Access Now helps to ensure LinkedIn privacy settlement benefits users at risk

For the first time, Access Now has received a financial award as a third party from a court-approved settlement. The case involved a “class action,” a common mechanism in U.S. courts where groups of people who have suffered the same type of harm, like privacy violations, band together and jointly sue those they believe are responsible.

The court presiding over Perkins v. LinkedIn Corporation approved an agreement between the harmed class of people (represented by Perkins) and the platform LinkedIn. In that settlement, LinkedIn agreed to pay a sum of money to those who suffered as a result of its “alleged improper use of a service called ‘Add Connections’ to grow its member base.” Through its “Add Connections” feature, LinkedIn emailed the contacts of its users multiple times to persuade them to join the online networking service.

Privacy is a human right that requires protection. Violations put victims and their contacts at greater risk of financial, reputational, legal, and even physical harm. As an international organization that defends and extends the digital rights of users at risk, a core priority in our work is to advocate for the right of all users to privacy.

Access Now does not endorse or provide any commentary on this settlement agreement. However, we are encouraged to have received an unclaimed portion of the funds LinkedIn paid out, through what is called a cy pres award. We’ll use it to support programs furthering our mission, which includes ensuring that online service providers uphold strict standards respecting personal privacy online. Indeed, many of our projects promote privacy in the face of platforms that appear more eager to gain users or process personal data than to respect rights. Our community has helped us fight for the U.S. Federal Communications Commission (FCC) to pass broadband privacy rules, the U.N. to create an expert office on privacy, and the E.U. to usher in the groundbreaking General Data Protection Regulation (GDPR). We’re going to channel these new funds into similarly effective and principled policy advocacy.

What is cy pres?

The phrase cy pres is in the Latin, and means something like “as close as possible.” Its roots in law stem from court wrangling over wills and trusts. If the person named in a will could not be located, for example, the court could use this doctrine to find the “next best” person to receive the deceased person’s estate. The same goes for organizations; if, say, a charity that rescues stray dogs is named as a recipient of a trust fund, and then closes its doors, the court might direct funds to the local animal shelter instead.

In U.S. courts, the doctrine has become popular since the mid-1980s in a different context, that of consumer and tort lawsuits where hundreds or thousands or millions of aggrieved people file litigation together. Often, upon settlement, the parties won’t be able to locate every individual member of the class to give them their portion of the settlement award, or class members fail to cash their settlement checks. So, the “next best” recipients — usually nonprofit organizations whose work benefits the affected class members — are chosen to receive the leftover funds. In this way, the cy pres doctrine assures the court that the agreement will address the harms at issue in the underlying lawsuit, either by compensating those directly affected or supporting those who work to prevent future damage.

Collective redress and access to justice

Cy pres awards strengthen civil society and contribute to our fight for privacy online and deter future violations. But they are only the end of a long “class action” litigation process, which is far from a universal mechanism.

Class actions assist individuals to gain access to remedy where they otherwise might not, given the high costs and many barriers to the courts, like jurisdiction, filing procedures, and time limitations. This form of legal action enables “collective redress,” which we believe holds promise for users at risk worldwide and deserves greater attention by judicial authorities.

Collective redress enables consumers to obtain compensation in situations of collective harm or loss by allowing a number of consumers to jointly bring a court case to obtain compensation for damage which arises from the same source. Collective redress schemes have operated for many years mostly in Canada, the U.S., and Australia.

The nature of digital rights infringements, whether data breaches or undercover online profiling, makes it all the more important to put actionable remedies in place. The rights of users are dependent on the available enforcement mechanisms and if violations are consistently punished by fines or other sanctions that serve to discourage companies from breaching the law. In the digital field, the European Union has developed strong enforcement mechanisms specifically designed against data protection violations.

In May 2016 the European Union adopted the GDPR, the new data protection law that focuses on putting individuals back in control of their personal information, providing for a broad spectrum of users’ rights and a clear set of obligations for companies. That includes collective redress and the possibility for NGOs to bring claims before courts to represent the interest of internet users.

Keep watching this space to see whether Europe adopts similar legal doctrines benefiting whole classes of aggrieved individuals and organizations.

What we do with funding

Independence, diversity, and sustainability are central to Access Now’s ability to carry out its mission, and we rely on the support of a diverse range of stakeholders. We encourage all readers to visit our updated funding page to see all sources of financing on which Access Now depends.

The majority of our support comes from foundations and development agencies, with the rest coming from companies, courts, individuals, and civil society organizations. To ensure the independence and integrity of our organization, we accept support contingent upon the non-negotiable principles on our funding page. We applied those criteria to this award and decided the funds would help us further the mission of defending digital rights, without unduly risking our integrity or independence, and more importantly, the safety of our clients and community.

We look forward to continuing to promote collective redress, strengthening civil society through the judiciary, and being named as a cy pres recipient in further settlements.