March 12, 2024

'Privacy Nightmares': Mayer Brown's Tony Weibell on Why Judges Are Paying More Attention to Privacy Claims

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Mayer Brown partner Tony Weibell, who moved to the firm from Wilson Sonsini Goodrich & Rosati earlier this year, said that some judges’ perception of privacy has changed so quickly that the companies can't keep up.

Class action and privacy litigator Tony Weibell moved to Mayer Brown’s Palo Alto, California, office in January after spending his entire career, nearly 19 years, at Wilson Sonsini Goodrich & Rosati. Weibell, known for his representation of major tech players such as Google LLC, TikTok Inc. and Roblox Corp., said a Wilson-Sonsini-partner-turned-recruiter tipped him off that Weibell would really appreciate Mayer Brown’s focus on building a world-class tech litigation practice.

“There’s an energy going on here that I hadn’t seen,” Weibell said of his new firm. “I actually talked with several other firms during this process, just to make sure that what I was doing was the right thing. And there was a significant difference in the energy and the excitement and enthusiasm for what I do coming from Mayer Brown. And so that was really what got me over the hump.”

With privacy litigation “exploding,” according to Weibell, the attorney sat down with The Recorder recently to chat about new privacy claims he’s tracking and why judges are paying more attention to his practice area than ever before.

Answers have been edited for length and clarity.

In the firm’s announcement about your move, Lee Rubin, who leads the firm’s litigation and dispute resolution practice in Northern California, said privacy class actions and internet class action-related litigation are at an all-time high in California and across the country. It feels that way, but I’m curious what you think about that?

Privacy litigation has completely exploded, and there are a number of reasons for that. A large part of that is there has been some fairly famous privacy snafus that have happened over the last few years that have generated a lot of interest from lawmakers, politicians and newsmakers about the privacy space, and now courts and judges are paying attention. Cases that yesterday would have been a slam dunk for a big tech company to win, because there was very little injury—no one really recognized an invasion of privacy, especially an invasion of online privacy as being really that much of an injury—and now the pendulum has swung the other way. And so what used to be commonplace privacy issues for our big companies are now today’s privacy nightmares. But also plaintiff’s attorneys are thinking out of the box, and they’re taking archaic privacy statutes that were designed and written decades ago when we had landline telephones and typewriters, and they’re trying to apply those to our online technology today, and courts are allowing them to do that. There was a recent decision out of the Southern District of California that held that our website tracking technology that everybody uses might violate the Pen Register Act. Most people don’t even know what a pen register is, because it’s such an archaic technology. It is basically designed to keep the government from tracking the phone numbers that you’re dialing, so you wouldn’t be able to accumulate a list of all the phone numbers you could dial. Well, now they’re trying to apply that to online technology, and it’s really just going to upturn the whole industry in the way people do things.

We’ve seen privacy claims based on the Wiretap Act, the Stored Communications Act, California Invasion of Privacy Act, and the Video Privacy Protection Act, for instance. Are there any other laws that were established many years ago that you’re now seeing more novel privacy claims come out of?

The ones that you listed are the ones that have the statutory damages attached to them, and so some plaintiffs are using those same laws, and they’re coming up with new theories as to how everyday technology suddenly violates those laws. I receive calls frequently from plaintiff’s lawyers saying, “Tony, do you represent any of these companies? We’re about to sue them for all this,” and the list is very long. Usually, they want to reach out in advance because they know that we have good relationships, but also it’s to their advantage to try and resolve these things or get a settlement before they even get too far down the road, so then they don’t have to compete with other plaintiffs lawyers. But the visibility that I get through that process, I know that everybody’s going to get sued. Often several times a week, I’ll get a call from somebody at the firm saying, “Hey, my client just got a letter from this law firm,” and I can tell you who the law firm is and what the letter says because they’re sending out these mass mailings.

Do you think this litigation process is the correct forum for this, or do you think there’s more that lawmakers should be doing to update the current legislation?

Definitely, there is more that lawmakers can do or should do to bring predictability to the industry. My personal view is that the predictable result is the just result, and companies right now are getting hit with judgments or lawsuits that no one would have predicted they would have gotten hit with a few years ago. And it’s because people’s perception of privacy and particular judges’ perception of privacy has changed so quickly, that the companies just can’t keep up. That’s unfair to them. It violates their rights of due process that it’s happening so quickly. In certain circumstances, obviously, it’s deserved. Companies are too slow to adapt and change. But in many cases, what we’re seeing is a technology that was fine and was accepted and approved by everyone yesterday is now a nightmare to us today. And that’s creating problems for people.

What do you think is driving judges to pay more attention to privacy and maybe be more concerned about privacy? Is that just public perception in general?

I think there’s been an effort on several fronts to provide public education about privacy issues, and now judges are just more aware of their own privacy. Every judge is a real person that uses the internet, and so they’re thinking about themselves, no doubt, in a lot of these situations and how they would feel if they were caught off guard by certain use of their technology or their information. Before, I don’t think we saw much of that. Especially as the judiciary gets younger and younger, they get more tech-savvy and more used to what’s going on. I think they understand some of these issues a little bit better as well.

AI continues to be a big focus of discussion. What are clients asking you about when it comes to AI and what are you thinking about in terms of how it’ll affect your practice?

AI is everywhere, and everybody is now trying to figure out how to incorporate it into their technology. AI allows me to find the answers to things I’m looking for much faster now than I ever could before. So it’s a wonderful technology, and like any innovative technology, clients are struggling with, “How do we provide what the users want; how do we provide what consumers want without violating tomorrow’s laws?” Delivering what people want today will often end you up in the courtroom tomorrow, and they’re wondering, “How do you avoid that?” So some of those issues that come up regarding intellectual property rights include web scraping, for example. To what extent do I have the right to scrape content from somebody else’s website in order to train my AI technology and how to better serve other people? Then you have other issues with defamation. What happens now that people are using AI technology that allows them to post things? Can you now sue the platform because the platform created the AI technology that enabled the user to do that?

Reprinted with permission from the March 12, 2024 edition of The Recorder © 2023 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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