a dispute through mediation is $ 50,000. 83 Furthermore, intellectual property disputes, particularly patent litigation, often take a significant amount of time to litigate. Although copyright and trademark disputes, unlike patent disputes, rarely face the danger of a very lengthy trial, the parties often will have "a genuine concern for swift resolution" in order to "prevent companies from experiencing devastating financial setbacks." 84 Mediation, "by allowing the parties to begin negotiations immediately, without having to wait months or years to appear on a court docket," may greatly reduce economic costs by resulting in a speedier resolution than traditional civil litigation. 85 [*1015]