Vol 7 No 1 - Roger Williams University School of Law

anner advertisement company DoubleClick addressed thelegality of “cookies” (technology that allows the viewing habits ofyour computer to be traced).333 The legal arguments madepursuant to federal law, which were based on the ElectronicCommunications Privacy Act, Wire Tapping Act, and theComputer Fraud and Abuse Act, against DoubleClick weredismissed.334 The more interesting state law claims concerningthe privacy tort,335 unjust enrichment and possibly trepass tochattels were not dealt with by the federal court. It remains to beseen whether the privacy tort (intrusion upon seclusion) cansuccessfully be argued in a case involving cookie technology. Andwhen that happens, courts will have to ask: Would it be illegal forsomeone to follow you around in real space and note your buyinghabits?336 Have you put yourself in public view by logging ontothe network? There may also be a First Amendment challengeagainst such state based privacy tort, unjust enrichment andtrespass actions.337Increasingly, privacy regimes for the private sector willregulate the way in which private data can be exploited in themarket place. The message to be taken from the EuropeanDirective is that you should not collect private information unlessyou need to, but if you must then explain the purpose, collect it ina fair way, allow access to it by the data subject and gain theirconsent for using it in secondary ways. Surreptitious or covertways of collecting information should not be encouraged; howeverif the information can be collected without identifying the subjectthen the law will usually not be breached.338 Although, in those333. In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497 (S.D.N.Y. 2001).334. See id.335. See Restatement (Second) of Torts § 652 (1997).336. See generally Nader v. General Motors Corp., 255 N.E.2d 765 (N.Y. 1970)(holding that mere information gathering about a particular person does not give riseto action for invasion of privacy where information is open to the public and voluntarilygiven).337. See Volokh, supra note 329; U.S. West, Inc. v. FCC, 182 F.3d 1224 (10th Cir.1999); see generally Jennifer Barrett et al., Data Privacy Laws and the FirstAmendment: A Conflict, 11 Fordham Intell. Prop. Media & Ent. L.J. 1 (2000)(discussing First Amendment and data protection issues); Solveig Singleton, PrivacyVersus the First Amendment: A Skeptical Approach, 11 Fordham Intell. Prop. Media &Ent. L.J. 97 (2000) (discussing same).338. See, e.g., Council Directive 95/46, art. 2(a), 1995 O.J. (L 281) (noting “‘personaldata’ shall mean any information relating to an identified or unidentifiable naturalperson (‘data subject’); an identifiable person is one who can be identified, directly orindirectly, in particular by reference to an identification number or to one or more